Civil Writ Petition No.3115 of 1989 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.3115 of 1989 Date of Decision:- November 9,2009 Ram Kishan and others ...Petitioners Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present: Mr.Ashish Handa, Advocate for the petitioners. Mr.Kartar Singh, Assistant Advocate General, Haryana for respondents No.1 and 2. Mr.Gaurav Mohunta, Advocate for respondent No.3. Mehinder Singh Sullar, J. Invoking the provisions of this Court under Articles 226/227 of the Constitution of India, petitioners Ram Kishan and 87 others have directed the present writ petition against State of Haryana, Deputy Commissioner and Municipal Committee, Sonepat (hereinafter to be referred as “the Committee”) for quashing the impugned notification dated 6.9.1982 (Annexure P1), in so far as it concerns the articles like Match sticks and Ghee purported to be issued under section 128 of the Haryana Municipal Act, 1973 (hereinafter to be referred as “the Act”). The matrix of the facts culminating in the commencement, relevant for disposal, of present writ petition and emanating from the record is that the petitioners are the petty shop keepers and running Civil Writ Petition No.3115 of 1989 2 their business of Kiryana and General Merchants on rehris, in kiosks (Khokhas) and other similar shops since long within the municipal limit of Sonepat Township. The respondent-State of Haryana had issued notification (Annexure P1) framing Haryana Municipal (Dangerous and Offensive Trades) Bye-laws 1982 (hereinafter to be referred as “the Bye-laws”) under section 128 of the Act in exercise of its power conferred by Sections 200 and 214 of the Act. The case set up by the petitioners, in brief, in so far as relevant, was that although the provisions of the rules (notification) are not at all applicable to the articles sold in retail by them, but the Committee illegally and erroneously interpreting the same issued notice requiring them to obtain licence failing which it (Committee) threatened to initiate legal action against them. The petitioners made various representations to the effect that match sticks and ghee are not covered under the provisions of the Act. The Committee inspite of deciding their representations, launched false prosecution against them on wrong facts on the ground that they were found selling in retail the Match sticks and Ghee without licence in violation of the impugned notification (Annexure P1). The criminal proceedings initiated against all the petitioners were stated to be identical and one of such complaints has been attached with this writ petition as Annexure P2. The petitioners asked the Committee not to proceed with the complaint, but in vain which necessitated them to file the present writ petition. Levelling a variety of allegations in all, according to the petitioners, they are petty shop keepers selling small quantity of Civil Writ Petition No.3115 of 1989 3 Match sticks and Ghee in retail business, although these articles are not covered under the provisions of notification (Annexure P1), but still the Committee launched false prosecution against them, which was stated to be illegal and without jurisdiction as petitioners have committed no offence. On the basis of the aforesaid allegations, petitioners challenged the validity and legality of notification (Annexure P1) on the various grounds mentioned therein, but during the course of arguments, learned counsel for the petitioners has confined his argument only to the one ground i.e. as the articles sold by the petitioners in small quantity in retail business in their respective shops, therefore, they have committed no offence and notification (Annexure P1) is not applicable to these articles. The Committee contested the writ petition and filed the written statement, inter-alia, admitting that the petitioners are kiryana and general merchants running their petty business in their rehris, kiosks and similar other shops since long within the municipal limits of Sonepat Town. However, according to the Committee, section 128 of the Act requires the owner or occupier of any place within a Committee to obtain a licence to carry out business in the offensive and dangerous trades specified therein and fine can be imposed by it on those persons who contravened the conditions of licence. The notification (Annexure P1) was stated to have been rightly issued under section 128 of the Act by the State Government. It will not be out of place to mention here that the Committee has denied all other allegations contained in the writ petition and prayed for its dismissal. Having heard the learned counsel for the parties, having gone through the record of the case with their valuable assistance Civil Writ Petition No.3115 of 1989 4 and after bestowal of thoughts over the entire matter, to me, as the provisions of impugned notification (Annexure P1) cannot possibly be made applicable to the indicated articles, therefore, the present writ petition deserves to be accepted, for the reasons mentioned here-in- below. As stated here-in-above, it has specifically been pleaded by the petitioners in para 2 of their writ petition that they are Kiryana and General Merchants/shop keepers running their petty business in rehris, kiosks and similar other shops since long within the municipal limits of Sonepat. The contents of para 2 have been admitted by the Committee in its written statement. Section 128 (1) (d) of the Act postulates that “no place within a municipality shall be used for any other manufactory, engine-house, store-house, or place of business from which offensive or unwholesome smells, gases, noises or smoke arise without licence.” The Haryana Government has framed Bye-laws, which require that a licence under section 128 of the Act for premises to be used for any of the purposes mentioned in sub- section (1) of that section may be granted by the committee, on the application of the owner or occupier of such premises, and shall be issued by an officer, appointed by the committee, in Form A. Such thus being the legal position, now the short and significant question, though important, arises for determination in this writ petition is whether the Bye-laws framed under section 128 of the Act would be applicable to retail business of the petitioners or not. No doubt, the Committee sought to bring the case of such petitioners within the purview of the impugned bye-laws (Annexure P1). Having regard to the rival contentions of learned counsel Civil Writ Petition No.3115 of 1989 5 for the parties, to my mind, the provisions of notification (Annexure P1) cannot be made applicable to the articles of Match sticks and Ghee, which are being sold by the petitioners (who are petty shop keepers) in retail business because the legislative intent underlying under section 128 of the Act and bye-laws (Annexure P1) is clear and implicit and are meant to regulate trade of such offensive and dangerous articles stored in store house or place of business from which offensive or unwholesome smells, (gases), noises or smoke arise without licence within the municipal area. The place of business cannot be read in isolation and it has to be read harmoniously with the place of such business from which offensive or unwholesome smells (gases), noises or smoke arise. These provisions are only applicable to the manufactory, engine-house, (Store-house), or such place of business from which offensive or unwholesome smells, (gases), noises or smoke arise. It is only applicable where large quantity of offensive and dangerous articles are stored. It 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. In this respect, reliance can be placed on the judgment of this Court in M/s Phuman Ram Chandan Lal and others v. Municipal Committee, Kharar and another (1986-1) PLR 669. A petty shop in the very nature of things cannot be regarded either as a depot or as a yard. The provision has to be construed in its entirety and not in isolation. Moreover, the Committee did not indicate how when and in what manner, the offensive or unwholesome smells (gases), Civil Writ Petition No.3115 of 1989 6 noises or smoke arise from the articles of Match sticks and Ghee being sold by the petty shop keepers in their respective shops. In order to interpret these provisions, one cannot ignore the nature of prohibition envisaged by this section. It cannot possibly be applied to the case of the petitioners, who are petty shop keepers. It only requires such owner or occupant to obtain licence for the purpose of storage of large quantity of dangerous and offensive articles and not otherwise. Consequently, it is held that the provisions of bye-laws (Annexure P1) cannot be invoked against the petitioners and the aforesaid articles are not covered by it under the present set of circumstances. Once, it is held that the provisions of bye-laws (Annexure P1) are not applicable to the case of the petitioners, in that eventuality launching of criminal prosecution against them is nothing else but a misuse of process of law and colourful exercise of power by the Committee, which is not legally permissible. Therefore, the criminal prosecution launched by the Committee against all the petitioners such like (Annexure P2) deserves to be quashed. In the light of the aforesaid reasons, while partly accepting the present writ petition with costs, the criminal prosecution launched against all the petitioners by the Committee are hereby quashed in the obtaining circumstances of the case. (Mehinder Singh Sullar) November 9,2009 Judge AS