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Judgment
B.C. Verma, C.J.—This order will also govern the disposal of Civil Writ Petitions Nos. 8863 of 1989, 12666 of 1990 and 8102 of 1990, as all of them seek to quash imposition of licence-fee on certain items, in the notification dated February 16, 1988, Annexure P-5, Annexed to C.W.P. No. 9193/ 88 published in the Punjab Government Gazette, Chandigarh, Friday, the 11th March, 1988, whereby, for the first time, licence-fee has been imposed in exercise of the powers conferred u/S. 121 of the Punjab Municipal Act, 1911, (for short, the Act).
The Municipal Committee, with a view to augment its income, proposed to enhance the rate of fee of those items and also wanted to levy a fee on certain other trades. A list of revised licence-fee was, therefore, prepared. Objections were then invited from the public according to the rules. Annexure P-4 is the report of the Tax Superintendent of the Municipal Committee stating that the public notice was issued on October 6, 1986, expressing its intention to revise the licence-fee. No such objection or suggestion was received till date, i.e. November 14, 1986. It was then that in terms of S. 121(3) of the Act, the impugned notification, Annexure P-5, was issued according approval to charge licence-fee in respect of the premises where the trade allegedly offensive and dangerous may be carried out. Item No. 26, relates to the premises where "sale of cloth containing nylon, terrylene or synthetic yarn" is carried out. Similar fee has also been prescribed for use of premises as flour mills; oil mills and rice mills, at Rs. 100/- per annum (items 39, 40 and 41 in Annexure P-5).
It will now be useful to extraci the relevant parts of S, 121 of the Act.
"Dangerous or offensive trades
Regulation of offensive and dangerous trade.-- (1)No place within a municipality shall be used for any of the following purposes: --
xx xx xx xx xx xx xx xx xx
as any other manufactory, engine-house, storehouse or place of business from which offensive or unwholesome smell, gases, noises or smoke arise; as a yard or depot for trade in unslaked lime hay, straw, thatching grass, wood charcoal or coal, or other dangerously inflammable material:
as a store-house for any explosive or for petroleum or any inflammable oil or spirit;
except under a licence from the committee which shall be renewable annually;
XX XX XX XX XX XX XX XX XX XX
(3) The committee may charge any fees according to a scale to be approved by the Deputy Commissioner for such licences and may impose such conditions in respect thereof as it may think necessary. Among other conditions it may prescribe that any furnace used in connection with such trade shall, so far as practicable, consume its own smoke."
It is obvious from a bare reading of the aforesaid provisions that S. 121 of the Act has been enacted to deal with such trades which need to be regulated being dangerous and offensive to public. It may be conceded that imposition of fee for trade in dangerous articles is permissible; nevertheless, what is to be ascertained is before holding the imposition as valid, whether the particular article is dangerous or not. Nevertheless, it is clear that no licence fee can be imposed for use of a place for trade in a given article unless it is dangerous and offensive. The title of, the section itself throws considerable light that what is to be controlled is trade from certain premises in articles any if they are dangerous and offensive, and if we may say so, correctly describes the objects of the provisions of the section. We have, therefore, no doubt that if a person uses a place for a trade in an article which is not offensive or dangerous, no licence fee can be imposed in exercise of the powers u/S. 121.
In Civil Writ Petitions Nos. 9193/88 & 8863 of 1989, the entry at item No. 26 in the aforesaid notification is challenged as invalid as it does not seek to control trade which is either dangerous or offensive. The further contention is that S. 121 only permits licence fee to be imposed if the place is being used as a yard or a depot but not otherwise. The said entry is as follows:--
"26. Sale of cloth containing Nylone, tereylene or synthetic yarn. 100."
