Khatki Ahmed Mushabhai v. Limdi Municipality

KitlSHNA IYER, J. The petitioner's counsel, in his fighting submis-sion, argues that his client's fundamentaJ right to a licence for a meat shop has been flouted by the little Limdi Municipality, founding himself on a decision of this Court in Mohd. Faruk v. M. P. State( 1). That decision hardly helps. There a byelaw was challenged as violative of Art. 19 ( 1) (g) . Here there is no law whatever which bans the grant of meat licences. Indeed, thern are three other licensed meat stalls and the petitioner himself had a meat licence in a shop leased to him by the same Municipality earlier which by efllux of time had expired. The law vests a discretion to be reasonably exercised in the context of citi-zen's fundamental right. The ground on which the Municipal body has refused licence here is not irrelevant and cannot be described as unreasonable within the meaning of Art. 19 ( 6) of the Constitution. The bye-laws permit the municipality, as the licensing authority, to grant or to refuse licences. No butcher, baker or circus manager can say that he has the. unqualified right to get a licence on mere application. It is open to the licensing council-indeed, is obligatory on its part-to take note. of aJl relevant circumi;tances and then decide whether, in the parti-cular spot chosen by the particular applicallt,, a licence should be granted. Various factors enter the verdict and the locaJ authorities are the best judge of these factual factors, not the court, especially this Court sitting at the third tier.

The, Limdi Municipality is stated to be a small one with a population of around 25000. It is admitted that there are three licensed meat vendors including one who iS the father of the petitioner. The claim of the petitioner is for a fourth licence. It is quite conceivable that the fourth may be supernumerary. It is quite understandable that the municipality may think that it is not reasonable to grant licence to the iame person or one for the father and another for the son. Moreover, we cannot dismiss as irrelevant or obnoxious the consideration the strong feelings of the local people resulting in law and order problems. The proximity to schools, public institutions and also residents of the locality plus the reaction or impact on those institutions and residents maybe getmanc from peace-keeping and welfare-oriented view-points. We agree that local bodies should not succumb to religious susceptibi-lities or fanatical sentiments in secular India and refuse licences where fundamental rights have to be respected. Even so, in the, totality of circun1stances present in the present case, it is not possible for us to postulate that there has been an abuse of discretion or a perverse use of power. In this view, we decline to interfere. Certainly, the munici-pal authority will take care to be alert lllld aliTe to the tundame,ntal righ II; of citizens and not refuse licence!; merely scared by BJ.ob sentiment or panicked by relijlious reaction.

In the instant case there is a composite lease-cum-licence-lease of a 111eat shop and licence for carrying on trade in mutton. There is no obligation on the part of the municipality to grant a lease of its property to any one who asks for it merely for the asking. Granting a lease solely because some one offers a large donation to the municipality. as nearly happened here, may not be correct, which this local body will note. If the refusal of the lease or its renewal cannot be faulted, the question of graut of the licence does not arise. In this view also we find it diftlcult to accede to the argument of the petitioner.

We agree that municipal discretion should be exercised rationally, not religiously nor ritually, but we also realize that judicial discretion should go into anxiously, not impetuously nor in disregard of the prag-matic guideline that local authorities are the best judges of local condi-tions. Of course, if irrelevant criteria or perverse application vitiate the decision courts will guardian the rule of law against little tyrants trampling over people's righfs or local factions fouling the councirs verdict

The Special Leave Petition is, therefore, dismissed.

CIVIL APPELLATE JURISDICTION : Special Leave Petition (Civil) No. 2939 of 1978.

Appeal from the Judgment and Order dated 4-10-1978 of the Gujarat High Caurt in Special Civil Application No. 1174 of 1977.

II M. V. Goswami for the Petitioner.

P. M. Raval, P. H. Parekh, C. B. Singh and M. Mudgal for tke R~pondent. ..1.