Andanappa vs Corporation of the City of Bangalore and Another

Admittedly the petitioner is carrying on the business of milk vending in a shop premises measuring 4'' x 6'' of Door No.40, 5th Block, Rajajinagar, Bangalore, (hereinafter referred to as ''the premises'') owned by one Shri K.N. Veeranna as his lessee. On 17th July 1978 the owner of the premises complained to the Administrator of the Corporation of the City of Bangalore, to stop the business of milk vending by the petitioner for the reasons stated in his representation. On the next day, some persons claiming themselves to be the residents of the premises also complained to the Corporation in the matter. On those representations, a Memo-show cause notice No.CS 7.171/78-79 dated 21-7-1978 was issued to the petitioner by the Commissioner of Corporation to show cause, as to why he should not be prosecuted. Evidently as the petitioner did not comply with the notice dated 21-7-1978, the Commissioner issued him another Memo No.HL(FT) 1034/78-79 d/14-8-1978 to close down the business immediately failing which action will be taken to close down the business departmentally in addition to prosecuting him in a Court of law. After this notice also, the petitioner did not close down his business in the premises and therefore on 30/31-8-1978 the Commissioner issued a Memo No.Hh(1) DCO 621/78-79 purporting to be under Sec.343 of the Karnataka Municipal Corporation Act, 1976 (Karnataka Act No.14 of 1977) (hereinafter referred to as ''the Act'') (Exhibit A), reiterating as to what had been stated in the Memo d/14-8-1978. That Memo reads thus:

"MEMO

It has been brought to the notice of the undersigned that he she is running milk dairy at premises No.40, Vth Block, Rajajinagar, Bangalore-10, without licence, though a show cause notice was served on him on 23-7-1978.

He is directed under Sec.343 of the Corporation Act, 1976 to close the said business immediately from the receipt of this Memo, also further action to close the same departmentally at his risk and cost will be taken and he will be prosecuted.

(Sd) x x x x 31-8-1978,

-for Commissioner,

Corporation of Bangalore."

In spite of these Memos-notices, the petitioner did not stop the activity of selling milk in the premises. Evidently piqued by the action off the petitioner, the Commissioner issued a Memo No.H.L.(1) D.C.O. 62/78-79 d 30th September, 1978 authorising one Shri Rasheed Khan to close the unauthorised vending of milk by the petitioner. The Memo d/30-8-1978 (Exhibit C) reads thus:

"MEMO

I hereby authorise Shri Rasheed Khan, Senior Health Inspector of III Circle under Sec.343 of the K.M.C. Act to close the unauthorised Milk Dairy of Sri Andanappa, No. 40, Vth Block, Rajajinagar, which is running in spite of closure order served on 19-8-1978.

(Sd) x x x x

For Commissioner,

Corporation of Bangalore."

On the basis of the Memo d/30-9-1978 Shri Rasheed Khan has locked the premises on 21-10-1978 and has thus prevented the petitioner from vending milk on the premises. In this writ petition presented 25-10-1978 the petitioner has challenged the Memos d/30/31-8-1978 and 30-9-1978 (Exhibits A and C).

The case of the petitioner is that the, vending of milk in the premises does not require a licence under the Act and the action taken by the authorities is at the instance of his landlord who wields considerable influence with the Corporation authorities. In denial of the allegations made or in justification of the action taken, the respondents have not filed their statement of objections, but they have been content to argue their case by producing the records of the Corporation.

Shri H. Subramanya Jois, learned counsel for the petitioner, strenuously contended that no licence was required, for vending milk under the Act and therefore the action taken by the authorities besides being unauthorised is highhanded and arbitrary. Shri A. Jagannatha Shetty, learned counsel for the respondents, refuted the contention of Shri Subramanya Jois and urged that milk is food and therefore the same cannot be sold without obtaining a licence under Sec.343 of the Act.

The petitioner does not dispute that he has not obtained a licence for vending milk from the Corporation. But he contends that a licence is not necessary for vending milk in the premises. He has also urged that the action of the respondents is vitiated by mala fides. As the petitioner is entitled to succeed on the first contention, it is unnecessary to examine the plea of mala fides urged by the petitioner. In ascertaining the intention of the Legislature and interpreting Sec.343 and other provisions of the Act it is necessary to read the Act as a whole (vide Pappatlal Shah vs. State of Madras, AIR. 1953 SC. 274 As ruled by the Supreme Court in Bolani Ores vs. State of Orissa, AIR. 1975 SC. 17 and Union of India vs. Sankalchand, AIR. 1977 SC. 2328, one should not interpret the words in a statute by holding a dictionary in one hand and the statute to be interpreted in the other hand, but one must ascertain the meaning of the words from the context in which they occur. Bearing in mind these principles, I should ascertain the true scope and ambit of Sec.343 and other provisions off the Act.

''Licenses and fees'' are regulated by Chapter XVII of the Act. An analysis of S. 348 which provides for exemptions in places that are in occupation of Central and State Governments, is not material for our purpose. Section 343 on which the entire case of the respondents rests reads thus:

"343. Prohibition in respect of Lodging houses.-(1) No person shall, without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, keep any lodging house, eating-house, tea-shop, coffee-house, cafe, restaurant refreshment room, or any place, where the public are admitted for repose or for the consumption of any food or drink or any place where food is sold or prepared for sale.

Explanation: In this sub-section, ''lodging house'' means a hotel, boarding house choultry or rest-house other than a choultry or rest-house maintained by the Government or a local authority, or any place where casual visitors are received and provided with sleeping accommodation, with or without food, on payment but does not include a Students'' hostel under public or recognised control.

(2) ..... omitted as unnecessary."

The heading of S. 343 viz., ''prohibition in respect of lodging houses'', though cannot control the language of the Section, appears to regulate the establishment or keeping of lodging houses without obtaining a licence from the Corporation. The word ''lodging house'' has not been defined in the definition Section. But that term is defined in the explanation for purposes of sub-section (1) of S. 343. Sub-sec. (1) of S. 343 prohibits any person from keeping a lodging house, eating-house, tea-shop, coffee-house, cafe restaurant, refreshment room or any place, where public are admitted for response or for the consumption of any food drink or sale thereof. Sale or vending of milk by any person in any place except by obtaining a licence is not expressly provided in sub-sec. (1) of S. 343. But Shri Jagannatha Shetty laid emphasis on the words any place where the public are admitted for consumption of any food or drink or any place where any food is sold. He, urged that ''milk'' is ''food'' and therefore sale of milk in any place cannot be done without obtaining a licence. In the first place, this attempt of Shri Jagannatha Shetty to literally interpret the words is opposed to the well accepted principles of interpretation of statutes. Section 343 appears to prohibit the establishment of hotels, restaurants and Boarding and Lodging houses, where food is prepared or sold without obtaining a licence from the Corporation, but does not appear to regulate the sale or vending of milk by any person at any place. Secondly the words ''or any place'' following the words lodging house, eating-house, tea-shop, coffee-house, cafe, restaurant, refreshment room, cannot be interpreted disjunctively as including any and every place, but must be interpreted, as a place analogous to the words preceding those words. Apart from this, S. 353 of the Act occurring in the same Chapter does not support the case of the respondents. Sub-sec. (1) of S. 353 directs that no place within the limits of the City shall be used for any of the purposes mentioned, in Schedule X of the Act without a licence obtained from the Commissioner and, except in accordance with the conditions specified therein. Sub-sec. (2) provides for the application of sub-sec. (1) to any place within a distance, of 5 K.Ms. of the City limits in accordance with the provisions of that Section. A perusal of Schedule, X of the Act, which is also part of the Act shows that no licence is required for using a place for sale or vending raw milk. Looking at the scheme and object of the Act, it appears to me that the words ''food'' or ''drink'' in Sec. 343(1) does not include milk and its sale is not regulated by that provision. On a combined reading of Sections 343 and 353, I am of the opinion that the claim of the Corporation that the petitioner cannot carry on the business of vending milk in the premises without obtaining a, licence cannot be accepted, for which reason he is entitled to use the premises for vending milk without obtaining a licence from the Corporation. In this view, the action of the Corporation cannot be supported and is liable to be interfered with by this Court.

Let me also assume that the petitioner was vending milk without obtaining a licence from the Corporation as required by Sec.343 of the Act and examine whether the action of the Corporation for the closure of the business carried on by him in the premises is justified or not. Even a first reading of Sec.343 of the Act would reveal to anybody more so to the authorities that every day administer the Act, that that Section does not authorise the Corporation or any of its functionaries to close down the business earned on, by the petitioner in the premises, lock the doors and effect the seizure of articles from the petitioner and thus affect the right of the petitioner to carry on his trade and business guaranteed to him by Article 19 of the Constitution of India Assuming that there was any contravention by the petitioner, the one and the only way the matter could have been dealt by the Corporation was to prosecute him for such violation before an appropriate Criminal Court for an offence punishable under Sec.431 of the Act, without taking law into their hands causing considerable injury and loss to the petitioner. I am distressed at the indiscreet and high-handed action of the officers of the officers of the Corporation except respondent No.2 who has only carried out the orders of his superiors. I hope there will be no recurrence of such illegal actions by the officers of the Corporation in future.

After hearing the case at some length on 20-11-1978, I indicated to the learned counsel for the Corporation the desirability of withdrawing the orders and permitting the petitioner to carry on his business as before without inviting a decision from this Court. At the request of Shri Jagannatha Shetty I adjourned the case to 29-11-1978 on which day he submitted, that a question of law of considerable importance and a matter of principle is involved in this case and therefore the Corporation would very much like to have a decision from this Court. In this view, I have heard the case in full on 29-11-1978. From this and the facts narrated by me earlier, it appears to me that the Corporation has chosen the petitioner, a poor milk vendor, as a guinea-pig and has affected his business activities. For all these reasons, the petitioner is entitled to exemplary costs from the respondents.

In the light of my above discussion, I quash the impugned order and issue a writ in the nature of mandamus to the respondents to deliver the keys of the premises and other articles stated to have been seized and kept in premises No. 40, 5th Block, Rajajinagar, (detailed in the Mahazar dated 21-10-78 drawn by respondent No. 2) in the condition in which they were seized, to the petitioner within 3 days from the date of receipt of the writ/order of this Court and not to interfere with his business of milk vending on the premises except in accordance with law.

Rule made absolute with costs. Advocate''s fee Rs. 250.

Let a copy of this order be communicated to the respondents within 3 days from this day.

[1979](1)kar.l.j. 209

Employees'' State Insurance Act (34 of 1948), S. 2(9) - Hospital attached to factory - Employees in - If employees within Act.

Worker employed in a hospital attached to and maintained by a factory as defined in S. 2(12) of the ESI Act, exclusively for the benefit of its employees and their families, are employees within the meaning of S. 2 (9) of the Act.