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S. Mohamed Amanulla Vs. District Municipality of Quilon - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 577 and 628 of 1960
Reported inAIR1962Ker30
ActsConstitution of India - Articles 19(1), 226 and 261; Travancore District Municipalities Act, 1116 - Sections 261(3)
AppellantS. Mohamed Amanulla
RespondentDistrict Municipality of Quilon
Appellant Advocate K. Velayudhan Nair, Adv.
Respondent Advocate T.K. Narayana Pillai, Adv.
DispositionPetitions dismissed
Cases ReferredK. Mohamed Khassim v. Municipal Council
Excerpt: the act, its object is to make provision for the better management of the municipal affairs of travancore. ' and its preamble says, that it is expedient to make better provision for municipal administration in observe, that it affords no parallel to the present case, for the grounds urged by the municipal health officer on the strength of which a butcher's licence was refused, proceeded on considerations which were found to be irrelevant, and no question arose in it of abating a nuisance.6. the constitutionality of section 261 (3) of the act remains for consideration. the conferment by the legislature of arbitrary power, unregulated by any principle, or rule of guidance, or of policy, has been uniformly, held, to be bad as imposing an unreasonable restriction on the fundamental right guaranteed by article 19 (1) (g); but the authorities are also clear, that such principle or rule may be discovered anywhere within the framework of the concerned legislative enactment, and not.....

S. Velu Pillai, J,

1. The petitioner in O. P. 577 of 1980, was carrying on business as a trader in hides and skins in his premises, bearing number M. C. 926 in Andamukkom North Ward, situated within the limits of the Quilon Municipality. For the year 1958-59, he had a licence from the Municipality under Section 261 (3) of the Travancore District Municipalities Act, 1116, which may he referred to hereafter as the 'Act'. In February 1959, the Sanitary Inspector reported to the Municipality by Ext. R-2, that the foul smell emanating from the stored hides in the premises was 'unbearable', that ''the water oozing' from them and flowing into the public road rendered the place insanitary, and that being a 'very thickly populated area, no precaution taken for the abatement of the nuisance' would prove effective. On the strength of Ext. R-2, the Municipal Commissioner issued a memo to the petitioner. Ext. P-1, dated 9th March 1959, intimating him in advance, that the licence would not be renewed from 1st April 1959. The petitioner, however, applied for the renewal of his licence for the year 1959-60, when, for reasons adduced in Ext. P-1 the application was rejected. The petitioner preferred an appeal to the Municipal Council under Section 343 (1) (c) of the Act, which constituted a subcommittee for enquiry into the matter and report. The sub-committee reported by Ext. R-1, dated 9th March 1960, that the premises in question were

'surrounded by residential quarters, that foul water (mixed with blood and fat after washing the hides which come straight from the slaughter houses) ... flowed into the adjoining premises and the public road, and that above all, the extraordinary foul smell emanating throughout from these places, is intolerable and any one who is not accustomed to it, if allowed to remain in the premises for a couple of minutes will run out for his breath before he faints.'

The sub-committee was of the opinion, that the premises were not suited for conducting this trade and the petitioner

'should be discouraged in the interest of the health of the people residing around.'

The Council accepted the report and intimated the petitioner by Ext. P-3, that his appeal was rejected, as

'storing hides in the premises in the question will injuriously affect the health of the people residing in the vicinity.'

Undaunted, the petitioner applied for the renewal of licence for the year 1960-61, and by memo, Ext. P-4, dated 5th April 1960, he was informed, that the licence would not be renewed and the amount tendered by him towards licence fee would not be accepted. The petitioner has therefore moved under Article 226, to bring up the records for quashing Exts. P-1, P-3 and P-4 and for the issue, of a writ of mandamus or other appropriate writ to compel the Municipal Council to issue a licence to him, and of a writ of prohibition to the Council from giving effect to Ext. P-4.

