SIDHARDHAN Vs. PARAVUR MUNICIPALITY

JUDGEMENT

(1.) The petitioners are authorised retail distributors in terms of the Kerala Rationing Order, 1966, issued by the Government of Kerala in exercise of authority under the Essential Commodities Act, 1955. By the impugned notice, they are required by the Municipality to take licence in terms of S.447 of the Kerala Municipality Act, 1994. They challenge this on the ground that there is no quid pro quo for the fee being levied as licence fee and no special benefit to the payer is provided on payment of the fee prescribed for such licence. The decision of the Apex Court in The Corporation of Calcutta and Another v. Liberty Cinema, 1965 KHC 610 : AIR 1965 SC 1107 : 1965 (2) SCR 477 and the decision of the Division Bench of this Court in Jeevaraja v. Commissioner, Badagara Municipality, 1973 KHC 187 : 1973 KLT 845 are pressed into service.

(2.) Learned counsel for the petitioner further argued that the activity in a rationing shop does not amount to trade since there is neither any profit motive nor any profit generation by the authorised retail distributors who get only a commission on the basis of the rationed articles distributed through his depot and that the process of activities in the retail rationing shop is only the end exercise of the governmental mechanism of reaching out rationed articles to those entitled to provision of ration in terms of the Rationing Order. Accordingly, it is argued that in the absence of such activity being classifiable as a trade, it is impermissible to make imposition of any fee or to have an insistence that the authorised retail distributors should have licence in terms of S.447 of the Municipality Act.

(3.) Per contra, the learned counsel for the Municipality as also learned Government Pleader argued that, though rationing shops are established and controlled by the Government aimed at providing ration articles to the card holders, the activity in a rationing shop is nothing but a trade. It is also pointed out that notwithstanding the manner in which sub-s.(1) of S.447 of the Municipality Act is couched, by now, it is categorically stated by the Division Bench of this Court in Sivadasan v. Mattannur Municipality, 2008 (4) KHC 522 : 2008 (4) KLT 684 : ILR 2008 (4) Ker. 679 that notwithstanding that no rules have been made in that behalf by the issuance of a notification, the Municipality is entitled to insist on licence for any trade in terms of S.447(1) of the Municipality Act. Learned counsel for the Municipality also referred to the decision of this Court in V. Stanunathan, Health Inspector v. A. A. Aziz, 1967 KHC 248 : 1967 KLT 746 : 1967 KLJ 873 : ILR 1967 (2) Ker. 461 : 1967 KLR 836, wherein, it was held that a person holding licence under the Kerala Kerosene Control Order, 1965, one issued under the Defence of India Rules, 1962, is bound to take licence under the municipal laws.