Judgment :- 1. These two petitions are to bring up for quashing the records relating to a Notification No. M.L. 4-81/58 of the Government of the State of Kerala, which is the first respondent, published in the Kerala Gazette No. 4 dated January 27,1959, Part III, to the bye-laws framed by the Municipal Council, Changanacherry, which is the second respondent, and to the Government Order confirming the same, all of which are together marked Ext. P in Original Petition 418 of 1959 or Ext. P2 in the other petition, and may be referred to hereinafter as Ext. 'P'. They are based on S.261 [1] of the Travancore District Municipalities Act, 1116, to be referred to as the'Act', which provides, that a Municipal Council "may publish a notification in our Government Gazette and by beat of drum that no place within municipal limits or at a distance within three miles of such limits shall 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." 2. Schedule III of the Act specifies "the purposes for which premises may not, under S.261, be used without a licence"; after enumerating the purposes in specific terms, Schedule III describes the last item thus: "In general, any purpose or the doing in the course of any industrial process anything which in the opinion of the executive authority is likely to be dangerous to human life or health or property or is likely to create or cause a nuisance." 3. S.326 of the Act has conferred power on the Municipal Council to make bye-laws and sub-section [15] of S.326 relates to the making of bye-laws "for the sanitary control and supervision of places used for any of the purposes specified in Schedule III and of any trade or manufacture carried on therein". The bye-laws in Ext. P were passed by the second respondent under the aforesaid provision, in accordance with the procedure prescribed by S.329 and were approved, confirmed and published by the first respondent, under S.330 of the Act. The notification as per Schedule III of the Act, which is also in Ext.
The bye-laws in Ext. P were passed by the second respondent under the aforesaid provision, in accordance with the procedure prescribed by S.329 and were approved, confirmed and published by the first respondent, under S.330 of the Act. The notification as per Schedule III of the Act, which is also in Ext. P, specifying 131 purposes with sub-items under some of them, was published in the Gazette, and by beat of drum, as prescribed by S.261 and S.349 of the Act, but was hot published in Malayalam language of the District, as ordained by the latter provision. Original Petition 418 of 1959 has been filed by one Thomas Joseph in his individual capacity, as a trader within the limits of the Municipal Council, the second respondent, and also as the Secretary of the Changanacherry Merchants' Association, while Original Petition 690 of 1959 has been filed by the Changanacherry Merchants' Association, both for the same reliefs. 4. The learned counsel for the petitioners, has pressed before me two grounds for quashing Ext. P, first, that the bye-laws and the notification were not published in accordance with the provisions of the Act, and second, that additional purposes have been included in the notification in Ext. P, which are not specified in Schedule III of the Act, while the learned counsel for the second respondent, has taken a preliminary objection, that the Changanacherry Merchants' Association has no locus standi in these proceedings. Granting that the preliminary objection is competent, the petitioner's right, as an individual trader, to challenge Ext. P is undoubted, and the petitions have to be disposed of on the merits, though the objection is relevant for determining, to what extent relief can be granted in these petitions. The bye-laws having been passed, approved, confirmed and published as aforesaid are not open to objection. Notwithstanding the dubious reference in the Government Order in Ext. P, to their having been "prepared and forwarded by the Commissioner, Municipal Council", as explained in the counter affidavit, they were passed really by the second respondent. S.332 relied on, is irrelevant, as it only requires a Municipal Council to keep and maintain copies, in English and a language of the District, of the Act, of the Rules framed by Government under the Act, and of all bye-laws in force, and to make them available for sale to the public.
S.332 relied on, is irrelevant, as it only requires a Municipal Council to keep and maintain copies, in English and a language of the District, of the Act, of the Rules framed by Government under the Act, and of all bye-laws in force, and to make them available for sale to the public. There is no irregularity so far as the bye-laws impugned are concerned. The notification has been published in the Gazette and as stated in the counter-affidavit by beat of drum, and the only defect pointed out consisted in the failure of the second respondent to publish it also in Malayalam, the language of the District, as directed by S.349 of the Act. This omission cannot, in my opinion, be regarded as invalidating the notification. No doubt the word 'shall' is employed in the following part of S.349: - it shall be published in Our Government Gazette both in English and in a language of the District." But I am of the view, that in the context in which it is used, it cannot be construed to mean, that a failure to comply with the prescription to any extent, is so vital as to nullify the notification itself. It may be noted, that S.332 enacts, that copies of the Act, Rules and bye-laws, "shall" be kept at the Municipal Office and "shall" be sold to the public. It would be unreasonable to contend from the use of the word "shall", that a failure to comply with the direction would have the effect of rendering the Statute, or the Rules, or the bye-laws illegal. The accepted rules of interpretation do not also lead to such drastic results.
