Mohammad Rafiq S/O. Mohammad Hasim Katewadi vs. The Commmissioner
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The petitioner, Shri Mohammad Rafiq, filed a writ petition challenging an order dated June 23, 2021, passed by the Commissioner, Hubli-Dharwad Municipal Corporation. The petitioner sought to quash this order and sought a mandamus to issue a trade licence. The petitioner's grievance was that despite a previous order from this Court dated April 15, 2021, directing the respondent to consider his application for a trade licence, the respondent issued the impugned order demanding additional documents. The petitioner claimed to have submitted these additional documents subsequently and requested their consideration. The Court referred to a previous writ petition filed by the same petitioner concerning a similar matter.
Held
The Court quashed the impugned order dated June 23, 2021. The Court directed the respondent-Corporation to re-consider the petitioner's application for a trade licence, as previously directed by this Court in its order dated April 15, 2021, in W.P.No.101491/2021. This re-consideration must take into account all the material on record, including the additional documents submitted by the petitioner in the present petition. The respondent was given a period of two months from the date of receipt of a copy of this order to complete this exercise. The Court found merit in the petitioner's submission that the respondent had not acted in accordance with the previous court directive and that the application needed to be dealt with in accordance with law. The Court acknowledged that the previous order in W.P.No.101491/2021 had already directed the respondent to decide the application within six weeks, and this current order aims to ensure that the application is re-considered with all submitted documents.
Key Issues
1. Whether the impugned order dated June 23, 2021, passed by the respondent-Corporation, which demanded additional documents from the petitioner, is valid, considering the previous order of this Court dated April 15, 2021, directing consideration of the trade licence application? (Question of law and fact, concerning the respondent's adherence to court directives and procedural fairness). Petitioner's contention: The petitioner argued that the respondent has failed to comply with the previous court order by issuing a fresh demand for documents instead of considering the application and the subsequently submitted additional documents. The petitioner relied on the previous court order and the circulars mentioned (Circular No.321291 DMA/ DEV/ OTH/ 8/ 2020, Annexures-V and W) to support his claim for the issuance of a trade licence. Respondent's contention: The respondent argued that the petitioner had not questioned a prior order rejecting his application for a licence due to the lack of a No Objection Certificate from the property owner, which was an appealable order. The respondent contended that the petitioner approached the court without challenging this specific rejection order, making the writ petition not maintainable. The respondent also highlighted that the petitioner was carrying on business without the requisite licence under the Karnataka Municipal Corporation Act, 1976, and that the seizure order was in accordance with Section 461 of the Act.
Sections Cited
Section 461, Karnataka Municipal Corporation Act, 1976
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Cause title — parties, addresses and appearances
ORDER In this writ petition, the petitioner has sought for the following reliefs: i. Issue a writ of certiorari or any other appropriate writ or direction and quash the impugned order bearing No.HDMC/Z/02/2021-2, dated 23.06.2021 (Annexure-S) passed by the respondent herein, ii. Issue a writ of mandamus directing the respondent to issue Trade Licence infavour of the petitioner by taking into consideration the documents submitted by the petitioner in terms of the Circular No.321291 DMA/ DEV/ OTH/ 8/ 2020 (Annexure-N) and also as per Annexure-V and Annexure-W at the earliest and permit him to carry on business; iii. Grant such other reliefs as deemed fit in the circumstances of the case and in the interest of justice and equity.
Heard learned counsel for the petitioner and learned counsel for the respondent. Perused the material on record.
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In addition to reiterating the various contentions put forth in the memorandum of writ petition and referring to the documents produced by the petitioner, it is the grievance of the petitioner that despite this Court directing the respondent to consider the application for issuance of trade licence vide order dated 15.04.2021, passed in W.P.No.101491/2021 (Shri Mohammad Rafiq Vs. The Commissioner), the respondent has issued the impugned order at Annexure-S dated 23.06.2021 calling upon the petitioner to produce additional documents. It is submitted that subsequent to the aforesaid order passed by this Court, the petitioner has produced additional documents in support of his claim and the same requires consideration by the respondent.
In W.P.No.101491/2021, a Co-ordinate Bench of this Court has held as under: “The captioned writ petition is filed challenging the order passed by the
4 respondent as per Annexure-J wherein the petitioner is stopped from running business under the impugned order. The petitioner is also seeking writ of mandamus to direct the respondent to consider the application submitted by the petitioner on 22.03.2021 as per Annexure-P.
