Muhammad Israil vs Patna City Municipality

Harries, C.J.—This is a plaintiff''s Letters Patent appeal from a decision of Agarwala, J. in second appeal allowing an appeal from the learned District Judge of Patna and dismissing the plaintiff''s suit. The plaintiff, who was a butcher, carried on business of selling meat including beef in Mahalla Moharampur, Bakerganj, Patna. It appears that he had carried on this business since the year 1931 with a break of a year and had annually obtained a license from the Patna Municipality for that purpose. The plaintiff applied for a renewal of his license for the year 1936-37, but the application was rejected by the Chairman of the Municipality. The effect of such refusal to renew the license was that the plaintiff could not carry on his business as a butcher for the year 1936-37. The plaintiff appealed from the order of the Chairman to the Commissioner u/s 873, Bihar and Orissa Municipal Act, 1922, but this appeal was dismissed. The plaintiff then instituted the suit which has given rise to this appeal. He prayed for a declaration that the order of the Chairman rejecting his application for renewal of the license and the order of the municipality dismissing his appeal were illegal, void and ultra vires and not binding upon him. He further prayed that the municipality should be directed to renew the license, and in case of failure, he asked that a license should be given to him by the Court.

The learned Munsif, who heard the case at first instance, dismissed the suit, holding that the order of the Chairman was made with jurisdiction as alleged by the municipality and, therefore, could not be challenged in a civil Court. On appeal the learned District Judge of Patna reversed the decree of the learned Munsii holding that the rejection of the application for renewal was wholly without jurisdiction and made the declaration asked for. In the second appeal, Agarwala, J. held that the decision of the Chairman of the Municipality could not be challenged in a civil Court and consequently reversed the decree of the lower appellate Court and dismissed the suit in its entirety.

To appreciate the points involved, it will be necessary shortly to set out the facts leading up to the order of the Chairman. As I have stated, the plaintiff had carried on the business of selling meat in the shop in question with one break since the year 1931. He had applied annually for a renewal of his license, and such had been granted. Difficulties, however, arose over the application for the license for the years 1936-1937. It appears that the Hindus in the locality objected to a meat shop being carried on in the Mohalla, and they had presented a petition to the District Magistrate. On this petition the District Magistrate informed the Patna Municipality that he did not think there was any real necessity for a beef shop in that locality and added that in his view the license should not be renewed for the following year. This order, if it can be called an order, was made by the learned District Magistrate on 16th November 1935. The application for renewal of the license was made by the plaintiff some time in 1936, and the order of rejection was made by the Chairman of the Municipality on 20th April 1936. The order is in these terms: "I have gone through it. Under the circumstances the application is rejected."

This does not appear to me to be the form in which the Chairman of a large Municipality like that of the city of Patna should deal with applications of this kind. One thing is clear that no ground whatsoever is given for refusing to renew the license, and it is also clear that this order follows after a short space of time the suggestion made by the learned District Magistrate that the license should not be renewed as there was no real necessity for a beef shop in the locality. As I have stated, the plaintiff appealed to the Commissioners but obtained no relief. The order of the Commissioners suggests that the rejection of the application could be justified on a number of grounds; but there is nothing in that order to suggest that the municipality had ever suggested what the ground was, which led to the refusal to renew the license.

It was urged by the plaintiff in the Courts below that the municipality had no right to refuse a renewal of the license except on certain specified grounds. On the other hand, the municipality had contended that they were not bound to state the ground upon which the refusal was based and that the Courts were bound to presume that the refusal was based on a proper and valid ground. The renewal of the plaintiff''s licence might have been refused under powers given to the municipality by either Section 259 or Section 276, Municipal Act. Section 259, Bihar and Orissa Municipal Act, 1922, deals with the rights of the municipality to prohibit certain offensive and dangerous trades. These trades are enumerated in Sub-section (1) of this section. The last trade mentioned is

any manufacture, process or business from which offensive or unwholesome smells may arise, or which has been declared by the Local Government by notification to be dangerous or offensive.

There is nothing to suggest that the Local Government have ever declared a meat-shop to be either dangerous or offensive; but, of course, a shop of this kind might be offensive if not properly carried on. It appears to me that this Section might well be held not to cover a meat-shop properly conducted. A butcher''s shop would not normally be regarded as a noxious or offensive trade. It was argued in the Courts below that it could be regarded as an offensive trade, because the sale of beef might cause and probably would cause offence to the Hindu community. It is clear from the facts of this case that no Hindus lived near the shop, though, of course, many must have lived in the mohalla. However, it is unnecessary to consider whether a trade which might offend religious susceptibilities can be regarded as an offensive trade within this section, because it is clear that throughout these proceedings neither the plaintiff nor the municipality have regarded the application as having been rejected under this section. Sub-section (2) of Section 259 provides that

a license for any of the purposes mentioned in Sub-section (1) shall not be withheld unless the Commissioners have reason to believe that the business which it is intended to establish or maintain would be offensive or dangerous to persons residing in or frequenting the immediate neighbourhood.

If a meat-shop could be regarded as a business which was offensive or unwholesome, then the municipality could refuse to renew the license under Sub-section (2) if it was in fact offensive or dangerous. However, I do not decide in this case that a meat-shop can be offensive business as the term is used in this section, because it is clear that the municipality did not act under this section. It is clear for this reason. The plaintiff appealed to the Commissioners u/s 273, and this he could not have done if the Chairman''s order had been passed u/s 259(2) of the Act. He, however, could appeal if the order of rejection passed by the Chairman was made u/s 276 of the Act. Section 276, Bihar and Orissa Municipal Act, deals with the licensing of markets and shops for the sale of certain articles such as meat intended for human consumption. That Section is in these terms:

(1) That right oil any person to use any place within the limits of a municipality, other than a municipal market as a market or shop for the sale of animals, meat or fish intended for human food, or as a market for the sale of butter, ghee, fruit or vegetables, shall be subject to by-laws (if any) made u/s 291.

(2) Where any by-law is in force requiring a license for the establishment or maintenance of a market or shop for the sale of any article mentioned in Sub-section (1), the Commissioners shall not--(a) refuse a license for the maintenance of a market or shop lawfully established at the date of such by-law coming into force, if application be made within six months from such date, except on the ground that the place where the market or shop is established fails to comply with any conditions prescribed by, or under, this Act, nor (b) cancel, suspend or refuse to renew any license granted under such by-law for any cause, other than the failure of the licensee to comply with the conditions of license or with any provision of, or made under, this Act.

It is clear that the rights of any person to carry on a meat-shop shall be subject to by-laws, if any, made by the municipality. The municipality have made by-laws u/s 291 governing the sale of meat. These by-laws were confirmed under Government Notification No. 7336 L.S.G., dated 3lst August 1932. These by-laws require that no person shall carry on a shop for the sale of meat without a license and they also provide conditions subject co which a license may be granted. The license granted is to remain in force for a year and shall be renewable every year immediately it expires. As provided in Section 276(2)(b), Municipal Act, the municipality cannot refuse to renew any license granted under the by-laws for any cause, other than the failure of the licensee to comply with the conditions of license or with any provision of, or made under, the Act. It seems tolerably clear for the reasons which I have given that the Chairman purported to act under this section. That being so, his power to refuse a renewal of license was limited. He could do so if the applicant had failed to comply with any of the conditions of the license, and the conditions are numerous or with any of the provisions of the Act or of any provisions made under the Act which would also be numerous. The chairman however dealt with the matter by merely stating that he had gone through the application, and, in the circumstances, rejected it.

