Jegajothi Ammal vs Commissioner, The Municipal Council

Kanakaraj, J.—These two writ petitions arise out of the same facts and filed by the Petitioner at different stages of the proceedings. The

Petitioner was granted a license by the Respondent. Municipality to install a 10 Horse Power motor in Door No. 131, 132 and 133, Kovilpatty

Municipality for grinding flour, in proceedings dated 29.3.1990. On 15.11.1990 she received a show-cause notice pointing out certain

irregularities. On 26.11.1990 a reply was sent. A final notice was sent u/s 321(5) and (7) read with Section 313 of the District Municipalities Act.

Earlier the Petitioner filed writ petition, W.P. No. 8539 of 1991 and this Court directed the Respondent to give adequate opportunity to the

Petitioner. By proceedings dated 26.5.1992 seven days'' time was given to the Petitioner to offer her explanation. The explanation was offered in

2.6.1992 and the impugned order was passed on 16.7.1992 cancelling the license granted on 29.3.1990. The Writ Petition, W.P. No. 10327 of

1992 is to quash the said order dated 16.7.1992. The writ petition was admitted on 28.7.1992. While so, a further notice was issued under the

Tamil Nadu Public Health Act directing the Petitioner to stop the Mill since it created noise problem in the area. W.P. No. 14908 of 1993 is to

quash this order dated 28.7.1993. The two notices issued in W.P. No. 14988 of 1993 have to be quashed on the simple ground that no

opportunity was given to the Petitioner before passing the order. Those two proceedings dated 28.7.1993 simply say that the Petitioner was

carrying on the trade of grinding flour and chillies in Door No. 132, South Bazar Street and it was affecting the public health. It was also causing

noise pollution to the neighbours. Though both proceedings are identically worded, one has been issued under District Municipalities Act and the

other under the Tamil Nadu Public Health Act. The orders simply say that within 24 hours the Petitioner must close down the mill. I have no doubt

in my mind that this order is vitiated by errors of law apparent on the face of the record. Having already passed an order cancelling the licence

which had been challenged in writ proceedings, I do not understand how the Respondent could pass orders directing the stopping of the trade. In

this view of the matter W.P. No. 15908 of 1993 is straightway allowed.

So far as W.P. No. 10327 of 1992 is concerned one has to start from the licence, show-cause notice, reply and the final order. The licence

dated 29.3.1990 categorically, says that the Petitioner is permitted to run a flour grinding mill with 10 H.P. motor along with connected machines.

This is based on the resolution of the Municipal Council. There are six conditions attached to the licence. The second condition may have some

relevance to the case because it says that if any particulars had been furnished which are found to be incorrect the licensee was liable to be

cancelled. We now come to the show-cause notice dated 26.5.1992 issued after the order in W.P. No. 8539 of 1991. This show-cause notice

says that the premises was inspected on 25.5.1992 at 10:00 a.m. and as many as five irregularities were found. The five irregularities are as

follows:

(i) The licensee was permitted to have two 5 H.P. motors. The installation of 10 H.P. motor is therefore, irregular.

(ii) The motors have been installed as per the sketch produced by the Petitioner.

(iii) As per the condition of the licence, the Petitioner had not provided a ridge ventilator. She had not also provided a modern toilet.

(iv) Incorrect particulars had been given regarding souther boundary.

(v) Under the licence, only one flour grinding mill was permitted, but the Petitioner was having two grinding mills, one for flour and the other for

chillies. Grinding of chillies was causing nuisance and health hazard to the neighbours.

The explanation of the Petitioner was as follows:

(i) The Petitioner has only installed a 5 H.P. motor.

(ii) The installation is in accordance with the sketch.

(iii) The ridge ventilator and modern toilets have been provided.

(iv) The particulars given in the license application were correct on the basis of the physical features available as on the date of the application.

(v) The Petitioner has only a flour grinding mill and not a chilly grinding mill in the premises.

