PETITIONER:
KHATKI AHMED MUSHABHAI
Vs.
RESPONDENT:
LIMDI MUNICIPALITY
DATE OF JUDGMENT20/11/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SHINGAL, P.N.
SEN, A.P. (J)
CITATION:
1979 AIR 418 1979 SCR (2) 338
1979 SCC (1) 248
ACT:
Right to a licence-when the bye laws permit the
licencing authority to. grant or to refuse licences, whether
said to offend Art, 19(1) (a) of the Constitution of India,
1950.
HEADNOTE:
Dismissing the special leave petition, the Court,
^
HELD: 1. 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 licencing Council-Indeed, is
obligatory on its part-to take note of all relevant
circumstances and then decide whether, in the particular
spot chosen by the particular applicant, a licence should be
granted or not. [339C-D]
2. Various factors enter the verdict and the local
authorities are the best judge of the factual factors, not
the Court especially, the Supreme Court at the third tier
The factual factors may be many, like the proximity to
schools, public institutions and also residents of the
locality plus the reaction or impact on those institutions
and residents, the unreasonableness to grant licence to the
same person or one for the father and another for the son,
the need for an extra shop, other considerations which are
germane from peace-keeping and welfare-oriented view-points
etc. Certainly granting a lease solely because someone
offers a large donation to the Municipality may not be
correct. [339D. G, 340B]
3. No doubt Municipal discretion should be exercised
rationally, not religiously nor ritually and judicial
discretion should go into anxiously, not impetuously nor in
disregard of the pragmatic guideline that local authorities
are the best judges of local conditions. 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 rights or local
factions fouling the council s verdict. [340C-D]
In the instant case, the ground on which the Municipal
body, has refused licence is not irrelevant and cannot be
described as unreasonable within the meaning of Art. 19(6)
of the constitution. [339C]
Mohd. Faruk v. M. P. State, [1970] 1 SCR 156;
inapplicable.
JUDGMENT:
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 Court in Special Civil Application No. 1174
of 1977.
M. V. Gowswami for the Petitioner.
P. M. Raval, P. H. Parekh, C. B. Singh and M. Mudgal
for the Respondent.
339
The order or the Court was delivered by
KRISHNA IYER, J. The petitioner’s counsel, in his
fighting submission, argues that his client’s fundamental
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, there 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 efflux of time had expired. The law vests a
discretion to he reasonably exercised in the content of
citizen’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 all relevant
circumstances and then decide whether, in the particular
spot chosen by the particular applicant” a licence should be
granted. Various factors enter the verdict and the local
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 same 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 germane from peace-keeping and welfare
oriented view-points. We agree that local bodies should not
succumb to religious susceptibilities or fanatical
sentiments in secular India and refuse licences where
fundamental rights have to be respected. Even so, in the,
totality of circumstances 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
(1) [1978] I SCR 156.
340
pal authority will take care to be alert and alive to the
fundamental right of citizens and not refuse licences merely
scared by mob sentiment or panicked by religious reaction.
In the instant case there is a composite lease-cum
cum-lease of a meat 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 grant of
the licence does not arise. In this view also we ( find it
difficult 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 pragmatic guideline
that local authorities are the best judges of local
conditions. Of course, if irrelevant criteria or perverse
application vitate the decision courts will guardian the
rule of law against little tyrants trampling over people’s
rights or local factions fouling the council’s verdict.
The Special Leave Petition is, therefore, dismissed.
S.R. Petition dismissed
341