Decided on June 08,1967

A.A. AZIZ Respondents


- (1.) These appeals arise from the decision of the Honorary First Class Bench Magistrate's Court, Quilon in S. F. Nos. 153 and 159 of 1966 on the file of their court acquitting the accused in both the cases. The accused A. A. Aziz and K. Balakrishna Pillai respectively in the two cases, were prosecuted by the Health Inspector of Quilon Municipality under S.284 and 355 of the Kerala Municipalities Act, 1960 Act 14 of 1961 (shortly stated the Act) for storing and selling kerosene within the municipality without licence. The accused pleaded that they having taken the necessary licence from the District Supply Officer, Quilon under the Kerala Kerosene Control Order, 1965 (shortly stated the Order) are not bound to take another licence from the municipality. This contention was upheld by the learned Magistrates and the accused have accordingly been acquitted. The appeals have been preferred by the Health Inspector.
(2.) The question arising for consideration is whether a person holding a licence under the Central Act (the Order has been passed in exercise of the powers conferred by sub-rule (2) read with sub-rules (3) and (9) of R.125 of the Defence of India Rules, 1962) is bound to take another licence under the State Act. Before dealing with the question, it may be pointed out that the licence alleged to have been taken under the Order was not produced in the case and the learned Magistrates have proceeded on the assumption that the accused are, in fact, the holders of such a licence. Any way, the licence contemplated under the Order is a licence authorising the holder to carry on business whether wholesale or retail in kerosene. Wholesale licence will be granted by the Collector, and retail licence by the District Supply Officer. Under S.284 of the Act the licence contemplated is for storing kerosene anywhere within the municipality. It says that: "no place within municipal limits shall be used for any one or more of the purposes specified in Schedule III without the licence of the commissioner......................." In Schedule III, kerosene would come under the head "oil" and licence is required for 'storing, packing, processing, cleaning, preparing or manufacturing by any process whatever or boiling.' So, the scope of the two licences is slightly different one is for carrying on business in kerosene and the other for storing.
(3.) A Division Bench of the Bombay High Court in Lalji Mulji v. State ( ILR 1965 Bom. 899 ) had recently to go into the question whether a person holding a licence under the Petroleum Act (Central Act) could be called upon to take a further licence under the Bombay Municipal Corporation Act for the storing of petrol and it was held that even if the State Act made an incidental encroachmen upon the Central Act, it was not rendered invalid thereby. There, the learned Judges would observe: "The subject matter of the two legislations are not the same although some of the provisions may overlap. It is also held that, even if the provisions overlap, there is no repugnance between the two Acts, because by "its own premises" the Petroleum Act, 1934 is not meant to be exclusive but is supplementary to, and contemplates the existence of State Acts relating to the storage of petroleum. Therefore, there is no repugnancy." The learned Judges further observed: "Mr. Ganatra contended that the provisions of S.394 of the Bombay Municipal Corporation Act must be read subject to the notification issued under S.31 of the Petroleum Act. We have already pointed out that the question as to whether the Parliament continues to have the power of limiting the operations of the State enactment after the promulgation of the Constitution by issuing a notification is a moot one. Assuming, however, that such a notification can be issued so as to limit the operation of the State enactments, still, we are unable to understand how the notification comes in the way of the requirement of a licence as laid down by S.394 of the Bombay Municipal Corporation Act.";

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