2. The petitioner's complaint before me was, that his application for licence has been refused on irrelevant considerations, that the refusal to renew his licence on the ground that no amount of precaution could abate the nuisance, was not legally valid and that Section 261 (3) of the Act, conferring as it does, an unguided and arbitrary power on the municipality, imposes an unreasonable restriction on his fundamental right under Article 19 (1) (g) to carry on his trade, and is therefore void. O. P. 628 of 1960 is a similar petition by another trader in hides and skins within the same municipality, for similar reliefs, consequent upon similar order passed against him nO distinction was made on the basic facts and the vital questions for decision, between the two petitions, which may therefore be, and are disposed of by this, a common order. For convenience, the petitioner in O. P. 577 of 1960 may be referred to in this order, as the petitioner.

3. Though the petitioner has a case in his affidavit, that, out of malice, one Ahmed Pillai and his relations had petitioned to the Executive Authority of the municipality against the continuance of his trade, the reports furnished to the Municipal Council by the Sanitary Inspector and by the subcommittee have not been impugned as mala fide and have to be accepted as correct. The chief ground relied on in them, that the foul smell and the foul discharge from the stored hides and skins,would affect injuriously, the health and safety of the residents in a thickly populated residential area, is no irrelevant consideration, as contended. On the contrary, they constituted a nuisance as defined in Section 3 (16) of the Act, which it is the undoubted duty of any municipal administration to abate. It was urged, that these reports were obtained behind the back of the petitioner, and that in any event, he was not called upon to take precaution, to abate the nuisance. I am not clear, that the principles of natural justice can be pushed to this extent. Whatever may be said of the Sanitary Inspector's report, the sub-committee's report was in a proceeding to which the petitioner was a party and the above objection is quite untenable.

The observations of Stone, J., in Venkatachalam v. Corporation of Madras, AIR 1934 Mad 70, that there should not be 'a blank refusal, but only a refusal unless certain indicated safeguards are provided' were relied on by the learned counsel as supporting his stand, that before refusing the licence, the petitioner should have been called upon to provide safeguards for abatement of the nuisance. In the case before Stone, J., a letter of request for a licence accompanied by the prescribed fee, was considered not to be an application for licence, and was not treated as such, but the Corporation called upon the applicant to stop the business, which consisted of the grinding and manufacture of curry-powder, for sale. The Corporation maintained, that the pungent odour of the curry-powder and the escaping dust of chillies constituted a public nuisance. Evidence was recorded as to this, and what was more the learned Judge himself visited the premises and watched the manufacture and he came to the conclusion, that:

'there is no danger to Public health, that chilli dust is not escaping in large quantities and never by itself, the se chillies being mixed with a great number of other things and made into curry-powder'.

The facts bear no analogy to the present case, where, on account of the foul smell emanating from the stored hides and skins, the atmosphere is contaminated to such an extent as to constitute public nuisance. In my opinion, the action to be taken by a municipal body is conditioned to a very large extent, by the nature of the trade or business. In a proper case the municipality may justly take the view, that a particular trade or business is so deleterious in its consequences to public health or safety, and ought not to be permitted in particular areas, or localities, or premises. Unless the remedy by way of abatement of nuisance is so clear cut and drastic Or so effective, there is no conceivable reason why a large number should be allowed to suffer, pending experimentation or investigation.

Apparently, even at the hearing of the appeal by the Municipal Council the petitioner did not suggest ways and means by which the nuisance could be prevented or abated, and all that the petitioner's learned counsel could state before me was, that even the smell could be avoided or suppressed, by the use of some chemicals which might be found out. The reports before the municipality ought, as in Ranchorlalji v. Revenue Divisional Commissioner, Sambalpur, AIR 1960 Orissa88 at p. 93, to be taken to be decisive on theissue as to nuisance, in this proceeding under Article 226. If so, the municipality acted within its rights, in refusing a licence to carry on the trade in the premises for which the licence was applied for, instead of allowing the nuisance to continue to the detriment of the health and safety of those residing in the vicinity.

