Order.- This is a reference made by the Additional Sub-Magistrate, Mangalore, under section 432 of the Code of Criminal Procedure in Criminal Case Number 14 of 1957 on his file for orders of this Court on the constitutional validity of subsection (3) of section 249 of the Madras District Municipalities Act, 1920. The reference was made under the following circumstances: Respondent B, Purushottam Baliga, was prosecuted by the Municipal Health Officer, Mangalore Municipality, for having contravened the provisions of sub-sea ion (3) of section 249 of the Madras District Municipalities Act on the file of the Second Class Bench Court, Mangalore. It was contended on behalf of the respondent that sub-section (3) of section 249 of the Madras District Municipalities Act violated the fundamental right guaranteed in Article 19(g) of the Constitution of India and contravened Article 19(6) and therefore, the prosecution for any breach under it was invalid. The learned Magistrate rejected the plea and convicted the respondent. An appeal filed by the respondent (accused) against his conviction was dismissed by the District Magistrate. The learned Magistrate did not think it necessary to make a reference to decide the constitutional validity of sub-section (3) of section 249 of the Madras District Municipalities Act in spite of a prayer made on behalf of the respondent (accused). A revision petition was filed against the conviction and sentence passed against the respondent in Criminal Revision Petition No. 154 of 1957. When it came up before my learned brother Somnath Iyer, J., he observed that it was absolutely necessary for the Courts below to have made a reference to the High Court to decide the important question involving the constitutionality of sub-section (3) of section 249 of the Madras District Municipalities Act and the conviction against the respondent (accused without making such a reference was invalid). But his Lordship thought that it was unnecessary to send back the case to the Magistrate with a direction to make a reference under section 342 of the Code of Criminal Procedure in view of the fact that another case in Criminal Case Number 14 of 1957 (the instant case) was pending before the Magistrate and that the Magistrate would certainly make a reference to this Court and therefore, set aside the conviction and sentence of the respondent in that case with the above observations. Consequent upon the abolition of the Bench Courts, the case against the respondent was transferred to the file to the Additional Sub-Magistrate, Mangalore. The learned Additional Sub-Magistrate who read the order of this Court in Criminal Revision Petition No. 154 of 1957,was of the opinion that the case involved an important question of law relating to the constitutional validity of sub-section (3) of section 249 of the Madras District Municipalities Act and has made this reference to this Court through the District Magistrate of Mangalore. The question for consideration in this case is whether sub-section (3) of section 249 of the Madras District Municipalities Act, which confers unlimited and uncontrolled powers, on the executive authority to grant or refuse licenses within Municipal limits for purposes of installing flour and other mills infringes the fundamental right of a person guaranteed under Article 19(g) of the Constitution of India. Section 249(1) of the Madras District Municipalities Act empowers a Municipal Council by a notification in the District Gazette and by beat of drum that no place Within Municipal limits or at a distance within three miles of such limits shall be used for any one or more of the purposes specified in Schedule V without the licence of the executive authority. Sub-section (2) of section 249 makes it obligatory on the part of the owner or occupier of every such place, within thirty days of the publication of such notification to apply to the executive authority for a licence for the use of such place for such purpose. Sub-section (3) of section 249 of the Madras District Municipalities Act reads as under: “The (executive authority) may by an order and under such restrictions and regulations as he thinks fit, grant or refuse to grant such licence”. The respondent (accused) in the instant case applied for a licence to install a flour mill in premises bearing door No. 495-A of 9th Ward Mangalbail, Mangalore and for working an electric motor of 5 h.p. for preparing flour in the said premises to the Municipal Health Officer. The licence prayed for was refused by the Municipal authorities and an endorsement was issued to the respondent on 22nd March, 1957. The respondent continued to work the flour mill in spite of such a refusal. The licence prayed for was refused by the Municipal authorities and an endorsement was issued to the respondent on 22nd March, 1957. The respondent continued to work the flour mill in spite of such a refusal. The Municipal authorities, therefore, instituted proceedings against the respondent under section 249, read with section 313, Schedules V and VII of Madras Act V of 1920 as amended by Act X of 1930 on the allegation that in spite of an order, dated 22nd March, 1957, refusing a licence to him, the respondent had committed an offence punishable under the above provisions. As already stated, it was contended by the respondent that the refusal of the licence was unreasonable and arbitrary and that it had infringed his fundamental right to enjoy the property in the manner he was entitled to and therefore sub-section (3) of section 249 of the Madras District Municipalities Act which enables the executive authority to refuse to grant a licence to the applicant was unconstitutional. It is clear from a reading of sub-section (3) of section 249 of the Madras District Municipalities Act that the same confers on the executive authority an unlimited and uncontrolled authority. Such a provision which makes the exercise of a fundamental right dependent on the absolute discretion of administrative authorities has been held to be unconstitutional by the several High Courts in India and by the Supreme Court. The question regarding the constitutional validity of sub-section (3) of section 249 of the Madras District Municipalities Act came up for consideration before the Madras High Court in K. Mohamed Khassim and Brother v. Municipal Council, Ootacamund1 by its Commissioner1. His Lordship Rajagopala Ayyangar, J., after examining the several provisions of the Madras District Municipalities Act (V of 1920) held that sub-section (3) of section 249 of the Madras District Municipalities Act had conferred an absolute power of refusing to grant the licence as also the power of imposing such restrictions and conditions as he might think fit, without any guidance by the Legislature as to the relevant conditions and restrictions, and therefore the sub-section in its present form is in contravention of Article 19(6) and struck it down as violating the fundamental rights guaranteed by Article 19(1)(g) of the