Skip to content


Fakir Mahomed Malang Vs. the Municipal Commissioner of Bombay - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai
Decided On
Case NumberMiscellaneous No. 58 of 1936
Judge
Reported inAIR1937Bom395; (1937)39BOMLR536
AppellantFakir Mahomed Malang
RespondentThe Municipal Commissioner of Bombay
DispositionPetition dismissed
Excerpt:
city of bombay municipal act (bom. iii of 1888), section 411-municipal commissioner-license for butcher's shop-discretion to refuse license-specific relief act (i of 1877), section 45.;under section 411 of the city of bombay municipal act, 1888, the municipal commissioner has power either to grant or refuse a license for carrying on the business of a butcher's shop in the city of bombay. as long as he exercises the power in a proper manner, i.e. not arbitrarily or for an ulterior motive, the court will not interfere under section 45 of the specific relief act, 1877.;rossi v. edinburgh corporation (1905) a.c. 21 and gell v. taja noora (1903) i.l.r. 27 bom. 307 : s.c. 5 bom. l.r. 133, distinguished. - - that would be against the clear intention of section 411 and clearly detrimental to..........on behalf of the petitioner it is first contended that section 411 of the city of bombay municipal act does not empower the respondent to refuse a license when applied for. it is urged that whenever legislature intended to invest the commissioner with a discretion it had done so in specific terms. for this purpose reliance is placed on section 394(4). the petitioner further relies on the decision in rossi v. edinburgh corporation (1905) a.c. 21 to support his contention that it is only within the power of the legislature to deprive a citizen of his right to carry on a business as and where he pleases and it does not lie within the power of the commissioner or any other person, unless expressly invested by legislature with such power, to curtail that liberty of a citizen......
Judgment:

Kania, J.

1. This is a petition filed under Section 45 of the Specific Relief Act, praying that the respondent, the Municipal Commissioner, be ordered to issue a license to the petitioner permitting him to carry on the business of a butcher at Charni Road. There is a further prayer asking for an injunction against the respondent prosecuting the petitioner in the Police Court for carrying on the business of a butcher without a license.

2. The petition and the affidavits show that the petitioner has been carrying on the business of a butcher at a shop in Girgaum for many years past. In about 1928, the Municipality, after mature deliberation, came to the conclusion that it was in the municipal interest of the city of Bombay that the sale of meat should be confined to specific areas. From the annexure to the affidavit of Mr. Laud it appears that this policy was reiterated many times in the communications between the Municipal Committee and the Commissioner and the applicants for licenses and the Commissioner, It further appears that in pursuance of that policy the Municipality has erected a market at Chandanwadi. Besides this market there also exists another market at Chira Bazar, which is a private market, where meat is sold.

3. The petitioner applied for a license in respect of a shop at Charni Road but that was refused. After repeated attempts made by him to persuade the respondent to reconsider his decision and in view of the fact that the Municipality launched a criminal prosecution against him under the penal section of the Act, the petitioner has made this application to the Court. It is clear from the facts that the petitioner's shop is more than half a mile away from the Chandanwadi market but within half a mile from the private market at Chira Bazar. It also appears that the policy of the Municipality is that shops of this nature should not be permitted within half a mile of a recognized market where meat is sold. In his affidavit the respondent says that this policy has been adopted with a view to facilitate the work of supervision and to meet the general requirements of the locality as a whole. In my opinion, the policy so adopted is not open to question as violating any principle of Municipal administration.

4. On behalf of the petitioner it is first contended that Section 411 of the City of Bombay Municipal Act does not empower the respondent to refuse a license when applied for. It is urged that whenever legislature intended to invest the Commissioner with a discretion it had done so in specific terms. For this purpose reliance is placed on Section 394(4). The petitioner further relies on the decision in Rossi v. Edinburgh Corporation (1905) A.C. 21 to support his contention that it is only within the power of the legislature to deprive a citizen of his right to carry on a business as and where he pleases and it does not lie within the power of the Commissioner or any other person, unless expressly invested by legislature with such power, to curtail that liberty of a citizen. Fakir Further, reliance is placed on the decision in Somu Pillai v. The Municipal Council, Mayavaram I.L.R. (1905) 28 Mad. 520 to show that in the event of is doubt as to the extent Municipal the power of the Commissioner, the construction should be in favour of the subject and against the Commissioner. The petitioner further relied on Rustom j. Irani v. H. Kennedy I.L.R. (1901) Bom. 396 : 4 Bom. L.R. 26 : 4 Bom. L.R. 1 Gull v. Taja Noora I.L.R. (1903) Bom. 307 Alimahomed v. Municipal Commissioner of Bombay (1924) 27 Bom. L.R. 581 and Pachan Ladha v. Municipal Commissioner, Bombay (1935) 38 Bom. L.R. 556 in support of the contention that the discretion exercised by the Commissioner in this particular case was arbitrary, and, therefore, should be set aside. Section 411 of the City of Bombay Municipal Act runs as follows :-

No person shall without, or otherwise than in conformity with the terms of, a license granted by the Commissioner in this behalf-

(a) carry on within the city, or at any munidpal slaughter-house, the trade of a butcher;

(b) use any place in the city for the sale of the flesh of any animal intended for human food, or any place without the city for the sale of such flesh for consumption in the city.

