Skip to content


V.P. Mohammed Kutty Vs. Thottoli Kunhikoya Haji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 710 and 857 of 1984
Judge
Reported inAIR1985Ker33
ActsRice Milling Industry (Regulation) Act, 1958 - Sections 5 and 19; Constitution of India - Article 226
AppellantV.P. Mohammed Kutty
RespondentThottoli Kunhikoya Haji and ors.
Appellant Advocate K.A. Abdul Salam,; V.R. Venkitakrishnan,; K. Vijayan
Respondent Advocate Govt. Pleader and; P.N.K. Achan, Adv.
Cases ReferredSaina v. Konderi
Excerpt:
.....licence by district collector to start rice mill challenged - licence issued as per direction of state government - both state government and district collector competent authority with concurrent jurisdiction to issue licence - district collector cannot abdicate his power and issue licence on direction from government once he rejected application of respondent - issuance of licence untenable and quashed. - - central government has issued notifications delegating its authority under the act to the state government as well as the district collectors in kerala. these matters are, the number of rice mills operating in the locality, the availability of paddy in the locality, the availability of power and water supply for the rice mill in respect of which a permit is applied for, the..........of civil supplies and when no action was taken, on 7-9-1983 he submitted an application before the state government offering to modernise the mill in six months. government as per letter dated 22-9-1983 (ext. r1(c) in o. p. 857 of 1984) directed the district collector to grant permit if the applicant is willing to modernise the rice mill. thereupon, the district collector called upon the first respondent to file a fresh application and undertaking to modernise the mill as per letter dated 22-10-1983 (ext. r1(d) in o. p. 857/1984). accordingly, first respondent submitted a fresh application and undertaking. on 8-11-1983, the district collector sanctioned the permit evidently ignoring the representation submitted by the petitioner in o. p. 710/1984 (ext. pi therein). even thereafter, there.....
Judgment:
ORDER

U.L. Bhat, J.

1. These original petitions are filed under Article 226 of the Constitution of India challenging the permit issued by the common second respondent, District Collector, Malappuram in favour of the common first respondent for starting a new rice mill in Sy. No. 25/4 of Kuruva village under Section 5 of the Rice Milling Industry (Regulation) Act, 1958 (for short 'the Act') and the Govt. letter or order No. 10522 dated 22-9-1983 which led to the grant of the permit and consequential reliefs. The common respondents 3 and 4 are the District Supply Officer of the District and the Kuruva Panchayat, State of Kerala has been impleaded as additional fifth respondent in O. P. 710 of 1984.

2. Facts of the case can be summarised as follows :

On 30-12-1982, first respondent filed an application before the District Collector under Section 5 of the Act for grant of a permit to start a new rice mill in the premises mentioned above. After due enquiry, the District Collector rejected the application on 25-3-1983. The Act does not provide for any appeal or revision against such an order. However, first respondent submitted an application (Ext. R1 (b) in O. P. 857/1984) before the Commissioner of Civil Supplies and when no action was taken, on 7-9-1983 he submitted an application before the State Government offering to modernise the mill in six months. Government as per letter dated 22-9-1983 (Ext. R1(c) in O. P. 857 of 1984) directed the District Collector to grant permit if the applicant is willing to modernise the rice mill. Thereupon, the District Collector called upon the first respondent to file a fresh application and undertaking to modernise the mill as per letter dated 22-10-1983 (Ext. R1(d) in O. P. 857/1984). Accordingly, first respondent submitted a fresh application and undertaking. On 8-11-1983, the District Collector sanctioned the permit evidently ignoring the representation submitted by the petitioner in O. P. 710/1984 (Ext. PI therein). Even thereafter, there were representations. Meapwhile, first respondent applied to the Panchayat for permission forconstruction and also licenqe under the provisions of the Kerala Panchayat (D & O) Rules, The Panchayat as per resolution dated 28-1-1983 decided to grant licence and permit after the site was approved by the District Medical Officer of Health. The panchayat granted licence on 18-1-1983 (See Ext. R4 series in O. P. 857/1984). Meanwhile, first respondent applied to the District Collector for issue of a licence under Section 8 of the Act. At that stage also, certain objections were raised. The District Collector, however, directed the issue of a licence on 31-1-1984. At that stage, the original petitions were filed and an injunction order was obtained. Licence has not actually been issued.