4. Relying on the stand taken by the municipality in the counter-affidavit, that a trade of this nature cannot be permitted to be carried on, anywhere within the municipal limits, the learned counsel for the petitioner maintained, that the refusal to grant a licence amounts to a prohibition of the trade and must therefore be struck down. It has to be noted, that the Supreme Court has, quite recently held in Narendra Kumar v. Union of India, AIR 1960 SC 430, that the law is not that prohibition, as distinguished from restriction strictly so called, can under no circumstances be viewed as a reasonable restriction within the meaning of Article 19 (6). However, the issue does not fall for determination, as the orders impugned relate only to the premises in question, and do not proceed on the ground, that the trade itself has to be prohibited within the entire limits of the municipality. The learned counsel for the municipality made it clear to me at the hearing of these petitions, that in spite of the averment in the counter affidavit, it is open to the petitioner to make an application for licence for carrying on the business in a suitable place, if any, which can be found within the municipality, when it will be dealt with on its merits, and that the municipality has not taken any decision that the trade should be prohibited absolutely within its limits.

5. The learned counsel for the petitioner placed some reliance on the judgment of a Division, Bench of this Court in Noohu Kannu Rowther v. Municipality of Changanacherry, O. P. 371, of 1959: ILR 1960 Kerala 1057; but it is sufficient to observe, that it affords no parallel to the present case, for the grounds urged by the Municipal Health Officer on the strength of which a butcher's licence was refused, proceeded on considerations which were found to be irrelevant, and no question arose in it of abating a nuisance.

6. The constitutionality of Section 261 (3) of the Act remains for consideration. The conferment by the legislature of arbitrary power, unregulated by any principle, or rule of guidance, or of Policy, has been uniformly, held, to be bad as imposing an unreasonable restriction on the fundamental right guaranteed by Article 19 (1) (g); but the authorities are also clear, that such principle or rule may be discovered anywhere within the framework of the concerned legislative enactment, and not necessarily, in the very provision conferring the power. Cases are not wanting of high authority, in which it has been spelled from the mere object or preamble of the enactment, or from the context in which the provision is placed in it. In Globe Theatres, Ltd. v. State of Madras, AIR 1954 Mad 690, a case decided under Article 14 of the Constitution, Rajamannar, C. J., observed:

'If the policy and object of the Act can bediscovered within the four corners of the Act including the preamble, and discretion is vested inthe Government to make a selection in furtherance of that policy and object for the application ofthe Act, then the provision conferring such power is not void.'

In Ram Krishna Dalmia v. S. R. Tendolkar, AIR1958 SC 538, another case which arose under the same Article, the Supreme Court laid down, that a Court will not strike down a law, which leaves

'it to the discretion of Government to select and classify persons or things to whom its provisions are to apply.'

simply because

'no classification appears on its face or because a discretion is given to Government ..............but will go on to examine and ascertain, if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government ..............'

In my opinion, these considerations apply with equal force to the conferment of a discretion or power, to impose a restriction within the meaning of Article 19 (6). The long course of decisions of the Supreme Court was surveyed quite recently by the Orissa High Court in AIR 1960 Orissa 88, referred to above, and the Court held, that a statute is not to be struck down, merely because it confers a wide discretion on an authority. It is only when no policy or principle is discoverable either in the preamble or the provisions of the statute, and the statutory rules, if any, and arbitrary or excessive powers are conferred, that such conferment is bad. In Naina Mohamed v. Tirukalachari Panchayat, Board, (S) AIR 1956 Mad 289, the analogous provision in Section 92 of the Madras Act (Act 10 of 1950) which conferred power on the Panchayat Board to grant or to refuse a licence, for constructing a rice and flour mill, was examined, and the provisions of Chapter V of the Act, which enacted measures for ensuring public safety, convenience and health in Panchayat areas, were considered to furnish an 'ascertainable, definite and reasonable standard for the exercise of the power'.

