S SEKAR Vs. CORPORATION OF MADRAS

JUDGEMENT

(1.) THE writ petition has been filed with the following prayer: To call for the records relating to the order dated'nil' and signed on 22. 3. 1993 and the consequential order signed on 1. 4. 1993. passed by the 1st respondent and quash the same by issue of a writ of certiorarified mandamus, and to direct the respondents to receive the prescribed fee for 1993-94 in the form of bank draft and direct the respondents to renew the licence for the year 1993-94.

(2.) THE case of the petitioner in brief is as follows: In the year 1991, the petitioner had applied for a licence to run a flour mill with 15 H. P. motor in the premises at No. 29, P. V. Koil Second Street , Pudupet, royapettah, Madras-14, for the 1991-92. THE 1st respondent granted Planning permit No. 101615 dated 9. 12. 1991 to erect and run a flour mill with 15 H. P. motor. On the strength of such planning permit, the petitioner had purchased a flour mill and motor at a cost of nearly rupees one lakh and leased out the said premises for the installation of the machinery under Sec. 287 of the Madras city Municipal Corporation Act (hereinafter referred to as the Act ). He had applied for licence to run the F. C. S. Flourmill under Sec. 288 (1) of the Act for the year 1991-92. He had approached the authorities several times and requested them to issue the licence for 1991-92. THE 1st respondent did not pass any order either by granting or refusing the licence within sixty days and as such, under Sec. 288 (8) of the Act, he has earned the licence for the year 1991-92.

(3.) THE following legal contentions were raised by mr. T. Chengalvarayan, learned Senior Advocate appearing on behalf of the petitioner; (A) THE petitioner has a fundamental right to commence and carry on any lawful business to earn his livelihood and such a right is constitutionally guaranteed under Art. 19 (1) (g) of the Constitution. Such a right is always subject to reasonable restriction. Permit or licence system has been held per se not an unreasonable restriction and no person can claim a licence or permit as of right. Where the administrative authority seeks to regulate the same by rules and is exercised in consonance with the principles of natural justice, the courts will presume that any such rules are reasonable restrictions. But, where the administrative authority is conferred with power to grant or refuse in its uncontrolled discretion, such action ex facie infringes the fundamental right guaranteed under Art. 19 (1) (g) of the constitution. In such a case of total prohibition, the burden of proving that a total prohibition in the exercise of that right alone will ensure the maintenance of the general public interest, lies heavily upon the licensing authorities. Thus, it is submitted that the impugned order, does not at all discharge that burden and in the absence of such details, the impugned order violates and infringes the petitioner's fundamental right.