3. The main contention urged by petitioners in the two original petitions is that the District Collector as the statutory authority had once exercised his power by rejecting the application of the first respondent and was thereafter compelled to grant a permit on the insistence of the Government, another statutory authority, and this was illegal.

4. The Act was enacted to regulate the rice-milling industry in the interests of the general public, to provide a reasonable facility for development of hand pounding industry and the provide employment for rural population. (See observations in Abdul Rahiman Kunju v. State of Kerala, 1966 Ker LT 161 : (1966 Cri LJ 1541 (2)). Section 2 of the Act declares that it is expedient in the public interest that the Union should take under its control the rice milling industry. The powers under the Act are vested in the Central Government. Section 19 of, the Act enables the Central Government by notification to delegate any power under the Act, conditionally or otherwise, to any State Government or any officer or authority subordinate to a State Government. Central Government has issued notifications delegating its authority under the Act to the State Government as well as the District Collectors in Kerala. Section 5 deals with grant of permit in respect of new or defunct rice-mills. It is open to any person to make an application for the grant of a permit; every application should be made in the prescribed form and shall contain the particulars regarding the location of the rice mill, the size and type thereof and such other particulars as may be prescribed. Rule 3 of the Rice-Milling Industry (Regulation and Licensing) Rules, 1959 (for short 'the Rules') deals with the application and prescribes a form. It indicates that an investigation will be made with a view to ascertaining whether the grant of permit is necessary for ensuring an adequate supply of rice and investigation shall relate to ascertainment of various matters indicated in Section 5(4) of the Act and Rule 3(2) of the Rules. These matters are, the number of rice mills operating in the locality, the availability of paddy in the locality, the availability of power and water supply for the rice mill in respect of which a permit is applied for, the effect that the operation of the new rice mill may have on the local economy, the pattern of trade and commerce in rice in the locality, the necessity or otherwise for an addition to the productive capacity of the existing rice mills in the locality and whether hand-pounding industry in the locality is already well organized and whether the establishment of a new rice-mill is likely to affect adversely that industry. If on receipt of an application, the statutory authority is of the opinion that it is necessary so to do for ensuring adequate supply of rice, it may subject to the provisions of Sub-sections (4) and (5) of Section 5 grant the permit, if necessary with conditions. Sub-section (5) lays down preferences in the matter of grant of permit.

5. Section 6 requires the owner of a rice mill to make an application to the licensing officer for the grant of licence for carrying on rice-milling operation. It shall be made in the prescribed form and shall contain the particulars mentioned in the section. The licensing officer shall grant the licence with conditions mentioned in the section. Section 7 of the Act deals with revocation, suspension and amendment of licences. Sub-section (1) of Section 8 states that no person shall establish a new rice-mill except under and in accordance with a permit granted under Section 5 of the Act. Sub-sec. (2) states that no such person shall carry on rice-milling operation except under and in accordance with a licence granted under Section 6. Section 12 provides for appeal by 'aggrieved person' against the decision of the licensing officer under Section 6 or 7. Section 13 prescribes penalties for contravention of any of the provisions of Section 8 or Section 18(2). Section 22 confers on the Central Government power to make rules for carrying out the purposes of the Act. It has to be noticed that the Act does not provide for an appeal or revision against any order passed by the statutory authority granting or refusing permit.

6. Grant or refusal of a permit under Section 5 of the Act lies within the exclusive power of the statutory authority. In this State, both the State Government and the District Collectors have been notified to be such authorities by the Central Government, under Section 19 of the Act. Though administratively State Government is superior to the District Collector, as statutory authorities under the Act, they have concurrent power. As such, one is not superior or inferior to the other. One of such statutory authorities is not bound by the decision of the other; nor is one subservient to the other insofar as functions to be exercised under the Act are concerned. The District Collector, as the statutory authority, has to exercise his own judgment when discharging the power vested in him. The State Government is not competent to give him any direction resulating the manner in which he has to exercise his power or function. In exercising the statutory power, he is guided solely by the provisions of the Act and the Rules and not by the directions of the State Government. If the district Collector, while exercising his statutory power does so in obedience to the direction given by State Government, it would amount to impermissible abdication of his responsibility and power. Any order passed by the District Collector in such circumstances would not be legal.

