Skip to content


Pachan Ladha Vs. the Municipal Commissioner - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Miscellaneous No. 60 of 1935
Judge
Reported inAIR1936Bom264; (1936)38BOMLR556
AppellantPachan Ladha
RespondentThe Municipal Commissioner
DispositionPetition dismissed
Excerpt:
city of bombay municipal act (bom. iii of 1888), section 394 - municipal commissioner-discretion to issue license-license for melting vegetable oil- imposition of condition -whether ultra vires the commissioner-breach of condition-exercise of discretion to refuse renewal of license.;the municipal commissioner of bombay in issuing a license for melting of vegetable oil can, in the exercise of his discretion under section 394(4) (a) of the city of bombay municipal act, 1888, impose such restrictions and conditions, as he thinks fit to prescribe, e.g., a condition that no ghee or butter or other animal fat should be kept on the premises where the melting is done.;rex v. dodds [1905] 2 k.b. 40, distinguished.;the municipal commissioner has a discretion, under section 394(4) (6) of the act, to..........to prohibit the melting of vegetable oil in the city of bombay, and there was a general refusal to issue licenses to melt vegetable oil. on june 15, 1935, the present petition was filed. it appears that the respondent then took legal advice and intimated to the petitioner that he did not propose generally to refuse licenses, but was prepared to consider individual applications for license on their own merits. prosecutions launched under the respondent's directions on the ground that certain traders were carrying on business of melting vegetable oil without a license were dropped, presumably because those parties were carrying on the business after the general refusal to issue licenses was intimated to them. on august 29, 1935, the respondent, through his attorneys, informed the.....
Judgment:

Kania, J.

1. This is a petition filed against the Municipal Commissioner for the City of Bombay, praying that he be ordered forthwith to grant a license on the terms and conditions usual and proper, authorising the petitioner to carry on, or be allowed to carry on, upon his premises in Bombay the trade or operation of melting vegetable oil.

2. The petitioner had been carrying on business in Bombay prior to March, 1933, and held a license from the respondent, which contained inter alia condition 4A, which ran as follows :-

Ghee or butter, or other animal fat, whether unmixed or mixed with vegetable oil or with other substance shall not be kept on the premises.

The license so granted expired on March 31, 1933. The respondent thereafter refused to renew licenses in Bombay for melting vegetable oil and it is alleged that among others he refused to renew the license of the petitioner also. On July 19, 1933, a complaint was filed under the directions of the respondent charging one Kheraj Ubhaiya with contravening the provisions of Sections 394 and 479 of the City of Bombay Municipal Act and contending that thereby an offence was committed under Section 471 of the Act. The complaint was that he had infringed condition 4A of the license by keeping some ghee or butter on the premises in respect of which the license was granted to him. On November 7, 1933, the complaint was heard by the Presidency Magistrate, Third Court, and the accused's statement was recorded. The accused contended that as ghee was allowed to be kept up to four hundred-weights without a license he had kept the same on the premises. The learned Magistrate acquitted the accused on December 19, 1933. From the record annexed to the petitioner's affidavit in rejoinder I do not find the reasons, if any, recorded by the learned Magistrate for that order.

3. After that order was made, it is alleged that prosecutions were launched against various persons (members of the association of which the petitioner is the leader) under the Prevention of Adulteration Act, 1925. One of the cases, which appears to have been treated as a test case, was brought in revision application No. 115 of 1934 to the High Court, and as in that case it was found that vegetable ' tawda' was asked for and supplied, there was no question of conviction under that Act, and the conviction was quashed. After that decision was given, on February 19, 1935, the respondent issued a general circular intimating that he had decided to prohibit the melting of vegetable oil in the City of Bombay, and there was a general refusal to issue licenses to melt vegetable oil. On June 15, 1935, the present petition was filed. It appears that the respondent then took legal advice and intimated to the petitioner that he did not propose generally to refuse licenses, but was prepared to consider individual applications for license on their own merits. Prosecutions launched under the respondent's directions on the ground that certain traders were carrying on business of melting vegetable oil without a license were dropped, presumably because those parties were carrying on the business after the general refusal to issue licenses was intimated to them. On August 29, 1935, the respondent, through his attorneys, informed the petitioner that the prosecutions launched as aforesaid would be withdrawn and he would consider each application for a license to melt vegetable oil on its merits. After considering the petitioner's application in that way he refused to issue a license to the petitioner. The petition, therefore, is pressed to a hearing.