5. In my opinion the first contention of the petitioner is incorrect. Section 411 of the City of Bombay Municipal Act, in terms, deprives every citizen, living within the city or to whom the Act applies, of the power to carry on the business of -a butcher. The only exception to that is the grant of a license by the Commissioner and carrying on the trade of a butcher in conformity with the terms of that license. The present case, therefore, differs materially from the decisions in Rossi v. Edinburgh Corporation and Gell v. Taja Noora inasmuch as in those cases there was no express provision made by the legislature depriving every citizen of his right to carry en the particular trade. The relevant sections quoted in those decisions are the penal sections corresponding to Section 471 of the City of Bombay Municipal Act. It is, therefore, not open to the petitioner to contend that the Commissioner has attempted to deprive the citizens of Bombay of their right to carry on the trade of a butcher. In fact by Section 411 of the Act the legislature has imposed that restriction.

6. The next contention of the petitioner that the respondent is under an obligation to issue a license when asked for, is also unsound. In the Act there is no express provision giving power to the Commissioner to grant a license to carry on the trade of a butcher. By reason of the words used in Section 411 it seems that the power is impliedly vested in the Commissioner. If this view is not accepted the other alternative would be to consider that there is no power in the respondent to grant the license. That would be against the clear intention of Section 411 and clearly detrimental to the rights of the public, because in that event there would be no licensing authority at all. If this power is deemed to exist in the Municipal Commissioner, impliedly by reason of the terms of Section 411, it follows that the power to refuse the license must also be vested in the same authority because a power to grant necessarily implies a right to refuse. To consider otherwise would mean that there was an obligation on the Commissioner imperatively to grant a license and that he had no jurisdiction to refuse the same. There appears in the Act no words to justify such a conclusion. Whenever the legislature desired to impose any such obligation on a public servant the legislature used appropriate words to show clearly its meaning. A reference to Section 12 of the City of Bombay Police Act quoted in the decision in Rustom J. Irani v. H. Kennedy makes this position clear. As pointed out by Jenkins C.J. in that case the legislature had deliberately made use of the word 'shall' when it intended to impose on a public servant the obligation to issue a license. At the utmost, therefore, Section 411 can be construed to mean that the Municipal Commissioner was not under an obligation to issue a license but had the power to issue the same. In that view, as I have pointed out, the power to grant a license must necessarily be accompanied with the right to refuse, because otherwise the term 'power' would have no meaning.

7. If the Municipal Commissioner has, therefore, the power to grant a license it must be a power which he is to exercise in a proper manner, i.e., not arbitrarily or for an ulterior motive. Although no express words are found in the Act giving him the discretion or limiting his discretion in the exercise of his power, in my opinion that would be the proper view to take of the limits of his power. In the present case the grounds stated by the Commissioner are set out in extensor in his affidavit. So long as the discretion is exercised for the proper municipal administration of the area under the control of the Commissioner, and from no other motive, I am unable to consider that the exercise of the power would be arbitrary or unlawful. The affidavit shows clearly that the Commissioner had exercised his discretion only for the purpose of the Municipal welfare of the inhabitants of the particular locality, in accordance with the considered policy of the Municipality. If that position is not found to be incorrect, there would be no justification to interfere with the discretion of the Municipal Commissioner.

8. On behalf of the petitioner it is contended that the Chandanwadi market has proved a failure and very few stalls are in fact in the occupation of vendors of vegetable, fish or meat. It is, therefore, contended that the Municipal Commissioner is not at present exercising the discretion in a proper way and the Court should interfere in the matter. While realizing that if the market proved to be a failure the Municipal Commissioner may properly reconsider his decision in granting the license to the petitioner, I see no reason at this stage to interfere with the exercise of his discretion. The Commissioner has already intimated to the petitioner that as and when the Chandanwadi market scheme is found to be a failure and the building is directed to be used for another purpose, he would reconsider the question of granting the petitioner a license. So long, however, as in fact the Chandanwadi market is used for the avowed object of furthering the Municipal policy laid down in the resolutions, it cannot be stated that the scheme had failed, and, therefore, action should be taken on the footing that the scheme did not exist. The Chandanwadi market yet exists for the use and benefit of the vendors who choose to go there. The ground mentioned by the Municipal Commissioner, viz., to facilitate the supervision of such shops, is still applicable inasmuch as there is another market (although a private market) at Chira Bazar where meat is being sold. Under the circumstances I am unable to consider that the exercise of the discretion by the Commissioner on the face of it is arbitrary or unlawful. The Court would not, therefore be justified in interfering with the same.

9. The petition is, therefore, dismissed with costs.


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