Annapurna Food Products and Another vs The Commissioner, Gauhati Municipal Corporation and Others

K.N. Saikia, J.—The Petitioner No. 1, M/s. Aunapurna Food Products, is a registered partnership firm and the Petitioner No. 2 is its Managing Partner. Hereinafter the firm is referred to as ''the Petitioner''. In this application the Petitioner impugns the Notice No. MCGL/CZ/12/81-82/25 dated 25.2.1984 issued by the Commissioner, Gauhati Municipal Corporation directing it to close down its trade premises/factory/workshop and rejecting its application dated18.4.1983 for issuing a licence; the order No. GLS/680/83/85/3-6 dated 20.2.85 passed by the same Commissioner directing the petitioner to class and shift its factory/trade premises to any other place within 48 hours of notice; and also the action of forcible closing down of the petitioner''s bakery on 23.2.85 pursuant to the order dated 20.2.85.

The Petitioner has its bakery business at Christian Basti, Dispur within the Gauhati Municipal Corporation, hereinafter referred to as ''the Corporation'', where it has been-making breads popularly known as "Annapurna Bread''''. The land and building wherein the bakery situates belonged to Mr. Shyamlal Chopdar (Mall) who obtained bakery licence bearing No. 64/203 on 6.11.82 in the name of "Annapurna Food Products" for the year 1982-83 from the Corporation. It is stated in the petition that the said Shyamlal Chopdar (Mali) transferred the bakery to the Petitioner on 1.1.1983. The bakery, it is stated, consists of two ovens about 10'' x 10'' in size with 40'' feet high chimney, one mixing machine, and two small cutting machines with horse power motor with office and quarters situated over 24 Kathas of land. It has employed about 12 persons in its bakery besides about 20 hawkers who go about howking breads. As the tenure of the licence expired on 31.3.1983 the Petitioner applied to Respondents 1 and 2, namely, the Commissioner of the Corporation, shortly ''the Commissioner'', and the Corporation for renewal of the licence for the year. 1983-44 surrendering its original licence; and it was ready and willing to pay the renewal and licence fees but was told that the same would be accepted on renewal of the licence. The licence, however, has not been renewed.

To their utter surprise the Petitioner was served with the Notice No. MCGL/CZ/12/81-82/25 dated 25.2.1984 (Annexure ''A'' to the petition) to the following effect:

To

Prop. M/s, Annapurna Food Products, Christian Basti, G.S. Road, Ward No. 29, Gauhati.

Whereas it has come to our notice that you are running a biscuit bakery at Christian Bastl, G.S. Road, Ward No. 29 without permission from this Corporation.

And whereas the existence of the traders premises/work--shop/factory in the place is objectionable by reason of density of the population of the neighbourhood.

And whereas the existence of the trade premises/workshop factory is a nuisance to the inhabitants of the neighbourhood.

In view of the reasons stated above you are hereby-asked to close the trade premises/factory/workshop immediately.

Your application dated 18.4.1983 for issuing a licence is hereby rejected as per State Govt. letter No. MA.7/790 Pt-1/72 dated 8.2.1984.

Sd/- Commissioner, Gauhati Municipal Corporation.

Copy of the notice was sent to the Enforcement officer of the Corporation for information and necessary action. He was "authorised to close the trade premises/factory/workshop and report compliance".

The above notice firstly asked the Petitioner to close the trade premises/factory/workshop immediately and secondly it stated that its application "for issuing a licence'''' was rejected as per State Government letter No. MA. 7/79/Pt-1/72 dated 8.2.84 which was not annexed to the notice and as such the firm could not know what were its contents.

The Petitioner thereupon filed an application before the Government of Assam, shortly, ''the Government'', stating its case and praying that the notice be set aside, and meanwhile its operation be stayed. The Government passed a stay order on 27.2.1984. It appears that the instant Respondent No. 5, Shri Ashok Kumar Bhadra, filed a petition dated 11.4.84 before the Government for vacating the said stay order and also to ensure implementation of the Government order issued under Letter No. MA. 7/79/Pt-1/72 dated 8.2.84 addressed to the Commissioner. The Government by order dated 4.2.85 after hearing the Petitioner as well as the Respondent No. 5 upheld the Commissioner''s order dated 25.2.84 and vacated the stay order. The Petitioner thereafter filed a writ application numbered as Civil Rule No. 70 of 1985 and this Court by the order dated 7.2.85 remanded the matter to the Commissioner holding that the Petitioner was entitled to show cause against the order of refusal to renew the licence, and accordingly directed the Petitioner to show cause against the impugned order dated 25.2.84 and after the Petitioner showed cause the Respondents 2 and 3 might maintain and/or set aside and/or alter and/or recall the same notwithstanding the appellate order dated 4.2.83.

The Petitioner thereafter filed show cause on 11.2.85 stating all the facts, inter alia, that the Bakery was situated in industrial urea as declared by competent authority and many other industrial units, trade premises/factories and other business organisations were situated in the neighbourhood areas and no question of nuisance of the neighbours could arise at all. The Petitioner further prayed for being given a personal hearing. Moreover, it was stated that the local residents/neighbours of the Petitioner''s bakery numbering 52 persons filed a petition on 15.2.84 before the Commissioner stating that the Petitioner''s bakery was situated in an industrial area, where other big industries were also situated and the Petitioner''s bakery would in no way create any nuisance and disturbance to them. It was further stated that the Petitioner''s bakery had been catering of the needs of the local public and the families of the employees of hawkers who were solely dependant on the Petitioner''s bakery also filed a petition before the Commissioner requesting him to allow the bakery to run. However, without giving the Petitioner any personal hearing it was served with the impugned notice No. GLS. 680/83/85/Pt-6 dated 20.2.85 informing the Petitioner that its show cause application was rejected and the Petitioner was to close and shift its bakery to any other suitable place within 48 hours of receipt of the notice. The Petitioner thereafter filed the instant writ application on 23.2.85.

