* THE HON’BLE SRI JUSTICE V.ESWARAIAH <+ WRIT PETITION No.5372 of 2001 % FRIDAY, THE ELEVENTH DAY OF JULY, TWO THOUSAND AND EIG # The Gold and Silver Jewellery and Diamond Merchants Association, Rep. by its Secretary, N.Gopalakrishna Murthy, Sri Venkatachalapathy Shroff Bazar, Kurnool. ….Petitioner Versus $ The Municipal Corporation of Kurnool, Rep.by its Commissioner, Kurnool and another …..Respondents. ! Counsel for the petitioner : Mr.K.SOMA KONDA REDDY ^ Counsel for the respondents : Mr.A.SRIDHAR < Gist : > Head Note: ? Cases Referred: 1. 1979 (II) An.W.R.146 2. 2001 (3) ALD 13 (SC) 3. 2006 (1) ALT 443 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.5372 of 2001 Between: The Gold and Silver Jewellery and Diamond Merchants Association, Rep. by its Secretary, N.Gopalakrishna Murthy, Sri Venkatachalapathy Shroff Bazar, Kurnool. ..... PETITIONER AND 1 The Municipal Corporation of Kurnool, Rep. by its Commissioner, Kurnool. 2 The Government of Andhra Pradesh, Rep. by its Secretary, Municipal Administration, Secretariat, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ of Mandamus or any other appropriate Writ or order holding that the Levy of Licence fee on Item No.33 (Silver and Gold Jewellery shop) as per annexure 1, Section 521 (1) of the Proceeding and Notification in Rc.No.7378/98/F2 dt.24.12.1999 as modified by the General Body in Resolution No.223 dt.19-6-2000 of the Respondent-corporation in respect of the members of the Petitioners-Association as illegal, without the authority of law and ultra vires of the provisions of the Hyderabad Municipal Corporation Act or in the attaracative hold that the increase of the Licence fee from Rs.400/- toRs.1900/- per annum is illegal, arbitrary and unreasonabie. Counsel for the Petitioner:MR.K.SOMA KONDA REDDY Counsel for the Respondent No.: MR.A.SRIDHAR The Court made the following: Form-NIC-OGS/WP{MADHURI} THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.5372 of 2001 O R D E R: The petitioner is a Gold and Silver Jewellery and Diamond Merchants Association. It questions the notification in Rc.No.7378/98/F2, dated 24.12.1999 issued by the Municipal Corporation of Kurnool, the 1st respondent, in enhancing the licence fee from Rs.400/- to Rs.1900/- on the sale of silver and gold ornaments, in exercise of the powers under Sec.521 (1)(e)(ii) of the Hyderabad Municipal Corporation Act, 1955 (hereinafter referred to as ‘the Act’) as illegal and arbitrary. 2. It is the case of the petitioner that the 1st respondent-Corporation published a notification in Kurnool District Gazette fixing the licence fee for the year commencing from 01.04.2000 in pursuance of Sections 516, 521, 539, 622, 623 and 624 of the Act and under clauses (A) to (T) of Rule 50 of Prevention of Food Adulteration Act, 1954 and as per G.O.Ms.No.997, dated 03.07.1977, in respect of trades, operations and Industries as mentioned in the Annexure enclosed including the shops for the sale of silver and gold ornaments which were mentioned at Sl.No.33 of the Annexure. It is stated that the licence fee was fixed at Rs.2,000/- per annum to the shops of the members of the petitioner association, and the licence fee for the said shops prior to enhancement is only at Rs.400/- per annum. A representation was made to the respondent Corporation by the petitioner association and the same was considered and the licence fee was reduced from Rs.2,000/- to Rs.1900/-. It is the case of the petitioner that the enhancement of licence fee from Rs.400/- to Rs.1900/- is illegal and arbitrary. 3. It is further stated that under Sec.516 and 517 of the Act, the factories etc. shall not be established without permission of the commissioner and Sec.521 deals with certain things not to be kept and certain trades and operations not to be carried on, without a licence in respect of articles specified in Part-I, Part-II and Part-III of Schedule-P and the sale of gold and silver jewellery is not one of the items mentioned in any of the parts of Schedule-P, therefore, the shops dealing with sale of gold and silver ornaments will not come under the category of trade or operation, and therefore, no licence fee can be levied or collected in respect of shops of the members of the petitioner association. It is stated that Sec.521(1)(e)(i) has no application to the business of the members of the petitioner association, and therefore, the levy and collection of licence fee in pursuance of the impugned notification is illegal and arbitrary. 4. A counter has been filed by the 1st respondent-the Commissioner, Kurnool Municipal Corporation, stating that the gazette notification was published in Kurnool District Gazette in the year 2000 fixing the licence fee for various trades under the provisions of the Act, which is applicable to Kurnool Municipal Corporation. The licence fee for running gold and silver jewellery shops was fixed at Rs.2,000/- per annum and the said licence fee was reduced and fixed at Rs.1900/- per annum on the representation made by the President of the petitioners’ association. The said modified licence fee was fixed by the General Body in its resolution No.223, dated 19.06.2000. It is further stated that the said notification is issued as per the provisions of the Act and the licence fee fixed for the gold and silver shops is according to Sec.521(1) which deals with certain things not to be kept and certain trades and operations not to be carried on without licence. 