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S. Janab Vs. Corporation of the City of Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 1383 of 1971
Judge
Reported inAIR1972Kant109; AIR1972Mys109; (1971)2MysLJ491
ActsConstitution of India - Articles 19(6), 226 and 227
AppellantS. Janab
RespondentCorporation of the City of Bangalore and ors.
Appellant AdvocateS. Shivaswamy, Adv.
Respondent AdvocateS.V. Subramanyam and ;G.V. Thimmappaiah, Advs.
DispositionPetition dismissed
Excerpt:
.....markets, and market places than to infer that the action taken for controlling of markets and marketing within the municipal area has anything to do with the restricting of competition in trade between two or more traders dealing in the same variety of merchandise......ashok nagar, bangalore, assails the validity of a licence granted to respondent 4 to run a similar mutton stall in no. 12. h. no. 3 street, tete lane, ashok nagar, which is hardly 1 1/2 furlongs from the petitioner's, shop.2. the petitioner states that respondent 4 had earlier applied for a similar licence to run a shop at no. 61. markat road, that the same had been rejected and that an appeal against the same prepresented to the standing committee (health) of the corporation had also been dismissed. according to the petitioner, the licence was granted pursuant to a representation made by respondent 4 to the said standing committee which was regarded as an appeal and disposed of accordingly resulting in the grant of the licence now assailed.3. the counsel on behalf of the corporation.....
Judgment:

Narayana Pai, C.J.

1. The petitioner who runs a mutton stall at No. 65, Markam Road. Ashok Nagar, Bangalore, assails the validity of a licence granted to respondent 4 to run a similar mutton stall in No. 12. H. No. 3 Street, Tete Lane, Ashok Nagar, which is hardly 1 1/2 furlongs from the petitioner's, shop.

2. The petitioner states that respondent 4 had earlier applied for a similar licence to run a shop at No. 61. Markat Road, that the same had been rejected and that an appeal against the same prepresented to the Standing Committee (Health) of the Corporation had also been dismissed. According to the petitioner, the licence was granted pursuant to a representation made by Respondent 4 to the said standing committee which was regarded as an appeal and disposed of accordingly resulting in the grant of the licence now assailed.

3. The counsel on behalf of the Corporation answers these contentions by stating that whatever might have been the irregularities capable of being pointed out in the order, the licence was actually granted by the Commissioner of the Corporation who is the statutory authority to do so and that therefore, any effect which the order of the Standing Committee dated 26-3-1971 might have had on the grant of the licence by the Commissioner for the year 1971-72 is irrelevant. He further contends that the petitioner has no locus standi to question the grant of the licence to respondent 4.

4. Mr. Shivaswamy. learned counsel for the petitioner has strongly urged that the case of lack of locus standi cannot at all be made against him in the circumstances of this case. According to him, the proceedings of the Administrator of the Corporation dated 7-2-1967 exercising the powers of the Standing Committee (Health) and of the Corporation itself has the legal status of a Resolution of the Council of the Corporation, that according to the said proceedings there should be a distance of at least half a mile between an existing mutton shop and the shop in respect of which licence is being granted subsequently and that therefore, he who is affected adversely by the grant of licence in this case which is in contravention of the said proceedings of the Administrator does have the locus standi to question the grant of licence to respondent 4.

5. The question of locus standi or more accurately the law bearing upon the same, having been recently declared by the Supreme Court in the case of N. R. & F. Mills y. N. T. G. & Bros. : [1970]3SCR846 it is not necessary now to discuss the question on first principles. That was a case in which the holder of a licence to run a rice mill sought to question the grant of a similar licence to another person on the ground that the said grant was in contravention of certain regulations governing the grant of licences to mills of that nature. The Supreme Court rejected the attack on the grant of licence on the ground that the person who impugned the same in the said case did not have the locus standi to da so. The legal position is set out in paragraph 10 of the judgment at page 250 of the Report which reads:--

'Section 8 (3) (c) is merely regulatory; if it is not complied with, the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice-mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article 19(6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely .....'

