K. Ram Mohan Rao and anr. Vs. Municipal Corporation of Hyderabad, Rep. by Its Commissioner and Special Officer - Court Judgment

Excerpt:
- - the business that is being carried on by the petitioners firm clearly falls within the purview of section 521 (1)(e)(ii) of the act.orderradhakrishna rao, j.1. the husband of the managing partner of lakshmi motors, a partnership firm carrying on business as dealers in motor cycles, filed the writ petition questioning the order of the chief medical officer of health, municipal corporation of hyderabad, directing the petitioners to discontinue the trade in the premises in which they are now doing business by 25-2-1991 on the ground they are running the trade without licence and also the business is causing nuisance, health hazard and causing danger to public safety. 2. the facts of the case are: the 2nd petitioner-firm was constituted for carrying on business as dealers in hero honda cycles after obtaining necessary rights from the manufacturers of hero honda 'motor cycles. the firm obtained the premises at 4-3-1091/13 to 15 at somajiguda, hyderabad, on a monthly lease of rs. 6000/-for the purpore of show room-cum-sales office and established a show room-cum-sales office in april, 1989 at a huge expense of about rupees 4 lakhs. while so, the municipal corporation of hyderabad issued a show cause notice dated 11-2-1991 purporting to be one under section 622 (4) of the hyderabad municipal corporation act 1956 (hereinafter referred to as 'the act') stating that the trade in the said premises is causing nuisance and also causing health hazard thereby the public interest is being jeopardised. the petitioners have submitted a suitable explanation to the said show cause notice within the period stipulated therein. ultimately, the corporation issued the impugned order dated 23-2-1991 directing the petitioner to discontinue the business by 25-2-1991. 3. the contentions raised by the petitioners are that the impugned order is illegal, malafide and violative of the fundamental rights guaranteed under articles 14 and 19(1)(g) of the constitution of india, that they are not running any trade in any 'workship or workplace' where they are neither employing nor intending to use any steam, water, electrical or other machanical power and therefore the question of obtaining any permission as contemplated under section 514 of the act does not arise. 4. admittedly the petitioners-firm has not obtained any valid permission or licence from the corporation for running the trade under any of the provisions of the act or the rules made thereunder. the 1st petitioner was prosecuted for not obtaining a licence and he was convicted by the vii metropolitam magistrate on 7-8-1990 in c.c. no. 1052 of 1990 and was sentenced to pay a fine of rs. 500/-. against the said order of conviction and sentence, the petitioners have not chosen to file any revision or appeal and that order has become final. the petitioners firm subsequently filed an application dated 16-11-1990 for a trade licence but the same was refused by the corporation on 17-12-1990. the petitioners-firm has not taken up the matter any further and the order of the corporation has become final. subsequently, he has not taken any steps for obtaining the licence but continued his business in the said premises. therefore, the corporation was constrained to issue a show cause notice dated 11-2-1991 asking the petitioners to show cause within three days from the date of receipt of the said notice as to why the firm should not be disallowed or discontinued from running the business. the petitioners have submitted an explanation on 16-2-1991. after considering the said explanation, the corporation issued the impugned order. hence the writ petition. 5. the first contention raised by the learned counsel for the petitioners that the firm they are running is not an industry and it will not come under the purview of sections 516 and 521 of the act. 6. section 516(iv) which is relevant for our purpose reads as follows: '516. factory etc. not to be newly established without permission of commissioner: subject to the provisions of factories act, 1948 (63 of 1948) no person' shall- (i) to (iii) xx (iv) enlarge or extend the area or dimensions of any factory, workshop or workplace in which it is intended to employ steam, water, electrical or other machanical power or any bakery except with the previous permission of the commissioner, nor shall any person work or allow to be worked in any such factory, workshop, workplace or bakery without such permission : provided that for the purpose of clause (iii) no such permission shall be required if during the period of discontinuance the machinery has not been removed from the place where the factory, work shop or bakery was originally established.' 7. under section 521 of the act certain things not to be kept and certain trades and operations not to be carried on, without a licence, are specified. 8. the commissioner, in accordance with the provisions of sections 521 schedule (p), 516, 625 and 521 (1) (e)(ii) of the act, issued proceedings dated 11-4-1987 enhancing the licence fee of certain trades as specified under section 521 of the act. according to the said proceedings, the corporation opined certain trades and operations etc., which are notified in annexure ii appended to the said proceedings are dangerous to health or property or likely to create nuisance either by its nature or by reason of the manner or condition under which the same is or is proposed to be carried. item 6 in annexure ii relates to automobiles or fittings and accessories shops, wholesale and retail. item 41 relates to motor servicing. item 42 relates to motor cycles. item 119 relates to motor and motor cycle repairing. a reading of these items read with section 521 (1)(e)(ii) makes it clear that any person who wants to do business in automobiles either in sales, servicing or repairing or deals with automoblies, has to obtain a licence. the business that is being carried on by the petitioners firm clearly falls within the purview of section 521 (1)(e)(ii) of the act. 9. in this connection it is necessary to look at section 622 (4)(b) of the act which reads as follows: '622. licence and written permission to specify conditions etc., on which they are granted : (1) to (3) xx xx (4) power to order the discontinuance of the use of premises for un-licenced trade :- (a) xx xx (b) if within the period specified in such written notice, the requisitions contained therein are not carried out by the person or owner, as the case may be, any officer authorised by the commissioner in this behalf may enter the premises and cause the usage as such thereof to be discontinued.' 10. there is no material that has been placed before the commissioner to arrive at a conclusion that the industry that has been started by the petitioners is not dangerous to health or property or likely to create nuisance either by its nature or by reason of the manner or condition under which the same is or is proposed to be carried. the question of power of the corporation to levy fee etc., was assailed before this court and a division bench of this court upheld the power of the corporation to levy fee. the petitioner was once convicted by a criminal court for not obtaining a licence. in these circumstances, it cannot be said that the principles of natural justice have been violated in this case. the concerned officials have inspected the premises and a show cause notice was issued to the petitioners and they have submitted an explanation on 16-2-1991. after considering the explanation only, the impugned proceedings have been issued. 11. the petitioners' counsel submits that the commissioner has no right to order closure of the business. it is useful to notice section 624 of the act in this connection : 'licence for sales in public place : except under and in conformity with the terms and provisions of a licence granted by the commissioner in this behalf, no person shall use any public place or any public street for the purpose of hawking or exposing for sale, any article whatsoever whether it be for human consumption or not.' 12. admittedly the petitioner has exposed motor cycles of hero honda make for sale. when once this court finds that he has to obtain the licence, the commissioner is always right in invoking the power under section 624 of the act to discontinue the business. 13. the petitions have not made out any case for interference. the writ petition fails and is accordingly dismissed. no costs. advocate's fee rs. 300/-.

Judgment:
ORDER

Radhakrishna Rao, J.

1. The husband of the Managing Partner of Lakshmi Motors, a partnership firm carrying on business as dealers in motor cycles, filed the writ petition questioning the order of the Chief Medical Officer of Health, Municipal Corporation of Hyderabad, directing the petitioners to discontinue the trade in the premises in which they are now doing business by 25-2-1991 on the ground they are running the trade without licence and also the business is causing nuisance, health hazard and causing danger to public safety.

2. The facts of the case are: the 2nd petitioner-firm was constituted for carrying on business as dealers in Hero Honda Cycles after obtaining necessary rights from the manufacturers of Hero Honda 'Motor Cycles. The firm obtained the premises at 4-3-1091/13 to 15 at Somajiguda, Hyderabad, on a monthly lease of Rs. 6000/-for the purpore of show room-cum-sales office and established a show room-cum-sales office in April, 1989 at a huge expense of about Rupees 4 lakhs. While so, the Municipal Corporation of Hyderabad issued a show cause notice dated 11-2-1991 purporting to be one Under Section 622 (4) of the Hyderabad Municipal Corporation Act 1956 (hereinafter referred to as 'the Act') stating that the trade in the said premises is causing nuisance and also causing health hazard thereby the public interest is being jeopardised. The petitioners have submitted a suitable explanation to the said show cause notice within the period stipulated therein. Ultimately, the Corporation issued the impugned order dated 23-2-1991 directing the petitioner to discontinue the business by 25-2-1991.

3. The contentions raised by the petitioners are that the impugned order is illegal, malafide and violative of the fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India, that they are not running any trade in any 'Workship or workplace' where they are neither employing nor intending to use any steam, water, electrical or other machanical power and therefore the question of obtaining any permission as contemplated Under Section 514 of the Act does not arise.

4. Admittedly the petitioners-firm has not obtained any valid permission or licence from the Corporation for running the trade under any of the provisions of the Act or the Rules made thereunder. The 1st petitioner was prosecuted for not obtaining a licence and he was convicted by the VII Metropolitam Magistrate on 7-8-1990 in C.C. No. 1052 of 1990 and was sentenced to pay a fine of Rs. 500/-. Against the said order of conviction and sentence, the petitioners have not chosen to file any revision or appeal and that order has become final. The petitioners Firm subsequently filed an application dated 16-11-1990 for a trade licence but the same was refused by the Corporation on 17-12-1990. The petitioners-Firm has not taken up the matter any further and the order of the Corporation has become final. Subsequently, he has not taken any steps for obtaining the licence but continued his business in the said premises. Therefore, the Corporation was constrained to issue a show cause notice dated 11-2-1991 asking the petitioners to show cause within three days from the date of receipt of the said notice as to why the firm should not be disallowed or discontinued from running the business. The petitioners have submitted an explanation on 16-2-1991. After considering the said explanation, the Corporation issued the impugned order. Hence the writ petition.

5. The first contention raised by the learned counsel for the petitioners that the firm they are running is not an industry and it will not come under the purview of Sections 516 and 521 of the Act.

6. Section 516(iv) which is relevant for our purpose reads as follows:

'516. Factory etc. not to be newly established without permission of Commissioner: Subject to the provisions of Factories Act, 1948 (63 of 1948) no person' shall-

(i) to (iii) XX

(iv) enlarge or extend the area or dimensions of any factory, workshop or workplace in which it is intended to employ steam, water, electrical or other machanical power or any bakery except with the previous permission of the Commissioner, nor shall any person work or allow to be worked in any such factory, workshop, workplace or bakery without such permission :

Provided that for the purpose of Clause (iii) no such permission shall be required if during the period of discontinuance the machinery has not been removed from the place where the factory, work shop or bakery was originally established.'

7. Under Section 521 of the Act certain things not to be kept and certain trades and operations not to be carried on, without a licence, are specified.

8. The Commissioner, in accordance with the provisions of Sections 521 Schedule (P), 516, 625 and 521 (1) (e)(ii) of the Act, issued proceedings dated 11-4-1987 enhancing the licence fee of certain trades as specified Under Section 521 of the Act. According to the said proceedings, the Corporation opined certain trades and operations etc., which are notified in Annexure II appended to the said proceedings are dangerous to health or property or likely to create nuisance either by its nature or by reason of the manner or condition under which the same is or is proposed to be carried. Item 6 in Annexure II relates to Automobiles or fittings and accessories shops, wholesale and retail. Item 41 relates to motor servicing. Item 42 relates to motor cycles. Item 119 relates to motor and motor cycle repairing. A reading of these items read with Section 521 (1)(e)(ii) makes it clear that any person who wants to do business in automobiles either in sales, servicing or repairing or deals with automoblies, has to obtain a licence. The business that is being carried on by the petitioners Firm clearly falls within the purview of Section 521 (1)(e)(ii) of the Act.

9. In this connection it is necessary to look at Section 622 (4)(b) of the Act which reads as follows:

'622. Licence and written permission to specify conditions etc., on which they are granted :

(1) to (3) xx xx

(4) Power to order the discontinuance of the use of Premises for un-licenced trade :-

(a) xx xx

(b) If within the period specified in such written notice, the requisitions contained therein are not carried out by the person or owner, as the case may be, any officer authorised by the Commissioner in this behalf may enter the premises and cause the usage as such thereof to be discontinued.'

10. There is no material that has been placed before the Commissioner to arrive at a conclusion that the industry that has been started by the petitioners is not dangerous to health or property or likely to create nuisance either by its nature or by reason of the manner or condition under which the same is or is proposed to be carried. The question of power of the Corporation to levy fee etc., was assailed before this Court and a Division Bench of this Court upheld the power of the Corporation to levy fee. The petitioner was once convicted by a Criminal Court for not obtaining a licence. In these circumstances, it cannot be said that the principles of natural Justice have been violated in this case. The concerned officials have inspected the premises and a show cause notice was issued to the petitioners and they have submitted an explanation on 16-2-1991. After considering the explanation only, the impugned proceedings have been issued.

11. The petitioners' counsel submits that the Commissioner has no right to order closure of the business. It is useful to notice Section 624 of the Act in this connection :

'Licence for Sales in Public place : Except under and in conformity with the terms and provisions of a licence granted by the Commissioner in this behalf, no person shall use any public place or any public street for the purpose of hawking or exposing for sale, any article whatsoever whether it be for human consumption or not.'

12. Admittedly the petitioner has exposed motor cycles of Hero Honda make for sale. When once this Court finds that he has to obtain the licence, the Commissioner is always right in invoking the power Under Section 624 of the Act to discontinue the business.

13. The petitions have not made out any case for interference. The writ petition fails and is accordingly dismissed. No costs. Advocate's fee Rs. 300/-.