5. It is stated that the said shops come under the category, which creates nuisance to the public by throwing the waste material on the roads by the shop owners and customers for which the Corporation has to clean every day. The 1st respondent Corporation provided all amenities like sanitation, lighting, water supply etc., and the services have to be considered as services to the traders with a view to facilitate and streamline their business operations. Hence increase of licence fee for gold and silver jewellery shops is not arbitrary. 6. It is further stated that the licence fee fixed in the year 1995 was not revised and to meet the expenditure for rendering more and effective services, the 1st respondent Corporation submitted proposals for revision of licence fee and thereafter it was placed before the Standing Committee of Kurnool Municipal Corporation, and the Standing Committee by its resolution No.20 dated 06.11.1998 approved the proposed rates of the licence fee, and thereafter, the proposal for enhancement of licence fee of Dangerous and Offensive Trades (for short ‘D & O Trade’) has been placed before the General Body of Municipal Corporation for approval. The General Body of Municipal Corporation in its meeting held on 30.01.1999 has decided to appoint a Committee for consideration of proposal for enhancement of licence fee and accordingly, passed a Resolution No.68, dated 30.01.1999 constituting a Committee of seven members, and the said committee met five times and discussed the proposal made by the Commissioner for enhancement of licence fee and finally submitted a report to the General Body. The General Body considered the report and after discussing the above, revised the licence fee, vide its Resolution No.197, dated 10.12.1999. Thereafter, the Commissioner, after obtaining sanction from the Corporation vide Special Resolution No.197, dated 10.12.1999, published a notification, notifying the rates of the licence fee for various trades and operations in the District Gazette 2000. 7. It is stated that after publication of notification with regard to enhancement of licence fee for various trades and operations, the 1st respondent received several objections from various trade organizations and businesspersons including the petitioner association. The said objections were again placed before the General Body of the Kurnool Municipal Corporation and the General Body in its resolution No.223, dated 29.06.2000, appointed a Special Committee consisting of seven members for examining the rates of the enhanced licence fee along with the Standing Committee. The Special Committee after considering the objections in its meetings, which were held for 4 times, submitted a report recommending for reduction of licence fee to some extent for various trade organizations. It is stated that the General Body also after considering the report, passed another resolution No.258 dated 11.12.2000 accepting the report of the Special Committee fixed the enhanced licence fee except certain other items. It is further stated that pursuant to the said resolution No.258, dated 11.12.2000, the proceedings in ROC No.7378/98/F2 was issued in January, 2001 for implementation. Now it is stated that the enhancement of licence fee cannot be said as illegal and arbitrary. 8. It is further stated that the said licence fee is in proportionate to the services rendered. It is stated that the amount paid towards salaries to public health section alone for the year 2000-01 is Rs.3,09,10,000/-, amount payable to the Dwakra Group Contractors is Rs.25,92,000/- and for conservancies articles, uniforms dress chappals oil and others is Rs.10,09,000/- and the total expenditure is Rs.3,45,02,000/-, but the collection of licence fee for D & O Trades for the year 2000-01 is only Rs.13,62,000/-. Thus, it is stated that the Corporation has been spending much more amount on the public health for rendering more and effective service to the public than the income derived from the health section by collection of licence fee from D & O Trades. 9. Sri K.Somakonda Reddy, learned counsel appearing for the petitioner submits that as per Sec.521 (1)(e)(ii) of the Act no person is entitled to carry on, allowed to be carry on in or upon any premises in respect of trades or operations specified in Schedule-P, or 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 from its nature, or by reason of the manner in which, or the conditions under which, the same, is or is proposed to be carried on, without the licence granted by the Commissioner. It is stated that the nature of the business of the members of the petitioner association is not dangerous to life or health or property and there is no likelihood of creating nuisance either for its nature or by reasons of any nature or conditions under which the business of gold and silver ornaments are sold. Thus, it is stated that no licence is required to be taken, and therefore, the question of enhancing licence fee on the shops of the members of the petitioner association does not arise. 10. The learned counsel for the petitioner relied on a judgment of the learned single Judge of this Court in the case of Venkateswara Iron Works v. Special Officer, Municipal Corpn.[1] wherein it was held that enhancing of licence fee in respect of shops for sale of iron and steel goods, without giving any opportunity for them, is illegal and the enhancement of licence fee was held to be bad in law, however, it was kept open for the authorities to proceed with in accordance with law. 11. The learned counsel appearing for the petitioner relied upon another judgment of the Supreme Court in the case of A.P.Bankers and Pawn Brokers Association v. Municipal Corporation of Hyd.