Mammu vs The Commissioner, Tellicherry Municipality and Another

K.K. Mathew, J.—The petitioner was conducting a trade in dry fish in the shop with door No. 14/51-Chalil, Tellicherry. There is a private market in Chalil owned by one Parakkandy Moidu, who, according to the petitioner, is a close relation of C.K. Abootty, Municipal Councilor. Petitioner applied for license for the year 1964-65 for conducting the trade in his shop to the Commissioner of the Tellicherry Municipality. The application was rejected by Ex. P-l saying that the Municipal Council has passed a resolution that no license for conducting trade in dry fish will be granted outside the Chalil Market. Petitioner questions the validity of this order and also of the direction in Ex. P-2 to remove the dry fish from his shop. The main ground alleged by the petitioner was that under Sec. 306 of the Kerala Municipalities Act, 1960, Act XIV of 1961 (hereinafter called the Act), it was not open to the Commissioner to reject the application. Section 306 is as follows:-

(1) No person shall without or otherwise than in conformity with a license from the commissioner carry on the trade of a butcher, fishmonger or poulterer or use any place for the sale of flesh or fish intended for human food in any place within municipal limits;

Provided that no License shall he required for a place used for the selling or storing for sale of preserved flesh or fish contained in air tight and hermetically sealed receptacles.

(2) The Commissioner may, by an order and subject to such restrictions as to supervision and inspection as he thinks fit, grant or refuse to grant such license.

(3) Every such license shall expire at the end of the year in which it is granted, for special reasons the Commissioner considers it should expire at an earlier date, when it shall expire at such earlier date as may be specified therein.

It was submitted that the Commissioner should have allowed application subject to conditions and restrictions and that he had no jurisdiction to reject the application on the basis of the resolution passed by the Municipal Council. Petitioner''s counsel relied on the ruling in Noohukannu Rowther v The Municipality of Changanacherry 1960 K.L.J. 787, to support the proposition, that the Commissioner had no authority to reject the application for license but should have granted it subject to such conditions and restrictions as he thinks fit. In that case, the petitioner was a seller of meat. He applied for a license, u/s 283 of the Travancore District Municipalities Act and under bye-laws framed under that Section, for the year 1959-1960. The license was refused on the grounds that the building where the trade was sought to be conducted is situated in a thickly populated area where, members of different communities reside, and where there is a very heavy vehicular and pedestrian traffic, that the exposure of meat on the side of the thoroughfare will cause annoyance to the general public and that the floor and walls of the building were not kept in good condition, and hence not washable. Petitioner contended that he was not bound to take any license and that in any event the refusal was invalid. It was held that refusing license on the ground that the building is situated in a thickly populated place cannot be sustained, unless the sale of the commodity was injurious to the health of the persons living or visiting the locality and that it cannot be that meat, with adequate safeguards against infection, is a commodity of this kind. As regards the ground that the exposure of meat will cause annoyance to the public it was held, that the ground though relevant, was not such as would justify the refusal; that the license should have been granted with conditions guarding against contamination of the meat by dust, that there should not have been a blank refusal but only a refusal, should certain safeguards be not provided for by the applicant, that nuisance means nothing more than the conduct which diminishes the use and enjoyment by another of his right, and is bound to differ from place to place even in the same city, and that unless nuisance can be a cause of inconvenience to the general public, there was no justification in refusing the license and as towards the ground that the building was not kept in a good condition and washable it was held that the petitioner was given no opportunity to so improve the shop as to remove the objection. I am not quite sure whether the ruling has any applicability to facts of this case. Here, the Commissioner was exercising a statutory function and in the exercise of the statutory function, he was directed by the statute itself to implement the resolution passed by Council. Looking at the language of Section 306 of the Act, I am Inclined to think that it is open to the Commissioner either to grant the license'' subject to such restrictions and conditions as he may think fit, or to refuse it. In this case, I do not think that the Commissioner has imposed any condition, He has only acted on the resolution passed by the Council for determining the question whether the license should be granted or not. It was submitted that the Commissioner should have exercised his discretion uninfluenced by the resolution of the Council. In other words, the submission was that the resolution of the Municipal Council prevented the Commissioner from exercising his discretion in the matter, that an authority entrusted with a function by the Legislature should exercise that function and should "not in its exercise be dictated to or influenced by any other authority, and therefore the order is bad. In support of this contention, reliance was placed upon the ruling reported in Bhaskaran v State of Kerala 1960 K.L.J. 498, where Chief Justice Mr. Ansari is reported to have said that it is not open to a quasi-judicial authority to fetter its discretion by self-imposed rules, and also upon the decision of the Supreme Court in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, , where Mr. Justice Bose said:

It is clear to us from a perusal of these rules that the only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is the Commissioner of Police. It is also clear that under R. 250 he has been vested with the absolute discretion at any time to cancel or suspend any license which has been granted under the rules. But the power to do so is vested in him and not in the State Government and can only be exercised by him at his discretion. No other person or authority can do it.

The argument was that the Legislature having conferred the power to grant or refuse the license upon the Commissioner, the discretion to grant or refuse should have been exercised by the Commissioner himself unfettered by any resolution by the Municipal Council. In 1960 K.L.J. 498, it was held:

A tribunal vested with the discretion is authorized to follow a policy but that should not be used as an invariable rule and to preclude exceptional circumstances of a particular case being decided on merits. Fettering of such discretion by self-created rule of policy is contrary to law.

The question whether an authority authorized to grant or refuse license for carrying on a trade or business can lay down a policy for its own guidance has been considered in a number of cases. It would be going too far to say that a licensing tribunal must cast aside all pre-conceived opinions and previous resolutions (See R v Brighten Corporation ex. P. Tilling (Thomas) Ltd., (1916) 85 L.J.K.B. 1552 at 1556). A local licensing authority is entitled to have regard to the special requirements of the neighborhood and in dealing with individual applications it may be justified in adopting and following a general rule, for instance, that the total number of licenses in an area ought to be reduced (See Boyla v Nihon (1907) A.C. 45 or that, unless, exceptional circumstances are present it will not grant any further licenses to enable residential hotels to serve liquor to non-residents (See R v Torghay Licensing JJ. ex p. Brockman (1951) 2 K.B. 784). In R v Flintshire C.C. County Licensing Committee Ex. p. Barrett (1957) L.Q.B 350 the Committee adopted general rule that no alcoholic liquor or tobacco should be sold in a theatre if adequate drinking facilities were available nearby, irrespective of the past record of the theatre, and having imposed this condition on one theatre imposed it on all the applicants in the interests of consistency. It was held that a factor that may properly be taken into account in exercising the discretion may become an unlawful fetter upon the discretion if it is elevated to the status of a general rule in the pursuit of consistency at the expense of the merits of individual cases. In R v Sylvester (1862) 31 L.J.M.C. 9, where there was refusal to issue a beerhouse license except to an applicant who agreed to take out an excise license for sale of spirits also, it was held that the refusal was bad for the reason that the authority cannot lay down a rule that all applications of a certain class or all applications except of a certain class will be rejected. The relevant principle s were stated by Bankers L.J. in R. v. P.L.A. exp. Khnooh Ltd, (1919) I K.B. 176 at 184. where the Port of London Authority refused an application for a license to construct certain Works, on the ground that it had itself been charged with the provisions of accommodation of that character. The learned Judge observed:

There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what policy is, and that after hearing him it will in accordance with its policy decided against him....... unless there is something exceptional in his case........ If the policy has been adopted for reasons which the tribunal legitimately entertain, no objection could be taken to such a course. On the other hand, there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes.

In Box v Torquay Licensing Justices Ex.p, Breekman (1951) 2 K.B. 784 Lord Goddard C.J. considered the question and said that there was no objection to justices deciding among themselves the general lines upon which they will exercise their judicial discretion and quoted with approval the following observations of Salter J, in Rex v Holborn Licensing Justices ex parte Stratford Catering Co. Ltd. 42 T.L.R. 778

..................It is impossible to prevent (justices), in the privacy of their own room from adopting any standard or practice which seems to them right and if they do, I think it is both right and convenient that they should state their practice publicly for the information, Of all concerned. They must, of course, apply their minds properly to the circumstances of each particular case.

