IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIRST DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 23655 of 2003 BETWEEN: 1 Mahavir Distribution, Rep. by its Prop. Motilal Jain, S/o Seshumal Jain, 16-A, Srinivasa Cloth Market, Kurnool. 2 Prasad Textiles, Rep. by its Prop. V. Hari Prasad, S/o V. Narayana Setty, Minchin Bazaar, Kurnool. 3 Kamalaya Textiles, Rep. by its prop. K. Satyanarayana, S/o Venkata Ramaiah, Minchin Bazaar, Kurnool. 4 Sri Satyanarayana Textiles, Rep. by its Prop. K. Satyanarayana, S/o Venkoba Rao, Minchin Bazaar, Kurnool. 5 Sri Balaji Handloom, Rep. by its Prop. Venkoba Rao, S/o Subbanna, Minchin Bazaar, Kurnool. 6 Mahalaxmi Silk House, Rep. by its Prop. K. Pundareekakshaiah, S/o. Naganna, Minchin Bazaar, Kurnool. 7 Mahalaxmi Silk House, Rep. by its Prop. K. Pundareekakshaiah, S/o. G. Yellapa, Minchin Bazaar, Kurnool. 8 Sreenivasa Handloom, Rep. by its Prop. G. Gangadhar, S/o G. Venkata Swamy, S.No.38/62, Minchin Bazaar, Kurnool. 9 Mani Mahila Hosiery Store, Rep. by its Prop. S. Akhtar Basha, S/o Rahim Miah, Minchin Bazaar, Kurnool. 10 Tirumala Handloom, Rep. by its Prop. G. Venkatesh, S/o Lakshmanna, Minchin Bazaar, Kurnool. 11 Naveen Hosieries, Rep. by its Prop. S. Narayana, S/o S. Ampaiah, S.No. 38/69, Minchin Bazaar, Kurnool. 12 Sri Hanuman Textile, Rep. by its Prop. M. Suresh Kumar, S/o Venganna, S.No. 38-72, Minchin Bazaar, Kurnool. 13 New Sreenivasa Textile, Rep. by its Prop. K. Sreenivasulu, S/o Ramaiah, Minchin Bazaar, Kurnool. 14 Sri Mallikarjuna Textile, Rep. by its Prop. G. Mallesh, S/o G. Narayana, Minchin Bazaar, Kurnool. 15 Sri Parvathi Cloth and Banian Centre, Rep. by its Prop. K.E. Raman Goud, S/o K.E. Venkata Swamy, S.No.38/75, Minchin Bazaar, Kurnool. 16 Maharaj Dresses, Rep. by its Prop. P. Arjun Singh, S/o Veer Singh, No.18, Srinivasa Cloth Market, Kurnool. 17 M/s. Manek Moti Textiles, Rep. by its Prop. Nathmal Bhandari, S/o Otmalji, No.18, Srinivasa Cloth Market, Kurnool. 18 New Srinivasa Cloth Palace, Rep. by its Prop. M. V. Satyanarayana, S/o venkata Subbaiah, No.17, Srinivasa Cloth Market, Kurnool. 19 Sree Rajeswari Silk House, Rep. by its P. Gopalaiah, S/o Guruvaiah, No.17-B, Srinivasa Cloth Market, Kurnool. 20 Sri Jagadesh Silk House, Rep. by its Prop. Jagadesh Kumar, S/o Subramanyam, No.16-A, Sri Srinivasa Cloth Market, Kurnool. 21 Sri Nagaraja Cut Pieces & Saree Centre, Rep.by its Prop. M. V. Nagaraj, S/o M. V. Satyanarayana Gupta, No.14, Sri Srinivasa Cloth Market, Kurnool. 22 Sri Anil Silk House, Rep. by its Prop. R. Aluraiah S/o R. Venkata Subbaiah, No.14/A, Sri Srinivasa Cloth Market, Kurnool. 23 Sri Ravi Teja Silk House, Rep. by its Prop. P. Lakshmi Narasaiah, S/o. P. Gurraiah, No.13, Sri Srinivasa Cloth Market, Kurnool. 24 Chandana Silk House, Rep. by its Prop.K. Prasad, S/o K. Rama Murthy, No.11, Srinivasa Cloth Market, Kurnool. 25 Srinivasa Dresses, Rep. by its Prop. S. Kumar, S/o. S. Subbaiah, No.11, Srinivasa Cloth Market, Kurnool. 26 Pravin & Co., Rep. by its Prop. Mulchand, S/o S. Asavaji, No.10, Srinivasa Cloth Market, Kurnool. 