Mr. Hasan Jan has argued that as this order discloses no valid ground for refusing to renew the license it is ultra vires. On the other hand, Mr. Saiyid Ali Khan, who appears for the municipality, has urged that it is unnecessary for the municipality to state the grounds for rejection, and the Court must presume that the application was rejected on proper grounds. Even if the Court could make such a presumption, it would be difficult to make it in this case by reason of the events that happened immediately before the application was rejected. As I have pointed out, the Hindus in the locality had protested to the District Magistrate, and the latter had expressed the view that a meat-shop in the locality was unnecessary. If the order was merely passed in compliance with the wishes of the District Magistrate, it could not possibly be said to have been passed on any of the grounds mentioned in Sub-section (2)(b) of Section 276 of the Act. Mr. Saiyid Ali Khan has relied upon a case of this Court Madaran Kassab v. Emperor AIR 1925 Pat 540 which is a Bench decision binding upon this Court. In that ease it was held that inasmuch as the provisions of Section 259(2), Bihar and Orissa Municipal Act, 1922, themselves supply the only reason for which refusals of certain licenses can be made, the omission on the part of the commissioners to give the only reason which they could give for the refusal to renew a license cannot be regarded as making such refusal illegal.

It was urged on behalf of the municipality that the present case was governed by the ease in Madaran Kassab v. Emperor AIR 1925 Pat. 540 but, in my judgment, this case is clearly distinguishable. In Madaran Kassab v. Emperor AIR 1925 Pat. 540 the trade which was being carried on was the trade of storing horns and skins of slaughtered animals, which is an offensive trade, and there was, as pointed out by Bucknill J., adequate evidence that the trade as carried on was offensive. In the order refusing to renew the license, the municipality had given no reason; but, as pointed out by the Court, the license could only have been refused u/s 259(2) for one reason and one reason only, namely, that the trade was offensive. In those circumstances, the Court held that they were bound to presume that the license was refused upon the one ground upon which it could have been refused. It had been urged before the Court that the license had been refused because of opposition to cow-slaughter in general, and the Court appears to have thought that the municipality had been influenced by a feeling that there should be no slaughter of animals at all. The Court, however, does point out that if there was a good reason for refusing the license, it mattered not whether the Commissioners had other motives as well. It has long been established that if a person has a right to do an act, it matters not that he was actuated by extraneous motives when he did it.

In the present case as it falls within Section 276 of the Act the license could be refused on a very large number of grounds, and that affords a clear distinction between the present case and Madaran Kassab v. Emperor AIR 1925 Pat. 540 How can the Court presume in this case that the municipality had one of the many grounds contemplated in Section 276(2) of the Act for refusing this license? It may have had one or more such grounds or it may not. It would appear as if the municipality had no ground contemplated by this section, because throughout the litigation it has not been suggested that any such ground was available to the municipality. No ground for refusing the license was put forward in the written statement, and, as pointed out by the learned District Judge, it was never suggested either before the Munsif or before him that the municipality had acted on any of the grounds contemplated in Sub-section (2) of Section 276. No such suggestion was made before the learned single Judge and even before us it has not been suggested that the Chairman acted on any of the available grounds. It would appear as if he acted arbitrarily. Where a municipality has good ground for refusing to renew a license, it should, in my judgment, always state its ground. As pointed out by Bucknill, J. in Madaran Kassab v. Emperor AIR 1925 Pat. 540 courtesy, if nothing else, demands that a reason should be given. If no reason is given, then the applicant cannot, possibly, know whether he has or has not good grounds for challenging the decision of the municipality. It has been constantly held that if the municipality acts with jurisdiction, then their acts cannot be challenged in a civil Court: see Section 373(1) of the Act. This Court and other Courts, however, have always held that where the act of a municipality is one without jurisdiction such can always be challenged in a civil Court. It is, therefore, of importance that reasons should be assigned for refusing to renew an application to carry on a meatshop in order that the Courts can see whether the municipality acted with or without jurisdiction. As I have said, a presumption cannot be made u/s 276 as it might be made u/s 259 of the Act.

