THOMAS JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE two petitions are to bring up for quashing the records relating to a Notification No. M. L. 4-81/58 of the Government of the state of Kerala, which is the first respondent, published in the Kerala Gazette no. 4 dated January 27,1959, Part III, to the bye-laws framed by the Municipal council, Changanacherry, which is the second respondent, and to the Government order confirming the same, all of which are together marked Ext. P in Original petition 418 of 1959 or Ext. P2 in the other petition, and may be referred to hereinafter as Ext. 'p'. They are based on S. 261 [1] of the Travancore District municipalities Act, 1116, to be referred to as the'act', which provides, that a municipal Council "may publish a notification in our Government gazette and by beat of drum that no place within municipal limits or at a distance within three miles of such limits shall be used for any one or more of the purposes specified in Schedule III without the licence of the executive authority and except in accordance with the conditions specified therein. "

(2.) SCHEDULE III of the Act specifies "the purposes for which premises may not, under S. 261, be used without a licence"; after enumerating the purposes in specific terms, SCHEDULE III describes the last item thus: "in general, any purpose or the doing in the course of any industrial process anything which in the opinion of the executive authority is likely to be dangerous to human life or health or property or is likely to create or cause a nuisance. "

(3.) IT was admitted for the second respondent, that some of the items mentioned in the notification are not mentioned specifically in schedule III of the Act, and a list of these is furnished in Para. 11 of the counter-affidavit in Original Petition 418 of 1959; but the contention was, that they do fall within the scope of the last item in Schedule III extracted above. To the extent to which this contention can be sustained, the second ground of objection formulated above, must also fail. If, as I hold, the changanacherry Merchants Association has no locus standi, the contention need be examined only with reference to the trade which the petitioner is carrying on. On this, the undisputed fact is, that he is a merchant in manures, grains and cement The items in the notification in Ext. P which have reference to these, are only items 18 and 61 (b), item 18 being "cement-Packing, pressing, cleansing, manufacturing or storing for wholesome trade" and item 61 (b) being "grains - including rice storing for retail trade. " there is little difficulty for holding, that the processes contemplated in item 18 with respect to cement, by reason of the dust which they produce apart from anything else, bring them within the last item in Schedule III. As for item 61 (b), I had a feeling, that the storing of grains, including rice for retail trade might not come within the scope of that item. Considering the scope of bye-laws 16,17, and 18, framed under S. 326 (15) of the Act, which disclose the reason underlying the control of processes affecting the commodities or articles specified, and the nature of the duty of supervision and control imposed on the Municipal Council in relation to them, and considering also, that Schedule III itself provides specifically, for sale or storage for sale of grains, I am led to think, that even retail trade in grains including rice, ought to come within the last item in Schedule III of the Act. Admittedly, the petitioner is no trader in manures. On the above finding, the petitioner is not entitled to any relief in his individual capacity.