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2000 DIGILAW 522 (CAL)

BENGAL CHEMICAL AND DRUGGISTS ASSN v. CALCUTTA MUNICIPAL CORPORATION

2000-09-29

HRISHIKESH BANERJI, S.B.SINHA

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S. B. SINHA, J. ( 1 ) THIS appeal is directed against a judgment and order dated 9th February, 2000 passed by a learned Single Judge of this Court whereby and whereunder the writ application filed by the petitioner was dismissed. ( 2 ) THE petitioner No. 1 is said to be an association of wholesale Dealers of Drugs and pharmaceutical Products. They have been carrying on business upon obtaining trade licence from the respondent Corporation in terms of section 199 of the Calcutta Muncipal Corporation Act, 1980 (hereinafter called and referred to for the sake of brevity as 'the said act' ). ( 3 ) THEY were denied renewal of grant of such Trade Licence inter alia on the ground that they had not obtained any licence (s) in terms of Section 435 thereof for user of their respective shops for commercial purpose. A writ application was thereafter filed by the appellants herein praying, inter alia for the following reliefs:-" (A) Appropriate order declaring that the imposition of Licence fee for carrying on any trade/licence either as whole saler/retailer of drugs in any premises by the respondents under Section 435, read with schedule V of the Calcutta municipal Corporation Act, 1980 is illegal, null and void and the same be struck down:" ( 4 ) THE learned Trial Judge dismissed the said writ application holding:-"the drug defined under the Calcutta municipal Corporation Act envisage any substance used as medicine, therefore, it leaves no room for doubt to infer that the finished products also goes within the definition of drug. It also does not have any ambiguity with regard to the competent for the preparation of medicines as in the same definition of drugs under Cosmetic Act which has been used as such 'in the composition or reparation of medicines. ' In that view of the matter 1 am not in a position to agree with the submission of Mr. Banerjee that the definition of drug used for preparation of finished products such as medicines. Mr. Banerjee has further advanced his contention by stating that since the legislature has used 'but does not include the drug within the meaning of clause (b) of section of the Drugs and Cosmetic Act, 1940' has been used only with an intendment to exclude drugs under the definition of 'drug' in the Drugs and Cosmetics Act which shall constitute a separate category. The purpose of Drugs and Cosmetics Act, 1940 is for regulating the import manufacture and distribution and sale of drugs. On a comparative study of definition of drug under both the Acts I however, did not find any substantial distinction even though the wording has been used that 'does not include the drug' within the meaning of Clause 31. It is not for the purpose of exempting payment of licence fee. The provision 'of Calcutta Municipal Corporation Act is only a fiscal legislation keeping in view of the ideas and intendment of the provisions it has to be interpreted. " ( 5 ) THE learned Counsel appearing on behalf of the appellant submitted that having regard to the definition of the word 'drug' as contained in Section 2 (31) of the said Act as also the relevant items of the schedule it would be manifest that wholesale dealers in drugs and pharmaceuticals ex facie do not come within the purview thereof and as such the impugned judgment must be held to be erroneous. ( 6 ) MR. Das Adhikari, the learned Counsel appearing on behalf of the respondents, on the otherhand, submitted that the question as to whether Section 435 of the said Act would be applicable or not would depend upon the fact situation of every case. According to the learned Cousnel if the meaning of the word "drug" as contained in Section 2 (31) is given a literal meaning the same would result in an absurdity and thus, while interpreting Section 435 of the said Act, ordinary meaning of the word "drug" should be held to be applicable in the instant case. The learned Counsel submitted that a statute should be interpreted having regard to the text and context thereof. Reliance in this connection has been placed on Utkal Contractors and Joinery Put. Ltd. and ors. v. State of Orissa and Ors. , Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Ors. ( 7 ) ACCORDING to the learned Counsel even double taxation is permissible in law. Strong reliance has been placed on Avinder Singh v. State of Punjab, D. G. Gouse and Co. (Agents)put. Ltd. v. State of Kerala and Anr and Abdul rashid v. The Calcutta Municipal Corporation and Ors. Ltd. and Ors. ( 7 ) ACCORDING to the learned Counsel even double taxation is permissible in law. Strong reliance has been placed on Avinder Singh v. State of Punjab, D. G. Gouse and Co. (Agents)put. Ltd. v. State of Kerala and Anr and Abdul rashid v. The Calcutta Municipal