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Abdul Gani Vs. Administrator, Municipal Board, Barmer and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 959 of 1972
Judge
Reported inAIR1972Raj300; 1972()WLN413
ActsRajasthan Municipalities Act, 1959 - Sections 90 and 235
AppellantAbdul Gani
RespondentAdministrator, Municipal Board, Barmer and anr.
Appellant Advocate Ganpat Singh Singhvi, Intervenor for; Allahbux and; Safi
Respondent Advocate M.M. Singhvi, Adv.
DispositionPetition dismissed
Cases ReferredGovindji Vithaldas and Co. v. The Municipal Corpn. of
Excerpt:
.....235--bye-laws not framed by municipal board--refusal of permission for grant of licence for a meat shop--held, refusal is not without jurisdiction.;failure on the part of the board to exercise the enabling power of making bye-laws conferred upon it by section 90 of the act, however, cannot affect the jurisdiction conferred by section 235 of the act on it. section 235 clearly provides that the board would have power that a particular place belonging to a private party shall not be used for the purposes specified in clause (b) of sub-section (1) of section 90 except under and in accordance with the conditions of a licence from the board. it would thus be within the jurisdiction of the board to refuse to grant licence to a particular person to carry on a particular trade at a..........to the administrator, municipal board, banner on 10-4-1972 for granting him a licence to open a meat shop in the sardar building, but the administrator wrongly refused to grant a licence on the ground that it was not in the interest of public health and public convenience to allow the petitioner to carry on business of selling meat in the shop in question. it appears from the averments made in the writ petition that in spite of the permission sought for having been refused the petitioner started selling meat in that shop and consequently the municipal board took steps to close it down. this led to the filation of the writ petition.2. the action of the municipal board in refusing the licence asked for by the petitioner has been challenged on the following three grounds:1. that the.....
Judgment:
ORDER

C.M. Lodha, J.

1. This is a petition under Article 226 of the Constitution of India, whereby the petitioner Abdul Gani has prayed that an appropriate writ, direction or order may be issued to the Municipal Board, Banner directing the latter not to stop the petitioner from carrying on business of selling meat in a shop taken on rent by him in the Post Office lane, Barmer, on 7-4-1972. The petitioner's case is that he applied to the Administrator, Municipal Board, Banner on 10-4-1972 for granting him a licence to open a meat shop in the Sardar Building, but the Administrator wrongly refused to grant a licence on the ground that it was not in the interest of public health and public convenience to allow the petitioner to carry on business of selling meat in the shop in question. It appears from the averments made in the writ petition that in spite of the permission sought for having been refused the petitioner started selling meat in that shop and consequently the Municipal Board took steps to close it down. This led to the filation of the writ petition.

2. The action of the Municipal Board in refusing the licence asked for by the petitioner has been challenged on the following three grounds:

1. That the business of selling meat is carried on by three other persons namely, Allahbux, Safi Mohammad, and Bhikaram in the shops adjacent to the petitioner's shop in the same building and consequently the ground of public inconvenience adopted by the Board in refusing permission to the petitioner is mala fide.

2. That the Board has not framed bye-laws in this respect as required by Section 90 (b) of the Rajasthan Municipalities Act No. 38 of 1959 (which will hereinafter be called 'the Act') and in absence of such bye-laws the Board had no jurisdiction to interfere with the petitioner's business o selling meat anywhere within the limits of the Municipal Board.

3. That the non-petitioners' act in asking the petitioner to stop selling meat in the shop in question amounts to infringement of the petitioner's fundamental right to carry on any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution of India.

3. The petition has been opposed on behalf of the Municipal Board, Banner which has also filed a written reply. It has been admitted by the Board that no bye-laws have been framed by it under Section 90 (b) of the Act, but it is contended that under Section 235 of the Act it was lawful for the Board to refuse the permission asked for by the petitioner to carry on the business of selling meat in the shop in question for reasons of public health and convenience. It has also been urged that there are no meat shops near the shop in which the petitioner wants to do business of selling meat. It is stated that formerly Allahbux, Bhikaram and Safi Mohammad had started selling meat in shops Nos. 3, 4 and 5 as shown in the plan Ex. A-5 but the Executive Officer of the Municipal Board by his order dated 22-2-1969 directed the closure of these shops as it amounted to public nuisance and thereupon Allah Bux, Bhikaram and Safi Mohammad filed writ petitions in this Court and ultimately agreed to shift their business in the blind alley to shops Nos. 7, 8 and 9 and withdrew their writ petitions. It may be stated here that the petitioner wanted permission to carry on business of selling meat in shop No. 4 formerly occupied by Bhikaram. In short all the grounds relied upon by the petitioner in his writ petition were traversed by the Municipal Board in its reply.