4. The relevant portions of Section 394 of the City of Bombay Municipal Act (III of 1888) run as follows :-

394. (2) Except under and in conformity with the terms and conditions of a license granted by the Commissioner no person shall-

(a) keep, in or upon any premises, for any purpose whatever,

(i) any article specified in Part I of Schedule M, or

(ii) any article specified in Part II of Schedule M, in excess of the quantity therein prescribed as the maximum quantity of such article which may at any one time be kept in or upon the same premises without a license;

(d) carry on, or allow to be carried on, in or upon any premises

(i) any of the trades or operations connected with trade specified inPart IV of Schedule M;

(4) It shall be in the discretion of the Commissioner-

(a) to grant any license referred to in sub-section (i) subject to such restrictions or conditions (if any) as he shall think fit to prescribe, or

(b) to withhold any such license.

Part II of Schedule M contains, inter alia, ghee kept for sale, and the maximum quantity which may be kept at any one time without a license... (4 Cwts.); Gun-powder, (5 Lbs.); Matches for lighting (1 gross boxes). Part IV of Schedule M mentions melting of vegetable oil.

5. Having regard to the foregoing provisions, it is clear that the respondent has a discretion to issue licenses referred to in Sub-section (1) subject to such restrictions and conditions as he shall think fit to prescribe. On behalf of the petitioner it is contended that the imposition of condition 4A in the license is not in accordance with the Municipal Act and is therefore ultra vires the Commissioner. It is alleged that if the respondent insists on including that condition in the license, under the circumstances, there is a wrongful refusal to issue a license according to law. In respect of the exercise of the discretion it is contended on behalf of the petitioner that it should be exercised according to the rules of reason and justice and not according to private opinion, according to law and not humour; it is not to be arbitrary, vague and fanciful, but legal and regular; it must be exercised within the limits to which an honest man competent in the discharge of his office must confine himself. In support of this contention reliance is placed on the decision in Sharpe V. Wakefield [1891] A.C. 173. It is lastly contended that the present attempt of the respondent to refuse a license to the petitioner, apart from anything else, is to serve an ulterior motive, viz., to prevent adulteration of vegetable oil with ghee within the town and islands of Bombay. It is urged that however desirable that object be, it is not within the province of the respondent to take that object into consideration and exercise his discretion with a view to serve that end because that is not provided by the Act, and if there is any defect in the legislation, it is for the. Legislature to amend the law.

6. Having regard to the general words of discretion contained in Section 394,. Sub-section (4), the burden of proving that the respondent is wrong in his action is on the petitioner.

