1. This is an application filed by the accused against the order of conviction and sentence passed by the learned Presidency Magistrate 19th Court, Esplanade, Bombay, under S. 52 of the Bombay Shops and Establishments Act, 1948, on two counts falling under S. 7, Sub-section (1) of the Act and rule 18, Sub-rule (14) made under the Act.
2. The case of the prosecution was that the accused was holding a licence issued under S. 313 of the Bombay Municipal Act which is called the hawkers and squatters licence and in pursuance of which he sold his wares in a particular area, the dimensions of which were mentioned in the licence. According to the licence inspector, the pitch for the stall of this accused was fixed as pitch for the stall of this accused was fixed as pitch No. 22 and the accused could not move his stall from that pitch to any other pitch without the permission of the superintendent of licences. This fact was admitted by the accused in his statement before the Court. It was not disputed that the stall which was put up by the accused on the space allotted to him under the licence had four poles and according to the licence inspector it had also a temporary roof which was there all the year round. The accused contended that the place at which he sold his wares did not come within the definition of the word 'shop' as given in the Shops and Establishments Act. Accordingly, he submitted that he was not liable to send any statement as contemplated by S. 7(1) of the Act, nor was he liable to maintain any visit book as contemplated by Sub-rule (14) of rule 18 made under the Act. The learned Magistrate, however, on consideration of the relevant provision of the Act as well as some authorities, came to the conclusion that the stall in which the accused was carrying on his retail trade in fruits constituted 'premises' within the meaning of Sub-section (27) of S. 2 of the Act and that, therefore, it was obligatory upon the accused to comply with the provisions of the S. 7(1) of the Act as well as those of Sub-rule (14) of rule 18 made under the Act. Accordingly, the learned Magistrate found the accused guilty under the two counts falling under S. 7(1) of the Act and rule 18(14) of the rules made under the Act each of which constituted an offence under S. 52 of the Act and sentenced him to pay a fine of Rs. 25 or in default to undergo simple imprisonment for five days on each count. It is against this order of conviction and sentence of the learned Magistrate that the accused has filed the present application to this Court.
3. It was contended by Sri Paranjape on behalf of the accused that the learned Presidency Magistrate was in error in having held that the stall in which the accused was carrying on his retail trade in fruits on the space allotted by the municipality under the licence granted to him was a 'shop' within the meaning of the expression under the Shops and Establishments Act, 1948. He urged that in holding that the stall which was utilized by the accused for the purpose of his retail trade in fruits constituted a 'shop' within the meaning of the Act, the learned Presidency Magistrate overlooked certain conditions of the licence granted to the accused by the municipality for the purpose of carrying on his trade. He invited our attention to several conditions of the licence. The conditions to which our attention was drawn are as follows :
'(1) This licence shall be valid only for the area reserved by the municipal commissioner for squatters and hawkers as entered herein.
(2) The licensee shall not cause any nuisance or obstruction to traffic on any street or footpath, or squat or expose articles for sale except in the space allotted to him in such reserved area.
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(4) The licensee shall not ply his trade after 7-51 p.m. (Bombay Time) or 8-30 p.m. (Standard Time) and shall leave the site clear of all obstruction, failing which his or her goods are liable to be seized and removed as encroachment.
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(11) The municipal commissioner or any officer duly authorized by him in this behalf may remove any squatter from one place to another in the reserved area.
(12) The licensee shall vacate the allotted area within twenty-four hours, if it be required for repair, construction or other municipal purpose. He will, if possible be accommodated elsewhere, but it will not be incumbent on the municipal commissioner to do so and the fee already paid will not be refunded.
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(14) The licensee shall not erect any structure nor project any roof over the area allotted to him, but he may put up a movable platform not less than one foot and not more than one and a half feet in height to expose his articles for sale and may have an overhead cover of cloth, gunny or canvas as a temporary shelter against the sun or rain but so as not to cause nuisance or give rise to complaints.
(15) The licensee shall not display any boards or flags or use bells or other contrivances or cry out to attract attention, nor shall he obstruct or lay hand on persons resorting to the area or allow any such act to be done to solicit their customers.
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(21) The municipal commissioner or the superintendent of licences, shops and establishments, may at any time without notice revoke or cancel this licence if in his opinion the licensee has infringed any of its conditions or for any other reasons. Such revocation shall not prejudice any claim or demand of the commissioner hereunder or otherwise, nor entitle the licensee to claim any refund of fees or any damages whatsoever.
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(24) The licences of squatters and hawkers shall be cancelled if the stalls are kept unworked for a fortnight without any substantial reasons.
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(26) No stallholder shall be given more than 18 square feet squatting area at the maximum in any reserved area.
(27) There should be clear space of about 4 to 8 feet between stalls for cleaning and conservancy purposes and in particular two relatives shall not be allowed to join together their contiguous stalls.'
4. Among the instructions attached to the licence, the first one is that no squatter's booth or stall shall be embedded in the ground or attached to a wall and the second one is that at least 1.50 feet of clear space shall be left underneath the stall for the conservancy department and others to clean the floor or ground underneath. In view of these conditions of the licence under which the accused was carrying on his retail trade in fruits, Sri Paranjape contended that what his client had actually erected on the space provided to him by the municipality under the licence was only a temporary stall which his client was required to remove, according to condition (4) of the licence, every night along with his wares. Condition (4), as stated above, clearly proves that the licensee shall not ply his trade after 8-30 p.m. and shall leave the site clear of all obstruction, failing which his or her goods are liable to be seized and removed as encroachment. The terms of this condition clearly indicate, according to Sri Paranjape, that if any of his wares were retained on the space allotted to the licensee under the licence after 8-30 p.m., it was open to the municipality to remove those wares and forfeit them as if they had encroached upon the space which his client could very well use under the licence during the day for the purpose of his retail trade. In the circumstances, Sri Paranjape contended that the space allotted to the accused by the municipality under the licence and on which the accused used to carry on his trade during the day could not be said to be a shop, because for the purpose of a 'shop' as defined in the Shops and Establishments Act, there must first be 'premises' where goods may be sold either by retail or wholesale or where services are rendered to customers. According to Sri Paranjape, the kind of user of the space allotted to his client by the municipality under the licence for the purpose of the trade could not be regarded as indicative of any 'premises where goods are sold either by retail or by wholesale or services are rendered to customers.' In our opinion, the contentions raised by Sri Paranjape must prevail. The term 'premises' as used in S. 2, Sub-section (27), of the Shops and Establishments Act can only have in the context of the Act itself one meaning and that is that such premises must be an area of land, either open or built upon, with some fixity of tenure so that the person using it for the purpose of his trade may be entitled to claim such land either as his own or as a tenant and should be in its occupation all the time of the day and night. The person carrying on his trade on such land may as well be a licensee, but certainly not a licensee of the kind contemplated by the licence which is given by the municipality to the accused in this case. The licensee must also during the continuance of the licence be entitled to be in possession of such land for all the hours of day and night. If the licensee is required to remove all his wares from the land, on which he is allowed to ply his trade during certain hours of the day, soon after the business hours are over the licensee could never have any claim upon the land at all. Once again, in spite of the licence he would be at the mercy of the municipality, and having regard to the powers that the municipality has under the terms of the licence to revoke it at any time it pleases, it could not be said with any certainty that the licensee would be entitled to re-enter the land the next day and use it once again for the purpose of plying his retail trade. In view of the conditions of this licence, therefore, it is impossible to say that there is any fixity of tenure in respect of the space allotted to the accused by the municipality conferred upon him by the terms of the licence, and in so far as there is no such fixity of tenure at all, in other words, where a person is neither the owner nor a tenant nor a licensee of a certain land on which he carries on his retail trade only during certain hours of the day and during which alone he can be said to be in absolute and exclusive possession of the land, such land cannot be said to be 'premises' or a 'shop' within the meaning of the Shops and Establishments Act.
5. Along with the definition of 'shop' as given in S. 2(27) of the Shops and Establishments Act one may read the definition of 'establishment' as well as given in Sub-section (8) of S. 2 of the Act. The word 'establishment' under this sub-section means
'a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other place of public amusement or entertainment to which this Act applies . . .'
6. Now, the word 'establishment' by itself would suggest that if it happens to be a shop, it should be a shop from day to day and not for only certain hours of the day. This expression 'establishment' connotes something of a permanent character. Premises which are occupied only for a few hours of the day for the purpose of carrying on one's trade cannot be said to be premises of any permanent character at all. Accordingly, in our opinion, the stall in which the accused in this case was carrying on his retail trade in fruits during the hours fixed and within the space allotted under the licence granted by the municipality cannot be called either an 'establishment' or a 'shop' so as to attract the provisions of the Shops and Establishments Act.
7. Apart from this, we feel that it could not have been intended by the legislature that the provisions of the Act should be made applicable to cases such as the present one. The accused who has been doing the retail business in a very small way in fruits on a small space allotted by the municipality under a licence has to pay a small fee. The business that he is carrying on is seldom so big as to necessitate the employment of any servants for the purpose of helping him in carrying on the business. It is another matter that the accused, under the terms of the licence, put up a small wooden stall on the space allotted to him by the municipality. We may, however, take the case of a person who has got no money to put up any such stall and yet is granted a licence by the municipality providing him with a certain amount of space and enabling him to carry on his business. Such business may be carried on as in the case of the present accused by a person by stocking the fruits in a couple of baskets and putting them on the space allotted. The question then would be as to whether under S. 7(1) of the Act he would be able to fill up a form setting out several particulars as mentioned in that sub-section, or to maintain a visitor's book on the premises under Sub-rule (14) of rule 18 in order to enable an inspector visiting the premises to record his remarks regarding any defects that may come to light at the time of his visit or to give directions regarding the production of any documents required to be maintained or produced under the provisions of the Act and the rules. As regard the form required to be filled in under S. 7(1), we wonder very much as to whether such person would be able to describe the premises as a shop at all or whether his shop would have any name which is required to be filled in as one of the particulars under that sub-section. For all we know, such small business may not have any name at all, obviously because the person carrying on such small business which is entirely of a temporary character may not think of the usefulness of giving any name to his business. Besides, under Clause 15 of the licence, he is prohibited from displaying any board or other contrivances to attract attention of the passers by on any part of the space allotted to him for the business. How, then, is he going to mention the particulars as regards the name of his so-called shop Secondly, coming to the requirement under Sub-rule (14) of rule 18, where is he going to keep the visitor's book if he has got no stall and if he just carries on his business by keeping his wares in a few baskets These requirements, in our opinion, are impossible to be carried out by such persons. If we are right in our conclusion in this behalf, we can confidently say that the legislature did not intend the provisions of this Act to be applied to the kind of business that the accused was found to be carrying on in this case. In order further to illustrate this conclusion of ours, we may as well take an example of a shoe-shine boy who is given a licence by the municipality to carry on his humble trade in a space allotted by the municipality. It is common knowledge that these shoe-shine boys have not got many implements to maintain for the purpose of carrying on their trade. They just have a couple of polish tins and a small pedestal or a desk for the purpose of keeping the customers' shoes on as also a piece of cloth to give a shine to the shoes after the polish is applied. It is very convenient for a shoe-shine boy carrying on his business at such a place to remove himself and all his implements after the prescribed hours and obviously he will not come upon the land on which he carried on his trade during the day after the prescribed hours until the morning of the next day. Could we expect this shoe-shine boy to fill up a form containing the particular as required by Sub-section (1) of S. 7 of the Act Could we reasonably expect such a shoe-shine boy to maintain a visitor's book under Sub-rule (14) of rule 18 of the rules made under the Act In our opinion, it will be fantastic to expect such shoe-shine boys to be called upon to comply with the requirements mentioned above. In our opinion, therefore, the provisions of the Act cannot apply and were not really intended to apply to the kinds of trade and to the kinds of premises on which such trades are being carried on as was done by the accused in the present case.
8. We are fortified in our conclusion by a decision of the Court of Appeal in England in Summers v. Roberts 1944 K.B. 106. In that case, the appellant had for sometime regularly and continuously occupied the site in question on Tuesdays and Saturdays for the purpose of carrying on his trade, paying 10s. for each day. The site was originally allotted to him - he had no right of selection - and approximately the same site was allotted to him each day; this was by custom and not under any express contract with the corporation. If the occupier of the site happened not to be able to attend on any day, he had a right, by payment of half-toll, to have the site kept for him on the next occasion that he presented himself, this also was by custom and not under any express contract with the corporation. If he did not come, the site would be given to some other applicant on that day. To effect his sales, the appellant hired each day, with the permission of the corporation, two trestles and a board for which he paid 1s. 6d. to a private individual. These he placed on the site, the board with no covering over it being supported by the two trestles, but not fixed in any way to them. On the board were placed the bottles. The appellant made his mixture on the spot and the place from which the appellant sold was nothing else than a board resting on two trestles, which were removed on each occasion. The Magistrate was of opinion that the sale did not take place from a 'shop' or 'premises' within the meaning of the Shops Act, 1912, and did not, therefore take place from a shop within the definition of 'shop' in S. 17, Sub-section (1), of the Pharmacy and Medicines Act, 1941, and, therefore, found the charge proved, dismissing the information under the Probation of Offenders Act, 1907, and ordering the appellate to pay 10s. costs. The conviction in this case was based upon the provisions of the Act under which the appellant could not sell his mixture except from a shop and inasmuch as the premises in which he carried on the business were found not to amount to a shop, he was convicted. In appeal it was contended that the premises in question did amount to a shop within the meaning of that word in the Pharmacy and Medicines Act, 1941, and that, therefore, the conviction for the offence charged against the appellant was bad in law. It was held that in construing the word 'shop' it must be interpreted from the setting and context in that Act and the word 'premises' in the definition connoted a permanent place, defined by precise limits, on which or on part of which there was some sort of structure where a regular retail business could be carried on. In course of the judgment it was observed by Viscount Caldecote, C.J., as follows (p. 112) :
'. . . Accepting that statement, as I do, as accurate, I do not find that the words used in the definition, as it is in the Pharmacy and Medicines Act, 1941, namely 'premises where any retail trade or business is carried on' are so wide as to require the court to find that a place or site in no way limited or bounded by any ascertainable marks or fences, with no structure upon it except an uncovered board resting upon two trestles, used for retail sale with no continuity or regularity except twice a week, on Tuesdays and Saturdays, is a 'shop' for the purposes of the Pharmacy and Medicines Act, 1941.'
9. In this case the facts are practically similar so far as the stall in question is concerned. Under the conditions of the licence it was required that no squatters' booth or stall shall be embedded in the ground or attached to a wall and that the licensee might put up a movable platform not less than one foot and not more than 1 1/2 feet in height to expose his articles for sale and might have an overhead cover of cloth, gunny or canvas as a temporary shelter against the sun or rain but so as not to cause nuisance or give rise to complaints. As we have pointed out above, under the conditions of the licence granted to the accused by the municipality, the accused had no permanent right of user of this land even for the whole period of one year for which the licence was to operate. He could occupy and use the premises for the purpose of his retail trade only during the fixed hours of the day. After the expiry of those fixed hours he had to remove himself lock, stock and barrel from the premises and clear the site. In this state of things, we are unable to accept the contention of the learned Assistant Government Pleader that the provisions of the Shops and Establishments Act, 1948, would as much apply to the premises in this case as to those of a permanent character in which any regular trade is carried on and which are in exclusive possession of the trader for all the hours of the day and night - may be for months or for years together. In our opinion, the learned Presidency Magistrate was in error in holding that the stall and or the space on which the accused carried on his retail trade in fruits amounted to 'premises' within the meaning of the Shops and Establishments Act, 1948.
10. Accordingly, we allow the revision application filed by the accused, set aside the order of conviction and sentence passed by the learned Presidency Magistrate and discharge the accused. Fine if paid to be refunded. The rule is made absolute.