KESAVAN VAIDYAN Vs. MUNICIPAL COMMISSIONER SHERTHALLAI

JUDGEMENT

(1.) Sri P. S. Kesavan Vaidyan, the petitioner in these two original petitions, is the managing partner of S. D. Pharmacy, Alleppey, which has branches in places like Shertallai and Thiruvalla. In these petitions the petitioner challenges the validity of the licence fee charged on him by the Shertallai and Thiruvalla Municipalities, on the ground that the proposed levy is illegal and ultra vires of the power of the. Municipal Council, and therefore liable to be quashed. Notices were issued to the petitioner under the relevant sections of the Kerala Municipalities Act, 960 Act 14 of 1961 (shortly stated the Act) asking him to close down the shop or face the consequences of non compliance of the provisions of the Act. O. P. 725 of 1970 is against the notice issued by the Shertallai Municipality and O. P. 731 of 1970 is against that issued by the Thiruvalla Municipality. Copy of the notice is Ex. P1. The notice issued by the commissioner of the Shertallai Municipality has called upon the petitioner to take the requisite licence from the municipality or close down the business within three days, failing which further steps as provided by the Act would be taken without further notice. The notice issued by the municipality states that the petitioner is engaged in the preparation and storing of chemical preparations in his shop within the municipality without taking the requisite licence and, therefore, to show cause why he should not be prosecuted and steps taken to close his shop within three days of the receipt of the notice.

(2.) The petitioner's case is that he does not store any chemical preparations in his shop. The only preparations that he is storing in the shop are ''aristhams" and "asavams", which according to him are not chemical preparations coming under Schedule III of the Act, so as to require a licence being taken as provided in S.284 of the Act. In the preparation of arishtams and asavams, according to him, nothing pertaining to chemistry is involved; and no chemical change results. Apart from the natural changes, putrefaction and decay, none of the component parts interact mutually.

(3.) The petitioner has further stated that the levy is, in fact, a tax and not fee, and as tax it is unsustainable. If treated as fee, it is lacking in "quid pro quo" and as such unenforceable in law. On these grounds the petitioner would pray for the quashing of Ex. P1 notice, and also for the issue of a writ of prohibition or other appropriate writ or direction prohibiting the respondent Municipal Commissioner, from leaving licence fee for the preparation of arishtams and asavams and from prosecuting the petitioner for the non obtaining of the licence.