IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.77 of 2008 Date of decision: 28.05.2008. M.C. Shimla …..Petitioner -Versus- Sh.Balinder Singh ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioner: Mr.Shrawan Dogra, Advocate. For the respondent: Mr.Balwant Kukreja, Advocate Deepak Gupta, J.(oral) The present petition under Article 227 of the Constitution of India is directed against the order of the learned District Judge, Shimla in Civil Misc. Appeal No.4-S/14 of 2008 whereby he has allowed the appeal of the respondent (hereinafter referred to as the plaintiff) and directed that the Municipal Corporation shall take a decision on the application filed by the plaintiff for issuance of licence to sell mutton in his favour on or before 15th March, 2008. Briefly stated, the facts of the case are that the plaintiff is a tenant under the Municipal Corporation, Shimla in respect of Stall No.80, Egg Market, Subji Mandi, Shimla. The contention of the plaintiff is that whereas other lessees who are also having shops leased out to them by the Municipal Corporation, Shimla in the Egg Market have been granted permission by the Municipal Corporation to sell mutton, chicken and fish etc., the prayer of the plaintiff to sell mutton has been rejected without any justifiable reasons. It was prayed that a decree for mandatory injunction be passed directing the Municipal Corporation to grant licence in favour of the plaintiff permitting him to sell mutton in the premises. 2 An application for interim relief was also filed in which it was prayed that during the pendnecy of the suit, the defendant Municipal Corporation be injuncted from interfering in the business of the plaintiff. The learned trial Court rejected this application. An appeal was filed by the plaintiff. The learned District Judge vide the impugned order has directed that the application already filed by the plaintiff for issuance of license shall be considered by the Municipal corporation on or before March 15, 2008 and decision be taken thereon on merits. This order is under challenge in this petition. On the face of it, the order of the learned District Judge is innocuous and no fault is in the order. However, on perusal of para 20 of the order, I find that learned District Judge has made certain observations which virtually amount to holding that the plaintiff is entitled to the licence. In my view the learned District Judge if he was going to send the matter for consideration to the Municipal Corporation should have avoided making the observations which he has made in paras 20 and 21 virtually pre-judging the dispute between the parties. Sh.Balwant Kukreja has contended that the Municipal Corporation has not been fair to the plaintiff and his application is being rejected for extraneous consideration though a number of other persons in the Egg market have been allowed to sell mutton, chicken, fish etc. whereas the plaintiff is not being given permission to do so. It is clear that an application was filed by the plaintiff for grant of licence. He also issued a notice to the Municipal Corporation to take action on his application. The Municipal Corporation has not taken any action thereon. An application cannot be left undecided. Therefore, without expressing any opinion on the merits of the case, I direct that the Municipal authorities shall consider the application of the plaintiff after giving him an opportunity of being heard either personally or through counsel. The Commissioner Municipal Corporation, Shimla is directed to hear the parties 3 personally or through counsel on 10th June, 2008. He shall permit the parties to place on record any material alongwith their affidavit(s) in support of their case. In case the Commissioner finds that other persons have been granted permission to sell mutton in the adjoining shops then the permission shall not be refused to the plaintiff except for specific grounds which the Commissioner shall give in his order. The Commissioner shall pass a speaking order on the application of the plaintiff. With the aforesaid observations, the petition is disposed of. There will be no order as to costs. May 28, 2008. ( Deepak Gupta ), PV Judge