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P.S. Shanmugham Vs. the Deputy Commissioner of Police, Law and Order and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1970)1MLJ393
AppellantP.S. Shanmugham
RespondentThe Deputy Commissioner of Police, Law and Order and ors.
Excerpt:
- .....the street is already declared as one way and that there is no space provided for car parking and street parking also cannot be tolerated as it is a narrow street. it is also observed that apart from the lodge the premises also is developing into a shopping area which is not a desirable trend in this locality. further, the area is already a congested one and lodging meant for middle class people will surely attract cars and ultimately result in blocking of street by parking cars and create a traffic problem.2. it was to quash this order the appellant had filed the petition, out of which this appeal arises.3. the main point that was urged in the writ petition appears to be that section 35 of the madras city police act, 1888, was void, as violating article 14 of the constitution, because.....
Judgment:

K. Veeraswami, J.

1. This appeal arises from an order declining to interfere with the refusal by the Deputy Commissioner of Police to grant a licence to the appellant under Section 35 of the Madras City Police Act, 1888 to run a lodging house at premises No. 5, Narasingapuram, Mount Road, Madras. The appellant is a lessee of the building at a rental of Rs. 2,000 per mensem and says that he has spent Rs. 15,000, for equipment of the lodging house. Due sanction would appear to have been obtained in October, 1964 from the City Corporation under the provisions of the City Municipal Act for constructing the building designed to be used as a lodging house. By a notice dated 11th January, 1968, the Assistant Commissioner of Police, with reference to the appellant's application for a licence under Section 35, asked him to show cause why it should not be rejected, and the reasons given by the officer were : (1) the street is only about 20 ft. in width and is narrow ; (2) it is one way traffic and very near to the junction of the main road, (3) the neighbours objected for the issue of a licence. The appellant explained to him that, because it is one way traffic, there would be no hindrance to the traffic and that so far as the objection from the neighbours was concerned, it had been already dealt with and decided against them by the Civil Court. The appellant also appended to his explanation a copy of the judgment in that regard. He also invited the officer's attention to the fact that he had spent a large sum of money in getting the lease and equiping the building with furniture and other equipments. The Deputy Commissioner by his order dated 15th February, 1968, dismissed the application for licence. He mentioned in justification that there was always congestion in the street which affected traffic even on the main road and that the important point for providing space for car parking had been omitted. In his appeal to the Commissioner of Police the appellant drew his attention to the fact that there were a number of lodges situated in narrow street in Madras for which licence had been granted by the Commissioner, though they were all without car parks, and stated further that they would not get any motor cars to the lodge, and, if it happened they would make some other arrangements. But the Commissioner dismissed the appeal and said:

I have gone into this matter in detail and I find that there is no case for revising the order already passed. The Joint Director of Town Planning, who Was also consulted, has remarked that the street is already declared as one way and that there is no space provided for car parking and street parking also cannot be tolerated as it is a narrow street. It is also observed that apart from the lodge the premises also is developing into a shopping area which is not a desirable trend in this locality. Further, the area is already a congested one and lodging meant for middle class people will surely attract cars and ultimately result in blocking of street by parking cars and create a traffic problem.

2. It was to quash this order the appellant had filed the petition, out of which this appeal arises.

3. The main point that was urged in the writ petition appears to be that Section 35 of the Madras City Police Act, 1888, was void, as violating Article 14 of the Constitution, because it laid down no guidelines for exercising the wide and uncontrolled discretion vested by the section in the licensing authority and that, though the Act provided for rule making power no rules also had been made in order to regulate the exercise of discretion under Section 35. Both these grounds did not find favour, resulting in the dismissal of the petition.

4. In our view, the order of the Commissioner shows that he did not keep in view the essential considerations that should govern granting or refusing a licence under Section 35. The appellant has undoubtedly a fundamental right under Article 19 of the Constitution to ply his trade or business. It is true this is not an absolute right, but it can be regulated, restricted or in extreme cases even denied, if that is reasonably required in public interest. Fundamental right is a guarantee made by the Constitution and has to be protected both by the officers as well as by the Court from that standpoint. Further, it is not to be overlooked that wherever power is granted to an officer for exercise in favour of a citizen by a statute, it is generally meant for exercise and its exercise can be denied neither arbitrarily nor for reasons not relevant to such refusal. Also it is always a matter for consideration before refusal whether the situation cannot be met by regulation or restriction instead of totally denying a right guaranteed by the Constitution.

5. The crux of the Commissioner's order for declining the grant of licence is that it would create a traffic problem. This is upon the supposition that, because the area is congested and the lodging house might attract cars, it might ''ultimately result in blocking of street by parking car '. But the point is that the fact that it is a one way traffic and so not likely to involve congestion of traffic and the appellant's statement that he would make other arrangements for parking of cars, if necessary, do not appear to have weighed with or considered by the Commissioner before declining a licence. Merely because a traffic problem is expected, that by itself, in our opinion, would not be a ground for declining the licence. Still the authority would have to see whether the traffic would be impossible of regulation for reasons to be stated. It may be that the area is already congested and is fast developing into a shopping area. But the Corporation has already permitted the building designed for a lodge to be put up. There is nothing to show that the health authorities have prohibited the building from being used as a. lodging house and that, however, may not be a matter related to traffic problem. There is nothing also in the order of the Commissioner to show how the traffic problem, which he anticipated, could arise, if the street was one way traffic and if restrictions could be placed upon allowing parking of cars in front of the lodging house.

6. In a matter like this, this Court will certainly not sit in judgment upon the Commissioner's order as a Court of appeal, but would only examine whether his order has failed to keep in view the considerations we have mentioned above and, therefore, it cannot be upheld. We are constrained to point out that where a fundamental right, as in this case, is involved, before its exercise is in effect prohibited, all the avenues for granting a licence will have to be explored and it is only when the Commissioner is satisfied that all these avenues are blocked can the exercise of a fundamental right be prevented by denial of the licence. The very licensing provision is designed for the purpose of regulation rather than for denying the exercise of the right and it is only where regulation is impossible, it can fairly be said that a balancing of the fundamental right against public interest necessarily results in a prohibition of the exercise of the fundamental right.

7. We allow the appeal. This does not mean that a licence will straightaway be granted to the appellant. The licensing authority will dispose of the appellant's application afresh after consideration of all the facts and also keeping in view the considerations we have mentioned in this judgment. No costs.


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