CWP No.6362 of 1988 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. (1) Civil Writ Petition No.6362 of 1988 (O&M) Date of decision: May 19, 2010 T.V. Dealers Association, Garhshankar and others ...Petitioners Versus The State of Punjab & another ...Respondents (2) Civil Writ Petition No.6361 of 1988 (O&M) Date of decision: May , 2010 M/s Arora Fancy Cloth House Garhshankar and others ...Petitioners Versus The State of Punjab & another ...Respondents CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. M.S. Rakkar, Advocate, for the petitioners. Ms. Sushma Chopra, Addl. A.G. Haryana, for respondent No.1. Mr. K.S. Sidhu, Advocate, for respondent No.2. Rajan Gupta, J. This judgment shall dispose of above mentioned two writ petitions i.e. CWP No.6362 of 1988 and CWP No.6361 of 1988, as common question of law and facts arises in both these cases. In the instant writ petitions, the petitioners seek quashing of CWP No.6362 of 1988 2 notification dated 26th February, 1988 (Annexure P-1) and notice dated 21st June, 1988 (Annexure P-2), whereby they were informed that they were dealing in sale and storage of dangerously inflammable goods and thus, required licence for the same. The petitioners are petty shopkeepers selling the goods within the municipal limit of Garhshankar. Some of them sell electronic and electrical goods, others sell cloth of different types (cotton, terrylene, synthetic yarn, silk and art silk etc.). They are aggrieved by action of the Municipal Committee which, by notification dated 26th February, 1988, has made regulation to regulate running of dangerous or offensive trades within the limits of its jurisdiction. Pursuant to the notification, notice Annexure P-2 was served upon the petitioners informing them that they were selling dangerous items without obtaining the licence from the committee and thus, violating Section 121 of the Punjab Municipal Act, 1911 (hereinafter referred to as “the Act”). Learned counsel for the petitioners has argued that by no stretch of imagination, the goods being sold by the petitioners can be termed as dangerous or inflammable within the meaning of Section 121 of the Act and thus it was not incumbent upon the petitioner to get a licence for sale of such goods. Learned counsel has placed reliance on a judgment reported as M/s Vakil Chand Labhu Ram and others vs. Municipality/Municipal Committee, Mansa and another, (1992-1) Punjab Law Reporter 135 to submit that goods of this nature have not been found to be dangerous or inflammable in the said case and thus CWP No.6362 of 1988 3 notification, Annexure P-1 and notice Annexure P-2, issued pursuant to the same deserve to be quashed in so far as they relate to the goods being sold. He has further submitted that the petitioners are petty retail shopkeepers and they are not carrying on a trade in prohibited items in a yard or depot. Learned State counsel has, however, refuted this contention and has submitted that the notification was rightly issued and notice has been served on the petitioners for selling dangerous and inflammable material. I have heard learned counsel for the parties and given careful thought to the facts of the case. Section 121 of the Act, which prohibits the use of the goods by carrying on at certain places without licence fee, reads thus:- “121 . Regulation of offensive and dangerous trade.- (1) No place within a municipality shall be used for any of the following purposes:- melting tallow, (dressing raw hides), boiling bones, offal or blood as a soap house, oil boiling house, dyeing house or tannery; as a brickfield, brick-kiln (charcoal-kiln) pottery or lime kiln; as any other manufactory, engine-house, storehouse or place of business from which offensive or unwholesome smell, gases, noises or smoke arises; as a yard or depot for trade in unslaked lime hay, straw, thatching grass, wood, charcoal or coal, or other dangerously inflammable material; as a store-house for any explosive or for petroleum or any CWP No.6362 of 1988 4 inflammable oil or spirit; except under a licence from the committee which shall be renewable annually; Provided that no such license shall be necessary in the case of any such premises which were used for any such purposes at the time the Punjab Municipal Act, 1891, came into force, and were registered under that Act and in the case of brickfields, which were used at the time that this Act come into force, but the owner or occupier of the brickfields so expected shall register the same in a book to be kept by the committee for the purpose. (2) x x x (3) The committee may charge any fees according to a scale to be approved by the Deputy Commissioner for such licenses, and may impose such conditions in respect thereof as it may think necessary. Among other conditions it may prescribe that any furnace used in connection with such trade shall, so far as practicable, consume its own smoke. (4) x x x (5) x x x” In Vakil Chand's case (supra), a Division Bench of this court considered whether shopkeepers selling cloth of the nature of Nylon, terrylene or synthetic yard, should be brought in the ambit of Section 121 of the Act and whether items sold by them would be termed as dangerously inflammable. It was held as follows:- “It will be difficult for us to reach a conclusion that the nylon, terrylene or synthetic yarn is inflammable material in the sense that on catching fire it may emit flames. That apart, what we notice is that the desire of the Legislature is to subject to fee not CWP No.6362 of 1988 5 only inflammable material but