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Corporation of the City of Bangalore Vs. Andanappa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Appeal No. 348 of 1979
Judge
Reported inAIR1986Kant231; ILR1985KAR2104; 1985(2)KarLJ202
ActsKarnataka Municipal Corporation Act, 1976 - Sections 343, and 343(l)
AppellantCorporation of the City of Bangalore
RespondentAndanappa
Appellant AdvocateA. JagannaLtha Shetty, Adv.
Respondent AdvocateH. Subramanya Joise and ;S. Nagaraj, Advs.
Excerpt:
.....virtually to the effect that he is in the position of a street-hawker like the ordinary milk vendor who goes and sells milk door to door, who does not have any fixed place where he keeps milk for sale......respondent challenged the high-handed action of the appellants in the aforesaid writ petition. the learned single judge has, by his order dated the 1st of january, 1979 allowed the writ petition quashed the impugned orders and directed the appellants to deliver the keys of the premises and other articles stated to have been seized and kept in premises no. 40 in a condition in which they were seized, we are now informed by sri jagannatha shetty, learned counsel for the appellants, that though the order of the learned single judge has been challenged in this appeal, the mandamus issued by the learned single has been obeyed and the articles seized have been returned and the possession has been restored as before.2. in this appeal, however, it was maintained by sri jagannatha shetty, learned.....
Judgment:

Malimath, C.J.

1. This Appeal is by the Corporation of the City of Bangalore and Senior Health Inspector of the Corporation of City of Bangalore challenging the order made by the Learned single Judge in Writ Petn. 11945 of 1978. The appellants issued a show cause notice to the Respondent alleging that he has been running a milk dairy at premises No. 40, Vth Block, Rajajinagar, Bangalore 10 without obtaining the licence as required by law. The Respondent by his letter written through his Counsel dated 23rd September, 1978, Annexure D, showed cause. In the said representation it is stated that the Respondents, no doubt, a milk vendor who sells milk in Rajajinagar Lrea. It is however stated that so far as premises No. 40 is concerned, it is a small shop measuring about 4' X 6' in which a tailor has been running a tailoring shop in the name and style of Sri. Vijayalakshmi Tailoring Hall. It is further stated that in the early hours of each day and in the afternoons, the Respondent vends milk in front of the said shop for about fifteen to twenty minutes and proceeds to the next place where he is to vend milk. He has positively asserted in paragraph two of the said representation that he is not maintaining or owning any shop in any area in Rajajinagar or in any part of the City of Bangalore. The other averments in the reply of the Respondent are not necessary to be adverted to. After this cause was shown, the Commissioner for the Corporation issued a memo dated 30th September, 1978 as per Annexure-C authorising Sri Rasheed Khan, Senior Health Inspector of III Circle under Section 343 of the Karnataka Municipal Corporations Act. 1976 to close the unauthorised milk dairy of the Respondent located at premises No. 40, Vth Block on the ground that he is running the milk dairy in spite of the closure order served on him on the 19th of August, 1978. It appears that this memo was executed, the articles belonging to the respondent were seized and the Respondent was prevented from vending milk. The Respondent challenged the high-handed action of the appellants in the aforesaid Writ Petition. The Learned single Judge has, by his order dated the 1st of January, 1979 allowed the Writ Petition quashed the impugned orders and directed the appellants to deliver the keys of the premises and other articles stated to have been seized and kept in premises No. 40 in a condition in which they were seized, We are now informed by Sri Jagannatha Shetty, Learned Counsel for the appellants, that though the order of the Learned single Judge has been challenged in this appeal, the mandamus issued by the Learned single has been obeyed and the articles seized have been returned and the possession has been restored as before.

2. In this appeal, however, it was maintained by Sri Jagannatha Shetty, Learned Counsel for the appellants, that the Corporation is really interested in proper interpretation of the provisions of S. 343 of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as the 'Act') as that provision is one which is required to be enforced off and on. Sri Jagannatha Sheity, Learned Counsel for the appellants, maintained that the interpretation of S. 343 of the Act by the Learned single Judge, is not correct. Section 343 of the Act may, for the sake of convenience, be extracted as follows: -

'343. Prohibition in respect of lodging houses : -

(i) 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 recognized control.

(2) The Commissioner may at any time cancel or suspend any licence granted under sub-section (1) if he is of opinion that the premises covered thereby are not kept in conformity with the conditions of such licence or with the provisions of any bye-law made under S. 423 relating to such premises whether or not the licencee is prosecuted under this Act.

The learned single Judge has taken the view that this Section which requires obtaining licence, is not applicable to the present, case on the ground that it is nobody's case that the Respondent is running a lodging house wherein the vending of milk was taking place. The learned single Judge has held that Section 343 of the Act will not be applicable unless the activity referred to in the said provisions takes place in a lodging house. As it is nobody's case that the activity of vending milk is taking place in a lodging house kept by the Respondent, the learned single Judge has held that the obligation to obtain licence did not arise.

3. Sub-section (1) of S. 343 provides that no person shall, without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, (1) keep any lodging house, (2) keep any tea shop, (3) keep any eating house, (4) keep any coffeehouse, (5) keep any cafe, (6) keep any restaurant, (7) keep any refreshment room or keep 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. The language of sub-sec. (1) of S. 343 of the Act makes it abundantly clear that mere keeping of a lodging house by itself is sufficient to attract the liability of obtaining a licence. Likewise, keeping of any place for consumption of any food or drink or keeping of any place where food is sold or prepared for sale, also attracts the liability of obtaining a licence. The language of sub-section (1) of S. 343 does not warrant an inference that the consumption of food or drink for sale or preparation for sale of food should take place in a lodging house in order to attract the liability to obtain licence. All these are independent matters. Therefore, it is not possible to agree with the view taken by the learned single Judge that the consumption of food or drink, sale or preparation for sale of food should take place in a lodging house that licence becomes necessary. In our opinion, the liability to obtain licence arises the moment any person keeps any place either as a lodging house or as an eating-house, or as a tea shop or as a coffee house or as a cafe or as a restaurant or as a refreshment room or keeps any place where public are admitted to repose or for the consumption of any food or drink or any place where food is sold or prepared for sale. It cannot be disputed that milk is both food and a drink. Therefore, any place kept for the purpose of sale of milk would necessarily attract the liability of obtaining licence under sub-section (1) of S. 343. The learned single Judge appears to have been guided by the head-note of S. 343 which reads 'prohibition in respect of lodging houses'. Its head-note can be utilised as offering some guidance in the matter of interpreting the relevant provision. The head-note does not ordinarily enumerate all matters which are comprised in the principal section. Therefore, merely because the head-note refers to lodging house, it is not possible to construe the provisions of sub-section (1) of S. 343 as being applicable only to lodging houses. With respect, it is, therefore, not possible to agree with the view taken by the learned single Judge. In our opinion, if a person keeps a place for the purpose of sale of milk he would be required to obtain a licence as required by subsection (1) of Section 343, of the Act.

4. But, on merits, we are not inclined to interfere with the final direction issued by the learned single Judge in this case for the reasons to be stated presently. The Respondent, in his reply sent to his Counsel, dated 23rd September 1978, has specifically asserted that he had not kept premises No. 40, V Block, Rajajinagar, Bangalore for vending milk. He has asserted that it is a small shop measuring 4' X 6' wherein a tailor is running a tailoring shop by name 'Sri Vijayalakshmi Tailoring Hall'. He has asserted that he is not vending milk and he has not kept the premises for that purpose. He has specifically asserted that for a short period of 15 to 20 minutes in the morning and in the afternoon, lie vends milk in front of that shop premises. In other words, he has asserted that he is not keeping the premises in question for the purpose of vending milk. The stand taken by him is virtually to the effect that he is in the position of a street-hawker like the ordinary milk vendor who goes and sells milk door to door, who does not have any fixed place where he keeps milk for sale. Though this explanation was offered by the Respondent, no attempt was made to consider the same and then to decide as to whether there is truth or otherwise in the stand taken by the Respondent. Without taking into consideration the cause shown by the, Respondent, the authorities have taken the action which has been quashed by the learned single Judge. On this short ground of violation, of principles of natural justice, we affirm the final decision of the learned single Judge though, on interpretation of sub-section (1) of S. 343, we disagree with the view taken by the learned single Judge.

With this observation, this appeal stands disposed of. No costs.

5. Order accordingly.


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