7. An almost identical case came upfor consideration by the Supreme Court inPurtebpur Company Limited v. CaneCommr. of Bihar AIR 1970 SC 1896.Under the Sugar Cane Control Order, thepower of the Central Government to alterreservation of cane area had beendelegated to the State Government ofBihar as well as the Cane Commissioner,Bihar. On the application of one of theinterested parties, the Cane Commissionerhad made reservation of villages in aparticular manner. One of the partiesmoved the Chief Minister of the State also.While the Cane Commissioner was of theopinion that there was no justification fordisturbing the reservation made in favourof one of the parties, the Chief Ministerwas of the contrary view. On the directionsof the Chief Minister, the CaneCommissioner, the statutory authorityaltered the reservation and this- waschallenged in court. In paragraph 13 of theJudgment, the Supreme Court observedthat

'In the matter of exercise of the power under Rule 6(1), the State Government and the Cane Commissioner are concurrent authorities. Their jurisdiction is co-ordinate.... we are of the opinion that the impugned orders though purported to have been made by the Cane Commissioner, were, in fact, made by the Chief Minister and hence they are invalid. We have earlier seen that the Cane Commissioner was definitely of the view that the reservation made in favour of the appellant should not be disturbed but the Chief Minister did not agree with that view. It is clear from the documents before us that the Chief Minister directed the Cane Commissioner to divide the reserved area into, two portions and allot one portion to the 5th respondent.... The Cane Commissioner merely carried out the orders of the Chief Minister. It is true that the impugned orders were issued in the name of the Cane Commissioner. He merely obeyed the directions issued to him by the Chief Minister. We are unable to agree with the contention of Shri Chagla that though the Cane Commissioner was initially of the view that the reservation made in favour of the appellant should not be disturbed, he changed his opinion after discussion with the Chief Minister. From the material before us, the only conclusion possible is that the Chief Minister imposed his opinion on the Cane Commissioner. The power exercisable by the Cane Commissioner under Clause 6(1) is a statutory power. He along could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone not even in favour of the State Government or the Chief Minister.'

In paragraph 14, the Court observed :

'14. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.'

8. The facts of the present case are similar. On the application for permit submitted by the first respondent on 30-12-1982, after due investigation, the District Collector passed an order rejecting the permit. The order was passed by him in the exercise of his statutory power. The first respondent had no statutory remedy against adverse order. He had no right of appeal and he had no right of preferring a revision before the State Government. State Government is only another statutory authority with co-ordinate jurisdiction. If the first respondent had submitted an application for permit before the State Government, perhaps. State Government could have passed orders in accordance with law. First respondent did not submit an application for permit before the Government. He only filed a petition before the Government complaining about the refusal of the District Collector to grant permit. On the basis of this petition. Secretary to Government wrote a letter to the District Collector stating that 'I am directed to forward herewith' a copy of the petition cited and to request that the permit may be sanctioned as the applicant is willing for modernisation. Though the letter was couched in the form of a request, it was actually a direction. It was intended to be a direction and was understood as such by the District Collector. That is clear from the averments in the counter-affidavit filed in O. P. 710 of 1984 on behalf of respondents 2 and 3. In paragraph 3 of the counter affidavit, the third respondent stated :

'Considering the case of the first respondent, the Government have ordered to issue a rice mill permit as per Government Order No. 10522/B1/83/Food dated 22-3-1983. Accordingly the second respondent issued a rice mill permit No. 62/PTM to the 2nd respondent. The permit issued as per Government directions to the first respondent is to establish a modernised rice mill.'

In paragraph 7 of the counter affidavit, it is stated :

'The permit was issued in compliance of the order of the Government, after conducting the enquiries in the matter.'

There could, therefore, be no doubt that the permit was issued not on the basis of exercise of judgment by the District Collector but merely in implementation of the directive of the Government. Though the order sanctioning the permit was actually passed by the statutory authority, the District Collector, it was in fact made by the State Government. Perhaps, State Government could independently have passed an order granting permit. But the State Government has no power to direct another statutory authority of co-ordinate jurisdiction to do so. The order sanctioning permit issued by the District Collector is clearly illegal. See also Orient Paper Mills v. Union of India AIR 1970 SC 1498, Sihabuddin Kunhu v. State of Kerala 1984 Ker LT 474 : (AIR 1985 Ker 12).