The facts leading to the case are as under: The petitioner is a tenant in the property bearing CTS No.380 and is running a business of readymade garments shop under the name and style of M/s Ladies Choice. It is also stated that he has also obtained Labour Licence from the Government of Karnataka. The petitioner has stated in the writ petition that at the instance one Gopinath H Kodiyoor, a complaint was lodged with respondent- corporation complaining that the petitioner is running business without proper licence. Based on such complaint, the respondent- corporation has proceeded to seize the shop by passing the impugned order on 16.02.2021 as per Annexure-J.
The contention of the petitioner is that prior to 1997 there was no provision for obtaining licence from the corporation to run a
5 readymade garment business. His case is that he was not aware that he is required to obtain a licence from corporation. It is also stated at paragraph No.6 of the writ petition that, word “readymade garments” was inserted in schedule X of Karnataka Municipal Corporation Act, 1976. However, this aspect was not within the knowledge of the petitioner. He was under the bonafide impression that the licence from Labour Authorities and GST registration would be sufficient to carry on a readymade garment business. After seizure by the respondent-corporation, he submitted an application as per Annexure-E on 30.10.2018. However, on 09.11.2018, the respondent- corporation issued an endorsement stating that the licence cannot be issued unless no objection certificate is enclosed from the owner of the property.
The petitioner however, could lay his hands on a circular issued by the Directorate of Municipal Administration. Placing reliance on the said circular, the petitioner submitted one more application on 22.03.2021 as per Annexure-P requesting to issue fresh trading licence.
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Learned counsel for the petitioner would vehemently argue and contend before this Court that though petitioner submitted an application on 22.03.2021, the respondent- corporation has not taken any action on the said application and therefore, he has approached this Court.
Per contra, learned counsel appearing for the respondent-corporation would vehemently argue and submit to this Court that the petitioner has not questioned the order passed by the respondent- corporation as per Annexure-F, wherein the corporation by impugned endorsement as per Annexure-F has rejected the application on the ground that the petitioner has not secured no objection certificate from the owner. The rejection as per Annexure-F is an appealable order and the petitioner has an efficacious remedy. Without challenging the said order, the petitioner has approached this Court challenging the seizure order and therefore the writ petition is not maintainable.
Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent-corporation.
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I have examined the material on record and also given my anxious consideration to the order under challenge passed by the respondent-corporation as per Annexure-J.
Admittedly, the material on record indicates that, the petitioner was carrying on readymade garment business without securing requisite licence under the provisions of Karnataka Municipal Corporation Act, 1976. The order passed by the respondent- corporation as per Annexure-J is strictly in terms of the provisions of Section 461 of the Karnataka Municipal Corporation Act, 1976. 10. It is not in dispute that the petitioner was carrying readymade garment business without securing trading licence from the competent authority. It is also not in dispute that the petition property where the petitioner is carrying trade business falls squarely within the juri iction of respondent- corporation and therefore the business of readymade garments cannot be carried on without securing appropriate trade licence and therefore the seizure is in accordance with law and therefore this Court is not inclined to
8 interfere with the order of seizure passed by the respondent corporation.
However, I would find some force in the submission made by the learned counsel appearing for the petitioner. It is stated across the bar that, the petitioner has submitted an application on 22.03.2021 along with the said application he has also annexed Circular issued by the Directorate of Municipal Administration dated 27.01.2021 requesting to issue a trade licence. If the respondent- corporation is in receipt of the application, then I am of the view that the same has to be dealt in accordance with law and appropriate orders are required to be passed by the respondent-corporation. Therefore, I am of the view that, this is a fit case to issue mandamus to respondent-corporation to decide the application in accordance with law.
By order of seizure, the shop is closed and therefore in every probability, the right to livelihood is affected. Therefore, the respondent-corporation being the statutory body is under bounden duty to consider the application and pass appropriate orders. Since the said exercise is not done, I pass the following:
9 : ORDER : a. Writ petition is allowed. b. The respondent-corporation is directed to pass appropriate orders on the application dated 22.03.2021 as per Annexure-P by taking note of Circular dated 27.01.2021 issued by Directorate of Municipal Administration. c. This exercise shall be down within a period of six weeks from the date of receipt of certified copy of this order.”
In view of the aforesaid facts and circumstances, I pass the following: ORDER i) The petition is disposed of by quashing the impugned order at Annexure-S dated 23.06.2021. ii) Respondent is directed to re-consider the application submitted by the petitioner for issuance of license as directed by this Court in the aforesaid order of a co-ordinate Bench of this Court, dated 15.04.2021, passed in W.P.No.101491/2021 (Shri Mohammad Rafiq
10 Vs. The Commissioner) by taking into account the entire material on record including the additional documents produced by the petitioner in this petition, in accordance with law, within a period of two months from the date of receipt of a copy of this order. JUDGE
BMC
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