1. This is a petition under Article 226 of the Constitution of India.
2. The petitioner's case briefly stated is as follows:--
That the petitioner has installed a flour mill in the Bada of one Kesrimal Shivlal situated in Neem Chowk, Mandsaur, in the year 1951, The said flour mill is being run by the petitioner with the help of an oil engine and under the terms of a licence issued by the local Municipal Committee,
That in the year 1953 certain complaints were received by the Municipality from the inhabitants of the locality that the working of the flour mill was causing a nuisance to them and was further causing damage to the property in the neighbourhood. These complaints were examined by the then Municipal Authorities and on 7-3-1953 they held that these complaints were inspired by reason of the hostility of the neighbours towards the petitioner and the allegations made therein were not proved.
The licence under which the flour mill was run by the petitioner was initially granted to him by the Municipality for one year and was subsequently renewed from year to year. The period of the licence which was last issued, expired on 31-3-1955. The petitioner applied for its renewal but the Municipal Council refused the prayer as there were further complaints against the existence of the flour mill in the locality.
On 22-8-1955 the Municipal Council Mandsaur, issued a notice to the petitioner intimating to him that the working of the flour mill caused nuisance to the neighbours and caused damage to their property. By the said notice the Council called upon the petitioner to remove the flour mill from the locality and to take it to some other place.
The petitioner preferred an appeal against the order passed by the Municipal Council to the Collector, Mandsaur, but met with no success and the appeal was dismissed. The petitioner has, therefore, by this petition impugned the validity of the action taken by the Municipal Council and the order passed by the Collector in appeal. The grounds on which the validity of the action taken by the Municipal Council is challenged, may be stated as follows:--
(i) that the Municipal Council did not give to the petitioner any hearing or an opportunity to show cause against the action proposed to be taken in regard to the flour mill and it is urged that the Municipal Council had thereby violated the principles of natural justice;
(ii) that Section 173 of the Madhya Bharat Municipal Act of 1954, on which the Collector had placed reliance to support the action of the Municipal Council, bad no application to the case;
(iii) that in view of the previous decision of the Municipality on 7-3-1953, it was not open to the Municipal Council to pass the order for removal of the flour mill from the locality.
The petitioner has prayed that a suitable writ be issued to quash the order of the Muncipal Council and the order passed by the Collector in appeal.
The petitioner has impleaded the Collector, Mandsaur, and the Municipal Council, Mandsaur, as opponents in this case. The Collector did not put in any appearance but the petition is opposed by the Municipal Council, Mandsaur.
3. In the affidavit filed by the Chief Executive Officer, Mandsaur Municipality, it is contended that after the decision of the Municipal Committee dated 7-3-1953, further complaints were received from the people living in that locality that harm was being caused to their health and property by the working of the flour mill in their neighbourhood. These complaints were considered by the Municipal Council in its meeting dated 26-7-1955 and it was resolved that the petitioner's licence with respect to the flour mill should not be renewed and that he should be ordered to remove the flour mill from its present place; that the petitioner appealed against this decision of the Municipal Council to the Collector, Mandsaur, but failed to obtain any success.
4. In the return filed by the Municipal Council, these facts were admitted but it was contended that the Municipal Council was not bound to act as a judicial or quasi-judicial body and was within its right in refusing to renew the licence which had expired in view of the complaints received from the inhabitants of the locality.
5. It was conceded by Mr. Balwantsingh, learned counsel for the petitioner that the previous decision of the Municipal Council dated 7-3-1.953 did not have the effect of res judicata, nor did it create my estoppel against the Municipal Council and that the Municipal Council had full discretion to grant or to refuse to grant renewal of the licence as prayed for by the petitioner. It is also not suggested either in the petition or in course of the arguments that in exercising that discretion, the Municipal Council had not applied its mind to the right consideration or had taken into account considerations which had no bearing on the matter or had substituted their own prejudices for a determination on merits.
There can also be no basis for any such suggestion in view of the facts on record. The Municipal Council has produced copies of the complaints made by the inhabitants of the locality during the year 1955. The President, Municipal Council, inspected the neighbouring houses to satisfy himself regarding the truth of the allegations regarding the complaints and so did the Collector. Both of them found that there was considerable damage done to the neighbouring houses by reason of the working of the flour mill.
6. Section 173 of the Municipal Act empowers the Municipality to order the owner or occupier of a building or a place in which any mechanical power is used, to discontinue the use of such power if it is satisfied that the use of it was dangerous to the life, health or property of persons living in the neighbourhood. This section has no direct application because the Bada in which the flour mill of the petitioner is installed, belongs not to the petitioner) but to Kesrimal Shivlal.
At the same time the scheme of this section indicates that no person can claim absolute right to carry on the business of running a flour mill with an oil engine if it was dangerous to the life, health or property of the people living in the neighbourhood. The section expressly authorises the Municipality to take action against the owner of the building or the place wherein such business is carried on and to protect the life, health and property of the neigh-hours.
7. In the present case, the Municipal authorities had received complaints from the persons living in the neighbourhood that working of the petitioner's flour mill was dangerous to their health and property and the Municipal Council on examining these complaints, found them to be true. The action of the Municipal Council in refusing to renew the licence and in calling upon the petitioner to remove the flour mill from that locality cannot therefore be regarded as arbitrary or capricious.
8. The grievance of the petitioner, however, is confined to the procedure followed by the Municipal Council. The learned counsel for the petitioner submitted that the Municipal Council was bound to hear the petitioner's side before taking the impugned action and had by omitting to do so, violated the rule of natural justice which lays down that 110 man shall be condemned behind his back and without an opportunity of being heard.
9. Now a writ of certiorari can be issued to quash the order of an inferier tribunal or a quasi-judicial authority if it goes beyond the jurisdiction, or to ensure observance of the rules of natural justice. The question that then arises for consideration is, whether the Municipal Council was acting as a quasi-judicial body in considering the question of the renewal of the petitioner's licence and in asking the petitioner to remove the flour mill to some other place.
10. In Province of Bombay v. Khushaldas, AIR 1950 SC 222 (A), the Supreme Court has laid down that the decision will be quasi-judicial only if an obligation to act judicially is laid down in the statute which has established the authority whose decision is in question; i.e., when the law under which the authority is making a decision itself requires a 'judicial approach', the decision will be quasi-judicial,
11. In the present case, the learned counsel for the petitioner has not brought to our notice any provision in the Municipal Act or in the Municipal Bye-Laws under which the Municipal Council is required to determine judicially, whether a licence for running a flour mill should be renewed or not. I In the absence of any specific provision in the statute requiring such a judicial approach, it cannot be held that the Municipal Council was expected to act judicially.
The Municipal Council and the Collector were both satisfied that the petitioner's flour mill was dangerous to the health and property of the persons living in the neighbourhood and decided that the renewal of the licence should be refused and the petitioner should be called upon to remove the flour mill to some other place. The decision taken by the Municipal Council was purely an administrative decision and it was not incumbent upon the body mak-ing that decision to deal with the case judicially or to hear the petitioner before the decision was made.
12. The petitioner has nowhere alleged in the petition that any of his fundamental rights has been affected by the impugned action and in view of thefacts on record no such allegation could have been sustained. It is admitted before us that a licence isnecessary for running a flour mill. The term of the licence issued to the petitioner expired on 31-3-1955 and even though the Municipal Council has refused to renew it, the petitioner has not stopped working of the flour mill. This conduct of the petitioner is highly objectionable and also disentitles him to any relief in these proceedings.
13. On all these grounds the petition deserves to fail and is hereby dismissed with costs. Advocate's costs will be taxed at Rs. 100.
14. I agree.