Corporation and Ors. ( 8 ) THE only question which, in the facts and circumstances of this case, arises for consideration is as to whether the petitioners are liable to take out licence in terms of Section 435 of the said Act? ( 9 ) THE said Act is regulatory one being a law relating to Municipal affairs at Calcutta. Section 2 of the said Act contains interpretation of medicines, whether for internal or external use but does not include a drug within the meaning of clause (b) of Section 3 of the drugs and Cosmetics Act, 1940. ( 10 ) SECTION 3 (b) of the Drugs and Cosmetics Act, 1940 as it stood prior to its amendment of 1982 is as follows:-"section 3 (b): 'drugs' includes- (i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals other than medicines and substances exclusively used or prepared for use in accordance with the Ayurvedic or Unani systems of medicines and (ii) such substances (other than feed)intended to effect the structures of any function of the human body, insects which cause disease in human beings or animals, as may be specified from time to time by the central Government by notification in the Official Gazette. " ( 11 ) WE may, however, make it clear that having regard to the fact that the Drug as defined in Section 3 (b) of Drugs and Cosmetics act had been excluded, the exclusion is limited only to those items which were existing at the time of enactment of the said Act and not brought by way of amendment or substitution subsequent thereto. ( 12 ) IN State of Kerala v. Attesee (Agro industrial Trading Corporation), reads thus-"we, therefore, think that, though the 1963 Act referred only to the definitions in the 1944 Act, the entries in the schedule have to be juxtaposed into the board pattern or scheme evolved by the 1956-57 enactments set out earlier in the judgment. ( 12 ) IN State of Kerala v. Attesee (Agro industrial Trading Corporation), reads thus-"we, therefore, think that, though the 1963 Act referred only to the definitions in the 1944 Act, the entries in the schedule have to be juxtaposed into the board pattern or scheme evolved by the 1956-57 enactments set out earlier in the judgment. Doing so, and even assuming that the reference in the items of the Schedule to the definitions in the 1944 Act is by way of incorporation and not reference, one cannot escape the conclusion that the circumstances are covered by the exceptions outlined in narasimhan, (1976) 1 SCR 6 : (AIR 1975 SC 1235 ). They certainly fall within the scope of exception (a) mentioned therein and also fall within exception (c) if we read 'underkable and ineffectual' to take in also "unrealistic and impractical. "it is not in dispute that all the persons carrying on business is liable to obtain a trade licence under Section 199 of the Act. ( 13 ) SECTION 435, occurring in Chapter xxv of the Act provides for Municipal licences, Section 435 (1) reads thus:-"section 435 (1): Except as hereinafter provided in this Act, no person shall use or permit to be used any premises for any of the non-residential purposes mentioned in Schedule V without or otherwise than in conformity with the terms of a municipal licence granted by the municipal Commissioner so as not to contravene the provisions of sub-section (2): provided that no such municipal licence shall be given in respect of any non-residential use of a premises which is otherwise than in conformity with the provisions of this Act or any other law for the time being in force or the rules or the regulations or orders made thereunder. " ( 14 ) THE relevant items in Schedule V being item No. 7 and clause XI of item No. 23 which reads thus :-"item No. 7. Drugs, Retail sale of Clause 23. Manufacturing, parching, packing, pressing, clearing, boiling, melting, grinding or preparing articles; (i ). . . . . . . . . . . . (xxi) Drugs. " ( 15 ) IT may be placed on record that Chapter XXXVII of the said Act provides for offence and penalties. Section 610 of the said Act reads thus:-"section 610. Manufacturing, parching, packing, pressing, clearing, boiling, melting, grinding or preparing articles; (i ). . . . . . . . . . . . (xxi) Drugs. " ( 15 ) IT may be placed on record that Chapter XXXVII of the said Act provides for offence and penalties. Section 610 of the said Act reads thus:-"section 610. Punishment for certain offences.