RAMESHWAR PRASAD KEDARNATH Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) WHILE agreeing with the order proposed by my brother Mootham, I would like to point out that, having regard to the nature of our Constitution, a licence for the carrying on of a business or profession cannot be looked upon as a mere privilege which is within the unfettered discretion of the Executive Authority empowered to grant it. Particular emphasis has been laid in Article 19 (1) (g) on the right to practice any profession, or to carry on any occupation, trade or business, subject, of course, as laid down in Article 19 (6), to any reasonable restrictions in the interests of the general public as may be placed on it. In guaranteeing this right the founding fathers were, no doubt, influenced by their concept of the functions of the State. As is clear from the directive principles of State policy to which I think it is permissible to refer in this connection, they were establishing a State guided by certain directive principles which, though not justiciable, were, nevertheless, to be 'fundamental' in the governance of the country, it being its duty to apply them in making laws. For after stating in article 38 that the State shall try to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life, the founding fathers went on in Article 39 (a) to lay down that State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. A refusal to renew a licence on grounds other than those which the licensing authority can legitimately take into consideration can dislocate and paralyse, in the case of a businessman, his entire business and deprive him of the means of earning his livelihood. Necessarily, therefore, a misuse of that power can frustrate the very purpose of the welfare State established by the Constitution of this Country. I would like to emphasise that it is necessary to keep this background as the directives represent the political philosophy underlying the constitution in view in considering the questions raised by this application.

(2.) NOW, what are the main facts of this case? In 1949 the applicant applied for and was granted licence in Form B1 under the U. P. Controlled Cotton Cloth and Yarn Dealers' Licensing Order, 1948, to buy and sell controlled cloth. This licence was, in the initial instance, to be valid up to 31st October 1950. Thereafter this licence was renewed on two successive occasions for a period of one year each. It expired on the 31st October 1952, Before its expiry on the 9th May 1952, the applicant was served with a notice that the District Magistrate had cancelled his licence for reasons which were not stated by the District Supply Officer in his communication to the petitioner. On receiving that notice of cancellation, the petitioner came to this Court praying that the aforesaid order cancelling the petitioner's licence be quashed. A Bench of this Court admitted the aforesaid miscellaneous application and passed an 'interim' order staying the operation of the district Magistrate's order cancelling the licence. The allegation in the affidavit which has been presented to this Court on behalf of the petitioner is that, even after that order, the District magistrate declined to permit the applicant to ply his business under the licence on the ground that the order of this Court was not clear and required clarification. It is stated in the affidavit that the view taken by the District Magistrate was that though this Court had directed that the order cancelling the licence should be suspended, it was nowhere ordered that the licence should be returned to the applicant. On the 22nd June 1952 a Bench of this Court directed the District Magistrate to give possession of the licence to the applicant. On 25-9-1952 which was within the time allowed by law the petitioner presented an application to the District Magistrate for a renewal of his licence. The applicant did not get any communication from the District Magistrate in regard to the said application for renewal for a period of over two months. On 1-12-1952, however, he received a notice from the District Supply Officer that the District Magistrate had refused to renew his licence "on account of the malpractices indulged in by you and your bad reputation. " The district Magistrate further directed him to suspend his business activities forthwith and declare stock of cloth within three days of the receipt of the notice. On 4-12-1952 the applicant informed the District Supply Officer that the applicant had stopped his business activities and supplied him with the details of the amount of stock in his hands. On 12-12-1952 the applicant received a letter from the District Supply Officer directing him to transfer his stock of cloth to a licensed cloth dealer. The cloth was, as ordered by the District supply Officer, duly transferred. Between 7-12-1952 and 4-1-1953 efforts were made by the applicant to find out from the District Magistrate the reasons for his refusing to renew the licence. It is asserted in the affidavit that he met him three or four times in that connection and drew his attention to the fact that the applicant had never indulged in any questionable activities nor had he contravened any of the relevant control orders.

