M I VARGHESE Vs. CHALISSERY PANCHAYAT

JUDGEMENT

(1.) The appellant was an objector who objected to the grant of a licence for starting of a rice mill in Chalissery, for which the 4th respondent was an applicant. Ext. P1 is a copy of the objection filed by the appellant. On that the District Medical Officer of Health reported by Ext. P3 that the inmates of the area of the proposed mill had raised strong objection and that the Officer was also of the view that the starting of another rice mill in that area would be an additional nuisance to the public in the locality, and that in the circumstances approval of the site may be deferred. The 4th respondent apparently carried up the matter further to the 3rd respondent. From Ext. P3, we see that the Director of Health Services reported that there is no objection in sanctioning the installation of the rice mill using 10 H.P. Electric Motor. He accordingly requested that revised orders may be issued in the matter. The District Medical Officer of Health in the circumstances called upon the 4th respondent to submit the site plan for considering the same. In his writ petition, the appellant sought to quash Ext. P3 and the order contained in the letter of the Director of Health Services referred to therein and for appropriate directions. The learned Judge dismissed the writ petition on the ground that the appellant had no locus standi and that on the facts and circumstances which appeared, there is no ground for interference. The facts and circumstances noticed by the learned Judge are that subsequent to the filing of the writ petition, the licence for running of the proposed rice mill was granted to the 4th respondent and he had been running the mill for some time. The reason for finding against the locus standi of the petitioner was the decision of the Supreme Court in Nagar Rice and Flour Mills v. N. Teekappa Gowda and Bros. ( AIR 1971 SC 246 ). The correctness of the position thus taken by the learned Judge in regard to the locus standi of an objector to file a writ petition against the grant of a licence such as the one for starting a rice mill has been debated at some length before us,

(2.) Our attention was called to the decision of the Supreme Court in Nagar Rice and Flour Mills case (AIR 1971 SC 246) and to two later decisions in K. Ramadas Shenoy v. Chief Officers, Town Municipal Council Udipi ( AIR 1974 SC 2177 ) and Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed ( AIR 1976 SC 578 ). Before we notice these decisions, we may briefly refer to the provisions of the Panchayat Act. S.96 is the section which requires the taking out of a licence for use of certain places for certain purposes. Under S.97 permission is required to construct or establish any factory, workshop or work-place and also to instal in any premises any machinery or manufacturing plant etc. S.98 authorises the Government to make rules prohibiting or regulating the grant or renewal of licences under S.96 or permissions under S.97. In pursuance of the power thus granted, the Licensing of Dangerous and Offensive Trade and Factories R.1963 had been framed. Our attention was called to R.12(4)(b) of the Rules which requires the Panchayat before granting permission under R.12(3) to consult the District Medical Officer of Health, or any other Officer authorised in this behalf, regarding the suitability of the site of the factory, work-place or premises. It was under the said provision that a consultation was made with the District Medical Officer of Health. Under R.14 the Government or the Director of Panchayat could make such order or give such directions as they may deem fit in respect of any action taken or omitted to be taken under Sub-r.(3) of R.3. We may also notice S.144(2) which provides for a right of appeal against any notice or order or action taken under the provisions of the Act; and Sub-s.(3) of the same section which provides the Government with a right of revision against the orders and actions under the Act. With these statutory provisions we may briefly notice the three decisions of the Supreme Court referred to. In Nagar Rice and Flour Mills case (AIR 1971 SC 246), it was ruled that where the owners of an existing rice mill shifted its location and obtained necessary permission from the Director of Food and Civil Supplies, even if it be assumed that previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, the competitor in the business, owner of another rice mill can have no grievance against the grant of permission permitting the installation on a new site. It was observed that the right to carry on business being a fundamental right under Art.19(1) (g) of the Constitution its exercise is subject only to the restrictions imposed by law in the interests of the general public under Art.19(6)(1) Counsel for the writ petitioner would seek to justify this decision on the ground that the same was concerned with the rights of a competitor or a rival in trade and not that of a person to whom a statutory right of objection to the grant of permission or the licence under the provisions of the Panchayat Act, had been granted. It is difficult to appreciate and sustain the distinction thus stressed by the Counsel, especially as a fundamental right is involved, in the case of a rival trader-objector, dealt with by the Supreme Court in the decision referred to above, and his case, if at all, should stand on a stronger footing than that of a mere objector who is given a statutory right to object. Even such a statutory right of objection was held not sufficient by the Supreme Court to found a claim for locus standi to maintain a petition under Art.226. Whatever that be, in K. Ramadas Shenoy's case (AIR 1974 SC 2177), the position was discussed again with respect to the action of the Municipality in having granted permission to convert a Kalyanamandapam into a cinema theatre. Para.24 of the judgment put the position thus;-