In R. v. Botherham Licensing JJ. (1939) 2 ALL E.R. 710 Humpreys J made the following observations:

Having regard to the words which I have read from Sec. 13 of the Act, I entertain graive doubt whether justices, whether sitting as a petty sessional court or in any other capacity, have Slight to make any general rule which will fetter the decision of themselves or other justices in regard to the granting of this application. I by no means desire to whittle away the powers which, in my opinion, the licensing justices undoubtedly possess to make certain general rules, an instance of which has been referred to, R. v. Holborn Licensing JJ ex P. Startup Catering Co. Ltd., (1), but in regard to these occasional License, seeing that they are to be granted subject to the consent of two justices by those who are, in effect, the officers of excise, and with the approval of the Inland Revenue Commissioners, whenever they shall consider it conducive to public convenience, comfort or order to do so, I myself very much doubt whether the Justices ought to say in advance or have power to say in advance: "We shall consider it not conducive to public convenience, comfort or order in certain circumstances." I think it is essentially a matter in which every application must be dealt with upon its own particular facts and, for that reason, I should, if necessary, be prepared myself to hold that any general rule stating in advance upon what occasion, or what number of occasions the justices would grant occasional licenses would be illegal, as fettering or tending to fetter, the discretion of the particular justices sitting to whom such an application might be made.

In the case at hand, the Commissioner was in law bound to follow the direction of the Council in the exercise of his statutory functions. And when the Council passed a resolution it was the duty of the Commissioner to implement it. Sec. 21 (a) of the Act is as follows:-

The Commissioner shall

(a) carry into effect the resolutions of the Council unless such resolution is suspended or cancelled by the Government.

If, therefore, the Commissioner was bound to implement the resolution, I do not see how he was dictated to by an outside authority in the exercise of his function. I do not think that in laying down a general policy, the resolution was open to objection on the ground that it fettered the exercise of the discretion of the Commissioner. Nor is it possible for me to say that the resolution i s unreasonable. Counsel for the petitioner submitted that the petitioner has a fundamental right to conduct the trade in his shop, though situate outside the market and to restrict him to carry on the trade in the private market in question is an unreasonable restriction upon his fundamental right. In this connection, counsel referred to the ruling reported in Abdul Hakim Quraishi and Others Vs. The State of Bihar, and Nagpur Kshatriya Khattik Samaj and Others Vs. Corporation of the City of Nagpur, . The question whether the restriction is reasonable or not depends upon the facts and circumstances of each case and decisions on the subject are enumerative and not determinative. The principle is laid down in the oft quoted passage in State of Madras Vs. V.G. Row, which runs as follows:

The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors, and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in Authorizing the imposition of the restrictions, considered them to be reasonable.

In Chintaman Rao Vs. The State of Madhya Pradesh, it was observed:

The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19 (1) (g) and the social control permitted by cl. (6) of Article 19, it must be held to be wanting in that quality.

Considering the inherent character of the trade in question, and also the prevailing sentiment of the public of the locality as evidenced by the resolution of the representative organ of the people of the locality, namely, the Municipality, I do not think the restriction imposed is unreasonable. The counter-affidavit states in detail the reason for passing the resolution. I think it was in the interest of general public health that the Council passed the resolution that trade in dry fish should be conducted only in Chalil Market. The resolution only imposes a reasonable restriction upon the fundamental right of the petitioner. I could have understood the grievance of the petitioner if he had been prohibited from carrying on his trade anywhere in the locality. He can conduct his trade in the nearby market. Considering the underlying purpose of the restrictions, the nature of the evil sought to be prevented, the extent of the restriction, and the fact that the resolution was adopted to redress a grievance of the general public of the locality, I think the restriction is reasonable.

I dismiss the writ petition, without any order as to costs.