Mr. Saiyid Ali Khan has repeatedly urged that the municipality are under no duty to state their reason for refusing to renew a license; but if no reason is given, then the municipality might find their order set aside on the ground that they had acted arbitrarily. In the present case the learned single Judge was of opinion that the municipality were not bound to state their reasons, and he felt bound by Madaran Kassab v. Emperor AIR 1925 Pat. 540. As I have. pointed out, there is a great distinction between that case and the present case, and I am, as at present advised, far from satisfied that a municipality can refuse to renew a license in the manner in which the present refusal was made. However, it is unnecessary definitely to decide the point, because this appeal can be disposed of on other grounds. In my view, however, no responsible body, such as the municipality of this city, should ever deal with applications of this kind without stating the grounds upon which the same are rejected. The learned single Judge was also of opinion that the suit was bound to fail by reason of Section 383, Bihar and Orissa Municipal Act. That Section gives the District Magistrate certain powers to suspend action which has been taken under the Act or which the municipality proposed to take under the Act. In his judgment, the District Magistrate in this case prohibited the municipality from renewing this license. It is common ground that the District Magistrate did not act as he should have done u/s 383, but the learned District Judge was of opinion that nevertheless he had issued a prohibitory order.

The order relied upon is the order of the District Magistrate to which I have already made reference in which he said:

I do not think there is any real necessity for a beef shop in the locality. In my view the license should not be renewed for the next year.

In my view this is not a prohibitory order u/s 383 of the Act but merely an expression of the view of the District Magistrate, and the so-called order leaves it open to the municipality to deal with the application as they might deem proper. In my judgment, S.383 afforded no defence to the plaintiff''s claim, and the view taken by the learned single Judge upon this point cannot be maintained. The plaintiff-appellant, however, is in one serious difficulty. Even if he established in this ease that the municipality acted without jurisdiction and that their order refusing to renew the license was ultra vires and illegal, yet this Court can do nothing which will be of any real effect. A declaration that in the circumstances, the license should have been renewed for 1936-37 is perfectly useless when made in the year 1942. The license is only in force for a year and must be renewed annually. If the plaintiff was granted a declaration that he was entitled to carry on his meat-shop in the year 1936-37, that would not give him a right to carry on his moat-shop in the year 1942. Before he can carry on a meat-shop in the year 1942, he must apply for a renewal of his license for that year. It is impossible for this Court to say that the plaintiff is entitled to his license for the year 1942. Much may have happened between 1936 and 1942, and there may be good and valid reasons under the Act why a renewal of the license should be refused. On the other hand, there may be no reasons at all in which case the license should be renewed. However, it is quite impossible for this Court in a Letters Patent appeal to say that the plaintiff is entitled to have his license now. A declaration that he ought to have had it in the year 1936-37 can be of no effect at all or be of any real use to the plaintiff in an application which he must make before he can obtain the license for the year 1942.

Mr. Hasan Jan has urged that if such a declaration were made it might assist him in obtaining renewal for the year 1942; but, as I have said, there may be grounds in 1942 for rejecting his application where no such grounds existed in 1936. In my view, the grant of an injunction would not be effective, and that being so, the Court in its discretion should not make such a declaration. In Hill v. Satan Singh AIR 1920 Pat. 559 a Bench of this Court refused to exercise its discretion and grant an injunction which would be infructuous. A similar view was taken in Rajkeshwar Singh v. Shyam Bihari AIR 1927 Pat. 186 in which a Bench laid down that it was well settled that u/s 42, Specific Relief Act, a Court would not make a declaration of an abstract right exclusive of practical utility especially when that declaration could not or might not be productive of any benefit to the party obtaining the declaration. A similar view was taken in Mt. Pranlachhi Kuer v. Jageshar Sahi (23) 9 P.L.T. 210. In that case the Court held that even if the declaration was granted it would be useless, and, that being so, refused to grant it. A declaration that the license was wrongfully refused in 1986 would now be worth nothing. It would only show that on the facts existing in 1936 the municipality had acted wrongly. Had the license not been an annual one which required renewal, the case would have been different; but as grounds may arise from year to year for refusing a renewal, a declaration, even if granted, can only be effective for the particular year in question. That being so, this Court should not, in my view, exercise its discretion and grant the declaration which would be of no real effect. Obviously, the Court cannot grant the alternative relief, namely, to grant a license itself. That can only be done by the authority entitled to do so under the Act. For the reasons which I have given, I agree that the plaintiff''s suit cannot be decreed, and that being so, this appeal must fail, and I would dismiss it. In the circumstances, however, I would order each party to pay their own costs of this appeal.

Fazl Ali, J.

I agree.