6. The effect of this declaration is that the mere existence of regulatory controls will not by itself confer upon a rival trader the right to question the grant of licence to another rival trader. If however, the regulation is in the nature of a restriction on competition in trade and one of the traders carrying on the trade sought to be governed by the said regulation feels aggrieved by the breach of such regulation by another person operating the same, he may question the action in appropriate proceedings.

7. The first question therefore, in this case is whether the Administrator's decision depended upon by Mr. Shivaswamy is in the nature of a regulation restricting competition in trade in mutton or a regulation motivated by other purposes.

8. The full text of the said decision is set out below:--

Proceedings of the Administrator dated 7-2-1967 exercising the powers of the Standing Committee (Health) and Corporation.

Subject No. 3:-- Commissioner's note dated 27-5-1962/23-12-1906 placing the note of the Health Officer dated 15-5-1966 seeking instructions for issuing licences to private mutton stalls who apply for them considering the merits of each applications based upon the current needs of the consumers of the locality and after obtaining the local mahazar from the bona fide residents of the locality in general and the immediate neighbours where the licence is to be granted for in particular, in view of the level opinion given and in the circumstances explained therein.

Decision:-- It would be desirable to have some discretion regarding the number of mutton stalls to be licensed in a particular area. Hence the previous policy of insisting on a minimum distance of half a mile from any existing mutton stall either in a Corporation market or a private licensed stall be revived and the pending applications be disposed of subject to the condition that the licensees should shift to the Corporation stalls as and when they are constructed. Individual cases if any where there are decisions to grant licenses within half a mile of an existing stall and licences have not yet been issued, may be brought up for review.

For the present, it is not desirable to allow any beef stall to function outside the Corporation Market.

9. It is seen that there is no indication any where in the said text that the insistence of a minimum distance of half a mile from any existing mutton stall in a Corporation market or from a private licensed stall has any relation whatever with controlling, regulating or restricting competition in the mutton trade. The brief reference made to the Health Officer's note in the said text also indicates that the emphasis was more on current needs of consumers of the locality than on the trading prospects of the stall holders. It is also more appropriate to impute or attribute to any action taken by a local authority like a Municipal Corporation in matters of this nature, a purpose of meeting the current needs of the residents of the municipal area and maintenance of sanitary conditions in markets, and market places than to infer that the action taken for controlling of markets and marketing within the municipal area has anything to do with the restricting of competition in trade between two or more traders dealing in the same variety of merchandise.

10. In this view, it is unnecessary to examine the argument addressed on behalf of the Municipality that the proceedings or the decision of the Administrator should be regarded as mere administrative instructions not having any statutory or binding force.

11. Mr. Shivaswamy has depended upon a ruling of the Queen's Bench Division in England in R. v Brighton Borough Justices, (1954) 1 All ER 197. wherein it has been observed that though licensees other than the one holding the impugned license may not be strictly regarded as interested persons for purposes of issue of a writ of certiorari, the court may issue such a writ in exercise of its discretion in appropriate cases. He also referred to passages in S. A. Desmith's Judicial Review of Administrative Action in support of the view that English Courts have held that category of interested persons entitled to seek the issue of writ of certiorari is wide enough to comprise trade rivals objecting to the grant or renewal of licences.

12. Whatever may be the applicability of such principles in England, we have little doubt that the discretion under Article 226 has to be exercised ordinarily, if not invariably, in favour of a person who has a personal grievance recognisable by law and that suo motu interference by courts upon mere information at the instance of a person who may be regarded as a mere relator is to be resorted to in the light of Article 227 of the Constitution in the interest of purity of judicial administration and with a view to confine Tribunals and authorities exercising judicial or quasi-judicial functions within the bounds of their respective jurisdictions.

13. So far as the present question Is concerned, the ruling of the Supreme Court we have cited above is exhaustive of the topic and is binding upon us. We, therefore, hold that this is not a case in which the petitioner can claim the issue of any writ or direction or order under Article 226 of the Constitution.

14. The Writ Petition is dismissed.


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