THOMAS JOSEPH Vs. STATE OF KERALA & ANOTHER

JUDGEMENT

(1.) THESE appeals are against the judgment of a learned Judge of this Court, declining to issue writ against the notification as well as the bye -laws by the Municipal Council, Changanacherry. A. S. No. 793 is against the dismissal of O. P. 690/59 and A. S. 795 is against the order in O. P. 418/59. The appellant in the former, is one Thomas Joseph in his capacity of the Secretary of the Changanacherry Merchants' Association, while the same person has filed the other appeal in his individual capacity. The grounds raised against the notification are identical, and would be better understood with a short summary of the bye -laws, the new rules and notification being given in the very beginning. he Municipal Council is governed by the Travancore District Municipalities Act, No. XXIII of 1116, hear after referred to as the Act, which, among other things, provides for places not being used for certain purposes without license. The provision is contained in Section 261, which is in Chapter XII of the Act, and by publishing notification in the Gazette and by beat of drum, authorizes the Council, directing that no place within the municipal limits should be used for any one or more of the purposes specified in Schedule III without the license of the executive authority and except in accordance with the conditions specified therein. The proviso to the Section enacts that the notification would take effect after sixty days from the date of publication and with the previous sanction of the Government in any area outside the Municipal limits. The authorization to make rules is given in Section 326, which provides that the Council may make bye -laws, not inconsistent with the Act or with any other law, for several things enumerated in the Section. Further conditions on the authority to frame by -laws is provided by Section 330, which enacts that no bye -law or cancellation or alteration of a bye -law shall have effect until the same shall have been approved and confirmed by the Government, and that the bye -law or cancellation or alteration shall be published in the Gazette, after which they will come into operation. Section 332 requires, complete copies, in English and in a language of the district, of all bye -laws in force for the time being, to be kept for sales to the public at the cost price; and in addition to the aforesaid requirements, Section 329 reads as follows: -

(2.) IN exercise of the aforesaid powers of framing the bye -laws, the Municipal Council had framed Rules, providing, among other things, license being taken by those carrying on retail grain shops. This requirement received Government sanction on December 22, 1958, and was published along with the notification under section 261, in the Kerala Gazette dated January 27, 1959. Soon after the writ petitions in which these appeals arise were filed, complaining that requiring persons to take license for businesses not expressly mentioned in Schedule III was bad and the authorization under the last item of the Schedule being not canalized amounted to the unconstitutional delegations of framing Rules. The next ground is that the fundamental right of the petitioner to carry on business under Article 19(1)(g) has been infringed. In addition to these two constitutional objections, the further complaint is the failure to observe the requirements of Section 349, as the notification under Section 261, had not been issued in Malayalam.

(3.) The learned Judge has held that the provision of Section 349 was directory; and, therefore, the failure to publish in Malayalam was not fatal. He has not expressed any opinion on the authorization under the residuary item of the schedule being illegal due to the aforesaid direction not being canalized. But the appellant's learned advocate has particularly urged that objection before us, relying on Hamdard Dawakhana v. Union of India ( : A. I. R. 1960 S. C. 554 ). The proposition, however, is now well settled that only that legislative delegation is bad, where the enactment not necessarily by its preamble, but after all the Sections have been summarized, fails to give any indication of the object, for which the legislation had been made. It follows that the impugned item would be struck down only if Schedule III, along with the other provisions of the Act, be found not to have furnished the object, the policy or the purpose, which would guide the delegated authority to frame rules. But on going through the several provisions of the Act, it is clear that the Act, like all other similar enactments, contemplates framing bye -laws to preserve the sanitation of particular locality or guard it against epidemic or other forms of activities, injuriously affecting the health or comfort of its residents. It is also clear that the taking of license for carrying on business, has been provided in order to control, among other things, such business as attract rats which carried plagues. Nor do we see what assistance the learned Advocate can derive from Hamdard Dawakhana's case ( : A. I. R. 1960 S. C. 554), which affirms the rule laid down in earlier pronouncements of the same Court about what is the proper limit of legislative delegation. That limit, as we have already stated, is that the delegate must not be uncontrolled, and we have found the Act in the cases before us not to have erred by leaving the object not sufficiently indicated by its provisions. Therefore the first ground fails.