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M.i. Varghese Vs. the Chalissery Panchayat and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 254 of 1976
Judge
Reported inAIR1980Ker1
ActsConstitution of India - Articles 19(1) and 226; Kerala Panchayat Act, 1960 - Sections 97
AppellantM.i. Varghese
RespondentThe Chalissery Panchayat and ors.
Appellant Advocate T.R. Govinda Warrier,; K. Ramakumar and; Sebastian Davis
Respondent Advocate K. Chandrasekharan,; PNK Achan,; K.P.G. Menon, Advs.
DispositionAppeal dismissed
Cases ReferredNagar Rice and Flour Mills v. N. T. Gowda
Excerpt:
.....panchayat act, 1960 - appellant objected to grant of licence to fourth respondent for starting of rice mill - right to carry on business is subject only to restrictions imposed by law in interest of general public - owners of existing rice mill shifted its location and obtained necessary permission - previous sanction to be obtained from authorities before machinery moved from existing site competitor in business - no grievance against grant of permission permitting installation of new site - no right vested in appellant infringed - held, fourth respondent entitled to licence. - - on that the district medical officer of health reported by ext p3 that the inmates of the area of the proposed mill had raised strong objection and that the officer was also of the view that the starting..........with the rights of a competitor or a rival in trade and not that of a person to whom a statutory right of objection to the grant of permission or the licence under the provisions of the panchayat act, had been granted. it is difficult to appreciate and sustain the distinction thus stressed by the counsel, especially as a fundamental right is involved, in the case of a rival trader-objector, dealt with by the supreme court in the decision referred to above, and his case, if at all, should stand on a stronger footing than that of a mere objector who is given a statutory right to object. even such a statutory right of objection was held not sufficient by the supreme court to found a claim for locus standi to maintain a petition under article 226. whatever that be, in k. ramadas shenoy's.....
Judgment:

Gopalan Nambiyar, C.J.

1. Theappellant was an objector who objected to the grant of a licence for starting of a rice mill in Chalissery, for which the 4th respondent was an applicant. Ext. P1 is a copy of the objection filed by the appellant. On that the District Medical Officer of Health reported by Ext P3 that the inmates of the area of the proposed mill had raised strong objection and that the Officer was also of the view that the starting of another rice mill in that area would be an additional nuisance to the public in the locality, and that in the circumstances approval of the site may be deferred. The 4th respondent apparently carried up the matter further to the 3rd respondent. From Ext. P3, we see that the Director of Health Services reported that there is no objection in sanctioning the installation of the rice mill using 10 H.P. Electric Motor. He accordingly requested that revised orders may be issued in the matter. The District Medical Officer of Health in the circumstances called upon the 4th respondent to submit the site plan for considering the same. In his writ petition, the appellant sought to quash Ext. P3 and the order contained in the letter of the Director of Health Services referred to therein and for appropriate directions. The learned Judge dismissed the writ petition on the ground that the appellant had nolocus standi and that on the facts and circumstances which appeared, there is no ground for interference. The facts and circumstances noticed by the learned Judge are that subsequent to the filing of the writ petition, the licence for running of the proposed rice mill was granted to the 4th respondent and he had been running the mill for some time. The reason for finding against the locus standi of the petitioner was the decision of the Supreme Court in Nagar Rice and Flour Mills v. N. Teekappa Gowda and Bros. (AIR 1971 SC 246). The correctness of the position thus taken by the learned Judge in regard to the locus standi of an objector to file a writ petition against the grant of a licence such as the one for starting a rice mill has been debated at some length before us,

