1999 Supreme(Guj) 468

Gujarat High Court
Judgename :J.R.Vora, R.K.Abichandani
D.S.RANA - Appellant
Versus
AHMEDABAD MUNICIPAL CORPORATION - Respondent
S.C.A. 2490 of 1999
Decided On : 09/13/1999

Headnote:(a) Bombay Provincial Municipal Corporations Act, 1949 - Sec. 376(1) - Constitution of India, 1950 - Art. 19(1)(g) - Directive principle - Trade licence - Restriction on gold and silver melting business within municipal area other than industrial area - The condition arbitrary violating of principle of natural justice and curtail Fundamental right of business and trade - Art. 19(1)(g) - Commissioner acted on report of committed - Policy decision, taken to restrict melting of gold and silver to indudstrial area - No absolute prohibition - There is no absolute prohibition on the right to carry on trade or business in such case.

       Thereby prohibiting it in a residential or in commercial area for preventing danger to life and health of its inhabitants and pollution and stopping nuisance. Such opinion of the Commissioner can be formed on the data available to him that warrant the imposition of such restriction while issuing the licence. In fact, there is no absolute prohibition on the right to carry on the trade or business in such cases, but it is only a restriction imposed by the Commissioner in the licence in the nature of confining it to an industrial zone so that it does not become a health hazard or source of nuisance to the general public.

       [Para 17]

       (b) Bombay Provincial Municipal Corporations Act, 1949 - Secs. 376(1) & 376A - Gold & Silver Melting business - Committee form Recommendation to restrict melting of gold & silver in residential and Commercial Area - Policy decision by Municipal Corporation - Directive Principle - Right and liberties of citizen - Intensity of judicial review - Reasonableness and fairness of policy - Natural justice.

       The doctrine extends to decisions of licensing policy which affect a class of licence holders and not merely individual cases. Licensing is a drastic power, greatly affecting the rights and liberties of citizens and particularly, their livelihood and this alone demands fair administrative procedure. The intensity of judicial review will however, differ in accordance with the nature of the decision and it will be least intense where the decision involves matters of social and economic policy. The Court has to be careful not to inhibit public authorities from laying down policies, which are in consonance with the directive principles, since consistent administrative policies are not only permissible, but highly desirable. But the policies must naturally be based on proper relevant grounds.

       [Para 18]

       Held, policy in consonance with directive principle is permissible and desirable.

       (c) Restriction on Trade - Grant of licence - Restriction on licence in Residential & Commercial Area - Procedure adopted by Municipal Corporation whether unreasonable, unfair and contravene - Principle of natural justice - Fair hearing - Shifting of melting industry of gold & silver to Industrial Area - The impugned decision has been taken after giving fair hearing to petitioner.

       In the present case the procedure which was adopted the local authority in taking the decision for imposing a condition in the licence of carrying on the trade in question only in an industrial zone, was both suitable and fair in the circumstances of the case. The gist of the report of National Institute of Occupational Health was given in the annexure attached to the show cause notice and the petitioner very well knew as to the objections which they were required to meet. We are therefore of the view that the impugned decision has been taken after giving a fair hearing to the petitioner.

       [Para 18.1]

       (d) Bombay Provincial Municipal Corporations Act, 1949 - Secs. 376, 376A - Statutory authority - Vest with decision making power - Exercise of power - Discretion consideration - Policy decision to prevent pollution - Industry pollute area with cadmium and lead in press of melting silver & gold - Duty on local body to prevent pollution - Life of citizen - Public nuisance - Judicial Review - Interference of - Scope of - Whether in prevention of Air Pollution from gold and silver melting business is arbitrary and exercise of power by authority is illegal - Held, such decision to abate Public nuisance from area and prevent hazard to Public Health.

       The subject matter with which the condition deals is one relevant for its consideration. The local authority has considered it and come to a decision upon it. For interference by the Court in such cases something overwhelming is required which would clearly show that the decision on a competent matter is so unreasonable that no reasonable authority can ever come to it. The facts of this case do not come anywhere near anything of that kind. It cannot be said that such a decision to abate public health, is a decision that no reasonable body could have come to.

       [Para 20]

       (e) Bombay Provincial Municipal Corporations Act, 1949 - Secs. 376, 2(40), 63(1), 376-A - Gold & Silver melting business pollute air with cadium and lead - Pollution dangerous for health of public residing in Area - Policy decision by Corporation - Restriction on licence in residential and commercial area - Licence to Gold and Silver melting business only in Industrial Area - Whether restriction put by local Authority - Unreasonable, Arbitrary and contrary to provision of law and has exceeded its power under Act - Held, the local Authority has not contravened the law or acted in excess of its power in any manner and also no way unreasonable and arbitrary.

       The Municipal Corporation and the Municipal Commissioner were entitled to consider matters relating to the welfare of a section of the community and the condition of this nature requiring the trade in gold and silver melting and refineries to be carried on only in an industrial zone, thereby effectively preventing it in other areas, is, in our opinion, in no way unreasonable or arbitrary. It is a perfectly reasonable and proper restriction warranted by the Constitutional and Statutory principles noted above. The local authority has not contravened the law or acted in excess of its power in any manner in this case.

       [Para 20.1]