On the above explanations the Respondent came to the conclusion that as per the proceedings 8796/10 relating to the electricity supply it could be

seen that the Petitioner was only having a 10 H.P. motor. So far as charge Nos. 2 and 3 are concerned it is stated that the explanation given by the

Petitioner was not acceptable, because it had been found on inspection that the Petitioner had not complied with the conditions of the license.

Regarding the fourth charge, it is stated that the license was granted only on the basis of the representation of the Petitioner and since the

particulars given are found to be incorrect, the license was liable to be cancelled. It is further stated that on the southern side of the building there

was a residential building of one Nagalakshmi and the two premises were separated only by a common wall. Regarding the fifth charge it is stated

that the denial of the Petitioner was not acceptable because there were indications at the premises itself that the Petitioner was also grinding chilly

powder.

On the above pleadings and records I have heard arguments from both the counsel. There are certain patent errors in the orders of the

Respondent I have also called for the original records from the Respondent and I have perused the same. I must, here and now point out that the

Respondent has failed in his duty to produce ""all and singular the said records and orders connected with the case"" as found in the rule nisi served

on the Respondent. This is an essential factor which parties must take note of. In fact in this very case I had adjourned the case earlier to enable

the Respondent to produce the records. Today, when the records are produced I find them to be incomplete. Records relating to the grant of

license are not available. Only the records relating to the show-cause notice and the cancellation of the licence have been produced. A perusal of

the licence dated 29.3.1990 clearly shows that the Petitioner was granted permission for installing a flour grinding mill with 10 H.P. motor.

Therefore, the show-cause notice itself is defective because the first charge says that the licensee was permitted to install two 5 H.P. motors

independently. The Petitioner was also not correct in her explanation when she says that only 5 H.P. motor has been installed. The real fact seems

to be that the Petitioner had in her plans suggested the installation of two separate 5 H.P. motors. But without incorporating the same the

Respondent had granted a licence for installing a 10 H.P. motor. The records produced today show that there is a letter by the Petitioner dated

19.11.1990 wherein she has categorically admitted that she has installed a 10 H.P. motor. She has also admitted that she was grinding flour,

chillies, corridor, turmeric etc. In her subsequent letter dated 26.11.1990 she says that she was at that time only having 5 H.P. motor. In view of

the vagueness in the grant of licence I do not think that the Petitioner can be found fault with, for having installed a 10 H.P. motor. Therefore, on

the basis of the first charge, licence cannot be cancelled. It is true that the license contained two conditions regarding the installation of a ridge

ventilator and a modern toilet. These are matters which should have been verified by the authorities even before the grant of a licence. They should

not have been granted licence by imposing such conditions. In any event, these two points are two flimsy to incur a cancellation of the licence. I

however, direct the Petitioner to see that the ridge ventilator and modern toilet are provided within three months from today. If she does not

provide the same, it is open to the Municipality to inspect and take action.

Similarly, the existence of a residential building on the southern side is also the matter which should have been verified before the grant of

licence. The Petitioner says that, on the date of her application, there was no such residence. It is difficult at this stage to verify whether the

particulars furnished by the Petitioner were in fact false. I do not think that on this ground also a license can be cancelled. Coming now to the last

charge namely, existence of two grinding mills one for flour and the other for chillies, I am unable to accept the explanation of the Petitioner that

there is no chilly grinding machine at all in her premises. I have already referred to her letter dated 19.11.1990 found in the records. There is a

categorical admission in this letter that the Petitioner is having flour grinding machine as well as a grinding machine for chillies, corridor, turmeric etc.

In my opinion, the Petitioner had no right to install a second grinding machine especially to grind chillies. It has to be remembered that the grinding

of chillies is more harmful than the grinding of flour. Therefore, I direct the Petitioner to remove the chilly grinding machine from the subject

premises. If this is not done within three weeks from today, the Respondent will be at liberty to take action, against the Petitioner.

Subject to the above directions I am setting aside the order of cancellation dated 16.7.1992. In the interest of the Petitioner she must see that

the directions contained in this judgment are complied with within prescribed time. If she fails to do so, within the time granted. I have permitted the

Respondent to take action in accordance with law. The writ petition is ordered in the above terms. There will however, be not order as to costs.