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MADRAS HIGH COURT
RAJAGOPALA AYYANGAR
K.Mohamed Khassim and Brother
Versus
Municipal Council, Ootacamund by its Commissioner
Writ Petn. No. 374 of 1954
Decided On : 28January, 1955
DISTRICT MUNICIPALITIES ACT - SECTION 249 - LICENCE FOR STORAGE AND SALE OF FIREWORKS - DISCRETION OF MUNICIPAL AUTHORITIES - ABSOLUTE OR SUBJECT TO REASONABLE RESTRICTIONS - CONSTITUTION OF INDIA, ART. 19(1)(G), 19(6).
Fact of the Case:
Petitioners, merchants in Ootacamund, applied for a license to store and sell fireworks under S. 249 of the District Municipalities Act. The Municipal Health Officer refused the license, citing a 150-foot clearance requirement from residential buildings, despite clearances from the Fire Service Officer and Inspector of Explosives. The petitioners appealed to the Municipal Council, which upheld the Health Officer's decision. The petitioners challenged the refusal, alleging mala fide intent and seeking a writ of certiorari and mandamus.
Finding of the Court:
The court held that the absolute discretion granted to the executive authority under S. 249(3) of the District Municipalities Act, without any guidance from the Legislature, violated the petitioners' fundamental right to carry on their business under Art. 19(1)(g) of the Constitution. The court also found that the Municipal Health Officer's refusal was based on an incorrect interpretation of the Indian Explosives Rules, 1940, and that the Municipal Council had abdicated its duty by not considering the appeal on its merits.
Issues: 1. Whether the absolute discretion granted to the executive authority under S. 249(3) of the District Municipalities Act violated the petitioners' fundamental right to carry on their business under Art. 19(1)(g) of the Constitution? 2. Whether the Municipal Health Officer's refusal was based on an incorrect interpretation of the Indian Explosives Rules, 1940? 3. Whether the Municipal Council had abdicated its duty by not considering the appeal on its merits?
Ratio Decidendi: 1. The court held that the absolute discretion granted to the executive authority under S. 249(3) of the District Municipalities Act, without any guidance from the Legislature, violated the petitioners' fundamental right to carry on their business under Art. 19(1)(g) of the Constitution. The court reasoned that such a broad grant of power without any parameters or guidelines was unreasonable and excessive. 2. The court found that the Municipal Health Officer's refusal was based on an incorrect interpretation of the Indian Explosives Rules, 1940. The court noted that the rules did not require a 150-foot clearance for the storage and sale of fireworks in quantities not exceeding 206 Ibs., provided that the premises met certain conditions. 3. The court held that the Municipal Council had abdicated its duty by not considering the appeal on its merits. The court noted that the Council had simply upheld the Health Officer's decision without examining the petitioners' objections or the relevant facts and circumstances.
Final Decision: The court quashed the orders of the Municipal Health Officer and the Municipal Council refusing the petitioners the grant of the license. The court directed the respondent Municipality to issue the license to the petitioners as prayed for in their petitions.
ORDER :- This is an application for the writ of certiorari against the Municipal Council of Ootacamund to quash an order refusing the applications made by the petitioners for the grant of a licence to store and sell fireworks and for a writ of mandamus directing the respondent to grant to the petitioners the licence applied for.
2. It is necessary to set out a few facts in order to understand the points raised for decision. The petitioners are merchants doing business at Ootacamund. In accordance with the provisions of S. 249 of the District Municipalities Act, the Municipal Council of Ootacamund notified on 26-11-1952 that no place within the Municipality shall be used for selling or storing fireworks without the licence of the executive authority. In compliance with this notification, the petitioners submitted two applications on 14-9-1954 for the issue of a licence for storing and selling fireworks not exceeding 50 Ibs. in premises Nos. 290 and 291 Main Bazar, Ootacamund and in stall Nos. 10 and 11 in the market at Ootacamund from 16-10-1954 to 31-3-1955. These applications were made to the Municipal Health Officer who forwarded them to the Madras Pire Service Officer for his remarks. The Fire service officer stated in reply that from the fire service point of view there was no objection to the storage and sale of crackers provided the explosives rules were adhered to. The Health Officer however refused the petitioners applications by an order dated 28-9-1954 for the following reasons :
The places referred to above are not 150 feet at least away from any residential building.
Meanwhile the petitioners were in communication with both the Fire Service Officer as well as the Inspector of Explosives as regards any possible objection by these two departments to the grant of the licences which they had applied for. A reply was received from the Fire Service Officer on 1-10-1954 in which it was stated that there was no objection from the Fire Service point of view for the grant of the licence for the sale of manufactured crackers under the condition of licence in form K at the two premises mentioned by the petitioners. They also received a similar reply from the Inspector of Explosives dated 4-10-1954 as follows :
A clearance of 150 feet all round is required only for premises where explosives (fireworks) are proposed to be manufactured possessed and sold such premises being licensed in form 1 of the Explosives rules.
Premises which do not observe any clearance around them can be licensed in form K of the Explosives Rules 1940 for possession and sale of manufactured fireworks in quantities not exceeding 206 Ibs. provided such buildings are substantially built structures and they conform to the conditions laid down under a licence in form K of the Explosives Rules 1940.
In view of the above you may approach the authorities concerned and obtain the no objection certificate and thereafter forward the same with other particulars to this office for necessary action.
On receipt of these two communications, the petitioners filed an appeal to the Municipal Council against the order of the Health Officer to whom had been delegated the duty of dealing with these licences in the first instance. In an appeal petition dated 4-10-1954 the petitioners drew the attention of the Municipality to these two communications and the unreasonableness of insisting on the condition regarding a clearance of 150 feet around the premises for the grant of a licence to store 50 Ibs. of crackers for sale. The matter came up before the Municipal Council at a meeting held on 13-10-1954 when the following resolution was passed :
The discretion of either giving or refusing the grant of licence rests with the Municipal Health Officer and the Council does not like to interfere with his jurisdiction and upset his proceedings.
This was the order on the appeal which was communicated to the petitioners on 20-10-1954. Meanwhile the petitioners had applied to the Additional
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