S MOHAMED AMANULLA Vs. DISTRICT MUNICIPALITY OF QUILON

JUDGEMENT

(1.) The petitioner in O.P. 577 of 1960, was carrying on business as a trader in hides and skins in his premises, bearing number M.C. 926 in Andamukkom North Ward, situated within the limits of the Quilon Municipality. For the year 1958-59, he had a licence from the Municipality under S.261 (3) of the Travancore District Municipalities Act, 1116, which may be referred to hereafter as the Act. In February 1959, the Sanitary Inspector reported to the Municipality by Ext. R-2, that the foul smell emanating from the stored hides in the premises was unbearable, that the water oozing from them and flowing into the public road rendered the place insanitary, and that being a very thickly populated area, no precaution taken for the abatement of the nuisance would prove effective. On the strength of Ext B-2, the Municipal Commissioner issued a memo to the petitioner, Ext. P1, dated 9th March 1959, intimating him in advance, that the licence would not be renewed from 1st April 1959. The petitioner, however, applied for the renewal of his licence for the year 1959-60, when, for reasons adduced in Ext. P-1, the application was rejected. The petitioner preferred an appeal to the Municipal Council under S.343(1)(c) of the Act, which constituted a sub-committee for enquiry into the matter and report. The sub-committee reported by Ext. R-1, dated 9th March 1960, that the premises in question were surrounded by residential quarters, that foul water (mixed with blood and fat after washing the hides which come straight from the slaughter houses) ... flowed into the adjoining premises and the public road, and that above all, the extraordinary foul smell emanating throughout from these places, is intolerable and any one who is not accustomed to it, if allowed to remain in the premises for a couple of minutes will run out for his breath before he faints.

(2.) The petitioners complaint before me was, that his application for licence has been refused on irrelevant considerations, that the refusal to renew his licence on the ground, that no amount of precaution could abate the nuisance, was not legally valid and that S.261 [3] of the Act, conferring as it does, an unguided and arbitrary power on the municipality, imposes an unreasonable restriction on his fundamental right under Art.19 [I] [g] to carry on his trade, and is therefore void. O. P. 628 of 1960 is a similar petition by another trader in hides and skins within the same municipality, for similar reliefs, consequent upon similar orders passed against him. No distinction was made on the basic facts and the vital questions for decision, between the two petitions, which may therefore be, and are disposed of by this, a common order. For convenience, the petitioner in O.P. 577 of 1960 may be referred to in this order, as the petitioner.

(3.) Though the petitioner has a case in his affidavit, that, out of malice, one Ahamed Pillai and his relations had petitioned to the Executive Authority of the municipality against the continuance of his trade, the reports furnished to the Municipal Council by the Sanitary Inspector and by the sub-committee have not been impugned as malafide and have to be accepted as correct. The chief ground relied on in them, that the foul smell and the foul discharge from the stored hides and skins, would affect injuriously, the health and safety of the residents in a thickly populated residential area, is no irrelevant consideration, as contended. On the contrary, they constituted a nuisance as defined in S.3 [16] of the Act, which it is the undoubted duty of any municipal administration to abate. It was urged, that these reports were obtained behind the back of the petitioner, and that in any event, he was not called upon to take precaution, to abate the nuisance. I am not clear, that the principles of natural justice can be pushed to this extent. Whatever may be said of the Sanitary Inspectors report, the sub-committees report was in a proceeding to which the petitioner was a party and the above objection is quite untenable. The observations of Stone, J., in Venkatachalam v. Corporation of Madras AIR 1934 Mad. 70 , that there should not be a blank refusal, but only a refusal unless certain indicated safeguards are provided were relied on by the learned counsel as supporting his stand, that before refusing the licence, the petitioner should have been called upon to provide safeguards for abatement of the nuisance. In the case before Stone, J., a letter of request for a licence accompanied by the prescribed fee, was considered not to be an application for licence, and was not treated as such, but the Corporation called upon the applicant to stop the business, which consisted of the grinding and manufacture of curry-powder for sale. The Corporation maintained, that the pungent odour of the curry-powder and the escaping dust of chillies constituted a public nuisance. Evidence was recorded as to this, and what was more, the learned Judge himself visited the premises and watched the manufacture and he came to the conclusion, that: