Ebrahim Bathu vs The District Revenue Officer and Others

V. Ramaswami, J.—This is an appeal against the order of the learned single Judge of this Court dismissing the writ petition. The writ petition

was filed by the appellant praying for issue of a writ of certiorarified mandamus to quash the order of the 1st respondent in his proceeding K. Dis.

No. 109915/80 dated 24.10.1980 by which the application of the petitioner for the grant of permit u/s 5 of the Rice Milling Industry (Regulation)

Act, 1958 for the establishment of a new rice mill was dismissed.

The petitioner applied on 15.5.1980 for the grant of a permit to install a rice mill in T.S. No. 6/11, Ward D of the Devakottai Municipal Town

within the limits of Irugucheri Revenue Group. This was rejected on the ground that there are already 19 rice mills functioning in the locality with a

hulling capacity of 2,37,500 bags of paddy of 75 K.Gs. per year and that the availability of paddy is too insufficient to feed even the 19 existing

mills and does not warrant establishment of a new rice mill in the locality. This order is questioned on the ground that the 2nd respondent, who

applied for a similar licence on 4.7.1980 in the same ward in T.S. No. 10 was given a permit in the proceedings of the 1st respondent (presided

over by the 3rd respondent) on 22.10.1980 arbitrarily and discriminating the petitioner though her application was earlier in point of time.

The contention of the learned Counsel for the appellant is that either she should have been preferred when her application is in order, as her

application was earlier in point of time, or at least her application and that of the 2nd respondent should have been taken up for comparison to find

out as to whose claim is better in case it was considered that there was a case for granting permit for only one of them. It was further contended

that factually the ground on which the petitioner''s application was rejected, was existing even on the date when the grant was made to the 2nd

respondent two days earlier. It was also contended that the situation could not have worsened within two days so as to reject the application of the

petitioner.

Before we deal with these contentions, a few more facts relating to the two applications may be mentioned. It is seen from the file that the

application of the petitioner was forwarded to the Taluk Supply Officer, Devakottai on 28.6.1980 for a report. Similar reference was made to the

same officer in respect of the application of the 2nd respondent on 10.7.1980. With respect to the application of the petitioner, the Taluk Supply

Officer in his report dated 20.8.1980 stated that the petitioner has constructed a rice mill building at an estimated cost of Rs. 40,000/- with the

object of establishing a new rice mill. The building was constructed two years prior to 20.8.1980. He further pointed out that there are 19 rice

mills, that the paddy production particulars of the locality do not warrant the installation of a new rice mill; yet, in view of the fact that the petitioner

has constructed a building at a cost of Rs. 40,000/- her case may re considered sympathetically without subjecting her to the requirement of paddy

production and hulling facility and the permit may be granted as there is no objection for the issue of the permit. He has given the detailed

particulars of the building and also enclosed the statements obtained from various parties. A similar report was sent by the same Taluk Supply

Officer on the same date informing the 1st respondent that the 2nd respondent has constructed a building on a property purchased at a total cost of

Rs. 60,000/- that the production particulars of the locality do not warrant the installation of a new rice mill; yet, in view of the fact that the 2nd

respondent had also constructed a building, without subjecting him to the requirement of paddy production and hulling facility, he may also be given

the permit.

There was a proceeding of the Government in Letter No. 5083/C1/80 dated 25.4.1980 informing that in cases where there is evidence to show

that the construction of the mill was started prior to 16.5.1979 and the application for permission was made prior to 31.1.1980, permission to

install rice mill may be granted irrespective of the fact that the availability of the paddy with reference to the hulling capacity of the existing rice mill

was insufficient or not. Two communications were, therefore, sent, one to the petitioner and the other to the 2nd respondent on 16.10.1980

requesting them to produce documentary evidence to prove that the construction had been started prior to 16.5.1979 and the application for

permission has been made prior to 31.1.1980. The particulars were collected by the Taluk Supply Officer and forwarded to the 1st respondent. In

the report, in regard to both the petitioner and the 2nd respondent, the Taluk Supply Officer after examining the evidence produced, has stated that

both, of them had started construction long prior to 16.5.1979, that they have even completed the building before 31.1.1980, but, so far as the

installation of the machineries is concerned, the petitioner had installed the machineries and the electric motor on 15.6.1980 and the 2nd

respondent sometime prior to 4.7.1980 when he applied for the permit.