A similar approach was made by Chagla, C. J., in Govindji Vithaldas and Co. v. Municipal Corporation of the City of Ahmedabad, AIR 1959 Bom 26, where the learned Judge, applying the rule in Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465, in preference to that in Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC 224, reached the conclusion, that the impugned provision in Section 376 (5) of the Bombay Provincial Municipal Corporations Act (59 of 1949), which is on similar terms as Section 261 (3) of the Act, is valid. In doing so, the learned Judge derived the rule of guidance from the preamble of the Act, and from the provisions in Chapter VI, which inter alia had provided for the regulation and abatement of offensive and dangerous trades and practices. In the case before the Orissa High Court, referred to already, a similar provision in Section 5 (2) of the Orissa Cinema (Regulation) Act, 1954, was held to be controlled by the preamble which declared that that Act was 'intended to regulate the exhibition of films.' In that case, as in Naina Mohamed's case, AIR 1956 Mad 289, the absence of statutory rules governing or controlling the exercise of the power was held to be not material. The object of the preamble of an Act was putto the same use, in more than one case decided by the Supreme Court, of which, State of Rajasthan v. Nath Mal, AIR 1954 SC 307, AIR 1954 SC 465, cited already, and Bhatnagars and Co., Ltd. v. Union of India, (S) AIR 1957 SC 478, may be mentioned.

7. In the Travancore-Cochin High Court, the precise question arose before a Division Bench in P. J. George V. Municipal Commissioner, Trichur, ILR 1956 Trav-Co 177 : ((S) AIR 1957 Trav-Co 249), concerning Section 255(3) of the Cochin Municipal Act, which is exactly on similar terms, and was answered in favour of its validity, relying on the context in which the section was placed in that Act, being in Part IV entitled 'Public Health, Safety and Convenience' and on the provisions in it, as in the Act, requiring reasons to be stated in writing for refusing a licence, and conferring a right of appeal against such refusal. It may be mentioned, that these two prescriptions, particularly the latter as in the Orissa case, were considered to take away the vice of arbitrariness from the impugned provisions. In reaching the above Conclusion, the Travancore-Cochin High Court declined to follow the decision of Rajagopala Ayyaingar, J., in K. Mohamed Khassim v. Municipal Council, Ootacamund, (S) AIR 1968 Mad 181 where the learned Judge struck down the provision in Section 249 (3) of the Madras District Municipalities Act, as conferring unguided and arbitrary discretion on the licensing authority. It does not appear, that any attempt was made by the learned Judge to discover, as in other cases cited, a principle or policy in the object, or preamble or the structure, or the provisions of the enactment. The right of appeal provided in it was not considered. I prefer to follow ILR 1956 Trav-Co 177 : ((S) AIR 1957 Trav-Co 249) which is in accord with the preponderance of judicial opinion in the country.

8. Coming directly to the Act, its object is

'to make provision for the better management of the Municipal affairs of Travancore.'

and its preamble says, that

'it is expedient to make better provision for municipal administration in Travancore.'

As observed by Clagla, C. J., in the Bombay case cited,

'Municipal Government must be carried on in order to ensure the residents' health, safety and freedom from annoyance.'

Section 261 (3) of the Act is placed in Part IV entitled 'Public Health, Safety and Convenience' and in Chapter XII thereof, which makes provision as to licences, and which follows Chapter XI dealing with 'Nuisances', Section 342 (5) of the Act provides, that every order refusing a licence

'shall be in writing and shall state the grounds on which it proceeds.'

and Section 343 (1)(c) confers a right of appeal against

'any order of the executive authority granting or refusing a licence or permission.'

It is therefore clear, that the power of granting or refusing licence has to be exercised, so as to promote the object of the Act and consistently with its policy and provisions, and if it is exercised arbitrarily, the remedy by way of appeal is open. On the above grounds, I come to the conclusion, that Section 261 (3) is valid and cannot be struck down.

9. In the result, these petitions are dismissed,and in view of the contentions advanced, I ordereach of the petitioners in two petitions, to pay thecosts of the respondents, including advocate's feeRs. 100/-.

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