the material which is dangerously inflammable under section 121 of the Act. The use of the word “dangerously”, qualifying the words “inflammable material”, appears to be deliberate and full scope and lay must be given to that qualifying word. “Dangerous” is adjective derived from the noun “danger”, which also means hazard or risk. A thing is dangerous if it be a possible cause of injury to anybody acting in a way which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur. Anything is dangerous if either owing to negligence or owing to the fact it is impossible for everybody on every occasion, however, carefully they may conduct themselves, to avoid some mischance of hand or eye injury may be caused. Almost everything is dangerous from one point of view, but one has to see whether the danger should be reasonably anticipated from the use of things without protection. This is how their Lordships expressed themselves in (1944) 2 All E.R. 315. We unhesitatingly adopt and follow that view. Dangerously, in terms, therefore, would mean unsafe or insecure and must be given this meaning in the context in which it is used in section 121. It must, therefore, be shown before levying fee for a trade in a given article that the article or material is not only inflammable but it is also dangerous, that it is hazardous or involves risk; that it is unsafe or insecure. We are, therefore, of the opinion that it was not competent for the municipal committee to levy fee for use of a place for sale of cloth containing nylon, terylene or synthetic yarn. Consequently, we strike down that entry in the notification, Annexure P-5. We are further of the opinion that it is not necessary for the petitioners to obtain any licence for the sale of any cloth of kind specified in entry 26.” In the aforementioned judgment, reliance was placed on CWP No.6362 of 1988 6 two earlier judgments delivered by this court in cases reported as M/s Phuman Ram Chandan Lal & others v. Municipal Committee Kharar, 1987 (2) Punjab Legal Reports and Statutes 160 and Om Parkash Arora vs. The State of Punjab (1988-1) 93 P.L.R. 357. In Phuman Ram's case (supra), this court had considered nature of certain other items/goods being sold by retail shopkeepers. The court held as follows:- “8. A Division Bench of this Court while interpreting Item No.5 of section 121 of the Act, with which we are concerned in this case, in a case reported as Municipal Committee, Ambala City v. Mohan Lal, (1972) 74 PLR 842, has held that in order to interpret this item one cannot ignore the general nature of prohibition envisaged by this section because that item does acquire some colour from the other item enumerated in section 121 of the Act. The trade in unslaked lime is prohibited because it emits heat when it comes into contact with water. Hay, straw, thatching grass, wood, charcoal or coal etc., are also incendiary material and if stored in sufficiently large quantities increase the danger due to accidental fire. It is precisely for this reason that the statute has used the words “a yard” or “a depot” in item No.5 of section 121 of the Act. A yard or a depot denotes a big area in which goods are stocked. In commercial parlance a depot means a place in which goods are stored in large quantities for being supplied to retailers. A shop in the very nature of things cannot be regarded either as depot or a yard.” The petitioners in the instant case are selling cloth or electronic goods. The cloth being sold by the petitioners are in the CWP No.6362 of 1988 7 nature of cotton, terrylene, synthetic yarn and silk etc. The entry regarding cloth had come up for consideration in Vakil Chand's case (supra) and it was held that the same could not be termed to be dangerously inflammable material. In my considered view, the case of the petitioners in CWP No.6361 of 1988 is squarely covered by the said judgment and thus, they would not come within the mischief of Section 121 of the Act. In the other case i.e. CWP No.6362 of 1988, the petitioners are selling electrical or electronic goods such as TVs and Radios etc. There is nothing on record to show that the goods being sold by these retail shopkeepers are dangerously inflammable. An inflammable material would naturally be capable of catching fire easily but a distinction has to be drawn between 'dangerously inflammable material' and 'inflammable material'. The prohibition contained in the statute is regarding “dangerously inflammable material” and not merely “inflammable material”. The electrical and electronic goods, by no stretch of imagination, would fall within the definition of “dangerously inflammable material” and thus would not come within the mischief of Section 121 of the Act. This apart, it is admitted position that the petitioners are petty retail shopkeepers and are not selling their goods in a yard or a depot. A plain reading of Section 121 of the Act shows that in so far as the said section extends to dangerously inflammable material, the items/goods come within its ambit only when the same are sold in a yard or a depot. A yard or a depot denotes a big area in which the goods are CWP No.6362 of 1988 8 stored. The shops being run by the petitioners cannot be termed as yard or a depot. For the aforesaid reasons, the above two writ petitions are allowed. Entry 35 and Entry 27 in the notification dated February 26, 1988 and notice issued pursuant to the same, are hereby quashed. Allowed with no order as to costs. (RAJAN GUPTA) JUDGE May 19, 2010 'rajpal' To be referred to the Reporters or not: Yes / No