Shri. Mohammad Rafiq S/O. Mohammad Hsaim Katewadi vs. The Commissioner
Original PDF →Facts
The petitioner, Shri Mohammad Rafiq, operates a readymade garments business under the name 'Ladies Choice' as a tenant in Dharwad. He also holds a Labour Licence and GST registration. A complaint was lodged alleging he was operating without a proper licence from the respondent-corporation. Consequently, the respondent-corporation, the Hubli-Dharwad Municipal Corporation, passed an order on February 16, 2021, seizing the petitioner's shop. The petitioner contended that prior to 1997, no such licence was required, and he was unaware of the amendment inserting 'readymade garments' into Schedule X of the Karnataka Municipal Corporation Act, 1976. He had previously submitted an application for a licence, which was rejected on November 9, 2018, due to the absence of a no-objection certificate from the property owner. Subsequently, he submitted a fresh application on March 22, 2021, relying on a circular from the Directorate of Municipal Administration, but no action was taken by the respondent.
Held
The Court found that the petitioner was indeed carrying on a readymade garments business without securing the requisite licence under the Karnataka Municipal Corporation Act, 1976. The seizure order (Annexure-J) was deemed to be in strict terms of Section 461 of the Act. The Court acknowledged that the business falls within the jurisdiction of the respondent-corporation and requires an appropriate trade licence, thus the seizure was in accordance with law. However, the Court found merit in the petitioner's submission regarding his application dated March 22, 2021, submitted along with a circular from the Directorate of Municipal Administration. The Court held that if the respondent-corporation had received this application, it was bound to consider it in accordance with law and pass appropriate orders. Therefore, the Court issued a writ of mandamus directing the respondent-corporation to decide the application dated March 22, 2021, within six weeks, taking into account the circular dated January 27, 2021. The seizure order itself was not quashed, but the petitioner was granted relief by directing the consideration of his pending application.
Key Issues
1. Whether the seizure of the petitioner's shop by the respondent-corporation, for operating a readymade garments business without a trade licence under the Karnataka Municipal Corporation Act, 1976, is in accordance with law? Petitioner's arguments: The petitioner argued that he was unaware of the requirement to obtain a licence from the corporation for his readymade garments business, believing his Labour Licence and GST registration sufficed. He also contended that the respondent-corporation had not acted upon his application dated March 22, 2021, submitted in accordance with a circular from the Directorate of Municipal Administration. Respondent's arguments: The respondent-corporation argued that the petitioner had not challenged the order dated November 9, 2018 (Annexure-F), which rejected his application for a licence on the grounds of lacking a no-objection certificate from the owner. They contended that this rejection order was appealable, and since the petitioner did not challenge it, the writ petition challenging the seizure order was not maintainable.
Sections Cited
Section 461, Karnataka Municipal Corporation Act, 1976
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Cause title — parties, addresses and appearances
: ORDER :
The captioned writ petition is filed challenging the order passed by the 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 Anneuxre-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-
3 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 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.
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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.
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
5 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.
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. 6
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 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
7 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: : 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. JUDGE EM/-
Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.