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Judgment
S.B. Sinha, J.—The petitioner who is the owner of a factory for manufacturing Gul has filed this writ application seeking for a Writ/ Order in the nature of Mandamus commanding the respondents, their agents, servants, sub-ordinates and/or employees to rescind, cancel and/ or withdraw the purported impugned Memo No. B/M-388 dated 18.4.95 issued by the Chairman. Bangaon Municipality refusing the prayer for noting the change of address of Saha Gul Factory on the existing Provisional Certificate for Trade of the petitioner and further forbear them from giving effect to the same and further command them to note the change of address of Sana Gul Factory proposed to be shifted at Ramkrishna Pally. Champeberia at Holding No. 670/A, under Bongaon Municipality the particulars of which are specifically noted in paragraph 11 of the petition forthwith. The fact of the matter lies in a very narrow compass.
The petitioner applied for a Trade Certificate for starting a Gul Factory. A provisional certificate was granted to him. on the basis whereof he had been carrying on business since 1990. According to the petitioner he has invested a huge amount The petitioner thereafter shifted his factory to a more spacious premises on a monthly rent of Rs. 300/-. The details of the said premises have been specified in paragraph 11 of the writ application. The petitioner filed an application for change of his address in the provisional certificate which was rejected, inter alia, on the ground that from the enquiry report of the licensing Inspector, the Chairman of the Municipality came to learn that the petitioner''s Gul Factory was in operation in the previous address. According to the petitioner, no such inspection was carried out in his presence. He thereafter filed another representation.
Mr. J. Islam, Learned Counsel appearing on behalf of the possession of all the requisite documents including a certificate granted by the West Bengal Pollution Control Board.
The Learned Counsel in this connection has also drawn my attention to an order dated 6.2.95 passed by N.K. Batabyal, J. in terms whereof the petitioner''s representation was directed to be considered. By reason of the impugned order dated 18.4.95 as contained in annexure ''L'' to the writ application the Chairman of the Municipality refused to grant such certificate, inter alia, on the ground that the area where the Gul Factory is being asked for to be transferred is situated at a residential locality and is highly conjested and populated and in the surrounding of the said locality there is no such other Gul factory or any ether factory. The said authority also recorded that the petitioner had made certain construction in most illegal and unauthorised manner at Ramkrishna Pally, Champaberia, without tacking any sort of permission from the Municipality.
The Learned Counsel for the petitioner submits that the impugned order is wholly illegal and bad in law, inasmuch as. the Chairman of the Municipality has violated the principle of natural justice. The Learned Counsel in support of the aforementioned contention has relied upon a decision in the case of K.I. Shephard v. Union of India reported in AIR 1988 SC. 686. Before proceeding to consider the matter it may be noticed that the Learned Counsel for the petitioner had served a notice upon Miss. Suchandra Mukherjee. Advocate on record for the respondent on 27.7.95 wherein it was mentioned that the Senior Advocate Mr. L.C. Behani when contacted categorically stated that he was no longer in the matter and he has returned the brief. Miss. Mukherjee, Learned Counsel has also given an endorsement in the said letter to the effect that she had given no objection in the matter and the brief had been taken away by the new Chairman of the Bangaon Municipality on 25.7.95. In this situation, this writ application has been taken up for hearing.
A bare perusal of the impugned order as contained in annexure ''L'' to the writ application shows that at least one part thereof suffers from the vires of self misdirection. The question as to whether the petitioner has raised any unauthorised construction or not could not have been taken into consideration for the purpose of consideration of grant, of a Trade Certificate. It may further be noticed that the said ground was hot mentioned as a ground for rejection of the petitioner''s application for grant of Trade Certificate earlier.
The Learned Counsel for the petitioner has pointed out that the petitioner had been paying taxes. It appears that the respondent concerned had proceeded on the basis of a pre-conceived notion. The petitioner''s application had been rejected earlier. The petitioner approached this Court and in terms whereof, the matter was considered afresh.
In the case of K.I. Shephard (supra) the Apex Court observed that once a decision has been taken there is a tendency to uphold it and a representation may not really yield any fruitful purpose.
The Learned Counsel for the petitioner has pointed out that the petitioner had also been paying a huge amount by way of electrical charces although he was not in a position to consume the electricity. Despite the same the petitioner is required to pay interest on the loan amounting to Rs. 2,30,000/- taken by him from the State Bank of India.
A citizen of India has a right to carry on business. Such right to carry on business can only be restricted reasonably in terms of the provision of the statute. Reference in this connection may be made to the case of The Nagar Rice and Flour Mills and Others Vs. N. Teekappa Gowda and Bros. and Others, However there cannot be any doubt that the petitioner is entitled to the grant of Trade Certificate as a matter of right. The Municipality while granting such Trade Certificate however must consider the relevant provision of the Act and the Rules framed thereunder. Such application for grant of Trade Certificate cannot be rejected upon taking into consideration of any irrelevant factors. It may also be mentioned that jurisdiction must pose a right question so as to acquaint himself with the relevant fact and in the event he fails to do so. he will misdirect himself in law. Such a misdirection comes within the purview of the judicial review. The Supreme Court of India in the case of Tata Cellular Vs. Union of India, and this Court has categorically held that while exercising its power under Article 226 of the Constitution may strike down the administrative action only if the statutory authority has committed illegality irrationality or procedural irregularity. There cannot also be any doubt that the statutory authority must act free from any bias or malice.
In view of the fact that the petitioner has invested a huge amount and further in view of the fact that the West Bengal Pollution, Control Board has granted a certificate, in my opinion, the respondent Municipality could not have rejected the said application filed on behalf of the petitioner unless there exists any provision in the Bengal Municipal Act in terms whereof such certificate cannot be granted. No such provision has been mentioned in the impugned order.
It is true that In the case of K.I. Shephard (supra) the Supreme Court held that there may be a tendency to uphold the decision which has already been taken but it may be mentioned that in a very exceptional, cases this Court in exercise of its jurisdiction under Article 226 of the Constitution should not usurp the statutory function.
The Learned Counsel for the petitioner is very fair to state before this Court that the old Chairman of the Municipality is not holding the Office.
In this view of the matter, I am of the view that there cannot be any apprehension in the mind of the petitioner that he will be biased or otherwise prejudiced.
For the reason aforementioned, I am of the view that the new Chairman of the respondent Municipality should consider the matter afresh and pass an appropriate order as early as possible. In the result the writ application is allowed. The impugned order dated 18.4.95 as contained in annexure ''J'' to the writ application is set aside and the Chairman of the respondent Municipality is hereby directed to pass an appropriate order on the petitioner''s representation at an early dates and preferably within a period of ten days from the date of communication of this order.
The Learned Counsel for the petitioner is permitted to take down the gist of this order and communicate the same to the concerned respondent who is directed to act on such communication.