Decided on February 24,1967

K.P.K. MENON Appellant


- (1.) This Revision Petition is by the accused in S.T. 642 of 1965 on the file of the Bench Magistrate's Court of Changanacherry. He was prosecuted before the learned Magistrates for offences under S.284, 355 and 380 of the Kerala Municipalities Act Act 14 of 1961 (shortly stated the Act) for storing tea without licence in building No. 194 of Ward No. 24 of the Changanacherry Municipality.
(2.) The fact that tea was stored without licence was not denied; but it was contended that tea is not a commodity included in Schedule III of the Act and as such the accused was not bound to take a licence under the Act. The plea was repelled by the learned Magistrates and the accused has been convicted under S.380(3) of the Act and sentenced to pay fine of Rs. 10/-. He has also been directed to pay the licence fee of Rs. 15/- over and above the fine imposed.
(3.) The question arising for consideration is whether the inclusion of tea in Schedule III of the Act as an item for which licence is to be taken, is proper. Tea was not originally included in Schedule III. The inclusion was subsequently made as item No. 122 of the Bye laws. The framing of the Bye laws by the municipal council, according to the accused, lacks legal sanction. The Bye laws are framed under the residuary entry to Schedule III of the Act which provides that: "In general, any purpose or the doing in the course of any industrial process anything which in the opinion of the commissioner is likely to be dangerous to human life or health or property or is likely to create or cause a nuisance." In exercise of the power conferred by this residuary clause the Bye laws were framed by the Council and published in the Government Gazette dated 27th January, 1959 with the approval of the Government. The said Bye laws have been produced in the case and marked as Ext. P-2. The contention of the learned counsel is that it is the commissioner who has to form the opinion that the article in question is likely to be dangerous to human life or health or property or is likely to create of cause a nuisance, and it is on the strength of the opinion formed by the commissioner that the said item is to be included in the Schedule by the Council. In other words, the council cannot "suo moto" include an item in the schedule without the same being first suggested to them by the Commissioner. It is in this background that the learned counsel would challenge the Bye laws as ultra vires, or lacking in legal sanction. I am not impressed by the argument. The Bye laws itself has appeared under the signature of the Municipal Commissioner and it would, therefore, be futile now to contend that the executive authority had not, in fact, formed an opinion in the matter before it was passed by the Municipal Council. The impugned item was included in the Notification on the authority of the residuary clause of Schedule III. From the fact that the Notification in the Government Gazette has appeared under the signature of executive authority it would only be reasonable to infer that it was only on the basis of his opinion that the council included the impugned item in the Notification. This Court has held in Devassia v. Municipal Commissioner, Changanacherry ( 1963 KLJ 23 ) that: "The executive authority, at the most, may be what may be called, a sort of fact finding authority to collect the necessary materials and form a prima facie view for the guidance of Municipal Council that a particular activity requires to be controlled. But ultimately the decision as to whether the view of the executive authority is to be accepted or not rests with the Municipal Council." The fact, therefore, cannot be denied that the authority that frames the Bye laws is the council and the function of the executive authority is to help the council in the matter of bringing to its notice that particular articles are injurious to human life or health or property or are likely to create or cause a nuisance. In other words, as pointed out in the above decision the Municipal Commissioner plays the role of a fact finding agency only.;

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