VASUDEVA PAI Vs. MUNICIPAL COMMISSIONER SHERTALLAI

JUDGEMENT

(1.) This is another of those writ petitions where the question debated is the legality of the levy of licence fee, this time by the Shertallai Municipality, for storing the textile materials under S.284 of the Kerala Municipalities Act read with Schedule III thereof. The petitioners have challenged the levy of the licence fee as illegal and on that basis have prayed for a refund of the collection of the fee made even from the year 1953 onwards; and for a direction to the respondent not to take steps against the petitioners for demanding the licence fee in question. S.284 of the Kerala Municipalities Act in so far it is relevant reads:

(2.) Based on the principle of the decision of a learned Judge of this court in Alleppy Municipal Council v. Veeriath Reddiar 1971 KLT 830 the petitioners' counsel contended that the specific entries for 'storing' among the specifically enumerated items which number 130, do not cover a case of storing of textiles, and therefore no licence is necessary for the said trade or activity. The decision supports the petitioner' counsel. But, by a notification issued on 16th January 1969, as stated in page 2 of the counter affidavit of the Municipality and published in the Kerala Gazette dated 4th February 1969, an entry on "cloths-dyeing, storing and selling" has been substituted for the original entry "cloths dyeing". In view of the said substitution, the petitioners cannot have any case that the levy is beyond the provisions of S.284 read with Schedule III from and alter the date of the said notification.

(3.) But counsel for the Municipality sustained the levy on the ground that for the period, whether anterior or subsequent to the notification above referred to, there was full statutory authority or competence to justify the levy, by reason of the residuary or general entry which we have extracted earlier. He placed reliance on the principle of the Division Bench rulings of this court in Natesan Achari v. Municipal Council, Changanacherry and another 1960 KLJ 994 and Thomas Joseph v. State of Kerala and another 1961 KLJ 785. The latter of these decisions was rendered on appeal from a Single Judge's ruling reported in Thomas Joseph v. State of Kerala and another 1960 KLJ 1481. We have gone through these decisions and we have little doubt that the principle of these decisions fully support the stand taken by counsel for the Municipality. The decisions were followed later by two learned Judges of this court, each sitting alone, (vide) Devassia v. Municipal Commissioner Changanacherry and another 1963 KLJ 23 and K. P. K. Menon v. Health Inspector of Changanacherry Municipality 1967 KLJ 452. Counsel for the Municipality drew our attention to S.363(3), S.347, clauses (15) and (32), S.340, 351, 344 and 346 to reinforce the power of the Municipality to take action under the residuary clause in Schedule III and to frame the necessary bye laws. In view of these, we are of the opinion that the Municipality had the requisite power to license the particular activity of storing textiles with which we are concerned in the instant case. In Para.2 of the counter affidavit of the Municipality, it has been stated that bye laws dated 21st January 1966 were framed by the Municipal Council duly complying with the provisions of S.284 and Schedule III and of the formalities contemplated by these provisions. The said paragraph has also stated that the successive Commissioners of the Council were of the opinion that the storage of cloths and textile goods invariably attract rats, the carriers of plague and other diseases likely to be dangerous to human life and health and even property. In view of these, we have little hesitation to hold that the requisite authority for levying the fee must be found in favour of the council.