Constitution of India. In the course of the judgment his Lordship observed that it was clear that the Municipal Health Officer, who is the executive authority vested with the powers by the Municipal Council to grant or refuse a licence had exercised his uncontrolled discretion to refuse all the applications on irrelevant grounds, and therefore, any such power conferred on an executive authority without laying down proper guidance on which he could refuse to grant a licence, was invalid and is liable to be quashed. Reference also may be made to a decision of a Division Bench of the Madras High Court in R. Balakrishna v. The State of Madras1, wherein the scope of constitutional validity of Cotton Textiles Control Order, 1948, came up for consideration before a Division Bench of the Madras High Court. Their Lordships after examining the several provisions of the Cotton Textiles (Control) Order, 1948, found that the discretion that was conferred on the Textile Commissioner by the section was unfettered and arbitrary within the meaning of Article 19(5) and (6) and therefore, was invalid. Their Lordships in the course of the Judgment observed that, so long as the possibility of a provision like clause 33 being applied in a manner not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void. “In the absence of any statutory rules to indicate the manner in which the discretion of the Textile Commissioner should be exercised it is impossible to say whether his discretion in a particular case is or is not justified. If the yardstick is only the personal opinion of the Officer concerned, it is plainly a case of a naked and arbitrary power. It is therefore not only desirable but also necessary that proper rules should be framed and general principles laid down to govern the discretion vested in the Textile Commissioner under clause 33. If that is done and individual cases arc dealt with accordingly without making any discrimination there could be no valid complaint.” In Messrs. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh & two others2 dealing with the constitutional validity of the Utter Pradesh Coal Control Order. If that is done and individual cases arc dealt with accordingly without making any discrimination there could be no valid complaint.” In Messrs. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh & two others2 dealing with the constitutional validity of the Utter Pradesh Coal Control Order. 1953, which vested in the licensing authority power to grant or refuse to grant a licence it is observed as follows: “A law or order which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities must be held to be unreasonable. Under clause 4 (3) of the Uttar Pradesh Coal Control Order, 1953, the licensing authority has been given absolute power to grant or refuse to grant, renew, suspend, revoke, cancel or modify any licence under this order and the only thing he has to do is to record reasons for the action he takes. Not only so, the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same and the choice can be made in favour of any and every person. Such provisions cannot be held to be reasonable”. Their Lordships held that the provision of clause 4(3) of 1 he Uttar Pradesh Coal Control Order, 1953, was “void as imposing an unreasonable restriction upon the freedom oftrade and business guaranteed under Article 19(1)(g) of the Constitution and not coming within the protection afforded by clause (6) of the Article”. It is interesting to note that the provision of clause 4 (3) of the Uttar Pradesh Coal Control Order, 1953, which confers power on the licensing authority to grant or refuse to grant a licence to an individual is in the same terms as sub-section (3) of section 249 of the Madras District Municipalities Act. In the Uttar Pradesh Case.2 referred to above, his Lordship Mukherjea, J., who rendered the judgment observed as follows: “Mr. Umrigar contends that a sufficient safeguard has been provided against any abuse of power by reason of the fact that the licensing authority has got to record reasons for what he does. This safeguard in our opinion is hardly effective; for there is no higher authority prescribed in the order who could examine the propriety of these reasons and revise or review the decision of the subordinate officer. This safeguard in our opinion is hardly effective; for there is no higher authority prescribed in the order who could examine the propriety of these reasons and revise or review the decision of the subordinate officer. The reasons, therefore, which are required to be recorded are only or the personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person. It was pointed out and with perfect propriety by Mr. Justice Matthews in the well-known American case of Tick Wo v. Hopkins3, that the action or non-action of officers placed in such position may proceed from enmity or prejudice, from partisan zeal or animosity, from favouritism and other improper influences and motives which are easy of concealment and difficult to be detected and exposed, and consequently the injustice capable of being wrought under cover of such unrestricted power becomes apparent to every man, without the necessity of detailed investigation. In our opinion the provision of clause (3) of the Uttar Pradesh Coal Control Order must be held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19(1)(g)of the Constitution and not coming within the protection afforded by clause (6) of the Article.” It is not disputed that under sub-section (3) of section 249 of the Madras District Municipalities Act, the executive authority who refuses to grant a licence is not bound to assign reasons for doing so. It is also not disputed that no provision is made for an appeal under the Act against an order of the executive authority. In these circumstances there is considerable force in the contention advanced by the respondent that sub-section (3) of section 249 of the Madras District Municipalities Act, which confers absolute and arbitrary discretion on the executive authority, namely, the Municipal Health Officer to grant or refuse a licence on his own sweet will and pleasure, violates the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India and should be struck down as invalid. After carefully examining the question, I am inclined to agree with the conclusion reached by Rajagopala Ayyangar, J., in the Madras Case referred to above and hold that sub-section (3) of section 249 of the Madras District Municipalities Act in its present form is in contravention of Article 19(6) and has to be struck down as violating the fundamental rights guaranteed by Article 19(1)(g) of the Constitution of India and I order accordingly. The result is, no prosecution can reasonably be launched against the respondent for disobeying or infringing any order passed under sub-section (3) of section 249 of the Madras District Municipalities Act. The prosecution against the respondent is, therefore, quashed and he is discharged. S.V.S. ----- Prosecution quashed.