The Petitioner in this application, therefore, prays for a writ of mandamus quashing the notice dated 25.2.84 (Annexure ''A'' to the petition), order dated 4.2.85 (Annexure ''C'' to the petition), and the order dated 20.2.85 (Annexure ''H'' to the petition), and for a direction that the Respondents renew the Petitioner''s licence. The action of closing down of the bakery on 23.2.85 is also challenged.

Soon after the application was filed on 23.2.85, on 28.2.85 Shri Askok Kumar Bhadra applied for being impleaded as party Respondent stating that be was the most affected person by running of the bakery and his presence would be necessary for proper adjudication of the case. His prayer was allowed on 5.3.85 and he has since been impleaded as Respondent No. 5. He resists the petition by filing an affidavit-in-opposition on 12.3.85 and the Respondents 1 and 2 filed their affidavit-in-opposition on 15.3.85. The Petitioners filed their affidavit-in-reply to the affidavit-in-opposition of Respondents 1 and 2 on 18.3.85 and to that of the Respondent No. 5 only on 21.3.85 at the time of hearing. The closing down of the bakery on 23.2.85 by the Enforcement Inspector pursuant to the impugned order dated 20.2.85 was brought into record by filing an amended petition which was allowed.

Mr. N.M. Lahiri, the learned Advocate-General, Meghalaya, appearing for the Petitioners, submits, inter alia, (1) that the Commissioner completely abdicated his powers to the State Government while passing the impugned orders without at all applying his own mind; (2) that there is no evidence of any nuisance or density of population, as stated in the impugned orders; (3) that the order to close down has been passed without any authority of law; (4) that the orders have been passed in violation of the principles of natural justice as the Petitioners were not given any hearing at all; and (4) that there is violation of Articles 14 and 21 of the Constitution of India, inasmuch as similar bakeries/industries have been allowed to continue, while the Petitioners'' bakery has been closed down and this has affected the livelihood of the Petitioner as well as its employees and hawkers.

Mr. P. Sarma, the learned Counsel for the Corporation demurs submitting, inter alia, that it was not the Petitioner No. 2 who obtained a licence, but it was one Shyamlal Mali who obtained the licence even before he constructed his house and later he constructed his house without any authority of the Corporation upon 1k. 15 Lechas of land which was not sufficient for allowing him to construct a house for industry; that Shyamlal has filed a civil suit against the Corporation and has obtained injunction against the order to demolish his structure, and Shyamlal has not been impleaded in this petition; that the licence was not granted to the Petitioner No. 2 and it is not known how without the authority of the Corporation the licence could be transferred to Petitioner No. 2 that licence No. 64/203 was granted to M/s, Anuapurna Food Products, Prop. Shyamlal Mali and no affidavit of transfer, as contemplated u/s 160 of the Act, was filed and houses have been unauthorisedly constructed; that when the licence was granted there was no house; that on 21.6.83 an application was filed by Respondent No. 5 before the Commissioner to ask the Collector to submit a report and the provisions of Section 378(3) of the Gauhati Municipal Corporation Act, hereinafter referred to as ''the Act'', came into play after the Collector submitted the report; that no notice was issued to the Petitioner to show cause on the application of Respondent No. 5, Mr. Ashok Kumar Bhadra; that the Collector did not report on density of population and nuisance, on the other hand, he pointed out internal discord in different Branches of the Corporation in the matter of issuance of licences; that Mr. Bhadra submitted another application on 12.8.83 but no action was taken thereupon; that the Magistrate''s order dated 21.7.83 contains no material on the question of nuisance; that the order dated 20.2.85 makes no reference to the notice dated 25.2.84; that to start an industry in ''medium industry zone'' the minimum size of the plot should be 20,000 sq. ft. while in ''light industry zone'' the size should be 8000 sq. ft. that the Petitioner has only 1K, 15 Lechas of land which would be about 4,70O sq.ft. where the bakery has been started: that therefore the Corporation has refused to renew the licence to Shyamlal and Petitioner No. 2 Murarilal Mali had not obtained any licence that when a bakery is started in an unauthorisedly constructed house the Commissioner is right in refusing to renew the licence; and that all these factors were on record, and the Commissioner on perusal of the record was satisfied and therefore the details need not have been mentioned in the impugned order dated 20.2.85, which, therefore, suffers from no infirmity.

Mr. J.P. Bhattacharjee, the learned Advocate-General, Nagaland, appearing for the Respondent No. 5, submits, Inter alia, that the instant writ petition does not contain allegation against the Respondent No. 5 except in para 20 where mention has been made of the proceeding u/s 133 Code of Criminal Procedure and that proceeding ended in direction to go to civil Court: that the Corporation follows the financial year and the licence was granted on 6.11.82 for the year 1982-83 in the name of M/s. Annapurna Food Products on the same date the application was made; that the licence was granted u/s 273 of the Act and it contained the conditions; that condition No. 2 says that licence/written permission is not transferable in respect of name and place: and that in face of this condition, when the licence was granted to M/s. Anna-puma Food Products with Shyamlal Chopdar, it was not known how it could be transferred to the partnership and the Petitioner No. 2 could be the managing partner thereof. On the basis of the affidavit-in-opposition of Respondent No. 5, Mr. Bhattacharjee submits that Shymlal Chopdar (Mali) in the year 1982 conducted R.C.C. and Assam type houses on his land without permission from the Municipal Corporation and the construction covered the entire plot without leaving any side margin in violation of all the provisions on the Act and thereby created obstruction to air and light to the next-door neighbours; that he obtained the bakery licence for 1982-83 before he constructed the house; that the size of the bakery in about 40'' dia and height of the chimney will be not more than 16''/ 20''; that he denied that the bakery was situated in the industrial area declared by the Government of Assam and the Petitioners have been running the bakery peacefully and to the satisfaction of all concerned; that Nilima Bakery, Drugs India, Quality Ice-cream, Kamrup Flour Mills, Buildsworth, Killa Udyog and other Petrol Pumps, Dal Mill, Rice Mills and Saw Mills are all situated on the G.S. Road and not in the residential area of Christian Basti and that the aforesaid factories are keeping at least 250''/300'' margin on all the sides and these factories are far away from Christian Basti that the Diamond Bukery is situated on the hill top where the population is very thin and the said bakery is about 5000 ft away from M/s. Annapurnu Bakery; that the front portion of Respondent No. 5''s land and the land of M/s. Annapurna Bakery is divided by a common wall and the gaps between his boundary wall and the factory of bakery is only 11/2 feet and about 5''/6'' from the bed room of the Respondent No. 5; that the bakery is running day and night for twenty four hours burning two ovens causing terrible sound and heat and the fumes emitted from the chimney engulf the presidential house of the Respondent No. 5 and others in the nelghbourhood : that the bakery is running without any licence in the thickly populated area causing nuisancs by emitting beat, smoke, dust and irritating sound injurious to the health and physical comfort to the people living in the locality ; and the signatories who filed the representation to the effect that the bakery of the Petitioner has not been creating any nuisance to them, are all living far away from the aforesaid bakery: that the Respondent No. 5 constructed his residential quarter at Christian Basti, Gauhati in the year 1976 with due permission from the Corporation and he had been living, there with his family and his house is contiguous to to aforesaid M/s. Annapurna Bakery and the front portion of his land and the land of M/s. Annapurna Bakery is divided by a common wall and the gap between this boundary wall and the factory of the bakery is only one and a half feet and the two high power fire ovens are at la distance of less than four feet from the bedroom of the Respondent No. 5; that due to constant radiation of heat from two ovens, emission of suffocating smoke and gas, the Respondent No. 5 cannot keep the doors and windows open and for vibration and terrible sound it has become impossible for him and his family members to stay in the house; and that if the said factory is allowed to run in the thickly populated residential area of Christisn Basti, it will cause irreparable health hazard to the members of his family.

The notice dated 25.2.84 has two parts. First, by reason of density of population of neighbourhood and being a nuisance to the inhabitants of the neighbourhood the Petitioners were asked to close the trade premises/factory/workshop immediately. Secondly, the Petitioner''s application dated 18.4.1983 for issuing a licence was rejected as per State Government letter No. MA. 7-79/Pt-l/72 dated 8.2.84. In so far as the rejection of the Petitioner''s application for renewal in concerned from the tenor of the order there arises no doubt that the decision to reject the application, was taken as per aforesaid State Government letter dated 8. 2.1984- Mr. Lahiri submits that in passing this part of the order the Commissioner acted wholly at the dictation of the State Government and as such he totally abdicated his power and function to the State Government and there was no application of mind to the Petitioner''s application by the Commissioner. In the content of this submission we would have liked to see the contents of this letter. Unfortunately, however, this letter is not to be found on the record. No copy was furnished to the Petitioner. Mr. Sarma, the learned Counsel for the Corporation expresses his inability to explain the absence of the letter in the records. He points out that some other letters from the Government are in the record but not this particular letter. It is, therefore, not clear why the application for renewal was rejected, except that it was rejected as per that letter. In our order dated 7.2.85 in Civil Rule No. 70/85 we made it clear that the Petitioner was entited to show cause against the order of refusal to renew the licence and we directed the Petitioner to show cause against the impugned order dated 25.2.84. The Petitioner showed cause but was not given any personal hearing, though he specifically prayed for such a personal hearing in paragraph 22 of the cause shown. In the order dated 20.2.85 it was simply said: "....Your show case under application dated 11.2.85 praying for renewal of licence is hereby rejected." Can this be taken to be proper exercise of power for renewal? The application for renewal of a licence is to be given due consideration. If the licensing authority is constituted under statute, and is required to entertain representations or objections or appeals, or conduct hearings for enquiries, or when the question to be decided is whether or not to grant a licence, the presumtion must be that it is to act in accordance with natural justice: at least there is a duty to act fairly when a refusal of a licence casts slur on the applicant''s reputation and function and suitability. If it affects the applicant''s livelihood the duty to act fairly may well require that the applicant is offered an opportunity for hearing. It may, of course, be doubtful whether an application for an initial licence the granting of which is at the discretion of the authority the Appellant is entitled to a bearing or not. Non-renewal of un exiting licence is usually a more serious matter than refusing to grant a licence at the first instance, Because, unless the licensee has already been given to understand when he was granted the license that he was not to be effected, non - renewal may seriously affect the licence holder and his livelihood and may even cast a slur on his goodwill. It may, therefore, be natural to imply a duty to give a hearing before a decision not to renew his licence particularly where there is a legitimate expectation of renewal, even though no such duty may be implied in making of the original decision to grant or refuse the licence. The decision not to grant a licence at the first instance cannot be equated to revocation of a licence. The initial granting of a licence may involve the concept of privilege but once it is granted it creates expectation, involve plans, expenditure and livelihood of the licence holder. Revocation/cancellation or non-renewal of the licence upsets all these. For all these reasons it may be just and proper that prior notice and opportunity to be heard should be given before a license can be revoked, more so where revocation cause deprivation of livelihood or serious pecuniary loss or is dependant on a finding of public nuisance or breach of conditions of the licence. The consideration applicable for initial refusal of a licence are somewhat different from those applicable to the revocation or non-renewal of licence. The same considerations apply to variation of the terms and place of an existing licence. Even suspension of a licence may require a hearing.

A citizen has the right to carry on his trade where required by obtaining a licence. The granting or the renewal/cancellation or revocation of licence cannot be made to depend upon the absolute discretion of an administrative authority. Even if a law confers power on an administrative authority absolute discretion to grant or withhold or revoke a licence or permit for the carrying on of a business, the restriction imposed by such law is unreasonable, except in case of trade or business which is inherently dangerous to the community and which the State is entitled to prohibit entirely or to permit any such trade under such condition as will limit utmost its evils as was held in Harishankar v. State of M.P. AIR 1952 SC 465 and Krishan Lal Praveen Kumar and Others Vs. State of Rajasthan and Others, Where the discretion in vested by a statute it is to be exercised in accordance with the statute with the variation laid down in the statute. If the authority exercises the discretion otherwise than in accordance with the statutory provisions and policy his orders would be vitiated and would be liable to beset aside by the Court of law as ultra vires. It was held in Fedco v. S.N. Bilgrami AIR I960 SC 415 as also in Narayanam v. State of Kerala (1973) 11 SCWR 609 that an existing permit cannot be cancelled or revocked without giving an opportunity to the licenncee to be heard, except in the case of inherently dangerous trade or calling which a person has no common law right to carry on or the duties which are essential to the community. As was held in Mineral Development Ltd. v. The State of Bihar AIR I960 SC 468 if a statute authorizes an administrative authority to refuse licence to a person or to cancel an exiting license in the absence of an exceptional circumstance, such as the inherently dangerous nature of the trade or the need for essential commodities in an emergency such law must be struck down as constituting an unreasonable restriction upon the freedom guaranteed by Article 19(1)(g).

it is settled law that except where statutory provision has been violated the Court should not issue mandamus to interfere with the exercise of discretionary power to grant or refuse a licence, but mandamus will lie, if licence is revoked or suspended in violation of statutory condition or any conditions imposed in a licence, or is ultra vires, It is true that where an authority empowered to issue a licence or permit has a discretion in the matter, no one is as of right entitled to a licence even though be fulfils the conditions mentioned in the statute for the purpose of qualifying the licence or permit, but even in such cases mandamus will issue to direct the authority to determine the application according to law where it grants or refuses the application of licence or renewal of licences on irrelevant or extraneous consideration or his action is arbitrary. The principle will apply where an application for renewal is refused in the absence of any change in circumstances, as was held in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, . Mundamus willal so issue where the authority refuses to specify the grounds of refusal where so required by statute expressly or by implication as was held in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, and Mannalal Jain Vs. The State of Assam and Others, If the authority refuses to exercise its discretion with reference to the merits of the individual case for example by acting according to predetermined rules its own order in previous cases or the direction or the instruction of a superior and other authority mandamus will issue, Even where the authority formulates a general principle it must consider each particular case and in case of a refusal of such hearing mandamus will lie. In cases of cancellation or revocation of licence already issued, where the discretion of the authority is unfettered by any statutory condition the Court cannot interfere if the licensing authority cancels it any time in the bonafide exercise of its discretion but even in such a case the Court may issue mandamus directing, the licensing authority to exercise its discretion, taking into consideration the relevant matters where he has simply acted or ordered under the discretion which the statute has vested in himself. Where the statute lays down condition to be complied with by the applicant, mandamus will lie to compel the authority to grant a licence if he refuses to grant notwithstanding the fulfillment of the statutory condition, the Court being competent to enquire whether the prescribed conditions have been fulfilled as was held in Dwarka Prasad Laxmi Narain Vs. The State of Uttar Pradesh and Others,

As regards the grounds stated in the notice, there are no particular whatsoever about the ''density of population of the neighbourhood''. There is no material to show how the density of population, has changed between the date of issuing the Petitioner''s licence on 6.11.82 and the date of the notice dated 2.5.2.84. The order dated 20.2.85 also does not give any particulars about the density of population. Thus, there are no materials to hold that the density of population of the neighbourhood has increased in such u way or to such an extent as to justify closure of the Petitioner''s bakery on that ground. It is true that this a question of fact and this Court would not ordinarily interfere with such a finding. Where, however, there is no finding at all or where the finding is perverse being based on no evidence at all, it cannot be given the stamp of finality: and in an appropriate case interference may be justified.

As defined in Section 3(52) of the Act. ''Nuisance includes any Act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or distrubance to rest or sleep, or which is or may be dangerous to life, injurious to health or property". This is inclusive of the concept of nuisance. Sections 273 to 278 of the Act regulate factories and trades. Section 273 prohibits establishment of any factory without permission of the Commissioner and it reads:

273.(1) No person shall, without the previous permission in writing of the Commissioner, establish in any premises or materially alter, enlarge or extend any factory, workshop or trade premises in which it is intended to employ steam, electricity, water or other mechanical power.

(2) The Commissioner may refuse to give such permission if he is of the opinion that the establishment, alteration, enlargement or extension of such factory, workshop or trade premises, in the proposed position would be objectionable by reason or the dentity of the population of the neighbourhood thereof, or would be a nuisance to the inhabitants of the neighbourhood.

(3) The Commissioner may, if he is of opinion that the existence of such factory, workshop or trade premises in any place is objectionable by reason of the density of the population of the neighbourhood thereof, or is a nuisance to the inhabitants of the neighbourhood, direct that the factory, workshop or trade premises be shifted to any other place suitable for the purpose:

Provided that the cost of such shifting shall be borne by the Corporation.

The Petitioner having already been granted a licence, its case will come not under Sub-sections (1) and (2) but under Sub-section (3). Power under this Sub-section can be exercised only if there is a nuisance to the inhabitants of the neighbourhood. The term ''neighbourhood'' has not been defined in the Act. ''Neighbour'', according to the Chambers Twentieth Century Dictionary, means a person who dwells near another; a person or thing that is near another. ''Neighbourhood'' means state of being neighbours. According to Black''s Law Dictionary, ''neighbourhood'' means a place-near; an adjoining or surrounding District: a more immediate vicinity; vicinage. "It is not synonymous with territory or district, but is a collective noun, with the suggestion of proximity, and refers to the units which makeup its whole, as well as to the region which comprehends those units. A district or locality, especially when considered with relation to its inhabitants or their interests. In ordinary and common usage ''locality'' is synonymous in meaning with ''neighbourhood'', and neither connotes ''large geographical areas with widely diverse interests''. Neighbourhood, therefore, would be wider than the place of a single individual or family.

"Nuisance", according to Winfield, is incapable of exact definition, but for the purpose of the law of tort it may be described as unlawful interference with a person''s use or enjoyment of land, or of some right over, or in connection with it. At one stage nuisance was regarded as harm done to servitude harm done by one''s neighbour to one''s enjoyment of his lard. The scope of nuissnce is however, wider than that. Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property, or in exercise of comon right. In common law, nuisance are of two kinds, public and private. A private nuisance is a civil wrong while a public or common nuisance is a criminal offence. A public nuisance is au act or omission which materially affects the reasonable comfort and convenience of living of a class or group of citizens. It is not necessary to establish that every member of the public, as distinct from a representative cross-section, has been affected. According to Salmond, the question whether a number of persons affected is sufficient to be described as a class is one of fact. One test is to establish whether the nuisance is so widespread in its range or indiscriminate in its effect that it would not be reasonable to expect persons to take proceedings to stop it as distinguished from the community at large. A public or common nuisance is one which affects public and is an annoyance to the public generally; a private nuisance is one which injures a private person exclusively or else in the same way which the law regards as the excess of annoyance suffered by the public at large. A private nuisance affects only one person or determinate number of persons, and is ground for civil proceedings only. Generally it effects the control use or enjoyment of immovable property; but this is not a necessary element according to the modern concept of the law. So long as the public only or some section of it is injured no civil action can be brought for nuisance. The nuisance envisaged in Sub-section (3) of Section 273 of the Act is of the nature of public nuisance and not private nuisance. It is somewhat similar to public nuisance as defined in Section 268 I.P.C. whereunder a persons is guilty of a public nuisance, who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

In the notice dated 25.2.84 besides stating that the existence of the Petitioner''s business at the place was objectionable by reasons of density of the population of the neighbourhood and that the existence of the business was a nuisance to the inhabitants of the neighbourhood, no particulars were stated. After Civil Rule No. 70/83 was remanded allowing the Petitioner to show cause against the order dated 25.2.84 and the Respondents No. 1 and 2 were directed to pass necessary orders notwithstanding the appellate order dated 4.2.85, the Petitioner filed show cause on 11.2.85 stating, Inter alia, that the bakery of the Petitioner is situated in industrial area as declared by competent authority and many other industrial units, trade premises, factories and other business organisations are situated in the neighbourhood areas and no question of nuisance of the neighbourhood could arise at all. The Petitioner further prayed to give a personal hearing. Moreover, the local residents/neighbours of the bakery numbering 52 persons filed a petition on 15.2.84 before Respondent No. 1 stating that the Petitioner''s bakery was situated in an industrial area where other big industries were also situated and that the Petitioner''s bakery, was in no way creating any nuisance and disturbance to them. The employees of the Petitioner''s bakery who were solely dependant on it also filed a petition before the Respondent No. 1 requesting him to allow the bakery to run. However, in the subsequent order dated 20.2.85 (Annexure ''H'' to the petition) it was stated that the show cause under application dated 11.2.85 praying for renewal of licence was, therefore, rejected and it further stated: ''The undersigned after perusal of records connected therewith, is satisfied that the existence of your factory/trade premises is objectionable by reasons of density of the population of the neighbourhood thereof and is a nuisance to the neighbours. The Petitioner was directed to close and shift his factroy/trude premise to any other place suitable for the purpose within 48 hours from the time of receipt of the notice and the Enforcement Officer of the Corporation was directed to inspect the place after expiry of 48 hours and report compliance. This order also, it may be noticed, does not give indication of the facts whereupon these two conclusions are based. It is not possible to know those facts from the tenor of this order.

So far as the rejection of the Petitioner''s application for renewal is concerned it was not the decision of the Commissioner but of the State Government who has no authority to decide. In Commissioner of Police, Bombay Vs. Gordhandas Bhanji, where the only person vested with authority to grant or refuse a licence for the erection of a building to be used for the purpose of public amusement was the Commissioner of Police, and under Rule 250 he had been vested with the absolute discretion at any time to cancel or suspend any licence which had been granted under the rules, and the power to do so was vested in him and not in the State Government, it was held that the power could be exercised only by him at his discretion and not by the State Government. In Raj Restaurant and Another Vs. Municipal Corporation of Delhi, it was held that where, in order to carry on business a licence is required, obviously refusal to give licence or cancellation or revocation of licence would be visited with both civil and pecuniary consequences and as the business could not be carried on without the licence it would also affect the livelihood of the person. In such a situation before cither refusing to renew the licence or cancelling or revoking the same, the minimum principle of natural justice of notice and opportunity to represent one''s case was must. Where no opportunity was given before taking the decision not no renew the licence and the hotel was sealed, the decision in violation of the minimum principle of natural Justice would be void, In that case though no specific order was made setting out the reasons for refusal to renew the licence, the action taken of sealing the premises for carrying on the business, without a licence clearly implied that there was refusal to renew the licence and the reason were not disclosed. The action in closing the hotel being in violation of the principle of natural justice, deserved to be quashed. This principle will squarely apply to the facts of the instant case.

Mr. Bhattacharjee submits that the order dated 20.2.85 complies with the provisions of Section 273 (3) of the Act and the Commissioner was satisfied on the two points and he was not expected to write a reasoned judgment. We find it difficult to accept this submission. No reason has been given in the order except paraphrasing the provisions of the Section. Would that be enough reason for refusing to renew the licence? The obligation to give reasons in such cases may arise either under statutory provisions or under the law to show that justice has been done. Clause (b) of subjection (3) of Section 378 of the Act which deals with suspension or revocation of licences etc. provides that every such order shall contain a brief statement of the reason for the suspension or revocation of the licence or the written permission, Clause (a) provides that before making any order of suspension or revocation reasonable opportunity shall be afforded to the grantee of the licence or the written permission, to show cause why it should not be suspended or revoked. The instant case comes very near revocation of licence, as both in case of revocation and non-renewal the licence ceases to exist. The result is that the Commissioner has similar obligation to give a brief statement of the reasons. There should be no doubt that non-renewal is akin to revocation of the licence. The impugned order, therefore, violates the spirit of rules embodied in the Act. The duty or obligation imposed to the above provision is unqualified. In R.V. Thomas (1892) 1 Q.B. 426 it was ruled that where licensing justices were required by statute to specify the grounds of their decision, failure to do so made their proceedings wholly defective, so that they could be required by mandamus to rehear the application de novo. As justices were empowered to refuse an application on one of four specified grounds, and it was held that this implied a duty to state the ground of refusal.

Reasoned decisions are not only vital for the purpose of showing that he is receiving justice, they are also a valuable discipline for the authority itself. A statement of reasons is one of the essentials of dispensing justice. The duty to state reasons has now boon generally accepted. In H.W.R. Wado''s Administrative Law, Fourth Edition at page 463, we read:

It has never been a principle of natural justice that reasons should be given for decisions, Since there is no such rule even in the Courts of law themselves, it has not been thought suitable to create one for administrative bodies. Nevertheless there is a strong case to be made for the giving of reasons as an important element of administrative justice, This was recognised both by the Committee on Ministers'' Powers of 1932 and by the Committee on Administrative Tribunals and Enquiries of 1957, and the latter''s recommendation was implemented by the Tribunals and Inquiries Act 1958, as explained elswhere which required reasons to be given on request by statutory tribunals and by ministers after statutory enquiries. The Courts might well have done as much on their own initiative, since the giving of reasons is required by the ordinary man''s sense of justice and is also a healthy discipline for all who exercise power over others. No single factor has inhibited the development of English administrative law as seriously as the absence of by genera obligation upon public authorities to give reasons for their decision.

As Wade observed, although there is no general rule of law requiring the giving of reasons, an administrative authority may be unable to show that it has acted lawfully unless it explains itself. Thus where the Act empowered licensing justices to refuse a licence on one of several specified grounds, and they refused an application without stating any ground, mandamus was granted to make them state the ground, even though they were not obliged to give their reasons for it. Going still further the Privy Council held that 21/2 minister who had failed to give reasons for a special tax asessment had not shown that it was correct and that the tax-payer''s appeal must be allowed. There is thus gradually emerging a general tight to reasoned decisions, since the right of appeal on a point of law is often available; and there is almost always a tight of recourse to the High Court for error on the face of the record. Yet a further consideration is that, as the House of Lords has indicated, if a administrative authority fails to explain a decision satisfactorily, it may be condemned as arbitrary mid unreasonable.

Applying the foregoing principles and statutory provisions, it cannot be said that the order dated 20.2.85 gives adequate reasons for the order. Reasons, when given, must be proper, adequate and intelligible dealing with the points on which the decision is based. Failure to give reasons where statutorily required and to show that justice has been done may even be treated as error on face of the record, and may be quashed.

While by the first part of the order dated 20.2.85 his application for renewal of licence is being rejected, by the last part he is directed to close and shift his factory/trade premises to any other place suitable for the purpose. Section 180 of the Act provides for taking out of licences annually. Under sub-section (1) thereof every person who exercises or curries in the city, either by himself or by an agent or representative, any of the professions, trades or calling indicated in the Fourth Schedule, shall annually take out a licence before the first day of April in each year or within one month of his taking up the profession, trade or calling, as the case may be, and pay for the same, such fee as is mentioned in this behalf in the said schedule: Provided also that the grant of such a licence shall not be deemed to affect the liability of the licensee to take out a licence under any other section of the Act. Under Sub-section (2) the Commissioner may at any time grant a licence for any previous year for which no licence has been taken out, on payment of the fee which would have been payable therefore in the first instance. Sub-section (4) deals with determination of the liability to take out a licence, in accordance with the rules. No breach of any rule has been mentioned in the order. The points raised by Mr. Sarma for the Corporation do not find mention in the impugned notice dated 25.2.84 and the impugned order dated 20.2.85. It is settled law that when a statutory functionary makes an order based on certain grounds, its validity roust be judged by the reasons so mentioned and those cannot be supplemented by fresh reasons in the shape of affidavit or otherwise, Otherwise an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out Commissioner of Police, Bombay Vs. Gordhandas Bhanji,

Mr. Bhattacharjee further submits that the Petitioner''s remedy lies not in this writ petition but u/s 438(3). It may be noted that Section 438 originally provided for appeals from Commissioner to Standing Committee. This Section was amended by the Gauhati Municipal Corporation (Amendment) Act, 1983. By Section 5 of that Act, Section 438 of the Act was amended inserting the following proviso to Sub-section(2):

Provided that notwithstanding anything contained in the Act, during the period of super session, an appeal shall lie before the State Government against the decision of the Standing Appeal Committee.

By the said amendment the following Sub-section (3) was added:

(3) Notwithstanding anything contained in the principal Act, the State Government may, at any time, call for the records in any matter nom the Corporation end give such order as may be deemed necessary after examination of such records. The order of the State Government, in this regard, shall be final.

Thus a result of this amendment, after surpersession of the Corporation appeal shall now lie to the State Government and the State Government has also revisional power under Sub-section (3). It may, however, be noted that in our order dated 7.2.85 in Civil Rule No. 70/85 we made it clear that after the Petitioner showed cause the Respondents 2 and 3 might maintain and/order set aside and/or alter and/or recall the same notwithstanding the appellate order dated 4.2.85. The impugned order dated 20.2.85 would, therefore, be notwithstanding the appellate order. We do not consider it reasonable to reject the petition on ground of availability of alternative remedy, firstly because our order has not been complied with and the order dated 20.2.85 does not give the reasons as to why the show cause application of the Petitioner dated 11.2.85 has been rejected. The Petitioner also prayed for a personal bearing which was not given. Relying on Madhya Pradesh Industries Ltd. Vs. Union of India and Others (UOI), and Union of India (UOI) Vs. Jyoti Prakash Mitter, it is submitted that personal bearing is not inevitable for natural justice. In M.P. Industries Interpreting Rule 55 of the Mineral Concession Rules the Supreme Court bay held that it is no doubt a principle of natural justice that a quasi judicial tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him and that the Rule recognizes the said principle and state that no order shall be passed against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority: and that the said opportunity need not necessarily be by personal hearing but can be by written representation. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and ordinarily it is in the discretion of the tribunal. The facts of that case disclosed that a written representation effectively met the requirements of the principles of natural justice. Their Lordships did not think that the Appellant was entitled, as of right, to a personal hearing. In Jyoti Prakash Mitter''s case it has been held that Article 217(3) does not guarantee a right of personal hearing. Nor is a personal hearing a necessary incident of rules of natural justice. Except in proceeding in Courts, a mere denial of opportunity of making an oral representation will not, without more, vitiate the proceeding. A party likely to be affected by a decision is entitled to know the evidence against him, and to have an opportunity of making a representation. He, however, cannot claim that an order made without affording him an opportunity of a personal hearing is invalid. The President while making an enquiry is not a Court and the giving of personal hearing is entirely discretionary. However the above cages cannot be cited as authorities for the proposition that an administrative authority taking a decision affecting civil rights of a citizen is not under any circumstances required to give a personal hearing. It only leaves a discretion with the authority concerned. In M.P. Industries (supra) the Supreme Court observed that there is an essential distinction between a Court and an administrative tribunal. A Judge is trained to look at things objectively, uninfluenced by consideration of policy or expediency; but, an executive officer generally looks at things from the stand-point of policy and expediency. The habit, or mind of an executive officer so formed cannot be expected to change from function to function or from act to act. So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affecting the rights of parties; and the least they should do is to give reasons for their orders. In J.P. Mitter''s case (supra) in the context of Article 217(3) of the Constitution of India it was held that a party likely to be affected by a decision is entitled to know the evidence against him and to have an opportunity of making a representation. Article 217(3) does not guarantee a right of personal hearing. In a proceeding of a judicial nature, the basic rules of natural justice must be followed. The Respondent was on that account entitled to make a representation. But it is not necessarily an incident of the rule of natural justice that personal hearing must be given to a party likely to be affected by the order, Except in proceedings in Courts, a mere denial of opportunity of making an oral representation will not, without more, vitiate the proceedings. A party likely to be affected by a decision is entitled to know the evidence against him, and to have an opportunity of making a representation. He however cannot claim that an order made without personal hearing is invalid.

In the instant case it appears that it was the Respondent No. 5 who felt aggrieved by existence of the Petitioner''s bakery and he moved for the non-renewal of the Petitioner''s licence. In such cases it would not only imply a duty to give the licence holder an opportunity of being heard but would even imply an obligations to give an oral hearing; in as much evidence is necessary to be considered for the purpose of deciding the two co a tending arguments. It may be difficult to bold that in such cases the discretion would still be left to the deciding authority, not to give a personal hearing to the licence holder whose livelihood would be affected by the decision.

It is next submitted that even if this Court has the discretion, it will not go to investigate disputed questions of fact; as the same has been done by the appropriate authority. Relying on A.M. Allison v. B.L. Sen AIR 1937 SC 227 and 1977. Unreported judgment 331, it is submitted that in view of the fact that writ in such case is not a matter of course it is not a fit case for issuance of a writ. It is true that proceedings by way of certiorari under Article 226 are ''not of course''. The High Court has power to refuse the writ if it is satisfied that there was no failure of justice. But, in our opinion, in this case the question is not of investigation of complicated questions of fact, but of whether the administrative authority at all deliberated upon those facts or otherwise considered those facts while passing the impuged orders. The decision in Union of India (UOI) and Others Vs. Sunil Kumar Ghosh, is also not applicable to the facts of thin case.