It may be seen from these two sets of facts that in regard to building particulars, both the petitioner and the 2nd respondent were almost on

identical circumstances. Even the locality for which they applied is the same. The 1st respondent granted the permit to the 2nd respondent and two

days later, he rejected the application of the petitioner. It is the admitted case, that the 1st respondent did not compare the merits and demerits of

the petitioner and the 2nd respondent but decided to give the 2nd respondent on the basis of preferential grant. It is the case of the petitioner that

the then District Revenue Officer R. Audiappan, who is impleaded as 3rd respondent in this case, was inimical towards the family of the petitioner

and that by reason of such personal enmity, he has rejected the application of the petitioner on totally mala fide reasons and granted permit to the

2nd respondent on preferential basis.

The 3rd respondent, though now retired from service, chose to file a counter affidavit probably because of mala fides attributed to him. But, he

was not categorical in his reply. The allegation in the affidavit filed in support of the writ petition relating to mala fides reads as follows:

The 3rd respondent being the holder of the office of the 1st respondent has allowed himself to be influenced by the 2nd respondent by reason of

personal enmity between the petitioner''s family and the 3rd respondent and has rejected the application of the petitioner on totally mala fide

reasons and granted the permit to the 2nd respondent. This action is therefore illegal and the order is null and void.

The counter-affidavit of the 3rd respondent reads as follows:

I deny the allegations in para 2 and ground (J) of paragraph 4 of the Writ Petition No. 6388 of 1980. I deny that I am not in any way related to the

2nd respondent and I deny that the 2nd respondent is very close to me personally. I belong to a community different from that of the 2nd

respondent, and I come from a different place and the 2nd respondent is unknown to me. Even the appellant is known to me. I am surprise that the

applicant just to get his matter and get some relief before this Hon''ble Court has come with vague, false and mala fide allegations against me, for

which stringent action should be taken against the appellant by this Hon''ble Court. It is further submitted that though both the petitioner and the

2nd respondent proposed to put up mills in the same area, the petitioner''s case was decided with due regard to the existing mill and availability of

concession granted for mills for which construction started before 16.5.1979.

It may be seen from the above that there is no categorical denial by the 3rd respondent. The whole affidavit filed by the 3rd respondent

proceeds on the basis that the 2nd respondent was entitled to be considered as per the Government''s letter No. 5083/C1/80, dated 25.4.1980

without reference to the availability of paddy in the locality and the. building capacity of the existing rice mills, and the petitioner''s case was

rejected because of the existing rice mills, paddy production capacity and the availability of paddy in the locality. As seen from the statement of

facts set out above, both of them constructed the building prior to 31.1.1980 but have not applied for permission before 31.1.1980. Therefore,

they are similarly situated and there is no ground for giving special treatment to one as against the other. As seen from the statement of facts set out

above, if the grant of permit is to be decided with reference to the rice mills operating in the locality and the availability of paddy, neither the

petitioner nor the 2nd respondent would be entitled for the permit. But, in both the cases, the Taluk Supply Officer recommended the grant on the

ground that they, have already invested huge money even before 31.1.1980 that they have also installed the machineries, and since the Government

have exempted those rice mills which have been constructed already, both of them could be granted permit. That recommendation of the Taluk

Supply Officer is fair and just, which should have been accepted by the 3rd respondent, who was holding the office of the 1st respondent. In the

circumstances, in rejecting the application of the petitioner, though this was the earliest, we are of the view, that the 3rd respondent had not acted

bona fide and there is justification in the allegation of the petitioner that the to personal enmity, the application of the petitioner had been rejected by

the 3rd respondent. Whatever it is, now we find that the facts are identical and there is nothing to choose the 2nd respondent by preference. We

are, also of the view that at least the petitioner also should have been given the permit even if the 2nd respondent should not be deprived of a

permit, because she has also invested large money in the construction of the rice mill.

Learned Government Pleader points out that at the time when the writ petition was filed, the District Revenue Officer was the authority

competent to issue the permit u/s 5 of the Rice Milling Industry (Regulation) Act, 1958 and that now the competent authority is the Government.

We, therefore direct the Government to grant permit to the petitioner also. In view of the fact that we are directing the grant of permit to the

petitioner also in addition to the licence already granted to the 2nd respondent, we are not going into the question whether the 3rd respondent, who

was holding the office of the 1st respondent, should have compared the merits and demerits of, the petitioner and the 2nd respondent and chosen

one, for which purpose we have to set aside the order granting permit to the 2nd respondent and remand the matter to the 1st respondent again.

We have made this order directing the Government to grant permit to the petitioner also in order to avoid any question of discrimination in this

matter and also because. Of the fact that by reason of the time lag between 1979 and now, there could have been some more better conditions for

establishing one more rice mill'' in that area.

In the result, the Writ Appeal is allowed, the order of the learned single judge dismissing the writ petition is set aside and the Government is

directed to grant permit for the location of a rice mill to the petitioner also. However, there will be no order as to costs.