7. In my opinion, the first contention that the imposition of condition 4A is ultra vires the Commissioner is unsound. The respondent is given very wide discretion in the issue of licenses, and although a resident in Bombay is allowed to use his premises for keeping any quantity of ghee or butter without any license, and if he keeps any ghee or butter for sale, he is allowed to do so up to a maximum limit of four hundred-weights without any license, it does not mean, therefore, that when he applies for a license which it is obligatory on him to obtain, the respondent is not entitled to impose as a condition restrictions over the liberty of the applicant which he otherwise had. In so far as it is considered by the respondent that the carrying on of the trade of melting vegetable oil requires exclusion of ghee or butter or other substances mentioned in condition 4A from the premises, and in so far as the condition imposes restrictions only with regard to the premises in respect of which the license is issued, I do not see how the imposition of that condition is contrary to the Act or ultra vires the Commissioner. If the respondent by a general notification had intimated that anyone within the municipal limits to which the Act was applicable should not keep ghee for sale at all, or, not exceeding two to three hundred-weights, his action would be contrary to the Act, because the Act fixes another limit. The respondent has not purported to do anything of the kind. He only granted a license on condition that so far as those premises were concerned there should be no ghee or butter thereon. That condition does not restrict the liberty of the petitioner to keep ghee for sale up to a maximum of four hundred-weights in other premises or unlimited quantity of ghee in other premises if the same is not for sale. To read the Act otherwise would mean that although Section 394, Sub-section (4), gave a very wide discretion to the respondent, in fact there was no discretion, because every attempt on his part to lay down a condition in respect of the use of the premises would be restricting the liberty of the citizen to that extent and which restriction was not expressly permitted by the Act. When issuing a license for keeping gun-powder for an unlimited quantity, it would, in my opinion, be quite unsound to contend that the respondent was not entitled to impose a condition that the licensee shall not keep any match boxes on the premises. If the applicant's argument was accepted, that would be wrong, because in part II of Sch. M it is provided that a resident in Bombay can keep five pounds of gun-powder without a license or one gross of match boxes also without a license. The decision in Rex v. Dodds [1905] 2 K. B. 40 does not help the petitioner because in that case, as expressly stated by Collins M. R. in his judgment at p. 45, the power to refuse the renewal of an existing license which was confined to five grounds stated in the Licensing Act, Section 1, was ignored, and the justices of the licensing district demanded an undertaking from the licensee as to the conduct and management of the business which was not covered by the five grounds. For that reason it was considered that the imposition of that condition amounted to a refusal to renew a license on a ground beyond the five grounds mentioned in Section 1. Under the circumstances the petitioner's contention in this respect fails.

8. The learned counsel for the petitioner strongly relied on the decision in Gell v. Taja Noora I.L.R. (1903) 27 Bom. 307 : 5 Bom. L.R. 133. In that case the Commissioner of Police was given a discretion to refuse a license for any conveyance which he may consider to be unfit for the conveyance of the public. The Commissioner approved of a certain pattern of victoria as a public conveyance in Bombay and refused to grant licenses for victorias which did not conform to the pattern so approved. It was held that the refusal on that ground was illegal. The decision was clearly based on the principle that the discretion given was not absolute, but one which was to be exercised after the Commissioner had made himself acquainted with the conveyance to be licensed and had considered whether it, as an individual carriage, was fit for the conveyance of the public. Having regard to the limited discretion given to. the Commissioner, that decision, in my opinion, does not help the petitioner.

9. The principles laid down in Sharp v. Wakefield [1891] A.C. 173, for the exercise of the discretion, even when the same is absolute in terms, are not disputed. The question is whether in the present case the respondent had exercised his discretion against those principles. The affidavits filed in these proceedings show that the respondent refused to issue a license to the petitioner in his discretion because in his opinion the petitioner had committed a breach of condition 4A of the license previously granted to him. In paragraph 11 of his affidavit the respondent further stated as follows :--

The petitioner, in spite of the refusal to renew the said license, has wrongfully and illegally continued to carry on his business.

On behalf of the respondent it is urged that the refusal was on these two grounds, and even if the Court does not agree with the respondent, it was not a matter for the Court to inquire as to the sufficiency of the reasons. The only inquiry permissible to the Court was whether these reasons show that the discretion was not properly exercised in law and that the refusal was arbitrary, fanciful and mala fide and therefore illegal.

