- (1.) THIS is a writ petition by Mistry Ghulam Mohd. for grant of a writ of prohibition restraining the respondent from prosecuting the petitioner under Ss. 137 and 268 of the Municipal Act 2008, and for a writ of Mandamus ordering the respondent to grant the petitioner license in accordance with law or for any other appropriate writ.
(2.) THE facts alleged in the petition are that the petitioner, who is a permanent resident of the State, was earring on the work of a saw mill at Maisuma Srinagar. In 1960 the Labour Department considered the business of the petitioner to be a factory and under the Factories Act of 1957 the business of the petitioner, namely, the Kashmir Wood Industries and Co. was removed from Maisuma and installed in Bishambar Nagar. The Labour Department approached the respondent and a site plan for this building of the petitioners business was sanctioned by the Municipality on 6th Dec. 1960 under No. 1060. The petitioner constructed a building in accordance with the plan at the said place in Bishamber Nagar Munawarbad and applied to the Municipality for rectification in his license No. 110. This rectification was made on 3rd June. The petitioner applied for renewal of the license in 1961 -62 but no license was issued for that year to him. The respondent filed a complaint against the petitioner on 14 -5 -62 under Ss. 137, 268 of the Municipal Act for running a sawmill without a license. The petitioner has been reminding the respondent about the issue of the license, but no license has been issued to the petitioner. The action of the Municipality in withholding the license is illegal, malafide and ultra vires for the following reasons.
(3.) THE petitioner had to shift his workshop to Bishambar Nagar under orders of the Labour Department The plan of the building was sanctioned by the Srinagar Municipality. The rectification in the license was also made by the Municipality. As the Municipality omitted to convey its consent or rejection of the license to the petitioner within ninety days of the application, the prosecution launched against him cannot be sustained. He therefore prays for the writs as stated above. The Administrator Municipality Srinagar has put in his objections supported by an affidavit, and the crux of his objections, so far as a challenge is thrown to the petition of the petitioner, is that Bishambarnagar Munawarabad has been brought under the Town Planning scheme by the Government vide C. No. 446 -C of 1942 and no offensive trade can be allowed within that area The license of the petitioner cannot be renewed because no such offensive trade as the running of a band saw could be permitted. The petitioner had not been treated differentially; if other persons had managed to secure licenses, their licenses also would be cancelled.;