R. Sadasivam, J.
1. The petitioner Raman Nair has been convicted under Section 313 read with Section 249 of the Madras District Municipalities Act (V of 1920) and sentenced to pay a fine of Rs. 50 in default to S.I. for one month.
2. The facts are not in dispute. The petitioner was conducting a tea stall in T.S. No. 171/VIII Kallukatti East, Karaikudi, for a number of years, after obtaining the necessary licence from the Municipality. The land itself belongs to the Government and it has been vested statutorily in the Karaikudi Municipality as would appear from the Judgments of the Courts below and the evidence in this case. The petitioner was prosecuted on a prior occasion for running a tea stall without a licence but he Was acquitted as evidenced by the judgment, Exhibit D-7 mainly on the ground that if the petitioner had complied with the directions of the Council marked as Exhibit D-5 in that case, the prosecution would not have been launched. It was for the year 1956-57. The petitioner applied for licence to run the tea stall for the year 1965-66 and this was refused by the Commissioner by his order Exhibit P-3, dated 17th February, 1965, on the ground, that the site T.S. No. 171 of Ward 8 in which the tea stall is situate belonged to the Government and that the petitioner had also encroached upon the municipal site. The petitioner preferred an appeal to the Municipal Council and it was not even entertained as would appear from the order Exhibit P-4. B memo. Has been issued against the petitioner for occupation of the site in which he Wants to run a tea stall. The petitioner filed O.S. No. 149 of 1965, on the file of the District Munsif's. Court, Devakottai, for a declaration of his title to the site in dispute and Wanted an injunction against the Municipality. It is now admitted that the suit has been dismissed,
3. The learned Advocate for the petitioner put forward two contentions before me. The first contention is that the provision contained in Section 249 (3) of the Madras District Municipalities Act that the Executive Authority may by an order and under such restrictions and regulations as he thinks fit grant or refuse to grant such licence infringes his fundamental right under Article 19 (g) of the Constitution. He relied on the decision in Md. Kassim and Brothers v. Municipal Council, Ooty (1955) 2 M.L.J. 684, in which Rajagopala Ayyangar, J., has observed that Sub-section (3) of Section 249 of the Madras District Municipalities Act giving an absolute power to the Executive Authority to refuse to grant a licence as also the power of imposing such restriction and conditions as he might think fit is in contravention of Article 19 (6) of the Constitution and has to be struck down as violating the fundamental rights guaranteed by Article 19 (g) of the Constitution. But it is clear from the judgment that the learned Judge found, that the licence was refused in that case on irrelevant grounds and the order of refusal was, therefore, liable to be quashed. This decision has been considered by a Bench of this Court in State of Madras v. Kamalambal Ammal and Anr. Appeal No, 202 of 1956, and it has been dissented from. It has been pointed out in the Bench decision 'that Rajagopala Ayyangar, J., did not rest his decision upon the view he took of Section 249 (3) of the District Municipalities Act. In Writ Petition No. 2792 of 1966, Kailasam, J., has also observed that the decision of Rajagopala Ayyangar, J., was based on the merits of the case and that the view of the learned Judge regarding the constitutional validity Was in the nature of obiter dicta. He regretted his inability to accept the view of the learned Judge (Rajagopala Ayyangar, J.), that the Executive Authority is vested with absolute power without any guidance by the Legislature as to the imposition of relevant conditions and restrictions. He has pointed out how the view taken by Rajagopala Ayyangar, J., was not accepted not only by a Bench of this Court referred to above, but also by other high Courts. The decision of Kailasam, J., in the writ petition relates to the validity of Section 249 (3) of the District Municipalities Act in the light of the fundamental right guaranteed under Article 19 (g) of the Constitution. I am, therefore, unable to accept the first contention of the learned Advocate for the petitioner that Section 249 (3) of the District Municipalities Act is ultra vires.
4. The second contention of the learned Advocate for the petitioner is that the order Exhibit P-3 which has been upheld by the Council by its order of rejection Exhibit P-4, is void as the grounds mentioned therein do not relate to ' public health, safety and convenience '. Under Section 321 (4) of the Madras District Municipalities Act-
Every order of a municipal authority refusing, suspending, canceling or modifying a licence or permission shall be in writing and shall state the grounds on which it proceeds.
I have already referred to Exhibit P-3 in which it is stated that the renewal of licence was refused on the ground that the site on which the petitioner wanted to run the tea stall belonged to the Government and also on the ground that the petitioner had encroached upon municipal site. I have also pointed out that the Council refused to entertain the appeal as it evidently agreed with the order Exhibit P-3. Section 249 (3) of the Madras District Municipalities Act gives wide discretion to the Executive Authority to grant or refuse to grant licence. The order refusing licence could be attacked if it was made mala fide or out of improper motives. It is true that, having regard to the fact that an appeal has been provided against the order of the Executive Authority and the provisions contained in Section 321 (4) of the Act, the refusal to grant or renew licence cannot be on arbitrary, irrelevant and fanciful grounds. But there is nothing in that clause to show that the refusal could only be on the ground of public health, safety and convenience. It is not possible to uphold such a construction merely because Chapter XII of the District Municipalities Act dealing with licences and fees containing section. 249 of the Act is in Part IV of the Act dealing with public health, safety and convenience. A Municipality can legitimately refuse to grant a licence to a person who wants to run a tea stall on a site belonging to the Government which is Vested in the Municipality, particularly when B Memo. proceedings have been taken. If the Municipality is compelled to grant a licence in such a case, it Would affect its rights in respect of a property belonging to the Government and vested in it. In fact, such a licence if granted would adversely affect the Municipality in a suit filed by the licensee claiming rights against the Municipality. I have already pointed out that such a suit was filed and it is admitted that it has been dismissed. If necessary, I would be prepared to hold that the word ' convenience ' in the words' public health, safety and convenience' found in Part IV is wide enough to include a refusal to grant licence to a party to carry on business in a property belonging to the Municipality and adversely claimed by the party. It would, cause considerable inconvenience to the public and the Municipality to allow trespassers to claim a licence, or renewal of licence, as a matter of right. It is unnecessary to consider in this case the wider question whether the Executive Authority is entitled to refuse to grant a licence to a party to run a business on a land when there is a dispute between him and another private individual about the ownership or possession of the land. I am, therefore, unable to accept the contention of the learned Advocate for the petitioner that the order refusing to renew the licence is void as being beyond the scope of the powers of the Executive Authority.
5. For the foregoing reasons, the revision petition fails and it is dismissed.