DAVIS C J Vs. THRISSUR CORPORATION

JUDGEMENT

(1.) The petitioner is running a workshop after obtaining licence from the first respondent Corporation. This writ petition has been filed with the prayers to quash Exts. P9 and P11 and also to direct the second respondent not to proceed further pursuant to Exts. P9 and P11. Ext. P9 is a notice issued by second respondent, the Health Officer of the Thrissur Corporation under Sections 447 and 448 of the Kerala Municipality Act to the petitioner, requiring him to close down the workshop, within 7 days of receipt of the same. On receipt of Ext. P9, he has submitted Ext. P10 reply and P10(a) representation. Thereupon, Ext. P11 order was passed by the second respondent. The core contention of the petitioner is that the second respondent is incompetent to issue Exts. P9 and P11. That apart, it is contended that the Ext. P11 was passed without affording him an opportunity of being heard. The first and second respondents have jointly filed counter affidavit in this writ petition. They have taken up contentions to sustain and support Exts. P9 and P11. It is specifically stated therein that, in the light of the provisions under Section 50(2) of the Kerala Municipality Act (for short, 'the Act'), the Secretary of the Corporation issued Ext. R1(a) delegating, certain duties and functions to the Health Officer and, therefore, the contention of incompetence would not lie. Obviously, Ext. R1(a) is an order in writing, issued by the Secretary of the Thrissur Corporation, by invoking the power conferred under Section 50(2) of the Act. A perusal of the same would reveal that the functions under Sections 447 and 448 have also been delegated to the second respondent in so far as, it is relevant, read thus:

(2.) Going by Section 50(2) of the Act the Secretary of a Municipality is empowered to delegate "any of his functions" to any officer or employee of the Municipality and the officer or employee to whom it is delegated by virtue of Section 50(3) of the Act, shall have all the rights, privileges and authority of the Secretary with respect to such delegated functions and shall like-wise be subject to all liabilities arising out of the exercise of such powers, privileges or authority, in this case, evidently, as per Ext. R1(a) the power under Sections 447 and 448 have also been delegated and, it is in the said circumstances that the respondents refute the contentions of the petitioner raised against Exts. P9 and P11 on the ground of competence. In that context, it is to be noted that the very contention of the petitioner is that the powers exercised while issuing Exts. P9 and P11 are exercisable only by the Secretary of the Municipality and, therefore, the second respondent was competent to issue Exts. P9 and P11. In the light of Sections 50(2) and 50(3) of the Act and Ext. R1(a), the said contention cannot be countenanced. The petitioner did not challenge Ext. R1(a) in this writ petition. What is contemplated under Section 50(2) of the Act is delegation of "any of the functions" and not "all of the functions" by a general order. Since there is no attack against Ext. R1(a), I do not propose to probe into the said question.

(3.) As already noticed, the contention of the petitioner is that the second respondent is incompetent to issue Exts. P9 and P11. I have already found that the petitioner cannot succeed in his challenge against them on the ground that the powers exercised while passing them are exercisable only by the Secretary in view of Ext. R1(a) and in the light of Sections 50(2) and 50(3) of the Act. At the same time, it is relevant to refer to Sections 447(3), 447(3A), 448 and 449. As per Section 447(3) the power to grant or refuse licence for the use of a place for conducting a dangerous or offensive trade vest with the Council of a Municipality and under Section 447(3A) of the said power in respect of a common trade vests with the Secretary of a Municipality. The petitioner did not take up specific contentions in that regard in this writ petition. Ext. P1 did not specifically state the nature of the trade and at the same, Ext. P2 receipt would suggest that the amount specified thereunder was received in respect of a D & O licence. That apart, Ext. P1 itself would show that licence was granted for running a workshop. If, ultimately it is found that the power is one exercisable only by the Council of the Municipality. Ext. R1(a) cannot cloth the 2nd respondent with the power in respect of such matters as any of the functions of the Secretary along can be delegated by invoking the power under Section 50(2) of the Act. Such a contention was not addressed and, therefore, not considered by the authorities. The issue involved was never been considered in the light of Sections 447, 448 and 449 of the Act. The other question to be considered is whether the petitioner can successfully challenge Ext. P11 on the ground of failure to afford an opportunity of being heard. The petitioner has no case that an opportunity of hearing is statutorily prescribed and despite such prescription, it was not afforded prior to the issuance of Ext. P11. Admittedly, Ext. P9 was issued to the petitioner requiring him to close down the workshop and thereupon, Ext. P10 reply was given by the petitioner. Hearing need not always be through words of mouth and, evidently, the petitioner has submitted a reply to Ext. P9 and, Ext. P11 was issued only after considering the same. In that view of the matter, the contention of the petitioner that Ext. P11 is liable to be set aside on the ground of failure to grant an opportunity of hearing, also cannot be accepted. Most importantly, a scanning of Ext. P11 would reveal that it is not an order whilst it is only a notice issued under Section 447 and 448 of the Act. True that, as per Ext. P11 the petitioner was cautioned that in case of his failure to comply with the directions thereunder, coercive steps for initiation of prosecution proceedings, cancellation of licence would be taken. Evidently, pursuant to Ext. P11 notice, no further action was taken up by the respondents. It is also to be noted that the petitioner has no case that subsequent to Ext. P11, any action for cancellation of the licence or for initiation prosecution proceedings have been taken. In the said circumstances, this writ petition is disposed of with a direction to the second respondent to consider Ext. P10(a) and the issue involved in the light of provisions under Sections 447, 448 and 449 of the Act, in view of this judgment and pass appropriate orders before issuing or before taking coercive steps as contemplated under Ext. P11. This shall be done expeditiously, within a period of three weeks from the date of receipt of a copy of this judgment.