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In Re: the Kareem Beedi Factory, by Its Proprietor Khan Bahadur Abdul Kareem Sahib and the Corporation of Madras - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai
Decided On
Reported in(1940)2MLJ597
AppellantIn Re: the Kareem Beedi Factory, by Its Proprietor Khan Bahadur Abdul Kareem Sahib and the Corporati
Respondent;The Commissioner, Corporation of Madras
Cases ReferredAhmed Moosa v. The Municipal Commissioner of Bombay I.L.R.
Excerpt:
.....to the words used therein and when it is so construed, i consider that there is no room for* reasonable doubt that the commissioner has in a proper case the power to refuse a renewal......mr. venkatarama sastriar argues that because there is no special power given under section 287 to refuse renewal, it must in view of the terms of section 282 be taken that the legislature intended a license for the carrying on of a business to be on a different basis. in this connection he has also drawn attention to the provision of section 284 which states that if any stable, cattle-shed or cow-house is not constructed -or maintained in the manner required by or under the act, the commissioner may by notice direct that it shall no longer be used as a stable, cattle-shed, or cow-house. the argument here is really met by the provisions of section 304. that section says that no person shall, without or otherwise than in conformity with an annual license granted by the commissioner.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The petitioner is a manufacturer of beedis and has been carrying on business in Madras for 25 years. As the result of his industry he has is carried on in five buildings in Sembudoss Street, George Town, Madras. In No. 41, Sembudoss Street, he stores the tobacco required for the making of his beedis. He stores beedi leaves in No. 59 and uses Nos. 48, 57 and 58 for the handling and storage of the finished products. Sembudoss Street is in a residential part of Madras. It is a very narrow street and it is said that the growth of petitioner's business has resulted in a grave nuisance and a menace to health. On the 19th August, 1938, thirteen people living in the neighbourhood presented a petition to the Commissioner of Police, complaining of the nuisance and asking that action be taken. The Commissioner of Police had no jurisdiction to interfere, and the petition was forwarded to the Commissioner of the Corporation of Madras. The Commissioner inquired into the complaint and considered it to be well founded. As the result the Corporation refused the petitioner a license to carry on his business in the premises in Sembudoss Street from 1st April, 1939. Section 287 of the Madras City Municipal Act, as amended by Act X of 1936, requires a person to take out a license before he uses premises for the storage, packing, pressing, cleansing, preparing or manufacturing by any process whatever, tobacco, which the Act states shall include cigars, cigarettes and beedis. The petitioner asks this Court to direct, either by certiorari or mandamus, the Corporation to issue a license permitting him to carry on his business in these premises as heretofore. He alleges that the Corporation in refusing to grant him a license has acted arbitrarily and he says that inasmuch as a license was granted to him in respect of the previous year, the Corporation is not entitled in law to refuse to renew it. For the Corporation, it is said that the refusal to grant the petitioner a license is fully justified by the facts and that it cannot be compelled to renew the license.

2. On the evidence before the Court it must be held that the carrying on of the petitioner's business in Sembudoss Street does constitute a nuisance and a danger to health. The process of broiling to which the tobacco leaves are subjected creates an offensive smell, and the storage of large quantities of tobacco results in tobacco dust being carried by the wind to adjoining houses and causes the inhabitants to cough and sneeze. The business involves the attendance at the premises of large numbers of coolies and other people for whom there is no proper accommodation or sanitary arrangements. The noise also adds to the discomfort of the residents. The Commissioner of the Corporation in an affidavit states that he has been advised by the Health Officer of the Corporation that the continuance of the business in this locality will positively endanger the health of the residents. The Health Officer of the Corporation has sworn an affidavit in which he confirms the advice given to the Commissioner. In addition, Mr. B.W. Batchelor, a director of Messrs. Binny & Company and a member of the Standing Committee of the Corporation, took part in the inspection and has endorsed the opinion of the Commissioner in a separate affidavit. The petitioner denies that there is any nuisance, but his denial is only supported by his own affidavits, and they cannot be accepted in view of what the Commissioner, the Health Officer and Mr. Batchelor have said. It has not been suggested that these gentlemen are not speaking the truth-There is a suggestion that they have perhaps exaggerated the situation, but I am not prepared to accept it. In any event, there is ample evidence on the record to show that the Corporation in refusing to renew the petitioner's license has not acted arbitrarily, but in the interest of the health of the residents of the locality.

3. The question then resolves itself into this. Has the Corporation the power under the Act to refuse the license? Before the Act was amended in 1936, no license was required; but by reason of the amendment of Section 287 and Schedule VI, a license is now requisite. Sub-section (1) of Section 287 says:

No place within the limits of the City shall be used for any of the purposes mentioned in Schedule VI without a license obtained from the Commissioner and except in accordance with the conditions specified therein.

