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Gauhati High Court · body

1982 DIGILAW 12 (GAU)

Maulana Ayub Ali Barbhuyia v. State of Assam and Ors.

1982-01-25

B.L.HANSARIA, N.IBOTOMBI SINGH

body1982
Hansaria, J.- The petitioner was granted permission under the provisions of the Rice Milling Industry (Regulation) Act, 1958, hereinafter called the Act) to establish a new rice mill at Srikuna Daily bazar. This had to be done as per the permit dated 12.10.79 within a period of six months from the date of issue of the permit. Being not able to establish the mill within the time allowed, the petitioner approached the Govern­ment to extend the time and the Government was pleased to do so by the communication dated 7.1 81 for another period of six months with effect from the date of issue of the letter. To his dismay however the petitioner received a communication dated 5.3.81 requesting him to select a suitable alternative site as respondents 6 and 7 were allowed to retain the "Ganesh Rice Mill'' said to have been installed at Srikona daily bazar. The petitioner has felt aggrieved at this communication inas­much as it virtually amounts to cancellation of the earlier permit, according to him, which has seriously perjudiced him as he has installed the rice mill at the earlier location. 2. Shri Goswami who has appeared for the petitioner has challenged the communication dated 5. 3. 81 on two grounds : (1) that the Act has conferred no power to cancel a permit, or to alter any condition of a permit; and (2) the order was bad in having been issued without hearing the petitioner. A reference to the provisions of the Act would bear the first submission of Shri Goswami inasmuch as under section 7 of the Act, a licence which is granted under section 6 of the Act (whereas granting of permit is controlled by section 5 of the Act) can alcne be revoked, suspended or amended under section 7. Faced with this position, the learned Government Advocate submitted that the communication to select alternative suitable site was only a request which the petitioner might or might not have complied with. There is not much to commend this submission as such requests coming from authorities are to be treated as directions. Really, a reference to para 7 of the affidavit-in-opposition filed on behalf of respondents 1 to 5 shows that the request was taken to be a direction to select a suitable alternative site. There is not much to commend this submission as such requests coming from authorities are to be treated as directions. Really, a reference to para 7 of the affidavit-in-opposition filed on behalf of respondents 1 to 5 shows that the request was taken to be a direction to select a suitable alternative site. It was then contended that by the impugned order no change in the loca­tion of the rice mill was intended by the authorities as they only wanted selection of an alternative site. This submission too has no force because even though the permit speaks of location that cannot be read de hors of selection of a parti­cular site in the locality. Even the change of site after the fame had been approved of does not seem permissible under the provisions of the Act, more so, in the present case, at the petitioner had already installed his rice mill at the location where he was permitted to do so. 3. Therefore, we are of the view that the impugned order dated 5.2.81 asking the petitioner to select an alternative site has no authority of law. Having come to this conclusion it is cot necessary to examine the second contention of Shri Goswami, though it may be stated that the same also seems to have force inasmuch as after permit is issued a person almost acquires a right to obtain a licence in view of what has been stated by the Supreme Court in Chandra Kant vs. Union of India, AIR 1979 SC 314 . It was pointed out in para 13 of this judgment that once an application is received by (he licensing authority for the grant of a licence under section 6(3) of the Act, the statute does not leave any discre­tion in the licensing officer to grant or to refuse to grant the licence, which follows from the expression "shall grant" in this sub-section. Cancellation of a permit thus seriously affects the right clothed in a person and the same cannot be taken away without affording an opportunity in this regard. 4. Accordingly, the petition is allowed and the offending part of the impugned order is quashed. Cancellation of a permit thus seriously affects the right clothed in a person and the same cannot be taken away without affording an opportunity in this regard. 4. Accordingly, the petition is allowed and the offending part of the impugned order is quashed. The respondents are directed to dispose of the application for licence by the petiti­oner filed on 11.4.81, vide Annexure-E to the affidavit-in-reply, in accordance with the principle laid down in this regard by the Supreme Court in the aforesaid decision. It would be for the consideration of the authorities as to what stand they would take on the prayer of Respondents 6 and 7 in so far as the Ganesh Rice Mill is concerned, bearing in mind the requirements of section 5(4) of the Act.