GENERAL CONDITION
1. This licence shall always be kept by the wash-stone holder with him and produced to any
authorised Municipal Officer or servant on demand.
2. The Municipal Commissioner or the Executive-Health Officer may at any time without any
notice revoke or cancel this licence, if in his opinion the licensee has infringed any of its conditions.
Such revocation shall not prejudice any claim or demand of the Commissioner hereunder or otherwise.
or entitle the licensee to claim any refund of fees, deposits or any damage whatsoever.
3. The rent of the wash-stone must be paid in the office of the Supervisor. Mahalaxmi
Dhobiwada in advance from Ist to 7th, between 7 a.m. to 10 a.m. and 2.30 p.m. to 4.30 p.m. The
8th being the last day of collection, the hours of colecting fees would be 7a.m. to 12 noon. No fees will be
accepted on Holidays and Sundays.
4. If any stoneholder fails to pay fees on the days prescribed he/she shall have to pay late fee
or Rs. 1/- in addition to usual wash-stone fees. The last date of payment of fees with late fees shall be
15th. No. fees after this date will be accepted and the stone will be considered as vacent.
5. Each was-stone holder will have to pay Security Deposit of Rs. 25. The deposit will be
refunded to the stone-holder when he ceases to be a stone-holder after deducting the dues against
him, if any. The security deposit in part of full will be forfeited in the event of breach of any rule
or regulations that may belaid from time to time.
Answers
Answer:
JUDGMENT M.C. Chagla, J.
1. These are 31 petitions challenging the refusal by the Municipal Commissioner of the Ahmedabad Municipality to issue licenses to them for carrying on timber business in a certain locality in Ahmedabad. The point involved in all these petitions in identical and therefore it will be sufficient if we deal with the facts of the first petition, Special Civil Application No. 1477 of 1956, and decide the point in that petition.
2. Now, this petitioner has been doing timber business for several years in a locality which is known as City Wall locality and a license was given to him to carry on this business for several years. When he applied for a license for the year 1951-52 the license was refused on the ground that in the opinion of the Fire Superintendent the Municipal law was not observed and the margin of five feet around the premises was not kept as required by law. Notwithstanding the refusal of the license the petitioner carried on his business and when he applied for a license for the year 1956-57 the license was refused on 17-5-1956 and the ground given for the refusal of the license was that a zone had been fixed for keeping and selling timber wood, that the place in respect of which license was applied for was not within the said zone, and as the place was outside the zone and the reserved plots, the application of the petitioner for license for the current year was rejected. This decision was arrived at by the Deputy Health Officer and it is this refusal which has been challenged in the petition.
3. Now, we may very briefly dispose of the merits of the matter. It appears that there are two Town Planning Schemes which, although they have not received the final legal imprimatur, have been adopted by the Ahmedabad Municipality. One is the City Wall Scheme under which timber depots are prohibited within the City Wall limits and the other is the Jamalpur Scheme under which certain plots have been reserved for timber depots, and the reason why the Municipal Commissioner refused a license to the petitioner was that his timber depot was within the City Wall limits and the Municipality offered to give every facility to the petitioner if he were to shift his depot from the City Wall limits to the Jamalpur limits. The petitioner insisted on carrying on his business within the City Wall limits and thereupon the Municipal Commissioner refused the license.
4. The petitioner challenges the action of the Municipal Commissioner on two grounds. The first is that the section of the Municipal Corporation Act to which we shall presently refer, which makes it incumbent upon the petitioner to obtain a license in order to carry on his business of timber, is ultra vires of the Constitution, and the other ground is that assuming the section is intra vires and valid, the discretion exercised by the Municipal Commissioner was arbitrary and capricious. Mr. Patel very fairly did not press the second ground and did not dispute that if the discretion could be exercised under the law and a license was necessary, the discretion could not be said to have been wrongly or dishonestly or arbitrarily exercised by the Municipal Commissioner. Therefore, the only question that we have to consider in this petition is whether the impugned section contravenes any provision of the Constitution.
5. Now, under Section 376 of the Bombay Provincial Municipal Corporations Act it is provided:
"(1) Except under and in conformity with the terms and conditions of licence granted by the Commissioner, no person shall -
(a) keep in or upon any premises any article specified in the rules....."
and the relevant part is in Sub-clause (ii):
"(ii) for any purpose whatever or for sale or for other than domestic use as may be specified in the case of each article in the rules....." and the rules which under Section 453 are incorporated in the schedule to the Act prescribe timber as one of the articles to which this sub-section would apply. Therefore, if the petitioner wants to keep timber on any premises for any purpose whatever or for sale or for any other use except domestic use, he can only do so provided he obtains a licence from the Commissioner and carries out the terms and conditions of the licence. Sub-section (5) of Section 376 provides:
"(5) It shall be in the discretion of the Commissioner-
(a) to grant any licence referred to in Sub-section (1) subject to such restrictions or conditions (if any) as he shall think fit to prescribe, or
(b) to withhold any such licence."