27 Sri Balaji Silk Palace, Rep. by its Prop. Khaja Rao, S/o Ramaiah, No.6-B, Srinivasa Cloth Market, Kurnool. 28 New Chandrakala Silk House, Rep. by its Prop.M. Ramesh Babu, S/o M. Venkata Subbaiah, No.6-A, Srinivasa Cloth Market, Kurnool. 29 Radha Silk House, Rep. by its Prop. M.V. Subba Rao, S/o M. Venkata Subbaiah, No.5-A, Srinivasa Cloth Market, Kurnool. 30 Devatha Silk House, Rep. by its Prop. B. Venkateswarlu, S/o. B. Subbarayudu, No.5-B, Srinivasa Cloth Market, Kurnool. 31 Dwaraka Silk House, Rep. by its Prop.M. Sreenivasulu, S/o. M. Rama Subbaiah, No.4-A, Srinivasa Cloth Market, Kurnool. 32 Vijaya Cut Piece Centre, Rep. by its A. Vijaya Kumar, S/o A. Narasaiah, No.3, Srinivasa Cloth Market, Kurnool. 33 Ramya Matching Centre, Rep. by its Prop. A. Krishna Murthy, S/o A. Narsaiah, No.3-A, Srinivasa Cloth Market, Kurnool. 34 Rajeshree Saree Collection, Rep. by its Shantilal, S/o Ramchodmal, No.2, Srinivasa Cloth Market, Kurnool. 35 Sadananda Cloth Palace, Rep. by its G.P. Chenchaiah, S/o Late G. Akkaiah, No.11, Srinivasa Cloth Market, Kurnool. 36 Janapriya Show Room, Rep. by its B. Venkata Rami Reddy, S/o. Subba Reddy, No.37-A1, Srinivasa Cloth Market, Kurnool. 37 Priyanka Matching Centre, Rep. by its P. Narasimhulu, S/o P. Laxmi Narayana, No.34-A, Srinivasa Cloth Market, Kurnool. 38 New Chandra Kala Garments, Rep. by its Prop. K. Sreenivasulu, S/o Subbaiah, Srinivasa Cloth Market, Kurnool. 39 New Vijaya Silk House, Rep. by its prop. S. Seshaiah, S/o S. Subbarayudu, No.31-B, Srinivasa Cloth Market, Kurnool. 40 M/s. Mahalakshmi Sales Corporation, Rep. by its Prop.Ramesh S/o Keval Chanji, 29-A, Srinivasa Cloth Market, Kurnool. 41 Mummy Dresses, Rep. by its Prop. Ramesh Kumar, S/o Himat Malji, No.10 srinivasa Cloth Market, Kurnool. 42 M/s. Praveen Corporation, Rep. by its Prop. Suresh Kumar, S/o Kaluji, No.9, Srinivasa Cloth Market, Kurnool. 43 New Praveen Dresses, Rep. by its Prop. Lalchand, S/o Bhurmool, No.22, Srinivasa Cloth Market, Kurnool. 44 Raghavendra Textiles, Rep. by its Prop. Y. Venkata Swamy, S/o Y. Bala Kumar, No.18/10040C, S.S.C. Market, Kurnool. 45 Kamala Silk House, Rep. by its Prop. S. Suresh Babu, S/o. S. Ramaiah, No.4 Srinivasa Cloth Market, Kurnool. 46 Devi Silk House, Rep. by its prop. M. Venkateswarlu, S/o Venkata Subbaiah, No.39, Srinivasa Cloth Market, Kurnool. 47 Sri Lakshmi Garments, Rep. by its Prop. S. Bhanu, S.S.C. Cloth Market, Kurnool. 48 Sri Bhaskar Cut Piece, Rep. by its Prop. M. Haji Ratnamaiah, S/o M. Ramaiah, No.37-B, Srinivasa Cloth Market, Kurnool. 49 Sri Balaji Cut Piece Centre, Rep. by its prop. S. Sudhakar, No.38, Srinivasa Cloth Market, Kurnool. 50 Sudha Silk Palace, Rep. by its Prop. M. Satyanarayana, S/o Venkata Subbaiah, Srinivasa Cloth Market, Kurnool. 51 Sri Eswara Cloth Stores, Rep. by its Prop. S. Chandra Sekhar, S/o. S. Eswaraiah, No.32-A, Srinivasa Cloth Market, Kurnool. 52 Sri Durga Textiles, Rep. by its Prop. M. Vinkoba Rao, S/o Venkoba Rao, No.34, S.S.C. Market, Kurnool. 53 Maha Shakthi Handloom, Rep. by its K. Raju, S/o Kevalchandji, No.29-B, Srinivasa Cloth Market, Kurnool. 