Shri.Tarachand Deviprasad Dhobi alias Kanojia v. The Brihan Mumbai Mahanagar Palika

Judgment

[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL W.P. NO.8232 OF 2005 Shri.Tarachand Deviprasad Dhobi alias Kanojia ..Petitioner Vs. The Brihan Mumbai Mahanagar Palika ..Respondent ... Mr.P.K.Shetty Advocate for Petitioner ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : FEBRUARY O6, 2008 DATE : FEBRUARY O6, 2008 DATE : FEBRUARY O6, 2008 IN CHAMBER AT 2.35 P.M. IN CHAMBER AT 2.35 P.M. IN CHAMBER AT 2.35 P.M. P.C.P.C. P.C.

1. Heard the learned advocate for the petitioner. Perused the evidence. The petitioner and his brother were doing business of ironing in a shed situated in the compound of Bhalchandra Bhavan, Sir Bhalchandra Marg, Matunga, Mumbai-400019. The petitioner had preferred an application for grant of licence under Section 394 of Mumbai Municipal Corporation Act to carry on ironing business in a shed. The said application came to be rejected by letter dated 26.2.1999. In the said letter, it was stated that application cannot be considered for [-2-] grant of licence as the place is unsuitable for the trade for the following reasons:- (1) Licence cannot be granted in a shed for ironing; (2) Licence can only be granted to a Laundry shop or washerman trade duly authorised under Section 394 of BMC Act;

2. Being aggrieved thereby, the petitioner preferred appeal before the Court of Small Causes at Mumbai being Municipal Appeal No.329/A of 1999. By judgment and order dated 13.7.2005, the said appeal came to be dismissed. Being aggrieved thereby, the present petition has been preferred.

3. The case of the petitioner is that he and his brother came into possession as tenant of the premises i.e. the above mentioned shed in 1962. The premises is admeasuring 10 feet x 10 feet and is made of iron sheets on three sides and brick wall on the eastern side and asbestos sheet roof. In 1966, the said premises were registered under the Shops and Establishment Act, 1948 as shop. [-3-] Accordingly, the registration certificate was issued in the name of petitioner. In 1972 electricity connection was provided to the said premises. Thereafter, the appellant and his brother filed suit being RAD Suit No.1926 of 1995 in the Small Causes Court for declaration which is pending.

4. As the petitioner was having only Registration Certificate, he made an application on 11.2.1999 for licence under Section 394 of the Mumbai Municipal Corporation Act, (hereinafter referred to as ‘M.M.C.Act’) for his business of ironing in the said shed. As observed earlier, B.M.C. by its letter dated 26.2.1999 refused to grant licence.

5. The stand of the Respondent is that after scrutinising the application preferred by the petitioner, it was found that the trade of the appellant i.e. ironing is not covered under Scheme ‘M’ Part-IV of Section 394 of the M.M.C. Act. As per Schedule ‘M’ of the said Act, licence is required for carrying out the trade on process or operation connected with the said trade i.e. keeping "Laundry Shop" or "Washerman’s trade". [-4-] Thus, in view of the provisions of Schedule ‘M’ Part IV of Section 394 of the said Act, the trade mentioned in the application i.e. only "ironing" is not covered under Schedule ‘M’ of the said Act.

6. The further stand of M.M.C. is that the shed was inspected by the concerned officer and they found that the petitioner was carrying out business from the said premises which is "temporary shed structure", hence, they refused to grant licence to the appellant for his business.

7. The learned advocate for the petitioner submitted that the Registration Certificate came to be issued by the M.M.C. in 1966 in the name of the petitioner and the premises were also registered under the Shops and Establishment Act. The learned advocate for the petitioner stated that the said licence is renewed up-to-date and hence, when the certificate had been renewed up-to-date, the M.M.C. could not have refused to grant licence to the petitioner to conduct ironing business. The stand of M.M.C. is that the certificate under the Shops and Establishment Act, issued in favour of the appellant, does not entitle him to carry on the [-5-] said trade of ironing in the shed premises. The stand of M.M.C. is that the application for licence came to be rejected on two grounds i.e. "premises being temporary shed structure" and secondly, "because the trade of the appellant of ‘ironing’" does not fall within the ambit of Section 394 coupled with Schedule ‘M’ Part IV of the Section 394 of the said Act.

8. The only narrow question which remains to be considered, is whether the respondents have rightly refused to grant licence as sought by the appellant under Section 394 of the said Act. From a perusal of the provision of Section 394 read with Schedule ‘M’ Part IV of the Section 394 of the said Act, it is clear that licence cannot be granted for ironing business. Part IV provides for grant of licence for keeping a laundry shop or for carrying out washerman’s trade. On perusal of the Law Lexicon, IInd Edition page 1085, "Laundry" has been defined. "Laundry" as defined therein, is "the place where the clothes are washed." Thus, it is crystal clear that washing of clothes is an integral part of laundry business. It is not the case of the petitioner that clothes are washed in his premises. [-6-] Merely because, the petitioner was issued Certificate under the Shops and Establishment Act or that he is paying professional tax, will not automatically entitle the appellant to get the licence for carrying on business of ironing as contemplated under Section 394 of the M.M.C. Act. The second reason for refusing the licence is that the premises is a shed. This fact is not denied by the petitioner. Not only the premises is a shed but it is a structure of temporary nature consisting of an iron sheets on three sides and it has an asbestos roof. This fact is also admitted by the petitioner. Thus, it is seen that the premises is a shed that too of the nature described above.

9. On scrutinising the material and documentary evidence in this case, it cannot be said that Respondent M.M.C. erred in refusing to grant licence to the petitioner to carry on ironing business.

10. The learned Addl. Judge, has considered all the aspects and thereafter, dismissed the appeal and in my view, rightly so. Hence, no interference [-7-] is called for. Writ petition is rejected.