2. Our attention was called to the decision of the Supreme Court in Nagar Rice and Flour Mills case (AIR 1971 SC 246) and to two later decisions in K. Ramadas Shenoy v. Chief Officers, Town Municipal Council Udipi (AIR 1974 SC 2177) and Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed (AIR 1976 SC 578). Before we notice these decisions, we may briefly refer to the provisions of the Panchayat Act. Section 96 is the section which requires the taking out of a licence for use of certain places for certain purposes. Under Section 97 permission is required to construct or establish any factory, workshop or work-place and also to instal in any premises any machinery or manufacturing plant etc. Section 98 authorises the Government to make rules prohibiting or regulating the grant or renewal of licences under Section 96 or permissions under Section 97. In pursuance of the power thus granted, the Licensing of Dangerous and Offensive Trade and Factories Rules 1963 had been framed. Our attention was called to Rule 12 (4) (b) of the Rules which requires the Panchayat before granting permission under Rule 12 (3) to consult the District Medical Officer of Health, or any other Officer authorised in this behalf, regarding the suitability of the site of the factory, work-place or premises. It was under the said provision that a consultation was made with the District Medical Officer of Health. Under Rule 14 the Government or the Director of Panchayat could make such order or give such directions as they may deem fit in respect of any action taken or omitted to be taken under Sub-rule (3) of Rule 3. We may also notice Section 144(2) which provides for a right of appeal against any noticeor order or action taken under the provisions of the Act; and Sub-section (3) of the same section which provides the Government with a right of revision against the orders and actions under the Act. With these statutory provisions we may briefly notice the three decisions of the Supreme Court referred to. In Nagar Rice and Flour Mills case (AIR 1971 SC 246), it was ruled that where the owners of an existing rice mill shifted its location and obtained necessary permission from the Director of Food and Civil Supplies, even if it be assumed that previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, the competitor in the business, owner of another rice mill can have no grievance against the grant of permission permitting the installation on a new site. It was observed that the right to carry on business being a fundamental right under Article 19(1)(g) of the Constitution its exercise is subject only to the restrictions imposed by law in the interests of the general public under Article 19(6)(1) Counsel for the writ-petitioner would seek to justify this decision on the ground that the same was concerned with the rights of a competitor or a rival in trade and not that of a person to whom a statutory right of objection to the grant of permission or the licence under the provisions of the Panchayat Act, had been granted. It is difficult to appreciate and sustain the distinction thus stressed by the Counsel, especially as a fundamental right is involved, in the case of a rival trader-objector, dealt with by the Supreme Court in the decision referred to above, and his case, if at all, should stand on a stronger footing than that of a mere objector who is given a statutory right to object. Even such a statutory right of objection was held not sufficient by the Supreme Court to found a claim for locus standi to maintain a petition under Article 226. Whatever that be, in K. Ramadas Shenoy's case (AIR 1974 SC 2177), the position was discussed again with respect to the action of the Municipality in having granted permission to convert a Kalyanamandapam into a cinema theatre. Para 24 of the judgment put the position thus;--

'24. Another contention on behalf of the respondent is that if there is any breach of a statutory duty, the appellant will not be entitled to any relief without an injury. The breach of a statutory duty created for the benefit of an individual or a class is a tortious act. Anyone who suf-fers special damage therefrom is entitled to recover damages. Counsel for the third respondent relied on Cutler v. Wands-worth Stadium, 1949 AC 398. In that case a bookmaker alleged that he suffered damage in that the occupier had failed to make available for bookmakers space on the track where they could conveniently carry on bookmaking in connection with dog races run on the track under the Betting and Lotteries Act, 1934. It was held that the object of the Act was to provide the public and not the bookmakers with its requirements for the purposes of betting. It was no object of the Act to confer on individual bookmakers a privilege in furtherance of their business which they never possessed. Consequently no action was maintainable. The question whether an individual who is one of a class for whose benefit such an obligation is imposed can or cannot enforce performance by an action must depend on the purview of the legislature in the particular statute. Injury may be caused either by the fulfilment of the duty cast by the statute or by failure to carry it out or by negligence in its performance.'

Even on this statement of the law, we are not in a position to find that the appellant before us belongs to a class of persons for whose benefit the right of objection has been conferred, nor are we prepared to predicate any right on the appellant under the purview of the provisions of the statute, which we can say, has been infringed. The position received a full discussion by the Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar (AIR 1976 SC 578). It was there ruled that the proprietor of a cinema theatre holding a licence for exhibiting cinematograph films, is not entitled to invoke the certiorari jurisdiction ex de-bito justitiae, to get a 'No-objection Certificate', granted under the rules, in favour of a rival in the trade, brought up and quashed on the ground that it suffers from a defect of jurisdiction. We may extract paras 48 to 50:

'48. It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction must be insisted upon. The broadguidelines indicated by us, coupled with other well-established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc. can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.

49. While a Procrustean approach should be avoided, as a rule, the Court should not interfere at the instance of a 'stranger' unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a 'stranger', and not a busybody, then also there are no exceptional circumstances in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellant's monopoly of cinema business in the town; and above all, it will in effect, seriously injure the fundamental rights of respondents 1 and 2, which they have under Article 19(1)(g) of the Constitution, to carry on trade or business subject to reasonable restrictions imposed by law.

50. The instant case falls well-nigh within the ratio of this Court's decision in Nagar Rice and Flour Mills v. N. T. Gowda, (1970) 3 SCR 846 = (AIR 1971 SC 246) wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice mill by another -- even if such setting up be in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 -- because no right vested in such an applicant is infringed'.

Without being categoric or universal, in the light of the principles as stated and discussed by the Supreme Court, and in the light particularly of the facts noticed in the judgment under appeal that the 4th respondent has been granted a licence and has been operating the rice mill for some time since the grant of the same, we do not think that any circumstances have been made out to justify our interference with the judgment of the learned Judge. We sustain the order of thelearned Judge and dismiss the appeal with no order as to costs.


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