54 P. Ramanji Rao's Fancy Sarees, Rep. by its Prop. P.C.Venkata Ramanaji, S/o P. Venkata Raman, S.No.28-A, Srinivasa Cloth Market, Kurnool. 55 Pushkar Agencies, Rep. by its Prop. S. Manikchand Jain, S/o Seshmal Jain, No.14-A, Srinivasa Cloth Market, Kurnool. 56 Sri Dhanalaxmi Silk Palace, Rep. by its Prop. A. Naghuramaiah, S/o A. Nagamaiah, No.22, Srinivasa Cloth Market, Kurnool. 57 Archana Garments, Rep. by its Prop. B. Gopal, S/o S. Hanumanthappa, 13-A, Sri Srinivasa Cloth Market, Kurnool. 58 Dharmavaram Silk and Saree, Rep. by its Prop. G. Raj Krishna, S/o Late G.C. Sreenivasulu, No.1, Sri Srinivasa Cloth Market, Kurnool. 59 Sri Venkatagiri Saree Kendra, Rep. by its Prop.P. Sreenivasulu, S/o P. Shankaraiah, No.32, Srinivasa Cloth Market, Kurnool. 60 P. Ramanaji Rao Silk House, Rep. by its Prop. P. Ramanaji Rao, S/o Late Pedda Venkoba Rao, No.28, Srinivasa Cloth Market, Kurnool. 61 Sri Lakshmi Balaji Handloom, Rep. by its Prop. P. Pullaiah, S/o P. Narasaiah, No.18/100/A/40B, under Satya Sai Association Building, Srinivasa Cloth Market, Kurnool. 62 Surya Marketing, Rep. by its Prop.G. Prasad, S/o G.C. Polaiah, No.18-44, Upstairs, Nehru Road, Kurnool. 63 B.M.C. Textile, Rep. by its Prop. B. Chandra Sekhar, S/o Bala Swamy, Minchin Bazaar, Kurnool. 64 S.K. Textiles, Rep. by its Prop. Syed Rafeeq S/o Syed Hasan, Minchin Bazaar, Kurnool. 65 Veeresh Textiles, Rep. by its Prop. K. Ranga Swamy, S/o K. Naganna, S.No.38/90, Minchin Bazaar, Kurnool. 66 Mahalakshmi Handlooms, Rep. by its Prop. K. Ranga Swamy, S/o K. Naganna, Minchin Bazar, Kurnool. 67 Mayur Fabrics, Rep. by its Prop. B.L. Chowdhary, S/o Bikaram, Wholesale Cloth Merchants, No.105, Minchin Bazaar,Kurnool. 68 G.P. Textiles, Rep. by its Prop. G. Pullaiah, S/o Late G.C. Pullaiah, Wholesale Cloth Merchants, 61-14, Fort, Kurnool. 69 Kankaliya Fabrics, Rep. by its Prop. Mittalal Jain, S/o Harakchand, Minchin Bazaar, Kurnool. 70 Friends Cloth Banian Centre, Rep. by its Prop. N. Jayaram, Minchin Bazaar, Kurnool. 71 Priya Marketing Centre, Rep. by its Prop. P. Gunasekhar, S/o. P. Chakrapani, No.8, Srinivasa Cloth Market, Kurnool. ... PETITIONERS AND The Kurnool Municipal Corporation, Rep. by its Commissioner, Kurnool. ...RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court may be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or Direction, holding that the demand of the respondent Corporation to take out a licence U/Sec.521 (1) (e)(ii) of the Hyderabad Municipal Corporation Act for carrying on the wholesale and retail business in textiles, readymade garments as illegal, ultravires of the provisions of the said Act without the authority of Law and pass such other order or orders. Counsel for the Petitioners: MR.K.SOMA KONDA REDDY Counsel for the Respondent: MR. A. SREEDHAR SC FOR KURNOOL MPL. CORP. The Court made the following: ORDER: Petitioners seek a Writ of Mandamus to hold that the demand of the respondent Corporation to take out a licence under Section 521 (1)(e)(ii) of the Hyderabad Municipal Corporations Act, 1955 (for short ‘the Act’) for carrying on the wholesale and retail business in textiles, readymade garments