The constant view of this Court has been that what can be licensed is only a yard or depot, 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. A shop in the very nature of things cannot be regarded as either a depot or a yard. Fee, therefore, cannot be imposed on premises being used as shop see M/s Phuman Ram Chanan Lal v. Municipal Committee, Kharar 1986 (89) PLR 669. This view has been re-affirmed in Om Parkash Arora v. The State of Punjab 1988 PLJ 301. We are in complete accord with the view so expressed in the two decisions mentioned above. If, therefore, as the petitioners in these two writ petitions allege that they are carrying cloth business from places which are only shops, but not yard or depot, the municipal committee certainly shall have no jurisdiction to impose licence fee u/S. 121 of the Act. The contention of the learned Additional Advocate-General, appearing for the opposite party, however, has been that it shall always be a question of fact in a given case whether certain premises are being used as a shop or as a yard or as a depot. In these two writ petitions, we find from the averments made in the petitions as also on perusal of the return, that the petitioners are using the premises not as a yard or depot, but as shops. On this short ground alone, the petitioners should be held not liable to obtain a licence for trading in cloth from the premises, in question, and the municipal committee, should be restrained from interfering with their trade in cloth from the premises from where they are so carrying on their business. The learned counsel for the petitioner, however, was at pains to argue that cloth containing nylon, terrylene or synthetic yarn is not dangerously inflammable material so that it could be brought under "other dangerously inflammable material" appearing in sub-sec. (1) of S. 121. The learned Additional Advocate-General, with equal vehemence argued that by its very nature, nylon, terrylene or synthetic yarn is inflammable material and suggested that the Court may even take judicial notice of such a fact. No material, however, was placed on the record to support the stand taken by the respondents. Even the material which led the municipal Committee to form the opinion as to the said yarn being inflammable was not placed before the Court. It will be difficult for us to reach a conclusion that the nylon, terrylene or synthetic yarn is inflammable material in the sense that on catching fire it may emit flames. That apart, what we notice is that the desire of the Legislature is to subject to fee not only inflammable material but the material which is dangerously inflammable u/S. 121 of the Act. The use of the word "dangerously", qualifying the words "inflammable material", appears to be deliberate and full scope and play must be given to that qualifying word. "dangerous" is adjective derived from the noun "danger", which also means hazard or risk. A thing is dangerous if it be a possible cause of injury to anybody acting in a way which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur. Anything is dangerous if either owing to negligence or owing to the fact it is impossible for everybody on every occasion, however, carefully they may conduct themselves, to avoid some mischance of hand or eye injury may be caused. Almost everything is dangerous from one point of view, but one has to see whether the danger should be reasonably anticipated from the use of things without protection. This is how their Lordships expressed themselves in (1944) 2 All ER 315. We unhesitatingly adopt and follow that view. Dangerously, in terms, therefore, would mean unsafe or insecure and must be given this meaning in the context in which it is used in S. 121. It must, therefore, be shown before levying fee for a trade in a given article that the article or material is not only inflammable but it is also dangerous, that it is hazardous or involves risk; that it is unsafe or insecure. We are, therefore, of the opinion that it was not competent for the municipal committee to levy fee for use of a place for sale of cloth containing nylon, terrylene or synthetic yarn. Consequently, we strike down that entry in the notification, Annexure P-5. We are further of the opinion that it is not necessary for the petitioners to obtain any licence for the sale of any cloth of kind specified in entry 26.
6 . We now take up Civil Writ Petitions Nos. 8102 and 12666 of 1990, in which the challenge is to entries Nos. 39, 40 and 41 in the aforesaid notification. These entries run as
"39. Flour Mills 50
40''. Oil Mills 50
Rice Mills 50."
Places for business trade in these items have also been subjected to licence for the first time by that notification. Attempt on behalf of the respondents has been to cover these trades under paragraph (4) of S. 121(1) of the Act, which reads,--
"as any other manufactory, engine-house, storehouse or place of business from which offensive or unwholesome smell, gases, noises or smoke arise;"
It is difficult to agree with the learned counsel for the respondent, that offensive or unwholesome smell, gases or smoke may arise from a place where a flour mills, oil mills or rice mills is located and is worked. Unwholesome generally means not wholesome; unsound; tainted in health, taste or morals. "Offensive" may mean causing displeasure or anger or irritation and "unwholesome" in the context may mean that is tainted in health or taste. Needless to say, that the respondents have placed no material on the record to justify that by use of the premises as flour mills or oil mills or rice mills any such gas, smell, noise or smoke may arise which may be either offensive or unwholesome. That being so, we are clearly of the opinion that the respondent committee has no right to charge any licence fee for use of any place as flour mills, oil mills or rice mills. These entries in the notification are hereby struck down as illegal.
For the reasons aforesaid, all the above four writ petitions are allowed. Entries 26, 39, 40 and 41 in the notification Annexure P-5 in Civil Writ Petition No. 9193 of 1988 are hereby quashed. We also quash notices, Annexure P-1, in Civil Writ Petitions Nos. 9193 of 1988 and 8863 of 1989. Under the circumstances, there shall be no order as to costs in these four writ petitions.
Petitions allowed.