LAWS(KER)-1964-6-22

S GOPALAN HEALTH ASSISTANT Vs. VARKEY JOB

Decided On June 05, 1964
S.GOPALAN, HEALTH ASSISTANT Appellant
V/S
VARKEY JOB Respondents

JUDGEMENT

(1.) This is an appeal filed by the Health Inspector of the Changanacherry Municipality against the order of acquittal passed by the Bench of Magistrates' Court, Changanacherry in Summary Trial Case 714 of 1962. The respondent was prosecuted for failure to take out a licence for storing tea and coffee husks for sale in building No. 349 within the municipal limits. When the particulars of the offence of which the accused was charged were brought to his notice and he was asked to show cause why he should not be convicted the accused merely stated that he had not committed any offence. Prosecution witnesses were then examined and when questioned under S.342 Cr. P.C., the accused admitted that he was conducting trade without taking out a licence, but contended that as the municipality was not rendering any special service for his trade and was not spending any money for the purpose, the municipality has no right to demand any licence fee and that he was not bound to take out a licence. No evidence was adduced on the side of the defence. On a consideration of the prosecution evidence the court held that it had not been proved that the municipality was rendering any special service for the business of the accused and following the decision in Wadakkanchery Panchayat v. Kunjan [ 1962 KLT 988 ] found the accused not guilty and acquitted him. The correctness of the view taken by the court below is challenged in this appeal.

(2.) We will now refer to the relevant provisions in the Kerala Municipalities Act - Act 14 of 1961 [hereinafter referred to as the Act]. S.284 of the Act provides for places not being used for certain purposes without licence. That section authorises the Municipal Council to publish a notification in the gazette and by beat of drum that no place within the municipal limits should be used for any one or more of the purposes specified in Schedule 3 without the licence of the Commissioner and except in accordance with the conditions specified therein. It is provided that such notifications would take effect only after 60 days from the date of publication. S.344 and 347 provides that the council may make bye laws not inconsistent with the Act or with any other law, for the several things enumerated in the section. Further conditions on the authority to frame bye laws are provided in S.350 and 351 of the Act. S.350 provides that the municipal council shall, before making bye laws, publish a draft of the proposed bye laws together with a notice specifying a date after which such draft will be taken into consideration, and shall before making the bye laws, receive and consider objections, if any from interested persons. S.351 provides that no bye law shall have effect until the same shall have been approved and confirmed by the Government. It is also provided that after approval it has to be published in the gazette. In making a bye law the municipal council is given powers under S.349 to provide that a breach of the bye law shall be punishable with a fine which may extend to fifty rupees.

(3.) According to the proviso to S.2 of the Act all rules, regulations, bye laws and orders made, notifications and notices issued taxes, rates and fees imposed or assessed under the Acts repealed shall, so far as may be, be deemed to have been made, issued, imposed or assessed under this Act. So all the bye laws and notifications issued under the old Act and the fees provided therein will be valid even after the coming into force of the new Act.