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2003 Supreme(Bom) 83
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Deshpande D.G. Hardas P.V., JJ.
Anthony Jose Nazareth Rodrigues .... Petitioner.
Versus
Panaji Municipal Council,
through its Chairperson others.... Respondents.
Writ Petition No. 82 of 2002, decided on 21-1-2003.
Advocates appeared :
N. Costa Frias, for petitioner.
A.F. Diniz, for respondents Nos. 1 2.
A.N.S. Nadkarni A.G. with H.D. Naik, A.G., for respondent No. 3.
Headnote:Goa Municipalities Act, 1968 - Sections 259, 260, 265 and 307 - Trade and Occupation Licensing Bye-laws, 1989 - Bye-law No. 1 - Licence - Grant of - For trade activities - Requirements for - Possession of a valid licence - Bye-laws formed under Section 307 of Act not ultra vires with provisions of Sections 259, 260 of Act - Bye-laws not inconsistent with provisions of Sections 259, 260 265 of Act - Exception under Section 262 of Act not taken away requirement of having a valid licence. - Under Sections 259 and 260 of the Goa Municipalities Act, a licence is essential for carrying on activities which are enumerated in the said two sections. As earlier stated by Court, Section 262 is an exception to Sections 259 and 260 of the Goa Municipalities Act. Section 265 in its sweep, is wider than Sections 259 and 260 of the Goa Municipalities Act inasmuch as it requires a licence for the use of any premises for any trade or occupation. Section 265, in its application, would obviously be controlled by the provisions of Section 262 of the Goa Municipalities Act. Thus, if a person holds a valid licence as is required under Section 260 (1), the provisions of Section 265 (1) of the Goa Municipalities Act, would not be applicable to him. Thus the requirement of Sections 259, 260 and 265 of the Goa Municipalities Act is the possession of a valid licence and the bye-laws which have been framed under Section 307 cannot be held to be ultra vires Sections 259 and 260 of the Goa Municipalities Act on the specious ground that the bye-laws contemplate issuance of a licence and laying down certain conditions for issuance of a licence. The bye-laws are certainly not inconsistent with the provisions of Sections 259, 260 and 265 of the Goa Municipalities Act. Section 265 of the Goa Municipalities Act has, therefore, to be read as encompassing in its fold all trades and occupation other than the ones which are specified in Sections 259 and 260 of the Goa Municipalities Act. From the very nature of the language of the said section, the requirement is the possession of a valid licence. The schedule accordingly lists 25 different specified activities which require a licence, Entry No. 26 encompasses in its fold all other trades and occupation which are not specified in earlier entries. Thus, the bye-laws are not inconsistent with Section 262 of the Act. As stated by Court earlier, Section 262 is an exception to Sections 259 and 260 of the Goa Municipalities Act, but that exception does not do away the requirement of having a valid licence altogether, but only excepts the persons who have a licence under the provisions of Food Adulteration Rules
Goa Municipalities Act, 1968 - Section 324 - Business premises - Closure of - Permission for - Magistrate s permission necessary - Premises sealed by Municipal authorities - Permission from Magistrate not obtained - Respondents travelled beyond their jurisdiction - Sealing of premises wholly illegal and without jurisdiction. - Counsel appearing on behalf of respondent Nos. 1 and 2 did state before Court that there is no provision for sealing the premises. The only provision is under Section 324 of the Goa Municipalities Act which empowers a Magistrate, on an application by the authority competent, to grant a licence or permission and order the closure of the premises. Undisputedly, in this case, no permission from the Magistrate was obtained for closure of the premises. Therefore, the respondents have exceeded their authority in sealing the premises. Court is, therefore, of the considered view that the action of the respondent in sealing the premises is wholly illegal and without any authority of law.
2.The facts, as are necessary to decide this petition, are set out hereunder:
The petitioner is holder of a valid licence issued by the Directorate of Food and Drugs Administration under Rule 5(4)(i) of the Goa, Daman and Diu Prevention of Food Adulteration Rules, 1982. The said licence which is issued in form 'C' is a licence for the manufacture for sale/storage/distribution of cooked/prepared food at a place called "Jose Bar" situated at Dr. Menezes Road, Tiswadi. The said licence has been renewed from time to time and was valid upto 31st December, 2002.
3.The grand-mother of the petitioner was the holder of a valid excise licence for sale of country liquor in the said premises. During her life time the said excise licence, which was originally standing in the name of his grand-mother, was transferred in the name of the petitioner by the Commissioner of Excise, Government of Goa. By order impugned in the present petition, the premises of the petitioner were sealed on the ground that he did not have a valid licence from the Panaji Municipal Council as is required under Bye Law No. 1 of the Trade and Occupation Licensing Bye Laws, 1989.
4.Mr. N. Costa Frias, learned Counsel appearing on behalf of the petitioner has submitted that on the date on which the premises of the petitioner came to be sealed, the petitioner was having a valid licence issued by the Directorate of Food Drugs Administration, Panaji for manufacture/sale/storage/distribution of cooked/prepared food. The insistence of the authorities for a valid licence under Bye Law No. 1 of the Trade and Occupation Licensing Bye Laws, 1989, is illegal and the said bye law is thus ultra vires section 262 of the Goa Municipalities Act.
5.Mr. A.F. Diniz, learned Counsel appearing on behalf of respondents No. 1 and 2 has also urged before us that the bye laws have been framed under section 265, read with section 307 of the Goa Municipalities Act and the petitioner had applied for a licence under the Act. It is also urged before us by learned Counsel on behalf of respondents No. 1 and 2 that possession of the licence under the provisions of Food Adulteration Act would not entitle the petitioner to run the bar and restaurant in defiance of section 265 of the Goa Municipalities Act. The application of the petitioner was rejected at the threshold as the petitioner had not obtained the no objection certificate from the owner, which is required under Bye Law No. 7. It is also urged before us that the petitioner has suppressed that he was prosecuted for running restaurant without licence and pursuant to the prosecution, the petitioner was convicted of the offence. Despite conviction, the petitioner again recommenced the running of the bar and restaurant and therefore, the respondent had no option but to seal the premises. Thus, the premises of the petitioner were sealed on 20-7-2001 after the Appellate Authority rejected the appeal filed by the petitioner.
6.Learned Advocate General has urged before us that section 262 of Goa Municipalities Act is an exception to sections 259 and 260 of Goa Municipalities Act. The bye-laws and the schedule have been framed in pursuance of sections 265 and 307 of Goa Municipalities Act. According to him, on plain reading of these two provisions, it would be apparent that Bye Law No. 1 is not ultra vires section 262 of Goa M