(3.) NOW, it is important to note that according to the affidavit filed by the petitioner the District magistrate refused to 'set out with any particular preciseness the reasons for his refusing to renew the licence without previously affording him any opportunity to explain the main allegations against him and merely told him that 'the applicant was free to take the matter to the high Court even as he had done previously. The District Magistrate with whom he had this talk having been transferred, the applicant presented an application on 15-1-1953, to the District magistrate who had succeeded him setting out the facts of his case and praying that the order cancelling his licence be-reconsidered. The new District Magistrate expressed his inability to alter the order made by his predecessor. I am not impressed with the argument that the version given of the talk in paragraph 22 of the petitioner's affidavit is somewhat different, being stronger in tone, than the one given in paragraph 14. The conversation, whenever it occurred, must have been within the knowledge of the then District Magistrate. The impression should not have been allowed to be created that the district Magistrate looks upon an approach to this Court as something 'reprehensible' or outrageous on the part of those affected by his orders. In the circumstances of this particular case, it was incumbent on the part of the State to remove the impression created by the petitioner's affidavit. It cannot be said that the then District magistrate could not be contacted for this purpose. This being the position, I am bound to assume that, having regard to the fact that it has not been controverted by any statement in a proper counter-affidavit, the version given by the petitioner of his talk or talks is substantially correct. That being so, I am driven to the conclusion that reasons which were not relevant to a consideration of the petitioner's petition for the renewal of the licence were not absent from the minds of the authority refusing the licence. On these facts, I am inclined to the view that the refusal to grant the licence was not influenced by considerations which can be solely said to be of a 'bona fide' nature. In the affidavit filed on behalf of the petitioner it is asserted that on his asking him as to why the licence was not being renewed and he was being discriminated against, he was told that it was because 'he had dared to question the order in this Court'. It is true that there is only the applicant's statement, without any indication of the date when the conversation took place, in the affidavit to support the statement which has been attributed to the District Magistrate, but it is no less equally important to note that, in the counter-affidavit which has been filed on behalf of the district Magistrate by a Cloth Inspector in the office of the District Supply Officer the statement that the licence had been cancelled as the petitioner had dared, to approach the High Court on a previous occasion has not been refuted. It was possible for the State to file a counter-affidavit of the then District Magistrate to refute the above allegations which go to suggest that perhaps the district Magistrate was influenced, to some extent at all events, by considerations not relevant to the consideration of the petitioner's application for the renewal of the licence. This has not been done. It may well be that the fact that he had approached this Court and obtained a stay order when his licence was cancelled was not the only operative reason so far as the decision not to renew his licence is concerned; but in the absence of a counter-affidavit on behalf of the State, I am bound to attach importance, notwithstanding the absence of dates and minor discrepancies in the versions given in paragraphs 22 and 14 of the affidavit, to the statement made in this behalf by the petitioner in his affidavit. On the basis of the facts set out above, I am, driven to the conclusion that perhaps the refusal to renew the licence was influenced by the circumstance that the applicant had, when his licence was cancelled, dared, what was apparently annoying to the executive authorities, to assert his right by coming to this Court and seeking its assistance in getting the order of cancellation stayed. Ordinarily this Court does not interfere with administrative orders; but where there are reasons to think that the order has been influenced by extraneous consideration this Court has, in my opinion, irrespective of the question whether the order can be classed as falling within the category of 'certiorari' or not, ample authority under Article 226 of the Constitution to interfere with it by a proper order or direction. The words of Article 226 of the Constitution are wide enough to cover an order of that description, reference may be made to the observations of Bind Basni Prasad J. in -- 'sm. Prabhabati Devi v. District Magistrate of Allahabad', AIR 1952 All 836 at p. 838 (A ). While holding in that case that where they were in a state of doubt as to whether the order passed by the District Magistrate was quasi-judicial in character or not, that a writ of 'certiorari' was not permissible, they nevertheless thought that Article 226 was now so wide that, if any authority had acted against law, then an application under that Article was maintainable against the authority for the issue of proper directions to act according to law. Reference may also be made in this connection to two other cases, viz. , -- 'dalchand Chittar Mal v. Commr. Food and Civil Supplies, Lucknow', AIR 1952 All 61 (B) and -- 'manohar ramkrishna v. G. G. Desai', AIR 1951 Nag 33 (C ). The latter was a case in which the petitioner had impugned an order requisitioning a house belonging to him under the C. P. and Berar Act, 63 of 1948. A preliminary objection was taken to the effect that Article 226 did not permit the court to assist the petitioner as writs of 'certiorari' and 'prohibition' could not issue unless the impugned order was a judicial or quasi-judicial order and that an order requisitioning property did not fall in either category. A further contention was that a writ of mandamus could issue only for the purpose of requiring the doing of a positive act and that in that case as no positive act was required from the State, the petitioner was not entitled to the relief or reliefs asked for. On the above state of facts, Mangalmurti and Mudholkar JJ. made the observations quoted below: