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1979 DIGILAW 127 (ORI)

RAHAMATULLAH MD. HOSSAIN v. STATE OF ORISSA

1979-10-09

N.K.DAS, R.N.MISRA

body1979
JUDGMENT : R.N. Misra, J. - Petitioner is a hide marchant and has his godown in Ward No. 8 of the Jharsuguda Municipality. Under Annexure-A, the Municipal Council issued a notification u/s 290 of tile Orissa Municipal Act of 1950 (hereafter referred to as the 'Act') that no area within the Municipality would he utilised for any of the purposes mentioned in Section 290(1) of the Act without obtaining requisite licence from the Council. A specific resolution under Annexure-5 was adopted by the Municipal Council on the objection of the Assistant Health Officer that the godown should not be permitted to be located in Ward No. 8 in due course the Petitioner was called upon not to carry on the business in the locality and Petitioner's appeal to the Council was not successful. This writ application assails the action of the municipal Council as upheld in appeal. 2. Petitioner does not challenge the position that he has to obtain a licence as required by law to carry on the business of storing hides. Mr. Mohapatra appearing for the Petitioner challenges the refusal to grant a licence, in as much as there is no notification of the Municipal Council indicating any particular area within the jurisdiction of the Municipality where the godown should be located. The statute does not ban the trade of storing hides though there is no dispute that the trade is obnoxious to public health. A licence is contemplated u/s 290(1) of the Act for the trade in question. That being the position, there is force in the contention of Mr. Mohapatra that the Municipal Council has to notify a particular area for a particular trade and then to insist upon location of the trade in the approved area. It has been decided by the Supreme Court in the case of Rashid Ahmed Vs. The Municipal Board, Kairana that carrying on of a trade is a right guaranteed under Article 19 of the Constitution and total prohibition would not amount to reasonable restriction as contemplated in the constitutional provision. The scheme of the Act does not contemplate total prohibition but has introduced a reasonable restriction by regulating the trade by grant of licence. There is no dispute before us that the Municipal Council is to regulate the trade keeping public benefit in view and we entirely agree with Mr. The scheme of the Act does not contemplate total prohibition but has introduced a reasonable restriction by regulating the trade by grant of licence. There is no dispute before us that the Municipal Council is to regulate the trade keeping public benefit in view and we entirely agree with Mr. Murty for the Council that the Municipality is authorised by law to regulate the trade. 3. Mr. Murty has agreed before us that within two months from now, the Municipal Council would notify the area specifically where the godown for storing hides can be located and immediately thereafter It would be for the Petitioner to shift his godown to that area and to apply for the requisite licencee Until then, status quo as existing now would continue. Once the Municipal Council has notified the area, the Petitioner must shift his business within one month thereafter. If the Petitioner carries on the business in the present locality thereafter, he would certainly be liable to be adequately dealt with under the Act. 4. The writ application is disposed of with the above. There would be no order for costs. N.K. Das, J. 5. I agree.