- (1) whoever- (a) contravenes any provision of any of the sections, sub-sections, clauses or provisos, or any other provision, of this Act mentioned in column 1 of Schedule VI, or (b) fails to comply with any order or directions lawfully given to him or any requisition lawfully made to him under any such section, clause or proviso or other provision, shall be punishable- (i) with fine which may extend to the amount, or with imprisonment for a term which may extend to the period, specified in that behalf in column 3 of the said Schedule or with both, and (ii) in the case of a continuing con-* travention or failure, with an additional fine which may extend to the amount specified in column of the said Schedule for every day during which such contravention or failure continues after conviction for the first such contravention or failure. (2) Notwithstanding anything contained in sub-section (1) or in Section 199 or elsewhere in this Act within a period of six months from the date of coming into force of Section 6 of the Calcutta Municipal Corporation (Amendment) Act, 1992 (hereinafter in this sub-section referred to as the said date), every person engaged on the said date in any profession, trade or calling in Calcutta as specified in Schedule IV, either by himself or by an agent or representative, shall obtain the certificate or enlistment referred to in sub-section (1) of section 199 in respect of the period from the 1st April, 1990 till the date immediately before the said date in accordance with the provisions of Section 199 and the rules, if any, made under section 600. (3) Whoever commits any offence by contravening the provisions of sub-section (2) shall be punished with fine in accordance with the provisions of this section. Section 435 is referred to in the Vlth Schedule appended to the said act and provides for imposition of fine upto 5,000 rupees or six months imprisonment or both as well as a daily fine of Rs. 200/ -. Section 435 is referred to in the Vlth Schedule appended to the said act and provides for imposition of fine upto 5,000 rupees or six months imprisonment or both as well as a daily fine of Rs. 200/ -. " ( 16 ) SECTION 2 (31) of the said Act excludes those dealing in drugs within the meaning of section 3 (b) of the Drugs and Cosmetics Act. There cannot be any doubt as contended by sri Das Adhikari that the statute must be read as a whole with a view to find out its contextual meaning. ( 17 ) RULE of literal meaning is said to be an 'elementary Rule'. 'compelling Rule' or a 'settled Rule' as stated in AG v. HRH Prince ernest Augusthus and Poppatlal Shah v. State of Madras. One part of the statute must be taken into consideration for the purpose of construing the other part. Interpretation clause although is enacted only to explain but there cannot be any doubt whatsoever that the question as to whether when an embargo is placed in carrying on trade or busines is taken away, by reason of interpretation clause or otherwise, the same should be given efect to. It is well settled principle of law that the Parliament by inserting interpreting clause is entitled to alter the ordinary meaning of the words. Once a special meaning is attributed to a term by reason of an interpretation clause, the same should be applied in the statute. ( 18 ) IT is also well settled principle of law that the court shall not supply caussus emissus. It is a golden rule of interpretation that technical words used in a technical sense should be given effect to particularly when the same has been brought within the purview of the interpretation clause. It is also a golden rule that the privision of the Act should be understood in the natural or popular senses unless that leads to some absurdity or unless there is something in the context or in the subject of the statute to suggest the contrary. "an interpretation clause in a statutory may serve two different puposes. If it states at greater length what an expression used in other provisions in the statute 'mean'. It is no more than a drafting device to promote economy of language. "an interpretation clause in a statutory may serve two different puposes. If it states at greater length what an expression used in other provisions in the statute 'mean'. It is no more than a drafting device to promote economy of language. It is a direction to the reader: 'wherever you see this shorter expression in the statute you must treat it being shorthand for the longer one. ' Alternatively an interpretation clause may be used by the draftsman not to define the meaning of an expression appearing in the statute but to extend it beyond the ordinary meaning which it would otherwise bear. An indication that this may be its purpose is given if it purports to state what the expression 'includes' instead of what it 'means'; but the substitution of the one word for the other is not conclusive of its being a direction to the reader; 'wherever you see this shorter expression in the statute you may treat it as bearing either its ordinary meaning or this other meaning which it would not ordinarily bear'. Where the words used in the shorter expession are in themselves too imprecise to give a clear indication of what is included in it, an explanation of their meaning which is introduced by the verb 'includes' may be intended to do no more than state at greater length and with more precision what the shorter expression means. " ( 19 ) FURTHERMORE, in terms of Article 19 (1) (g) of the Constitution of India every person has a fundamental right to carry on trade or business subject to any