THOMAS JOSEPH Vs. STATE OF KERALA

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 AS 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.

(2.) The Municipal Council is governed by the Travancore District Municipalities Act, No. XXIII of 1116, hereafter referred to as the Act, which, among other things, provides for places not being used for certain purposes without licence. The provision is contained in S.261, which is in Chapter XII of the Act, and by publishing notification in the Gazette and by beat of drum, authorises 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 licence 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 authorisation to make rules is given in S.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 S.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. S.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, S.329 reads as follows:

(3.) In exercise of the aforesaid powers of framing the bye laws, the Municipal Council had framed Rules, providing, among other things, licence 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 S.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 licence for businesses not expressly mentioned in Schedule III was bad and the authorisation under the last item of the Schedule being not canalised amounted to the unconstitutional delegations of framing Rules. The next ground is that the fundamental right of the petitioner, to carry on business under Art.19(1)(g) has been infringed. In addition to these two constitutional objections, the further complaint is the failure to observe the requirements of S.349, as the notification under S.261, had not beer issued in Malayalam.