[2] wherein the Supreme Court held that there is no material to show that the business of the pawn brokers is dangerous to life or health or property or that it is likely to create nuisance and the business of the pawn brokers is not a trade or occupation, regulated by the Municipal Corporation. Merely because a pawn broker or a money lender is likely to set up a shop in the thick of a residential locality or in a crowded place would be no ground for the commissioner to come to a conclusion that the entire trade or occupation of money lending and pawn broking is dangerous or likely to create nuisance. 12. The learned counsel appearing for the petitioner also relied on another judgment of the learned single Judge of this Court in the case of Y.Venkateswar Rao v. Prohibition & Excise Superintendent[3] wherein it was held that the licence issued by the State to carry on trade in a retail of intoxicating liquor is governed by the Prohibition and Excise Act and the rules made thereunder and exclusive privilege of the State was partly in favour of the individual subject to certain terms and conditions and the trade is governed by the Excise Act and Rules and except the State, no authority is empowered to prohibit or control the liquor trade, and there is no provision under the Municipal Corporation Act to regulate the liquor trade by issuing a trade licence as such, the retail traders are not required to take any licence and pay the licence fee, though the bars and restaurants are liable to pay the licence fee under the State Act. 13. The learned counsel appearing for the petitioner submits that the ratio laid down in all the above judgments would apply to the case on hand. 14. On the other hand, the learned Standing Counsel appearing for the 1st respondent-Kurnool Municipal Corporation submits that in the judgment in the case of Venkateswara Iron Works v. Special Officer, Municipal Corpn. (1 supra) this Court held that admittedly the licence fee that was being paid for iron and steel and the power of the Corporation to levy the licence fee was not at all disputed, but with regard to the enhancement of licence alone, it was held that it cannot be enhanced without giving a reasonable opportunity to the affected person, and therefore, in that view of the matter, the enhancement of licence fee was held as bad in law, while keeping open the authorities to proceed in accordance with law after giving reasonable opportunity. 15. In so far as the Apex Court decision in the case of A.P.Bankers and Pawn Brokers Association v. Municipal Corporation of Hyd (2 supra) as well as the judgment of the learned single judgment of this Court in the case of Y.Venkateswar Rao v. Prohibition & Excise Superintendent (3 supra), it is stated that there is separate legislation and the Act governing the retail liquor shops under the A.P.Excise Act. In that view of the matter, it was held that there was no requirement to apply trade licence under the Act. 16. Heard on either side and considered material available on record. 17. The Municipal Corporation is entitled to levy conservancy tax under Sec.201 (a) of the Act in respect of the premises where there was any public notice issued by the Commissioner that the collection, removal and disposal of all excrementitious and polluted matters from privies, urinals and cesspools will be undertaken by the municipal agency. 18. The Corporation is also entitled to levy general tax on the buildings. In addition to levying conservancy tax, general tax and municipal tax, the Corporation is also entitled to prohibit carrying on certain trades and operations under Sec.521. It is just and proper to extract Sec.521 (1) (2) and (3) hereunder for the sake of convenience. “521. Certain things not to be kept and certain trades and operations not to be carried on, without a licence:- (1) Except under and in conformity with the terms and conditions of a licence granted by the Commissioner no person shall--- (a) keep, in or upon any premises, for any purpose whatever; (i) any article specified in Part I of Schedule ‘P’; (ii) any article specified in Part II of Schedule ‘P’ in excess of the quantity of such article which may at any one time be kept in or upon the same premises without a licence; (b) keep, in or upon any premises, for sale or for other than domestic use, any article specified in Part III of Schedule ‘P’; (c) keep, in or upon any building intended for or used as a dwelling or within fifteen feet of such building, cotton, in pressed bales or boars or loose, in quantity exceeding four cwts; (d) keep or allow to be kept in or upon any premises, horses, cattle or other four footed animals--- (i) for sale; (ii) for letting out on hire; (iii) for any purpose for which any charge is made or any remuneration is received; or (iv) for sale of any produce thereof; (e) carry on, allow to be carried on, in or upon any premises- -- (i) any of the trades or operations connected with trade specified in Part IV of Schedule ‘P’; (ii) 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 from its nature, or by reason of the manner in which, or the conditions under which, the same, is or is proposed to be carried on; (f) carry on within the city or use any premises for the trade or operation of a carrier; (2) A person shall be deemed to have known that a trade or operation is, in the opinion of the Commissioner, dangerous or likely to create a nuisance within the meaning of paragraph (ii) of Clause (e) of sub-section (1), after written notice to that effect, signed by the Commissioner has been served on such person or affixed to the premises to which it relates; (3) A person shall be deemed to carry on or to allow to be carried on a trade or operation within the meaning of paragraph (ii) of clause (e) of sub-section (1), if he does any act in furtherance of such trade or is in any way engaged or concerned therein whether as principal, agent, clerk, master, servant, workman, handicraftsman or otherwise;” 19. Admittedly, the impugned notification has been issued under Sec.521(1). The sale of gold and silver ornaments shops are not specified in any of the parts of Schedule-P. Under Sec.521 (1) (e) (ii) is relevant provision to resolve the controversy in this case and the same is relied upon by both the parties. The learned counsel appearing for the petitioner submits that the trade or operation in which the petitioners are involved in the sale of gold and silver ornaments in their shops is not dangerous to life or health or likely to cause a nuisance either from its nature or reason or the manner in which the conditions under which the same is, or is proposed to be carried on. 20. On the other hand, the learned counsel appearing for the respondents submits that unlike iron and steel merchants, the sale of gold and silver ornament shops are not exclusively involved in the sale of the ready made ornaments, but they also indulged in manufacture of the ornaments through their workers and therefore, in the process of manufacturing of the gold and silver ornaments, there is element of danger to the life, health and also likely to create nuisance from its nature of chemicals which are used in the process, and therefore, it cannot be said that the trade of the members of the petitioner association will not come under the purview of Sec.521 (1). It is further stated that admittedly, the petitioners have taken the licence previously and they are paying the licence fee at the rate of Rs.400/- till the present notification was issued, and having taken the licence and paying licence fee, it is not open for them to question the levy and collection of licence fee. 21. The learned counsel appearing for the petitioner submits that even with regard to the enhancement of licence fee also, without giving any written notice served on the petitioner, the licence fee cannot be collected. A careful reading of Sec.521 (2) of the Act goes to show that it applies in respect of the trades or operations for the first time on whom the licence fee is sought to be levied or licence is insisted upon to be taken whether such trade or operation is dangerous or likely to create a nuisance within the meaning of paragraph (ii) of Clause (e) of Sub-Sec.(1) and unless a written notice to that effect has been served on the affected party, it cannot be said that such person is deemed to have been known about the requirement to take licence or payment of licence fee. 22. In the instant case, admittedly the members of the petitioner association have taken the trade licence and they are paying the licence fee, but only on the enhancement of the licence fee they have chosen to question the same. But, however, in so far as the legal requirement of Sec.521 (2) is concerned, it is specifically stated in the counter that the President of the petitioner Association made a representation about the enhancement of the licence fee and the said representation has been considered by the Municipal Council and therefore, it cannot be said that the petitioners are not known about the enhancement of the licence fee or the legal requirement to pay the licence fee or to take the licence. 23. In the instant case, the sale of the gold and silver ornaments is not regulated by any other law unlike the retail liquor shops, A.P.Bankers and Pawn Brokers. It is not the case of the petitioners that no manufacturing process of gold and silver ornaments was taken up either directly or indirectly. Even if there is any proposal to carry on the business in which there is an element of danger to life, health or property, or likely to create a nuisance either from its nature, or by reason of the manner in which, or the conditions under which, the same, is or is proposed to be carried on, they are required to take the licence under Sec.521 (i) of the Act. 24. In the instant case, I am of the opinion that the nature of the business in which the members of the petitioner association are involved with regard to sale of gold and silver ornaments, they are also indulging in repairing, making the ornaments through their workers directly or indirectly, and therefore, it cannot be said that the nature of the business of the members of the petitioner association will not come under Sec.521 (1)(e) (ii) of the Act. 25. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the enhancement of yearly licence fee from Rs.400/- to Rs.1900/- per shop by the 1st respondent Corporation is not arbitrary, illegal or excessive. 26. Having regard to the facts of the case, the Writ Petition deserves to be dismissed, and is, accordingly, dismissed. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 11.07.2008 Dsr Note: L.R.copy to be marked B/o Dsr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Municipal Corporation of Kurnool, Rep. by its Commissioner, Kurnool. 2 The Government of Andhra Pradesh, Rep. by its Secretary, Municipal Administration, Secretariat, Hyderabad. 3.2CCs to 42.2CD copies [1] 1979 (II) An.W.R. 146 [2] 2001 (3) ALD 13 (SC) [3] 2006 (1) ALT 443