LALJI PRASAD Vs. NAGAR MAHAPALIKA, VARANASI AND OTHERS

JUDGEMENT

(1.) The petitioner held a licence for skinning dead animals. He made an application dated 6th March, 1980 for renewal of the licence. It appears that no final orders were passed on that application till 31st July, 1980 when a suit was instituted by the petitioner for various reliefs against the Nagar Mahapalika. In that suit, an application 6-C was filed for issue of an ad interim injunction restraining the Nagar Mahapalika from interfering with the petitioner's right of carrying on the work, profession and business of skinning the dead animals at plot No. 1422/3, village Khajuri, Mahalla Hukulganj, Varanasi and tanning and storing bones, horns, hides etc. at 810/115 B, Khajuri, Hukulganj, Varanasi, till the disposal of the suit. This application has been dismissed by the District Judge in appeal, inter alia, on the finding that the petitioner had no prima facie case for the grant of temporary injunction prayed for. It is this order of the District Judge which is sought to be quashed in the present writ petition.

(2.) Having heard counsel for the petitioner at some length, I am of opinion that on the admitted fact that the petitioner's application for renewal of the licence has not so far been allowed and he is not holding any licence at present to carry on the business aforesaid, it is not possible to take the view that the finding of the District Judge that the plaintiff has no prima facie case for the grant of the temporary injunction prayed for suffers from any such error which may justify interference under Art. 226 of the Constitution. That the holding of a licence is a condition precedent for carrying on the aforesaid business admits of no doubt. In the absence of such a licence, to me it appears that it was not open to the Courts below to permit the petitioner by issuing a temporary injunction as prayed for to carry on a business for which holding of a licence is a condition precedent.

(3.) In this connection, it was also urged by counsel for the petitioner that in a case where it has been established by an applicant for the grant or renewal of a licence that he fulfils all the requirements for such a grant or renewal, it is open to a Court of law to permit such person to carry on business even in the absence of a licence and the District Judge ought to have granted temporary injunction on this basis. Firstly, the District Judge was not considering an application for the grant of a temporary injunction requiring the Nagar Mahapalika to dispose of the application for renewal. As such, the Nagar Mahapalika could not be expected to produce such material which it may be possessed of in support of its contention that the petitioner was not entitled to renewal of licence. As such, any observation that may have been made on this point by the Courts below cannot be treated as a finding that the petitioner fulfilled all the requirements for renewal of a licence. Secondly, in my opinion, even in such a situation, as has been urged by counsel for the petitioner, it would not have been within the power of the District Judge while hearing an application for the grant of a temporary injunction to ignore the requirement of a licence for carrying on business as aforesaid and to grant permission to the petitioner to carry on business without a licence. The District Judge could neither renew the licence himself nor pass an order which had the effect of by passing the requirement of having a licence. If he did so it would have the effect of usurping the power of the licensing authority by the Civil Court in the matter of granting or renewing a licence.