Rajani Patel and I. C. Bhat with V. B. Patel, for Petitioner; H. M. Seervai, with B. G. Thakor instructed by Little and Co. Attorneys, for Opponents 1 to 3; The Advocate General and R. M. Kantawala instructed by Little and Co. Attorneys, for Opponent 4.

1959 Govindji Vithaldas Co. v. Muncpl. Corpn., Ahmedabad (Chagla C. J.) [Prs. 1-6] Bora. 27

JUDGMENT - M. C. CHAGLA, C. J.:

These are 31 petitions challenging the refusal by the Municipal Commissioner of the Ahmedabad Municipality to issue licenses to them for carrying on timber business in a certain locality in Ahmedabad. The point involved in all these petitions is identical and therefore it will be sufficient if we deal with the i facts of the first petition, Special Civil Application No. 1477 of 1956, and decide the point in that petition.

(2) Now, this petitioner has been doing timber business for several years in a locality which is known as City Wall locality and a license was given to him to carry on this business for several years. When he applied for a license for the year 1951-52 the license was refused on the ground that in the opinion of the Fire Superintendent the Municipal law was not observed and the margin of five feet around the premises was not kept as required by law. Notwithstanding the refusal of the license the petitioner carried on his business and when he applied for a license for the year 1956-57 the license was refused on 17-5-1956 and the ground given for the refusal of the license was that a zone had been fixed for keeping and selling timber wood, that the place in respect of which license was applied for was not within the said zone, and as the place was outside the zone and the reserved plots, the application of the petitioner for license for the current year was rejected. This decision was arrived at by the Deputy Health Officer and it is this refusal which has been challenged in this petition.

(3) Now, we may very briefly dispose of the merits of the matter. It appears that there are two Town Planning Schemes which, although they have not received the final legal imprimatur, have been adopted by the Ahmedabad Municipality. One is the City Wall Scheme under which timber depots are prohibited within the City Wall limits and the other is the Jamalpur Scheme under which certain plots have been reserved for timber depots, and the reason why the Municipal Commissioner refused a license to the petitioner was that his timber depot was within the City Wall limits and the Municipality offered to give every facility to the petitioner if he were to shift his depot from the City Wall limits to the Jamalpur limits. The petitioner insisted on carrying on his business within the City Wall limits and thereupon the Municipal Commissioner refused the license.

(4) The petitioner challenges the action of the Municipal Commissioner on two grounds. The first is that the section of the Municipal Corporations Act to which we shall presently refer, which makes it incumbent upon the petitioner to obtain a license in order to carry on his business of timber, is ultra vires of the Constitution, and the other ground is that assuming the section is intra vires and valid, the discretion exercised by the Municipal Commissioner was arbitrary and capricious. Mr. Patel very fairly did not press the second ground and did not dispute that if the discretion could be exercised under the law and a license was necessary, the discretion could not be said to have been wrongly or dishonestly or arbitrarily exercised by the Municipal Commissioner. Therefore, the only question that we have to consider in this petition is whether the impugned section contravenes any provision of the Constitution.

(5) Now, under S. 376 of the Bombay Provincial Municipal Corporations Act it is provided:

"(1) Except under and in conformity with the terms and conditions of licence granted by the Commissioner, no person shall -

(a) keep in or upon any premises any article specified in the rules........"

and the relevant p

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