1. This is a petition under Article 226 of the Constitution by Ram Nath, proprietor of the Jai Bharat Printing Press, who seeks orders from this Court to compel the first respondent, the Delhi Municipal Committee, to renew certain licences issued to the petitioner with regard to his printing press. For some reason or other the State of Delhi has also been impleaded as a respondent, but, as it would seem, quite unnecessarily.
The petitioner's allegations are that he came to Delhi, in 1947 as refugee and in due course set up a printing press in certain premises allotted to him. by the Custodian of Evacuee Property at No. 3137-3190, Bahadur Garh Road, in the city of Delhi. He began working the press with a three horsepower diesel oil engine apparently without a licence, out when the fact that he required a licence was-drawn to his notice by the Municipal Committee in September 1949 he successfully applied for a licence, which was granted to him for running his-engine by day time, and was renewed annually up to the year 1952-53, ending on 31-3-1953. He also acquired a four horse power electric motor which he wanted to use, but he was informed in January 1950 by the Delhi Province Electricity Power Control Board that he could only be granted electric energy between the hours of 11 p.m., to 7 a.m. & that too subject to his obtaining a licence from the Municipal Committee for night working,
He thereupon successfully applied to the Municipal Committee for a separate licence to work, his electric motor during the night hours, and he held a licence for this for the years 1950-51 and 1951-52 ending on 31-3-1952. Thereafter, however, his licence for the night working of the electric motor was only renewed up to 31-12-1952, the terms of the licence being that he was granted, a four horse power electric motor, night load, licence up to 31-12-1952 with a definite instruction that his licence would not be renewed after that date if the night load were not converted into a day load.
2. In January 1953 he was informed that as he had not been able to obtain a day load of electricity, his application for renewal of this licence was rejected, and subsequently after 31-3-1953 when he again applied for the renewal of both his licences he was informed by a letter dated 5-6-1953 that not only his night licence for the electric motor, but also his day licence for the diesel engine, had been revoked. He claims that his fundamental rights have been infringed and seeks orders from this Court not only compelling the Municipal Committee to renew both his licences, but also to refrain from prosecuting him for running his press without a licence and to withdraw any prosecution which may have already been instituted.
3. Briefly the case of the Municipal Committee is that his night licence was only renewed up to the end of 1952 on the definite condition that it would not be renewed thereafter for the running of the electric motor at night in pursuance of a resolution of the Municipal Committee, and that his licence for running his diesel oil engine in the day time was also revokes because the running of the press in this area was detrimental to public health and comfort, and complaints had been received. It was contended that the question of the revoking of the licence was discretionary and that the action of the Municipal Committee in this case was 'bona fide'.
4. There are thus two separate aspects of the case, the consideration which arise regarding the revocation of the day licence being different from those which arise regarding the revocation of the night licence. This is in fact quite clear from the file of the Municipal Committee on the matter which has been produced before me. It seems from this file that certain complaints were received by the Municipal Committee regarding the disturbance caused to the neighbours of the petitioner by his running the printing press at night. Printing Presses are in fact notoriously noisy, and I do not think it can be denied that the working of a printing press between the hours of 11 p.m. and 7 a.m. is decidedly calculated to disturb the sleep of any persons residing in the vicinity of the press. On this account in the early part of May 1952 the question of these complaints against the petitioner came up for consideration before the Sanitation Sub-Committee, which passed a resolution on the 12th of May that the Petitioner's licence should be sanctioned up to 31-12-1952 with the definite instruction that it would not be renewed, thereafter for night work. This resolution of the Sanitation Sub-committee was approved by a special meeting of the Municipal Committee on 29-5-1952.
It is quite clear from the printed record of the proceedings both before the Sub-Committee and the main Committee that the complaints against the petitioner related only to the night working of the press, and although there are actually some original letters of complaint on the file, written even after the resolution, and after 1-1-1953, there is no sign anywhere on the file of any complaint regarding the working of the press in the day time, and there is no trace whatever of any resolution, or even any order of any officer of the Municipal Committee giving reasons for the refusal to renew the petitioner's licence which he had held continuously for four years, for the day time working of his press with the aid of his diesel engine.
