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Sher Mohomed Musahib Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberCr. R.A. No. 327 of 1969
Judge
Reported in(1971)73BOMLR349; (1971)IILLJ31Bom
ActsBombay Shops and Establishments Act, 1948 - Sections 2(4), 7(1), 52, 60(1) and 62; Societies Registration Act, 1860
AppellantSher Mohomed Musahib
RespondentThe State of Maharashtra
Excerpt:
.....manufacturing wearing apparel in his house and selling it in market elsewhere--whether house 'commercial establishment' as defined in section 2(4).;a skilled occupation which involves the application of a manufacturing process to a commodity submitted to the person carrying on the occupation must be regarded as 'trade' within the meaning of the word contained in section 2(4) of the bombay shops and establishments act, 1948. ;where a person had installed a power-loom in his house and was manufacturing saris and lungis for the purpose of selling them in the market elsewhere, it was held that his house where he manufactured these came within the definition of 'commercial establishment' as defined in section 2(4) of the bombay shops and establishments act, 1948.;state v. khalil..........therefore, can it be said that because he sells the commodity in the market, he is not doing any trade or business it would be difficult for me to accept the contention of the learned advocate for the applicant when he says that the applicant's establishment should not be termed as a 'commercial establishment' because he does not sell the commodity at his house where he manufactures but sells it in the market. he evidently carries on an occupation which could be said to be a skilled employment with a view to earn profit. he manufactures the saris and lungis at his house with the help of the power-looms and carries on the occupation, although he sells the goods in the market. if that is so, then he should certainly be regarded to be in that trade with a view to earn profit. 7. the.....
Judgment:

1. This is an application in revision against the judgment passed by the Additional Sessions Judge, Nagpur, in an appeal by which he confirmed the order of conviction and sentence passed on the applicant under S. 52 of the Bombay Shops and Establishments Act, 1948 (hereinafter called the Shops Act). He is alleged to have contravened the provisions of S. 7(1) and S. 62 of the Shops Act.

2. The applicant is a weaver. He had installed a power-loom in his house in the year 1965 for manufacturing saris and lungis. He purchases raw materials from the market and works on his power-loom in his house. He finishes the goods and sells them in the market. The inspector visited the house of the applicant on January 28, 1967 and found that he had never sent any application in the prescribed form under S. 7(1) of the Shops Act to him for registration of his (applicant's) commercial establishment. He further found that the applicant did not maintain the visit book meant for writing the remarks by the Inspector at the time of inspection of the premises. The applicant, therefore, is said to have contravened the provisions of the Shops Act. Accordingly, therefore, he was prosecuted.

3. The applicant pleaded not guilty and has stated that he had been manufacturing saris and lungis on the power-looms from the year 1966 and that although he manufactures them at his premises, he sells them in the handloom market at Nagpur and not at his house. He admits not having secured any licence for the purpose under the Shops Act. His case therefore is that because he does not sell the saris and lungis in his house where he manufactures them, but because he sells them in the market, therefore, he has not contravened the provisions of the Shops Act.

4. The learned Magistrate after considering the evidence found that the applicant had failed to send the necessary statements to the Inspector within the prescribed period for registration of his establishment and that he had also failed to maintain any visit book as required by the Shops Act. According to him, the establishment run by the applicant was a commercial establishment within the purview of the definition in the Shops Act. He, therefore, convicted him accordingly and sentenced him to pay a fine of Rs. 30, in default to suffer rigorous imprisonment for 10 days on each count. This order was challenged by the applicant in the Sessions Court. The learned Additional Sessions Judge heard the appeal and after considering the evidence confirmed the order of conviction. The learned Additional Sessions Judge relied on the judgment of this Court in State v. Khalil Ahmad Abdul Gaffar, (1965) Criminal Appeal No. 165 of 1965, (Unrep.), decided by Kotval J., on December 6, 1965. This is an unreported case. That was a case in pari materia with the facts of our case. After considering the points argued before him, the learned Additional Sessions Judge came to the conclusion that the applicant had contravened the provisions of the Shops Act and, therefore, he dismissed the appeal and confirmed the order of conviction passed by the trial Court. This order is challenged here. The point, therefore, that arises here for consideration is to see whether the order of the learned Additional Sessions Judge is legal and proper.

5. The learned advocate for the applicant contends here that the case of the applicant cannot come within he definition of 'commercial establishment' in the Shops Act. The 'commercial establishment' under S. 2(4) of the Shops Act is defined to mean an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession and includes a society registered under the Societies Registration Act, 1860, and a charitable or other trust, whether registered or not, which carries on, whether for purposes of gain or not, any business, trade or profession or work in connection with, or incidental or ancillary thereto, but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment. Therefore, a commercial establishment is an establishment. This establishment must carry on business, trade or profession. It must carry on for the purpose of gain or it need not even carry on for the purpose of gain. But it must carry on a business, trade or profession. Therefore, 'commercial establishment' is some kind of place where business, trade or profession is carried on, whether it is for purposes of gain or not.

6. Trade in its largest sense is the business of selling, with a view to profit, goods which the trader has either manufactured himself or purchased. Trade, in its legal usage, is a term of widest scope. It indicates a way of life or an occupation. Undoubtedly, in its primary sense, the word 'trade' means exchange of goods for goods or for money. But in a secondary sense, it includes any business carried on with a view to profit, whether manual or mercantile as distinguished from the liberal arts or learned profession. A skilled occupation therefore which involves the application of a manufacturing process to a commodity submitted to the person carrying on the occupation must, therefore, be regarded as 'trade'. Therefore, cannot the occupation of the applicant be said to be a trade which is a business of selling with a view to profit It is true that he manufactures the saris as well as lungis at his house with a power-loom and he sells them in the market. It also appears from the evidence of the Inspector, Madhukar Dhabe, that the applicant also has engaged some employees for the purpose of working on the power-looms. Therefore, can it be said that because he sells the commodity in the market, he is not doing any trade or business It would be difficult for me to accept the contention of the learned advocate for the applicant when he says that the applicant's establishment should not be termed as a 'commercial establishment' because he does not sell the commodity at his house where he manufactures but sells it in the market. He evidently carries on an occupation which could be said to be a skilled employment with a view to earn profit. He manufactures the saris and lungis at his house with the help of the power-looms and carries on the occupation, although he sells the goods in the market. If that is so, then he should certainly be regarded to be in that trade with a view to earn profit.

7. The learned advocate for the applicant relies on certain observations made in Sakharam v. City of Nagpur Corporation : AIR1964Bom200 . That was a case in which an advocate's profession was the subject-matter and it was contended that an advocate's profession was not a commercial activity. Although, therefore, the facts and circumstances of that case were entirely different, yet the learned advocate for the applicant invites my attention to certain observations in this case on the principle of interpretation and urges that that principle should be adopted here. This Court had observed at page 635 of that case that the principle of interpretation of a provision of a statute was that where words of very wide amplitude are used in a definition, caution has to be taken to see whether even within the definition itself there is an indication which limits the amplitude or wide range which would otherwise be given to the bare words. It was argued there that the definition of 'commercial establishment' indicates by the use of the word 'commercial' a limitation to the establishment. Now, it is true that if words of very wide amplitude are used in a definition, we have to be cautions and construe them not only by the plain and grammatical meaning of the words used but also by noticing the context in which those words are used.

8. But we have seen that 'commercial establishment' is not only an establishment which carries on trade but also business, whether for the purposes of gain or not. 'Trade' can be an occupation of selling for profit or can be exchange of goods either manufactured by himself or purchased for money. 'Business' also is a wider term than, and not synonymous with, 'trade' and means practically anything which is an occupation as distinguished from pleasure. The profit or intention to make profit is not an essential part of the legal definition of a trade or business. Business includes trade. Therefore, the occupation followed by the applicant can well come within the purview of the word 'business' as well as 'trade'.

9. The applicant's premises therefore is a 'commercial establishment' as defined in S. 2(4) of the Shops Act. This is also the view of my learned brother Mr. Justice Kotval (as he then was) in State v. Khalil Ahmad. In that case the accused had two power-looms at his house in Bhivandi. He had at one time applied for the registration of his premises under the Shops Act and even got a certificate out later on he applied for renewal certificate and in anticipation after the expiry of the first certificate, he was still working on the power-looms without any certificate.

10. Accordingly, therefore, he was prosecuted under S. 60(1) of the Shops Act. His Lordship in that case referred to Sakharam v. City of Nagpur Corporation and distinguished that case with the instant case which was before him. It was also urged in that case that the accused was manufacturing cloth at home and that he was selling the cloth in the market at Bombay and obtaining its price also there. It was, therefore, argued that the working of the power-looms at his house, would not come within the purview of the definition 'commercial establishment'. That argument was repelled on the ground that the goods supplied were against the contract and that the receipt of money at Bombay was irrelevant if the goods were manufactured for the purpose of selling and were in fact sold elsewhere. Even if the price of goods supplied from the establishment was received at another place and at a later date, it will not matter much. Kalidas Dhanjibhai v. State of Bombay (1954) 57 Bom. L.R. 702, was also referred to and distinguished. His Lordship, therefore, held in that case that the accused's manufacturing of the cloth at home with power-looms will come within the definition of 'commercial establishment'. With respect, I agree with this proposition of law laid down in that case.

11. Therefore, when the accused had installed a power-loom in his house and was manufacturing saris and lungis for the purpose of selling them in the market elsewhere, his premises, in my view, will come within the definition of 'commercial establishment' as defined in the Shops Act. The two Courts below, therefore, were right in convicting the accused-applicant here.

12. This application, therefore, is dismissed.


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