ORDER
K. Narayana Kurup, J.
1. In this Original Petition the petitioner seeks for the issuance of a writ of certiorari to quash Ext. P2 and for the issuance of a writ of mandamus directing the respondents to order renewal of licence for conducting the business of storing of hides and skins in Building No. 26/241 of Changa-nacherry Municipality and for other incidental reliefs.
2. The petitioner is engaged in the business of storing hides and skins in building No. 26/241 measuring an extent of 35 cents within the Changanacherry Municipality. He has been continuing the said business since 1979. In the year 1989-90 the petitioner submitted an application for renewal of his licence to the respondent after making the requisite deposit of Rs. 100/-. On receipt of the application for renewal, the respondent issued Ext. P2 stating that the request for renewal cannot be granted on the ground that the petitioner is engaged in the business of processing of hides and skins emanating foul smell thereby causing nuisance to the people of the locality. On receipt of Ext. P2 the petitioner filed Ext. P3 reply stating that he is not engaged in the business of processing of hides and skins and that storage alone is done in proper conditions and that no foul smell is emanating from the premises which can be verified by an on the spot inspection. But at the same time apprehending that the respondent will take action against the petitioner, he approached this court with the instant Original Petition praying for the reliefs mentioned above.
3. This court by an interim order dated 31-3-1989 after hearing the parties, appointed a Commissioner to inspect the site to ascertain whether any processing of hides and skins is being carried on in the premises and to ascertain whether the storing of the hides and skins causes any nuisance by way of foul smell or otherwise in the locality and also to ascertain the location and importance of the place where the building is situate and such other matters which either side may request the Commission to note. Pursuant to the order issued by this court, the advocate Commissioner inspected the premises in question and submitted a detailed report wherein it has been slated among other things, as follows:
“The drain starts from the front portion of the shed mentioned in Ext. P2. It proceeds to north and then to westwards and again turns to north and stops at a point 20 feet to the south of the northern compound wall. There is an exit from the drain. I am told that the water is drained off, to tanks underground……. If there is no block for the flow of filthy water to the underground tank, one can only say that the arrangement to drain off the filthy water is satisfactory…………….. The proprietor of ‘Root tailoring’ a shop which is situate on the northern side of the road on the north of the petitioner’s compound requested me to have a look from the road on the north. I went to the road and noted what he said. He complained that the filthy water used to be drained off to the road and that it was a emanating foul smell. I enquired of the Health Inspector about this allegation. I was told that he had complained to the Municipality, that the Municipality took action on the complaint and that it was pursuant to the said action that the draining of the water to the tank underground was resorted to. The Proprietor Root tailoring told me that the people of the locality had to close the opening of the road and prevent the flow of water to the road. Whatever that be, the alleged stands abated.”
On a consideration of the Commissioner’s report and after hearing the petitioner and the respondent, this court permitted the petitioner to carry on his business of storing of hides and skins in the premises in question and the petitioner is continuing the said business pursuant to the orders of this court even as on today,
4. The petitioner’s main grievance as ventilated in page 8 of the amended Original Petition is that he has been singled out for hostile discrimination by the respondent in the matter of grant/renewal of licence at the behest of the Chairman of the Municipality, who, according to the petitioner, is on inimical terms with him. In support of his contention the petitioner has cited a few instances in which the business of storing of hides and skins is being carried on by persons in thickly populated areas of Changanacherry Municipality and in congested areas. To substantiate his case the petitioner would contend that the distance from the private bus stand to the petitioner’s place of business is 100 ft. whereas very close to the transport bus stand and Changanacherry junction, i.e. hardly within a distance of 60 ft. from Transport bus stand and hardly within 15 ft. of Changanacherry kavala is situated the hides and skins storing godown of one Pothen Joseph. Shri Pothen Joseph’s business is in building No. VIII/373 and the said business is being conducted by the said Pothen Joseph for the last 20 years and more. The petitioner would submit that unlike in the case of the petitioner there is no underground drainage system for the said Pothen Joseph and the business premises of the said Pothen Joseph extents less than 5 cents whereas the area of the petitioner’s place of business as indicated above, is 35 cents and the petitioner is also residing in the very same premises. The petitioner submits that the Municipality has not raised any objection as against the said Pothen Joseph for the continuance of his business in the said locality. The petitioner cites yet another instance of the very same business being carried on by one Jose Thomas Thekkekara in building No. VII/267, situated at Vattappally on the side of Changana-cherry-Vazhoor road, which is also according to the petitioner, a thickly populated residential area. There also the petitioner would say that no objection has been raised by the respondent Municipality for the continuande of the business in question. Citing the above instances the petitioner’s contention is that the action of the Commissioner of the Municipality is at the behest of the Chairman of the Municipality who is at logger-heads with him.
5. Heard learned counsel for the petitioner and learned counsel appearing for the respondent. It is submitted by the learned counsel for the respondent that the petitioner has been carrying on his business in the premises in question from 1989 onwards under the strength of the stay order issued by this court. The only question that now survives for consideration is the entitlement of the petitioner to carry on the business for the remaining part of this financial year and thereafter for which a renewal of licence is necessary. Learned counsel for the respondent submits that in the event of the petitioner making an application for renewal of his licence for the premises in question, if not already done, the respondent shall consider the same dispassionately and pass orders on merits uninfluenced by any extraneous consideration as alleged by the petitioner.
6. In this connection, it has to be noted that the right of the petitioner to obtain a licence is a fundamental right and without a constitutional amendment neither the legislature nor the executive can violate the said right. It is no doubt true that a licence is required for the enjoyment of the right, but then, such a right cannot be construed as a mere privilege held at the pleasure of the executive, but would be a constitutional right, denial of which must be subject to the express limitations imposed by the Constitution itself “For example, the right to carry on business is a fundamental right subject to reasonable restrictions in the interest of the general public. If a licensing system is introduced in respect of an innocuous commodity in daily use, a person carrying on trade or business in that commodity would have a right to that licence unless it can be shown that the refusal of such a licence constitutes a reasonable restriction in the public interest. Similarly, a licence once granted cannot be withdrawn on the ground that it is a “privilege”: the withdrawal would directly affect a fundamental right and can be supported only as a reasonable restriction in the public interest.” — Vide Seervai’s Constitutionaf Law of India 3rd Edition, Vol. II page 1336 at para 16.238. Viewed in the above background I am of the view that the existing licence held by the petitioner to carry on the business of storing hides and skins which is not an inherently dangerous trade or a calling which a person has no common law right to carry on or a commodity which is essential to the community, is not liable to be cancelled or revoked : So likewise, where the Act says that a licence ‘may be issued’and ‘may be revoked’ without saying in what circumstances, there may be a duty to issue it and a duty not to revoke it except for a good legal reason : an arbitrary revocation of a television licence by the Home Secretary was accordingly declared unlawful by the Court of Appeal — vide Congreve v. Home Office (1976) QB 629 (Wade Administrative Law 5th Edn. page 231). The respondents shall have to bear these considerations in mind while disposing of the renewal application of the petitioner and also the allegations of discrimination already noticed. It is made clear that the petitioner shall be entitled to continue in the premises in question during the pendency of the application for renewal and also during the currency of his appeal and revision, if any, before the Council and Government.
In the light of the legal principles enunciated above and having regard to the fact that nuisance had been abated as already noticed, the Original Petition is allowed as above and Ext. P2 stands quashed.