5. The Municipal Committee is certainly wrong in adopting the position that the granting or withholding of a licence to carry on what is described as an offensive trade is entirely within the discretion of the Committee. The granting of these licences is covered by Section 121, Punjab Municipal Act as extended to Delhi and Sub-section 2 reads:
'The licence shall not be withheld unless the committee consider that the business which it is intended to establish or maintain would be the cause of annoyance, offence or danger to persons residing in, or frequenting, the immediate neighbourhood, or that the area should be for general reasons kept clear of the establishment of such business.'
6. There does not appear to be any question of a general prohibition of such businesses in this neighbourhood, which is a crowded part of the old city of Delhi. in fact the petitioner has filed along with an affidavit a list of 13 printing presses which are said to be in this neighbourhood, including five actually on Bahadur Garh Road, ten on Phuta Road, and three on Pul Bangash which are not far away. He has also filed a list of 31 factories of all kinds including saw mills, rolling mills and metal works situated on Bahadur Garh Road. It would seem that in this case the renewal of the licence for day working has been withheld simply by the order of the Assistant Medical Officer, and in my opinion the petitioner is correct in his contention that it was not within the power of this officer to grant or withhold the licence, and this could only be done by the Committee as a whole.
Section 33 of the Act contains a list of the powers of the Committee which can be delegated to various officers, and although there is an extensive list of the various sections of the Act with regard to which the Medical Officer of Health can exercise the powers of the Committee, the Sections listed do not include Section 121. It was therefore necessary for the licence of the petitioner to be withheld in this case by a resolution of the Municipal Committee itself, and that too on the grounds contained in Sub-section (2) of Section 121. There is neither any such resolution nor do any such grounds appear to exist, since all the complaints against the petitioner to which any reference canbe found on the record relate only to his night working. It is indeed difficult to conceive that the running of a small diesel engine could constitute a nuisance in this part of Delhi during the day time, since the noise and smoke must ordinarily be considerable.
7. It was suggested that the petitioner should, not be given any remedy by way of a writ, since he has a right to appeal against an order refusing to renew his licence under bye-law 5 of the Municipal Dangerous and Offensive Trade Bye-laws.
The rule in question provides that in case the grant of a licence is refused the Licensing Officer shall make an order in writing embodying his reason for refusing the licence. It goes on that the appeal shall be heard by an Ordinary Meeting of the Committee, and that time required in obtaining copies of the order shall be deducted from the period of limitation.
The answer to this Seems to be that in the first place I have searched the file in vain for any trace of an order refusing to renew the petitioner's licence much less the reasons therefor, and in any case the attitude adopted by the authorities towards the present petitioner is not calculated to inspire confidence. The bye-laws provide that any person can inspect Municipal records other than those marked confidential, and the file itself, as well as a copy appended to his petition by the petitioner, show that on 9-8-1953 the petitioner submitted an application to the Secretary of tile Municipal Committee for inspecting the file relating to the licensing of his press and that an order was passed thereon on the 15th of August:
'He should give the undertaking that he will not involve the M. Committee in any legal action'.
In other words in order to inspect the file the! petitioner was called on to renounce beforehand the very object of his wish to inspect the file.
8. The sum of my conclusion is thus that although the Municipal Committee was fully Justified in temporary renewing the night licence of the petitioner up to 31-12-1953, and thereafter refusing to renew it, the refusal to renew his day licence is altogether unwarranted and appears to involve unfair discrimination. I accordingly accept the petition to the extent of issuing an order directing the Municipal Committee to r'new the petitioner's licence for the day time working of his press. I decline to make any order prohibiting the Committee from prosecuting the petitioner if in fact he continued to run his press at night after his licence had expired. In the circumstances I order that the parties shall bear their own costs.