10. It is pointed out by the petitioner that the Magistrate had acquitted another person who was prosecuted under the direction of the respondent for committing a breach of condition 4A of the license similarly granted. It is, therefore, urged that the non-observance of that condition cannot be a proper ground for the exercise of the discretion to refuse a license. I am unable to accept this contention of the petitioner. Keeping ghee under four hundredweights does not require any license at all and if a resident within the municipal limits of Bombay kept ghee in that quantity on any premises he did not commit an offence under the Municipal Act. The penal sections of the Act do not make that act of the resident in Bombay punishable. The only complaint which could be made under the circumstances would be that condition 4A of the license had been violated, but there again every breach of a condition of a license granted under the Act was not made a penal offence under the Municipal Act and the prosecution under the circumstances was bound to fail. Therefore, because an individual put up before the Magistrate for committing a breach of condition 4A was acquitted, it did not follow that the imposition of that condition was ultra vires the Commissioner or was held to be so by a proper tribunal. In my opinion, if the respondent, in his discretion, considers that he would not issue a license to a party who deliberately committed a breach of the condition of the license, it will not be a wrongful use of the discretion given to him by the Act. If the condition was unauthorised, the duty of the party holding the license was to go to Court and ask for a decision, but not to take the law in his own hands, commit a breach of the condition and then complain that the respondent had no authority to impose that condition.

11. On behalf of the 'petitioner it is pointed out that the second ground now relied upon by the respondent was not put forward in the correspondence before the proceedings and the prosecutions launched against various parties, because they carried on the business of melting vegetable oil without obtaining license as provided by the Act, were dropped. It is urged that this ground was not, therefore, relied upon by the respondent. Although this petition was filed when there was a general refusal to issue licenses for melting vegetable oil, the subsequent correspondence shows that the respondent offered to consider individual applications on their own merits and the petitioner thereupon applied to have a license and his application was individually considered by the respondent. In my opinion, the refusal to grant a license in pursuance of that application may be justified by the respondent on every ground which is open to him to urge at the time the petition comes on for hearing. By not specifically mentioning this ground in the correspondence he had not given up that ground, if it was open to him to rely on the same. Although the prosecutions launched against various parties, because they carried on business of melting vegetable oil without a license, were dropped even since August, 1935, the petitioner had been carrying on that business and the respondent may take that factor into consideration. I do not think that the suggestion of the respondent that he took that factor into consideration indicates that he had failed to exercise the discretion vested in him according to law.

12. The last contention of the petitioner was that the exercise of the discretion was not bona fide as the object of the respondent was to stifle the business of manufacturing and selling a mixed product of vegetable oil and ghee in the market. In law the motives guiding the actions of parties are hardly relevant except in cases of this kind where a direct motive is attributed and on which footing the exercise of the discretion is challenged. Although he was not bound to do so the respondent had given in his affidavit the reasons why he refused to issue the license to the petitioner in response to his application. I have no reason to disbelieve that the respondent relied on these grounds and exercised his discretion against the petitioner. Even if the motive suggested by the petitioner existed, (for which in any event there is no adequate proof), and if the Commissioner considered that as an additional factor, I am unable to hold that in doing so he had acted mala fide or by reason of his taking into consideration that factor the exercise of that discretion had become illegal or arbitrary.

13. The result, therefore, is that the petitioner has failed in establishing his contentions and the petition must therefore be dismissed.

14. The present petition was filed on the ground that the general refusal of the respondent to issue licenses for melting vegetable oil was improper. After the correspondence ending with the letter of August 29, 1935, the parties agreed that the case should be considered on the footing that the petitioner had made an individual application and the same was refused. The subsequent proceedings in this petition had gone on on that footing. The petitioner would in law be entitled to his costs up to August 29, 1935. He is saved the costs of a fresh petition to be filed with the necessary averments about his making an application for the issue of a license and the refusal of the respondent to grant the same. If such a petition had been filed, the respondent would be entitled to get the costs of his legal advisers perusing such petition and the costs relating thereto. Considering all the circumstances, therefore, I make no order as to costs up to August 29, 1935. Petitioner to pay the respondent's costs of these proceedings thereafter, less Rs. 100.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //