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The Commissioner, Mettupalayam Municipality Vs. the Nilgiris Co-operative Marketing Society Ltd. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtChennai High Court
Decided On
Case NumberS.A. No. 1522 of 1992
Judge
Reported in2003(3)CTC481; (2003)2MLJ826
ActsTamil Nadu District Municipalities Act, 1920 - Sections 249
AppellantThe Commissioner, Mettupalayam Municipality
RespondentThe Nilgiris Co-operative Marketing Society Ltd.
Appellant AdvocateM. Liagat Ali, Adv.
Respondent AdvocateP.T. Usha, Adv. for Sarvabhauman Associates
DispositionAppeal dismissed
Cases ReferredK.S.M. Guruswami Nadar v. Municipal Health Officer
Excerpt:
commercial - license - section 249 of tamil nadu district municipalities act, 1920 - appellant who manufactured manure in different building in same premises sought for issuance of single license - business alone is criteria for license and not building - rationale behind levy is business that required license and not premises though it may be carried on in different buildings not independently - appellant admittedly carried on only one business though in different buildings - only one license is required in respect of business - appeal allowed. - .....the same compound. therefore, they have requested the municipality under exs.a1 to a3 to issue a single license, which was not accepted and in fact, it appears that the plaintiff was prosecuted, but ended in acquittal. the plaintiff society unable to convince the municipality for the issue of single license, for the single or the only business in the premises, approached the district munsif court, coimbatore by filing a suit in o.s.no. 318/84, for declaration that the plaintiff is entitled to take out only one single license, for storing and mixing of fertilizers in the same place consisting several contiguous buildings, though different door numbers were assigned.3. the suit was resisted by the appellant municipality on the ground inter alia that the plaintiff society is doing.....
Judgment:
ORDER

M. Thanikkachalam, J.

1. The defendant before the trial Court, who succeeded at the first instance failed in the first appeal and the result is the second appeal.

2. The respondent/plaintiff, who is the owner of certain buildings, which are within a compound spreading in an area of 3.6 acres, is doing manure manufacturing business after obtaining license from the appellant/defendant municipality. Though the plaintiff/respondent viz., Nilgiris Co-operative Marketing Society Limited obtained license for the above said business for each building, then they thought it fit that it may not be necessary for them to do so, in view of the fact that they are carrying on only one business, though in different buildings, within the same compound. Therefore, they have requested the Municipality under Exs.A1 to A3 to issue a single license, which was not accepted and in fact, it appears that the plaintiff was prosecuted, but ended in acquittal. The plaintiff Society unable to convince the municipality for the issue of single license, for the single or the only business in the premises, approached the District Munsif Court, Coimbatore by filing a suit in O.S.No. 318/84, for declaration that the plaintiff is entitled to take out only one single license, for storing and mixing of fertilizers in the same place consisting several contiguous buildings, though different door numbers were assigned.

3. The suit was resisted by the appellant municipality on the ground inter alia that the plaintiff Society is doing business in separate buildings, though they are within the same compound and it should be construed, as if separate business, which should follow, independent license is necessary for each building.

4. The learned District Munsif, after recording the evidence of P.W.1 and D.W.1, examined documents filed on behalf of the plaintiff/respondent, scanned and analysed the same, applying the provisions of Tamil Nadu District Municipalities Act, which brought to surface, according to the assessment of the learned trial Judge that the claim of the plaintiff/respondent is untenable. Thus concluding, the learned first Additional District Munsif, Coimbatore dismissed the suit on 14.11.90. The plaintiff Co-operative Marketing Society aggrieved by the judgment of the learned District Munsif, questioned the same before the Sub Court, Coimbatore in A.S.No. 213/91. The learned II .Addl. Subordinate Judge, considering the facts and circumstances, as well as the relevant provisions of the Tamil Nadu District Municipalities Act viz., 249 r/w Schedule V(j) came to the conclusion, that the buildings cannot be construed as contiguous buildings, and further that the plaintiff society is doing or carrying on only one business, though in different places within the same compound, which should not attract the issue of issuing separate license. In this view of the matter, the II Additional Subordinate Judge, set aside the decree and judgment of the lower Court and decreed the suit as prayed for as per the judgment dated 23.1.92 in A.S.No. 213/91.

5. The defendant Municipality by way of second appeal questioned the findings of the first appellate Court and at the time of the admission, the following substantial questions of law were framed.

1. Whether the ratio of the judgment reported in 7955 (2) MLJ 18 is applicable to the suit property or not?

2. Whether the interpretation given by the lower appellate Court with regard to 'contiguous building' is correct?

6. Heard the learned counsel for the appellant and the respondent, who have taken me through the evidence, as well as the provisions of law, in support of their respective contentions.

7. The plaintiff/respondent Co-operative Marketing Society Limited is engaged in the business of manufacturing of fertilizer or in other words mixing of the fertilizers, to the proportion required, within the Municipal limit of Mettupalayam Municipality. For this purpose, they have constructed from the year 1960 to 1981, eight buildings or so, in an area of 3.6 acres, which is enclosed by a compound wall. For the purpose of this business, initially, separate licenses were obtained for some buildings. Later on, wisdom dawn in the minds of the Society, to apply for single license, which was not accepted. Therefore, as said above, the suit was filed, originally dismissed, then in the first appeal, decreed, which is impugned before this Court.

8. The Accountant, who has been examined as P.W.1 would admit that there are eight buildings in an extent of 3.6 acres, and the buildings are separated by some distances, thereby showing that the buildings are not contiguous as rightly contended on behalf of the appellant. In the above said premises, whether it is in a single building or different building, as spoken by P.W.1, the plaintiff society is preparing manure or fertilizer by purchasing raw materials from different places, storing the same and mixing. This fact is admitted even by D.W.1, Sanitary Inspector, who has been examined as D.W.1 on behalf of the Municipality. All the eight buildings, whether they are contiguous or adjacent to each other, in all the buildings admittedly also, I should say without contradiction that the plaintiff society is not running different businesses, whereas only one business viz., preparing manure or fertilizer, by mixing different raw materials. One of the buildings is used as office, one of the buildings is used for erecting the motor and one of the buildings is used as Laboratory. Erection of motor in a building and constituting a Laboratory in another building and maintaining an office in another building, are all for the purpose of managing the only business viz., manufacturing of fertilizer. After manufacturing or mixing the fertilizer, they store it in different buildings, probably due to want of space in a single building. After completing the process of manufacture or mixing the manure, as spoken by the witness, not contradicted, they were taken to different places for sales and if at all, it could be said that the Society is selling the manure or fertilizer as wholesale to other societies or to the needies and it is not the case of anybody, that the Society is selling the fertilizer and is having retail shop in any one of the buildings, thereby attracting the said act, as different business than the business of manufacture and storing. In fact P.W.1 admits candidly He further admits after storing the manure or fertilizer, the Society is taking the bags to various places, for sale, thereby showing that the Society is not having the retail shop within the compound in any one of the buildings though there are 8 buildings. P.W.1 admits during the cross examination that they used to purchase the raw materials from outside, where they are sold. That does not mean, that they are selling the raw material or fertilizer within the disputed premises, as an abortive attempt made by the learned counsel appellant, to say that they are carrying on sales also within the premises.

9. In the written statement, it is not the case of the appellant, that the plaintiff society is carrying on different businesses in different buildings. 'The contention of the defendant appears to be that the buildings have been constructed, in a row, by the plaintiff, they are distinct and separate, having separate ingress and egress and therefore, for the service rendered by the Municipality, separate licenses have to be obtained. Admittedly, all the buildings are assessed to property tax, separately and there is no dispute thereby showing, for the service to be rendered to the buildings, the Municipality has assessed the property separately, fixing the property tax also. If the plaintiff claims that they are liable to pay a single property tax, in view of the fact that they are carrying on only a single business, then it could be said that the contention of the plaintiff is untenable. But the plaintiff Society is paying property tax for each building. That does not mean that if a single business is carried out in all the buildings, whether it is contiguous or adjacent, in my considered opinion, single license is sufficient, for which I will assign reasons infra, on the basis of the admitted facts, narrated supra.

10. The learned counsel for the appellant would contend that the ratio laid down by this Court in the case of K.S.M. Guruswami Nadar v. Municipal Health Officer, Coimbatore Municipality was not properly followed by the first appellate Court and therefore, the judgment of the first appellate Court requires reversion. On this question of law also, the second appeal was admitted originally. It is the further contention of the learned counsel for the appellant, that the interpretation given by the first appellate Court with regard to contiguous building is incorrect and in view of the fact that the buildings are separate and they are used for separate purposes, Section 249 r/w Schedule V should be attracted.

11. Per contra, the learned counsel for the respondent Co-operative Marketing Society would contend, that there are separate buildings having separate door Numbers, that in all the buildings only one business or in other words a single business is carried on viz., mixing the raw materials for the preparation of fertilizer and therefore, for the single business, one license is sufficient, irrespective of the fact whether they are contiguous buildings or adjacent buildings, as the case may be. In this context, we have to see the provisions of the Municipalities Act, in this regard.

12. Section 249 of the Tamil Nadu District Municipalities Act, 1920 mandates that any place within the Municipality should not be used without license for the purposes, enumerated under the Section. Schedule V (d) reads 'storing or otherwise dealing with manure' Sub Section (j) does not contemplate license for storing or otherwise dealing with manure. Therefore, if a person wants to store or deal with manure within the municipal limit or within the area mentioned under the Act, then as contemplated under Section 249, he should obtain license from the Executive Authority, who is competent to issue license, for the purpose of storing or otherwise dealing with manure. The Section or Schedule does not say specifically, that if the storing or otherwise dealing with manure, takes place in different buildings, consisting of a single business, it should attract separate license. It contemplates only one license for one business. It is rational to hold, if a person is carrying on same kind of business independently in different buildings, whether it is in the contiguous building or adjacent building elsewhere, then considering the independent nature of the said business, though of the same nature, then he should be directed to obtain license for each business irrespective of the fact, that he is doing the same kind of business. On the other hand, if the business is one and the same or interconnected or interrelated, then the question of obtaining different licenses or more licenses, may not arise. In this case, if the storing is not carried out, after the purchase of the raw materials, then the question of mixing, may not be possible and storing the end product also may not be possible. For the purpose of this business, administrative office is required and other equipment are also required; and for want of space in a single building, if they are carried on different buildings, there is nothing wrong. Admittedly, as pointed out by me supra, the plaintiff/respondent is carrying on only one business and nothing more. Therefore, at any stretch of imagination, it could not be concluded, that the plaintiff is doing the same business in different places, attracting separate license fee also.

13. In the case involved in K.S.M. Guruswami Nadar v. Municipal Health Officer, Coimbatore Municipality the plaintiff therein was running a hotel in two different door numbers - one belongs to a Nadar Gentleman and another belongs to Mohammadan Gentleman- Though two buildings belong to different individuals, the plaintiff therein was carrying on a single business viz., Bangalore Briyani Hotel, converting the two buildings more or less into a single building, for convenient purpose of his business. But, the Municipality insisted the plaintiff therein to take out two licenses for running hotel, since the business is carried on, in two different door numbers. On his failure, he was prosecuted and convicted, which was questioned. In the said case, this Court has taken the view as follows:

'It would be a forced interpretation to shy that because the business is carried on in the same place but for which different door numbers have been given, it should be immediately construed as more than one business in more than one place.'

It is also observed that the unit for which the license fee has to be levied, is the business in a place, irrespective of the door numbers. In this view of the matter, the conviction was set aside. I respectfully agree with this conclusion.

There is an observation in the judgment that -

'if the same business is carried on in several places like for instance a hotel being run in different streets or even across the street or even in non-contiguous places, license fee can be collected for the businesses carried on in the several places. I find no difficulty in making this clarification because if they are not situated in the same place, naturally they will be liable to take out as many licenses as the places in which the business is carried on.'

On the basis of this observation alone, it appears the learned counsel for the appellant would contend, that the business is carried on in several places and therefore, separate license should be obtained. Admittedly, the plaintiff society is not carrying on the same business in several places, whereas the same business, which is connected with other process viz., a single business is carried on in different buildings, as involved in the ruling cited above. Therefore, the ratio laid down in the above ruling is not contravened, by the first appellate Court, as incorrectly urged by the learned counsel for the appellant.

14. Under the above circumstances and in view of the admitted facts, I am of the positive opinion that business alone is the criterion for license and not the buildings. The rationale behind the levy is the business, that requires a license and not the building or the premises, though the same business might have been carried on, in different buildings, not independently, but as connected affairs. In our case, the Society after purchasing raw materials from various places, stores the same in different buildings, then mixes it as manure and the end products are stored in the same building; and thereafter taken to various places for sales, which would go to show that they are carrying on, only one business viz., manufacturing of manure or the mixing of raw materials, not attracting separate license.

15. The learned counsel for the appellant drew my attention to the decision of the Supreme Court in Calcutta Municipal Corporation & Ors : AIR1995SC419 , to confirm his view for separate license. From the reading of the above judgment and the facts involved therein, I should say that the dictum laid down by the Apex Court would not be applied to the facts of our case. In the case involved in the above decision, the Apex Court had held, that though the restaurants and the bar are part and parcel of the hotel, the restaurants run by the company are places similar to the dancing halls and, as such, are places of public amusement covered by the provisions of Section 443 of the Act. In our case, such facts are not available and therefore, the application of the above dictum, does not arise.

16. The first appellate Court elaborately considering the nature of business, as well as the dictum laid down in 7955 (2) MLJ 180, has come to a correct conclusion, while reversing the judgment of the trial Court and I find no error of any kind, either on facts or on law warranting my interference.

17. For the foregoing reasons, I conclude that the plaintiff is not entitled to take different licenses for the business, as such and a single license is sufficient which should follow, he is entitled to decree as prayed for.

18. The learned counsel for the appellant contended that the plaintiff after manufacturing the manure, is selling the same in one of the places and for that purpose, at least separate license is required. Except the argument advanced by the learned counsel, to accept the same as correct, there is neither pleadings nor evidence. If the plaintiff society is carrying on business apart from mixing of manure, such as sale in the same premises, then it should be considered as different business, and in that case, they may be bound to take license and it is for the municipality, to issue notice and take appropriate action and in this case, as such, on admitted facts, the plaintiff is entitled to decree. Hence, these points are answered accordingly.

In the result, the appeal is dismissed, but under the facts and circumstances of the case, without costs.


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