as illegal and ultravires of the provisions of the said Act 2. Learned counsel for the petitioners submits that the petitioners are businessmen dealing in textiles, readymade garments etc and as per Section 521 of the Act certain trades and operations cannot be carried on without a licence and the prohibited things cum articles are mentioned in Schedule B Part I to IV of Section 521 of the Act. Under Section 521(1)(e)(ii) of the Act no person shall carry on any trade or operation, which in the opinion of the Commissioner is dangerous to life, health or property or likely to create a nuisance either by its nature or by reason of manner in carrying on the trade or operation. It is the case of the petitioners that doing the business in textiles or readymade garments creates no nuisance and no annoyance or diﬃculty is caused to anyone in doing the said business. It is stated that the deﬁnition of nuisance under Section 2(35) of the Act does not attract the business in textiles and readymade garments. No waste material is generated in carrying on the said business and as such no question of throwing the waste material on the road arises. 3. Learned counsel for the petitioners further submits that the in similar facts and circumstances, a Division Bench of this Court in W.A.No.134 of 1969 dated 23.10.1970 held that the wholesale dealers in cloth business are not required to obtain licence under Section 521(1)(e)(ii) of the Act. 4. On the other hand, the learned counsel appearing for the Kurnool Municipal Corporation submits that the nature of business in in textiles or readymade garments carried on by the petitioners is likely to create nuisance, by reason of throwing the waste on the public road by the shop owners and customers for which the corporation has to clean everyday. Therefore, the petitioners are required to obtain the licence by paying the licence fee, as stipulated by the resolution of the municipal council, which was fixed and enhanced from time to time. He further submits that the expenditure incurred by the Corporation, in rendering more and more eﬀective service to the public by way of providing amenities like sanitation, lighting, cleaning, water supply etc., is manifold than the income derived by way of collecting fee from trades and operation. Therefore, it cannot be said that the collection of enhanced licence fee is illegal and arbitrary. 5. Though I have a diﬀerent opinion from the one rendered in the aforesaid judgment of the Division Bench, I am bound by the judgment of the Division Bench of this Court. Following the judgment of the Division Bench in W.A.No.134 of 1969 dated 23.10.1970 the writ petition is disposed of holding that the demand of licence fee, from the petitioners under Section 521(1)(e)(ii) of the Act in respect of their textile and readymade cloth business, is not valid under the provisions of the Act and there shall be a direction to the respondent-corporation restraining the levy of licence fee on the petitioners. There shall be no order as to costs. ______________ V. ESWARAIAH, J August 1, 2008 DSK