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Mytheen Kunjukunju Vs. District Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberO.P. No. 2509 of 1981
Judge
Reported inAIR1984Ker179
ActsRice Milling Industry (Regulation) Act, 1958 - Sections 3, 5, 6 and 8(3)
AppellantMytheen Kunjukunju
RespondentDistrict Collector and ors.
Appellant Advocate M.V. Ibrahimkutty, Adv.
Respondent Advocate Govt. Pleader and;Party in person
DispositionPetition allowed
Excerpt:
.....of the act and the order is therefore vitiated as no permit has been granted as required under the act in favour of the 4th respondent in respect of this mill. sub-section (1) of section 8 clearly states that no person or authority shall, after the commencement of the act, establish any new rice mill except under and in accordance with a permit granted under section 5. sub-section (2) states that no owner of a rice mill shall after the commencement of the act, carry on rice milling operation except under and in accordance with a licence granted under section 6, subject to the proviso therein. that sections 5 and 8 (1) clearly require the obtaining of a permit from the competent authority for starting a new rice mill;.....the commencement of the act, establish any new rice mill except under and in accordance with a permit granted under section 5. sub-section (2) states that no owner of a rice mill shall after the commencement of the act, carry on rice milling operation except under and in accordance with a licence granted under section 6, subject to the proviso therein. clause (c) of sub-section (3) of section 8 deals with change of location and under clause (c) no owner of a rice mill shall without the previous permission of the central government, change the location of the whole or any part of the rice mill in respect of which a licence has been granted under section 6. the learned advocate appearing for the petitioner vehemently contended that, as admittedly there has been a change of the location.....
Judgment:
ORDER

S.K. Kader, J.

1. The petitioner who claims to be running a rice mill in Ward V of Paipra Panchayat seeks to quash an order Ex. P-2 passed by the District Collector, the 1st respondent herein in favour of the 4th respondent herein. The third respondent was running a mill in Ward No. 1 of the same Panchayat. He sold the mill to one Aliyaru, who in turn sold the same to the 4th respondent sometime in 1974. Before the sale, the 3rd respondent had shifted the mill in question from Ward No, I to Ward V, according to the petitioner, in violation of the provisions of the Rice Milling In-dustry (Regulation) Act, 1958, hereinafter referred to as the Act, and the Rules framed thereunder. The licence issued in favour of the 3rd respondent was therefore cancelled and this order of cancellation was challenged by him before this Court in O. P. No. 99/75 in which the petitioner herein got himself impleaded as an additional respondent. That original petition was dismissed with a direction that the 3rd respondent can pursue his remedy in an appeal as provided under the Act. Accordingly, the 3rd respondent filed an appeal before the Commissioner of Civil Supplies, Tri-vandrum, who allowed the appeal and remanded the matter to the first respondent for disposal afresh. Ex. P-2 order was thereafter passed by the 1st respondent, as per which there is a direction no grant licence in respect of the rice mill in Ward V to the fourth respondent.

2. Strongly attacking this order Ex. P-2 Sri Lathiff, learned advocate appearing for the petitioner urged the following points:

(i) The first respondent failed to note that the mill involved in the case is a new mill coming under Section 3 (c) of the Act and the order is therefore vitiated as no permit has been granted as required under the Act in favour of the 4th respondent in respect of this mill.

(ii) The authority also seriously erred in overlooking the fact that it was without the prior approval as contemplated under Section 8 (3) (c) of the Act that the rice mill was shifted from Ward No. I to Ward No. V.

3. Admittedly whether the rice mill in question is a new mill or not as contemplated under the Act has not been considered by the 1st respondent and on that short ground this matter has to go back for fresh consideration, in accordance with the provisions of the Act. Three types of rice mills are enumerated under the Act, namely, existing rice mill, defunct rice mill and new rice mill and in the matter of granting licence, different considerations are applicable in the case of these three varieties of rice mills. It is not disputed that in the case of a new rice mill, before granting a licence under Section 6 of the Act a permit as required under Section 5 must be granted. Section 5 and the rules framed thereunder detail the procedure to be adopted in applying for a permit and granting the same. An enquiry before granting a permit is en-joined under sub-sec. (4) of Section 5. The Central Government shall cause a full and complete investigation to be made in the prescribed manner in respect of the applications having due regard to Clauses (a) to (f) in that sub-section. Sub-section (5) deals with the preferences to be shown in the matter of granting this permit. Section 6 deals with the grant of licences. In the case of an existing rice mill, there is no necessity to obtain a permit under Section 5 of the Act. Section 8 places certain restrictions on change of location or transfer of the rice mills. Sub-section (1) of Section 8 clearly states that no person or authority shall, after the commencement of the Act, establish any new rice mill except under and in accordance with a permit granted under Section 5. Sub-section (2) states that no owner of a rice mill shall after the commencement of the Act, carry on rice milling operation except under and in accordance with a licence granted under Section 6, subject to the proviso therein. Clause (c) of Sub-section (3) of Section 8 deals with change of location and under Clause (c) no owner of a rice mill shall without the previous permission of the Central Government, change the location of the whole or any part of the rice mill in respect of which a licence has been granted under Section 6. The learned advocate appearing for the petitioner vehemently contended that, as admittedly there has been a change of the location of the rice mill in question the rice mill at Ward V has to be treated as a new rice mill under the Act as a result of this change. In support of this contention the counsel relied on the decision in Radhe-sham v. Sub-Divisional Officer, (AIR 1960 Patna 242) where a Division Bench of the Patna High Court while examining the relevant provisions in Sections 3, 5, 6 and 8 of the Act held that the expression 'rice mill' includes not only the plant and machinery but also the place where it is located and if it is fixed at a new place, even though the machinery, the plant and the ownership may be the same, it will cease to be an existing rice mill; that Sections 5 and 8 (1) clearly require the obtaining of a permit from the competent authority for starting a new rice mill; that in construing the expression 'rice mill' the premises and the precincts where the plant and machinery are erected cannot be ignored and that a mill erected at a different place will become a new rice mill within the meaning of Section 3 (e), though a change of location ofan existing rice mill may be brought about by obtaining previous permission of the competent authority. I am in respectful agreement with the above dictum.

4. The contention of the counsel for the petitioner is that it was without granting permission as required under Section 5 that the licence was directed to be issued to the 4th respondent as per Ex. p-2 order and therefore the order is vitiated. That apart, prior approval of the Central Government is necessary by virtue of the provisions in Clause 3 (c) of Section 8, to change the location of the whole or any part of the rice mill in respect of which a licence has been granted under Section 6. None of these aspects has been considered by the first respondent. Therefore Ex. P-2 order has to be interfered with.

In the result, this original petition is allowed, Ex. P-2 order is set aside and the whole matter is sent back to the first respondent to dispose of the matter afresh in accordance with law, in any view, within three months from the date of receipt of this judgment by him.


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