4. After having heard learned counsel for the parties I have come to the conclusion that there is no force in any of the grounds relied upon by the petitioner.

5. It is clear from Ex. A-6, Ex. A-7 and Ex. A-8 that Allah Bux, Bhikaram and Safi Mohammad have closed down business of selling meat in shops Nos. 7, 8 and 9, situated in a blind alley and did not press their writ applications. It further appears from an objection filed by Allah Bux and Safi Mohammad before the Municipal Board, Banner (a copy of which has been submitted along with the reply by the Board and is marked Ex. A-3) that they had objected to the petitioner being allowed to sell meat in the shop in question. Thus the first ground relied upon by the petitioner that discrimination has been made between him and Allahbux, Bhikaram and Safi Mohammad is baseless. As a matter of fact Mr. Ganpat Singh Singhvi appeared as an intervener on behalf of the said Allahbux and Safi Mohammad and opposed the writ application on the ground that when his clients had not been granted permission to sell meat in the shop in question and the shops situated on either side of it, the petitioner is also not entitled to get the permission sought for. Consequently, I overrule the first contention raised on behalf of the petitioner.

6. Coming to the second ground, that no bye-laws have been framed by the Board under Section 90 (b) of the Act and therefore the Board has no jurisdiction to interfere with the petitioner's right to sell meat in the shop in question, it may be pointed out, that even in the absence of bye-laws it is in the discretion of the Board to grant such a permission. In this connection reference may be made to Section 235 (1) of the Act which reads as under:--

'235. Licensing markets, slaughterhouses and certain businesses:--

(1) It shall be lawful for the Board to direct that no place not belonging to or vested in it shall be used for the purposes specified in Clause (b) of Sub-section (1) of Section 90 except under and in accordance with the conditions of a licence from the Board which may from time to time grant, suspend, withhold, or withdraw such licence either generally or in individual cases.'

7. In form Section 235 (1) clearly prescribes that no private building shall be used for the purposes specified in Clause (b) of Sub-section (1) of Section 90 (which includes a shop for sale of meat) without the permission, that is, the licence granted by the Board.

8. Section 90 deals with the power ol the Board to make bye-laws. It provides inter alia that every Board may from time to time make bye-laws not inconsistent with the Act prescribing the conditions on or subject to which, and the circumstances in which, and the areas or localities in respect of which, licences may be granted, refused, suspended or withdrawn for the use of any place not belonging to the Board,--

(i) as a slaughter house;

(ii) as a market or shop for the sale of animals intended for human food, or meat, or of fish, or as a market for the sale of fruits or vegetables;

9. From the foregoing provision it is clear that every Board may make bye-laws by which it may prescribe the conditions on which, and the circumstances in which and the localities in respect of which licences may be granted, refused or withdrawn for the purposes mentioned therein. Section 90 is only an enabling section. If rules are framed under Section 90 the Board would have to conform to those rules. However, in the absence of such rules, the Board would have to conform to the standards with reference to public safety, convenience and health. Chapter IX deals with Municipal powers and offences. Section 235 appears in Chapter IX under the heading Regulation of Markets, Sale of Food etc.' Failure on the part of the Board to exercise the enabling power of making bye-laws conferred upon it by Section 90 of the Act, however, cannot affect the jurisdiction conferred by Section 235 of the Act on it. Section 235 clearly provides that the Board would have power that a particular place belonging to a private party shall not be used for the purposes specified in Clause (b) of Sub-section (1) of Section 90 except under and in 'accordance with the conditions of a licence from the Board. It would thus he within the jurisdiction of the Board to refuse to grant licence to a particular person to carry on a particular trade at a particular place in a particular locality on grounds of public safety, convenience and health.

10. It has been argued on behalf of the petitioner, that such a power would be an unrestricted and uncontrolled power vested in the statutory authority, and that it does not satisfy the requirements of Article 19(6) of the Constitution, No doubt in Section 235 itself no express provision is made for the considerations that would be relevant to justify refusal of licence but that by itself is not enough to hold that it is an uncontrolled and unrestricted power to grant or to refuse licence. The relevant considerations that should weigh with the Board in granting or refusing to grant licence prescribed by Section 235 can be gathered from the context of Section 235 and from the scheme and policy underlying the provisions of the Act, particularly those in Chapter IX of the Act in which Section 235 finds a place. The considerations of public safety, convenience and health would certainly be relevant considerations in exercising the statutory power conferred by Section 235. If such power is improperly exercised in any particular case, that is, not in furtherance of the policy and object of the Act, but arbitrarily, then the court can strike down the exercise of such power on any occasion. In my opinion, considerations of public safety, convenience and health in the Municipal areas certainly prescribe ascer-tainable, definite and reasonable standard in the exercise of power conferred by Section 235 of the Act.