9. However, learned counsel for the first respondent as well as learned Government Pleader vehemently challenged the locus standi of the petitioners in the two petitions. I will first deal with the locus standi of the petitioners in O. P. 857 of 1984. First petitioner is the owner of a rice mill in an adjoining Panchayat namely Puzhakkatteri Panchayat. The rice mill proposed to be established by the first respondent is in Kuruva Panchayat. Even though first petitioner mentions several grounds against the grant of permit, actually he has to be regarded as a competitor in business, whose business is likely to be affected by the establishment of the proposed rice mill. Such a person cannot be treated as a person 'aggrieved'. Just as he has a right to conduct business, equally first respondent has a right to conduct his own business. First petitioner cannot be said to be 'aggrieved' merely because his business is likely to be affected by the new business. No legal right vested in the first petitioner is infringed by the permit granted to the first respondent. He is only a rival in trade. Therefore, first petitioner has no locus standi to challenge the impugned order. See N. Rule & F. Mills v. N. T. G. & Bros. AIR 1971 SC 246, J. M. Desai v. Roshan Kumar, AIR 1976 SC 578, Baby v. State of Kerala, 1966 Ker LT 481 and Paul v. State of Kerala, 1966 Ker LT 1173: (AIR 1967 Ker 71).

10. Second petitioner in O. P. 857 of 1984 is not a rival or competitor. He is only a resident in the locality. Further, he never objected to the grant of permit; not only that he consented to the proposed activity of the first respondent. This is seen from the counter affidavit filed by the first respondent as well as the counter affidavit filed on behalf of the Panchayat, by its Executive Officer. Ext. R4(b) in O. P. 857 of 1984 is consent letter recorded in the presence of the Executive Officer to which the second petitioner appears to be a signatory. He is, therefore, not entitled to challenge the grant of the impugned permit.

11. Petitioner in O. P. 710 of 1984 is not a rival or a competitor in trade. He is the Manager of M. R. L. P. School situated in Kuruva village. It is an old lower primary school functioning from 1936 very near the site of the proposed rice mill. There is a slight dispute regarding the exact distance between the site and the school. In the counter affidavit filed on behalf of respondents 2 and 3 in O. P. 710/1983, the distance is mentioned as 50 to 60 metres. Petitioner would put the distance as 15 metres. The Executive Officer of the Panchayat would say that the distance is 61 metres. Anyway, the distance cannot be more than 150 to 200 feet. He has raised several general objections regarding the grant of permit hased on the criteria mentioned in the Act and the Rules. According to him, there are nine rice mills in the village and the number is too many even now, that the village has very few paddy fields and the availability of local paddy for milling is meagre. There are a large number of harijan families employed in hand-pounding in their houses. The establishment of the new rice mill would affect their employment and increase the scope of unemployment. He had also stated that the proposed rice mill is very near the school and the mill would cause a lot of disturbance and annoyance to the teachers and the neighbours. According to him, the establishment of the rice mill there would harmfully affect the educational activities in the school as well as the health of students, teachers and the neighbours.

12. The traditional view was that a person who seeks relief from court should ordinarily be one who has a personal or individual right in the subject matter of the petition and as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him locus standi. In other words, he should be an 'aggrieved' person. The expression 'aggrieved' person is an elastic concept and cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest and the nature and extent of the prejudice or injury suffered by him. The Supreme Court in J. M. Desai v. Roshan Kumar AIR 1976 SC 578 recognized this traditional view. However, the Court also indicated that the ordinary rule is not a cast-iron rule and is flexible 'enough to take in those cases where the petitioner has been prejudicially affected by an act or omission of an authority even though he has no proprietary or fiduciary interest in the subject matter. In exceptional cases, even a stranger or a person who was not a party to the proceeding before the authority, but has a substantial and genuine interest in the subject-matter of the proceeding, will be covered by the rule. If a person has a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public, he would have locus standi. Applying these principles, the Supreme Court in the above case held that the owner of a rival cinema theatre who had, not raised objection before the statutory (authority) had no locus standi to challenge the order of the authority.