reasonable restriction that may be imposed by reason of statute. A restriction to carry on a bussiness except under a licence is a reasonable restriction. In the instant case, however, such a restriction has already been imposed by reason of Section 199 of the Calcutta Municipal Corporation Act. Although in relation to the same business obligation to obtain more than one licences may be permissible, when the Act is ambiguous, an attempt should be made to construe the same in favour of the subject and against the State. Section 435 mandates taking out of a licence if thereby a change in the user of the premises is caused but such restriction of the change in the user is restricted to the purposes mentioned in the Vth Schedule appended to the Act. Section 435 mandates taking out of a licence if thereby a change in the user of the premises is caused but such restriction of the change in the user is restricted to the purposes mentioned in the Vth Schedule appended to the Act. Item 7 specifically refers to a trade in retailed drug. Having regard to the well settled principle of law that when the statute imposes restriction in relation to a particular trade, the other kind of trade would be excluded from the rigours thereof by necessary implication. ( 20 ) AS in item No. 7 of Schedule V the word "retail" has been mentioned, by necessary implication dealing in wholesale trade would be excluded. Furthermore, the word 'drug' contained in clause (xxi) of Item No. 23 relates to manufacturing, parching, packing, pressing, clearing, cleansing, boiling, melting, grinding or preparing by any process and does not refer to dealing in drugs in wholesale at all. ( 21 ) IF pharmaceutical products are excluded, having regard to the definition of the word 'drug' as contained in Section 2 (31) and in particular Item No. 7 of Schedule V, there cannot be any doubt that the trade in wholesale drug is necessarily excluded. It may be as submitted by Mr. Das Adhikari, that in terms of Part-11 of Schedule V storage of articles mentioned therein which includes blood but the Calcutta Municipal Corporation cannot refuse to grant licence under Section 199 of the Calcutta Municipal Corporation Act on the ground that the members of the Petitioner No. 1 had not taken out licence in terms of Section 435 thereof unless it arrives at a finding of fact, in a given case, that the concerned dealer stores the article mentioned in Part II of the Vth Schedule. It is also pertinent to note that as non-obtaining of such licences attracts the penal provision contained in Section 610 of the said Act, the same must be strictly construed. ( 22 ) IN Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa (supra), it has been held:"in considering the rival submissions of the learned counsel and in defining and construing the area and the content of the Act and its provisions, it is necessary to make certain general observations regarding the interpretation of statutes. A statute is best understood if we know the reason for it. A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute? there are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of Committees which proceeded the Bill and the reports of Parliamentary Committee. Occassional excursions into the debates of Parliament are permitted. Internal aids are the Preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and as having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessary. Just as Parliament is not expected to use unnecessary expressions. Parliament is also not expected to express itself unnecessarily. Even as parliament does not use any word without meaning something. Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily. Again, while the words of an enactment are important, the context is no less important. For instance, 'the fact that general words are used in a statute is not in itself a conclusive reason why every case falling literally within them should be governed by the statute, and the context of any Act may well indicate that wide or general words should be given a restrictive meaning' (See halsbury 4th Edn. Vol. 44 para 874 ). " ( 23 ) IN Reserve Bank of India v. Peerless g. F. and I. Co. Ltd. (supra), it has been held :"interpretation must depend on the text and the context. They are the bases of interpretation. Vol. 44 para 874 ). " ( 23 ) IN Reserve Bank of India v. Peerless g. F. and I. Co. Ltd. (supra), it has been held :"interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression 'prize Chit' in Srinivasa and we find no reason to depart from the Court's construction. "the decisions cited by Mr. Das Adhikari, thus, do not militate against the findings and observations made hereinbefore. ( 24 ) FOR the reasons aforementioned we are of the opinion that the impugned judgment cannot be sustained which is set-aside accordingly. The appeal is allowed. The parties are to bear their costs throughout. H. Banerji, J.- I agree. Appeal allowed.