11. The argument of the learned counsel for the petitioner that in the absence of any bye-laws framed under Section 90 of the Act the power under Section 235 cannot be exercised or at any rate its exercise would be illegal is not sustainable. The existence of bye-laws for which provision is made in Section 90 is not a condition precedent to the exercise of the jurisdiction conferred upon the Board by Section 235.

12. In Nemichand v. Secretary of State for India, (1907) ILR 34 Cal 511 it was observed by a Full Bench of the Calcutta High Court:

'It is contended that the Collector could not act until and unless the Governor-General in Council had framed Regulations under Sub-section (2) of Section 19-A and, that no such Regulations had been framed, as apparently is the case, when the goods were detained. We do not think that the enabling power given to the Governor-General in Council to frame Regulations can override the prohibiting language of Section 18 or the implied power of detention under Section 19-A'.

13. The same principle was laid down in Collector of Customs v. Lala Gopikissen, AIR 1955 Mad 187. It was observed,

'Of course if regulations have been framed the detention and confiscation would have to be effected in conformity with them but it is not as if these regulations bring into operation the power to detain or to confiscate if there is a violation of an import control notification.'

14. In Naina Mohammad v. T. P. Board, AIR 1956 Mad 289 while dealing with the provisions of the Madras Village Panchayats Act No. 10 of 1950 the contention that Section 92 of that Act is void and unenforceable was overruled on the ground that considerations of public safety, convenience and health in the Panchayat areas which constituted the underlying policy of the Act were relevant considerations for exercise of the powers under Section 92 for granting or withholding permission for construction of any factory in any Panchayat area. It was also held that Section 93 of that Act was only an enabling section conferring power on the Panchayat Board to make rules but even in the absence of such rules the Panchayat could exercise its power of granting or withholding permission under Section 92 with reference to public safety, convenience and health.

15. Again in Govindji Vithaldas and Co. v. The Municipal Corpn. of the City of Ahmedabad, AIR 1959 Bom 26: Chagla, C. J., speaking for the Court observed as follows:--

'that it is erroneous to suggest that an arbitrary and unbridled discretion has been conferred upon the Municipal Commissioner to refuse a licence to a person who applies for it. It is clear from the language of Section 370 that the Legislature did not have as its object in enacting this section to prohibit a business to which under the rules the relevant provision of Section 376 applied. The object was to regulate business. It is equally clear that in the exercise of his discretion the Municipal Commissioner cannot withhold a licence from a person who wishes to carry on the business unless he does so for good cause. When a statuory discretion is conferred upon an authority that discretion does not permit to do what he likes, to act with caprice, or to act without reason or without fairness and justice. The limits of a statutory discretion have been well settled over a long period of time and in the very act of conferring a discretion upon the officer the Legislature clearly requires that that discretion must be exercised with reason, according to law, and fairly and justly, so as not to prejudice the rights of any party who would be affected by the exercise of the discretion by that authority.'

It was further observed that,

'if the court can discover a policy underlying the law and if a discretion is conferred under that law, then the court must hold that the discretion is to be exercised not in an arbitrary manner, not in a capricious manner, not in an uncontrolled manner, but in a manner so as to effectuate the policy of the law'.

16. In this view of the matter the contention of the learned counsel for the petitioner that the order of refusal of permission by the Board in the absence of bye-laws is void is without substance and is hereby rejected.

17. Now it remains to consider the last point, namely, whether the impugned refusal of permission by the Board is hit by Article 19(1)(g) of the Constitution of India? The power in the Municipal Board under Section 235 to grant or refuse a licence, as already held above is not without any guiding principles. There is also a right of appeal from such an order as provided in Sub-section (4) of Section 235 of the Act which shows that any person aggrieved by an order of the Board under Sub-section (1) granting, suspending, withholding or withdrawing any licence may appeal to the Collector. In these circumstances it cannot be said that vesting of such powers in the Municipality is arbitrary or capricious. The last point is also therefore without substance.

18. The result is that I do not find any force in this writ application, and hereby dismiss it with costs.


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