13. There have been new strands of thought forthcoming in regard to the locus standi rule. The rule was put to searching examination by a Constitution Bench consisting of seven Judges of the Supreme Court in S. P. Gupta's case AIR 1982 SC 149. In the several judgments, the traditional rule regarding locus standi, the exceptions thereto and the new ideas which, govern the rule have been discussed. The observations in J. M. Desai's case AIR 1976 SC 578 recognizing a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc, located within a distance of 200 yards of the site on which the cinema house, was proposed to be constructed were noticed. The Court also indicated that where a person who had suffered a legal wrong or legal injury or whose constitutional or legal right has been violated is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other reason such as socially or economically disadvantaged position, some other person can invoke the assistance of the court. It has also been indicated that where what is affected is public interest and not private right, the aid of the court could be invoked where the State or public authority has acted in violation of a constitutional or statutory obligation or failed to carry out such obligation.

14. In the course of one of the judgments in the above case, Bhagwati, J. referred to the following observations in Rex v. Inland Revenue Commrs. (1981) 2 WLR 722 :

'It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayers, were prevented by out-dated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped.'

The learned judge also referred to the observations of Lord Denning M. R. in Mcwhirter case, (1973) 1 All ER 689 :

'We live in an age when Parliament has placed statutory duties on government departments and public authorities for the benefit of the public -- but has provided no remedy for the breach of them. If a government department or a public authority transgresses the law laid down by Parliament, or threatens to transgress it, can a member of the public come to the Court and draw the matter to its attention.... I am of the opinion that, in the last resort, if the Attorney General refuses leave in a proper case or improperly or unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public who has sufficient interest, can himself apply to the court itself.'

and also the observations of Lord Denning in Reg v. Greater London Council, Ex parte Blackburn (1976) 3 All ER 184 :

'I regard it as a matter of high constitutional principle, that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of his Majesty's subjects, then anyone of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate.'

Bhagwati J. concluded as follows :

We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision'.

Of course, courts must be careful to see that the member of the public who approaches the court is acting bona fide and not for personal gain or for profit motive or political consideration or other oblique consideration. The court must not allow its process to be abused by others to delay legitimate administrative action or the like. I notice that the same approach has been made by the Supreme Court in People's Union for Democratic Rights v. Union of India AIR 1982 SC 1473.

15. A Division Bench of this Court in Abraham Vadakkancherry v. State of Kerala 1984 Ker LT 704 followed this trend. This principle has been applied by Sukumaran J. in Saina v. Konderi 1984 Ker LT 428 : (AIR 1984 Ker 170) in deciding on the question of locus standi to institute a suit questioning the construction of a building in violation of Municipal Building Rules, after an elaborate consideration of the precedents. Another Division Bench of this Court followed the same approach in O. P. 2088 of 1983 (reported in AIR 1985 Ker 24), the case relating to use of polythene containers for packing arrack.

16. Applying these principles, there is every reason to accept that the petitioner in O. P. 710/1984 has locus standi to challenge the order of the Dist. Collector. He is not a person whose private interests are affected by the impugned order. He is a member of the local public, manager of a local school. The impugned order of the District Collector is said to adversely affect public interest. Being manager of a school with hundreds of children, he has sufficient interest to maintain the action. There has been breach of public duty and violation of the statute on the part of the District Collector. This member of the public can certainly enforce the public duty and the observance of the legal provision. That is essential in maintaining the rule of law and to prevent arbitrary and unlawful action on the part of the public authority. It has been suggested that petitioner in O. P. 710/1984 is only a nominee of the first petitioner in O. P. 857/1984. There is absolutely nothing to land any strength to this submission. He appears to be acting bona fide and not for personal gain or for private profit or other oblique consideration. I therefore hold that the petitioner in O. P. 710/1984 has locus standi to maintain the original petition. I have already held that the impugned order of the District Collector is illegal, resulting from abdication of his statutory responsibility. The same cannot stand.

17. In the result, O. P. 857/1984 is dismissed but without costs. O. P. 710/1984 is allowed, but without costs and the permit issudd by the second respondent in favour of the first respondent to run the rice mill in Sy. No. 25/4 of Kuruva village is quashed. It is open to him to pass fresh orders on the application of the first respondent in accordance with law and untrammelled by the direction given by the Government in letter dated 22-9-1983. Naturally, if permit is not granted afresh, the licence obtained by the first respondent would be of no value.


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