It would be unreasonable to contend from the use of the word "shall", that a failure to comply with the direction would have the effect of rendering the Statute, or the Rules, or the bye-laws illegal. The accepted rules of interpretation do not also lead to such drastic results. Crawford on Construction of Statutes, 1940 Edition, Page 74, observes that: "Provisions relative to the time for publication, as well as those regulating the manner and details of publication, are generally considered directory." Corpus Juris Secundum, Volume 82 summarises the law, at page 99 in the following terms: - "While it has been held that legislative Acts must or should be published or promulgated when required by constitutional provision or by statute before they can have any force and effect, it has also been held that such publication may not be a condition precedent to their effective operation, whether required by constitution or by statute, and that, where it is made the duty of an officer to cause an Act to be published, his neglect thereof cannot defeat, the taking effect of the Act. It has further been held that failure to post a general statute, as required by law, does not make it any the less binding." Hence the failure of the second respondent to publish the notification in Malayalam under the provisions of S.349 does not render it illegal and ineffective. The first ground taken, must therefore be rejected as unsustainable. 5. It was admitted for the second respondent, that some of the items mentioned in the notification are not mentioned specifically in Schedule III of the Act, and a list of these is furnished in Para.11 of the counter-affidavit in Original Petition 418 of 1959; but the contention was, that they do fall within the scope of the last item in Schedule III extracted above. To the extent to which this contention can be sustained, the second ground of objection formulated above, must also fail. If, as I hold, the Changanacherry Merchants Association has no locus standi, the contention need be examined only with reference to the trade which the petitioner is carrying on. On this, the undisputed fact is, that he is a merchant in manures, grains and cement The items in the notification in Ext.
If, as I hold, the Changanacherry Merchants Association has no locus standi, the contention need be examined only with reference to the trade which the petitioner is carrying on. On this, the undisputed fact is, that he is a merchant in manures, grains and cement The items in the notification in Ext. P which have reference to these, are only items 18 and 61 (b), item 18 being "Cement-Packing, pressing, cleansing, manufacturing or storing for wholesome trade" and item 61 (b) being "Grains - including rice storing for retail trade." There is little difficulty for holding, that the processes contemplated in item 18 with respect to cement, by reason of the dust which they produce apart from anything else, bring them within the last item in Schedule III. As for item 61 (b), I had a feeling, that the storing of grains, including rice for retail trade might not come within the scope of that item. Considering the scope of bye-laws 16,17, and 18, framed under S.326 (15) of the Act, which disclose the reason underlying the control of processes affecting the commodities or articles specified, and the nature of the duty of supervision and control imposed on the Municipal Council in relation to them, and considering also, that Schedule III itself provides specifically, for sale or storage for sale of grains, I am led to think, that even retail trade in grains including rice, ought to come within the last item in Schedule III of the Act. Admittedly, the petitioner is no trader in manures. On the above finding, the petitioner is not entitled to any relief in his individual capacity. 6. These petitions having been filed also on behalf of the Changanacherry Merchants' Association, it is necessary to consider, whether any relief can be granted to it under Art.226. It is an established rule, that only the party aggrieved can claim relief under this Article. It is not the case of the petitioners, that the Association which is a corporate body is carrying on any trade or business, or any of the activities to which the impugned notification relates; the case is, that the individuals who compose the Association are engaged in them. Except one of them, whose case has been dealt with above, the others are hot parties to these proceedings. The Association as a body corporate, is distinct from the members or share-holders who constitute it.
Except one of them, whose case has been dealt with above, the others are hot parties to these proceedings. The Association as a body corporate, is distinct from the members or share-holders who constitute it. If so, the Association is not a party aggrieved, though, the individual members may be. My attention was invited to Ext. PS, a resolution passed by the Association, authorising it to challenge the notification, if need be, by filing a writ petition. This means nothing more than that the Association has been authorised to file this petition, but does not imply, that it is a party aggrieved, for invoking Art.226, The above view finds support from decided cases. In Charanjit Lal Chowdhury v. The Union of India, AIR. 1951 S.C. 41 at page 52, the Supreme Court observed that "It would not be open to an individual share-holder to complain of an Act which affects the fundamental rights of the company except to the extent that it constitutes an infraction of his own rights as well. This follows logically from the rule of law that a corporation has a distinct legal personality of its own with rights and capacities to do so." This appears to be a converse case. The above principle was applied by the Allahabad High Court in Indian Sugar Mills Association v. Secretary to Government, AIR. 1951 Allahabad 1, where the Indian Sugar Mills Association was denied relief, on the ground, that the order impugned, did not directly affect the interests of the Association, as distinct from the Mills which composed it. In the Bangalore District Hotel Owners' Association v. The District Magistrate, Bangalore, AIR. 1951 Mysore 14, it was held, that the Association, which was registered under the Societies Registration Act, and had a corporate existence, had no locus standi to move, under Art.226, for redress of the personal or individual grievances of some of its members, and not of the Association. I therefore come to the conclusion, that the Changanacherry Merchants' Association has no locus standi in these petitions. In this view, it is unnecessary to consider the legality of the other items in the impugned notification in Ext. P, in which other individual traders may be interested. The petitioners are not entitled to relief. These petitions are dismissed, but without costs. Dismissed.