While this case was awaiting verdict, Respondent No. 5 filed an application along with the judgment in Civil Rule No. 376 of 1976 (Shr. Dharam Chand Jain v. Tas Gauhati Municipal Corporation, Gauhati and Ors.) dated 1.9.78. The application was registered as Misc. Case No. 244 of 1985 and was put up for orders on 9.4.85 and both the parties were heard. Both Mr. J.M. Choudhury, learned Counsel for Respondent No. 5 and Mr. N.M. Lahiri, for the Petitioner, agreed that the aforesaid judgment be considered. While Mr. Choudhury submits that the decision is squarely applicable to the fact of the instant case, Mr, Lahiri submits that it is distinguishable on facts, in as much as the tyro factory in that case was located in a commercial area and the Court did not find any infirmity in the procedure adopted unlike in the instant case. The Petitioner in that case carried on business of tyro retreading and vulcanising at Faiz Ahmed Road, Machkhowa, Gauhati-9, By an order dated 23.2.76 he was directed by the Commissioner to close down his factory on the ground that it was creating a public nuisance. Aggrieved by that order the Petitioner thereof filed appeal before the Administrator, Gauhati Municipal Corporation, which was dismissed on 21.9.76. Aggrieved by the said two orders the Petitioner thereof filed the writ petition-Civil Rule No. 376/76, raising two fold contentions, namely, the Petitioner had a fundamental right to carry on business of tyre retreading and vulcanising and the Municipal authorities had no jurisdiction to stop him from doing so; and that the Petitioner was not given any hearing before passing the impugned order and no enquiry was made. In that connection it had also been stated that the impugned order was not a speaking order and, at any rate, there was no good ground for closure of the factory. Rejecting the first contention this Court pointed out that under Article 19 (6) of the Constitution, the right was not wholly unqualified and unconditional and that the State could make law imposing reasonable restrictions, in the interest of general public, on the exercise of the right under Article 19(1)(g) and further that if the running of a factory, workshop or for the matter of that any other type of business in a particular premises was considered objectionable by reason of the density of the population of the neighbourhood and would consequently amount to a nuisance, the law putting such restriction must be considered reasonable. Section 273(2) of the Act lays down that the Commissioner may refuse to give such permission if he is of the opinion that the establishment of such factory, workshop or trade premises in the proposed position would be objectionable by reason of the density of the population of the neighbourhood thereof, or would be a nuisance to the inhabitants of the neighbourhood. Rejecting the second contention their Lordships held:

It was not necessary for the Commissioner to hold regular proceedings of enquiry as in a Civil suit, and we are satisfied that the proceedings conducted by the Commissioner before passing the impugned order do not suffer from any illegality or irregularity. The law also does not contemplate passing very detailed and reasoned order, as the learned Counsel for the Petitioner wants us to hold, Besides that we wish to point out that the question whether the working of particular factory or workshop is objectionable from the public point of view or amounts to a nuisance is a question for with which we cannot interfere in exercise of our writ jurisdiction.

Having regard to the above facts and circumstances the petition was dismissed. In SLP Civil No 6475/78 their Lordships of the Supreme Court dismissed the SLP by the following order:

Under the provisions of law authorising the Municipal Commissioner to direct the shifting of a factory, the costs of such shifting has to be paid by the authority vide the proviso to Section 273(3) of the Municipal Act. While upholding the order of the High Court and of the Municipal Commissioner and refusing leave, we think it correct to direct the Commissioner to meet the expenses of the shifting as provided in the above provision.

The SLP is dismissed.

The facts of the aforesaid case are distinguishable from those of the instant case. While the facts of that case were considered u/s 273(2) of the Act the instant case comes u/s 273(3), inasmuch as the instant Petitioner already obtained a licence for running its bakery during the previous year. In Dharam Chand''s case (supra) the Commissioner vide his letter dated 17.3.75 gave notice to the Petitioner thereof to show cause with action be not taken to close down the tyre retreading factory to which the Petitioner thereof sent a reply stating that he was not employing any machinery run by electrical and mechanical power for his work. The Petitioner also submitted several representations and in reply he was told that on 7.1.76 necessary enquiry was made and that it was not necessary to make any further enquiry. In the instant case the Petitioner''s application for renewal has been rejected as per the State Government''s letter, which the Respondents have failed to place before the Court. Obviously the Commissioner acted at the dictate of the State Government and did not apply his own mind. Secondly, no enquiry was made for the purpose of deciding the Petitioner''s application for renewal nor any enquiry was made after the Petitioner showed cause pursuant to this Court''s order. Besides, except paraphrasing the provisions of the law no reasons have been given in the impugned orders. There, is also no mention about the costs of shifting to be borne by the Corporation, if any. The Commissioner called for a report from the Collector on the application submitted by Respondent No. 5. The Collector, however, did not report on the question of the density of population or nuisance, but, on the other hand, pointed out internal discord within the Corporation. This cannot be held to be a sufficient enquiry for the purpose of taking a decision u/s 373(3) of the Act. No enquiry was held after the matter was remanded by the High Court.

Having regard to the facts and circumstances of the instant case and the foregoing reasons the last portion of the notice dated 25.2.84 (Annexure-A to the petition) stating that the Petitioner''s application dated 18.4.1983 for issuing licence was rejected as per State Govt. letter No. MA. 7/79/Py-I/72 dated 8.2.1984; and the order dated 20.2.1985 (Annexure-H to the petition) are quashed. The action of closing down the Petitioner''s bakery/pursuant to the aforesaid notice and the order is beld ultra vires.

Notwithstanding quashing of the aforesaid portion of the notice, and the order it will be open for the Respondents 1 and 2 to consider afresh the Petitioner''s application for renewal of his licence for the year 1983-84 and for subsequent years, if and when made, according to law. The Respondents 1 and 2 shall consider the Petitioner''s show cause application dated 11.2.1935 in accordance with law giving adequate opportunity of bearing to the Petitioner in light of the observations made hereinabove.

This petition is accordingly allowed and the Rule made absolute. We however, make, no order as to costs.