4. Sub-section (3) says:

The owner or occupier of every place for the use of which for any purpose a license is required shall apply to the Commissioner not less than, thirty days before the place is used for such purposes.

5. Sub-section (5) says:

The Commissioner may grant a license subject to such restrictions and regulations as may be specified by him therein or he may refuse to grant the license.

6. Sub-section (6) states that every license shall expire at the end of the year for which it is granted, or at such earlier date as the Commissioner may, for special reasons, specify in the license. By reason of Sub-section (7), an application for renewal of a license must be made not less than thirty days before the commencement of the year for which renewal is sought. Mr. Venkatarama Sastriar on behalf of the petitioner has conceded, as he must, that, when Section 287 was amended by Act X of 1936 the Commissioner had the power to refuse to issue a license, notwithstanding that the business had been carried on in the same premises for a quarter of a century. But he says that inasmuch as Sub-section (7) does not state that the Commissioner may, if he so chooses, refuse a license, it cannot be withdrawn once it has been issued, and must be renewed, although on renewal conditions may be imposed. Where there is a power to grant a license, there is power to refuse, and where an Act requires a person to apply for the renewal of a license at the expiry of the period for which it is granted, it must, in my opinion, necessarily imply a right to refuse to renew, unless there is indication to the contrary in the statute.

7. In Haji Ismail v. Municipal Commissioner of Bombay, Ahmed Moosa v. The Municipal Commissioner of Bombay I.L.R. (1903) Bom. 253 the Bombay High Court held that the power of the Municipal Commissioner of Bombay to grant a license under Section 394 of the City of Bombay Municipal Act (III of 1888) included the power to refuse it. It was also held that unless it was clear that the Commissioner had used his authority with some indirect motive and for a collateral purpose, not for the purpose for which the legislature had armed him with the power, the Court could not interfere with his discretion. There is nothing in Section 287 of the Madras Act which indicates an intention on the part of the legislature to withhold from the Commissioner the power of refusing to renew a license when the circumstances demand it. Mr. Venkatarama Sastriar has laid great stress on the provisions of Section 282 of the Act which requires the owner or occupier of a stable, veterinary infirmary, stand, shed, yard or other place in which quadrupeds are kept or taken in for purposes of profit, shall take out a license in the first month of every year. Sub-section (2) of that section says that the Commissioner may, by an order and under such restrictions and regulations as he thinks fit, grant or refuse to grant the license. Mr. Venkatarama Sastriar argues that because there is no special power given under Section 287 to refuse renewal, it must in view of the terms of Section 282 be taken that the legislature intended a license for the carrying on of a business to be on a different basis. In this connection he has also drawn attention to the provision of Section 284 which states that if any stable, cattle-shed or cow-house is not constructed -or maintained in the manner required by or under the Act, the Commissioner may by notice direct that it shall no longer be used as a stable, cattle-shed, or cow-house. The argument here is really met by the provisions of Section 304. That section says that no person shall, without or otherwise than in conformity with an annual license granted by the Commissioner continue to keep open a private market.

8. Application for the renewal of the license shall be made not less than thirty days before the commencement of the year; for which the license is sought. The Commissioner may by an order grant or refuse to grant or renew the license or withhold the license until the owner or occupier executes such works as may be specified in the order. Then follows the important proviso that the Commissioner shall not refuse or withhold the license for any cause other than the failure of the owner or occupier to comply with some provision of the Act or some regulation made under Section 308 or some by-law made under Section 349, or without the approval of the Standing Committee. The proviso indicates that where the legislature intended that there should be no power to refuse to renew, or intended to limit the exercise of such power, it has used appropriate language. The argument which Section 304 provides for the respondent Corporation is certainly as strong, if not a stronger one, than the argument which can be based for the petitioner on Sections 282 and 284. In my judgment Section 287 must be construed according to the words used therein and when it is so construed, I consider that there is no room for* reasonable doubt that the Commissioner has in a proper case the power to refuse a renewal. I say in a proper case, because if the refusal were arbitrary or prompted by some ulterior motive, the position would be different. That cannot be said to be the case here. There is no ground for suggesting that the Commissioner has acted in any way contrary to his duty. For the reasons indicated the petition will be dismissed with costs, and we fix the Advocate's fee at Rs. 250.

Krishnaswami Aiyangar, J.

9. I am of the same opinion. I agree that a consideration of the language of not only Section 304 but also of Section 285-C, Clause (3) gives a clear indication that where the statute intends that the Commissioner is not to have the power of refusing a renewal, it has said so. The effect of the refusal is not to prohibit the petitioner from carrying on his business altogether but only to prohibit it in the premises in which it is now being carried on. There is nothing inherently wrong in the legislature placing a restriction upon the right of an individual in the interests of the residents in general of the locality.


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