Asa Ram Vs. The District Board,
Muzaffarnagar  INSC 123 (3 December 1958)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
CITATION: 1959 AIR 480 1959 SCR Supl. (1) 715
Conflict of Statutes-Two statutes conferring
same power on two different bodies-Construction-'Committee' and 'Panchayat', if
identical in meaning-Power to regulate, if includes power to require taking out
of licence U. P. District Boards Act (U. P. X of 1922), ss. 93(3), 106 and
174(1)(k)-U. P. Town Areas Act (U. P. II of 1914) as amended in 1934, S. 26(a).
The appellant was running machines with the
aid of power in a locality which was admittedly within the jalalabad Town Area.
He did not take out a licence for running the machines as required by the
Muzaffarnagar Factories Bye-laws framed by the respondent, the District Board
Muzaffarnagar, under s. 174(1)(k) read with s. 106 of the U. P. District Boards
Act, and was prosecuted by the respondent. The appellant contended that the
bye-laws did not apply to the town area and it was not necessary for him to
take out a licence. Section 174(1)(k) of the District Boards Act and s. 26(a)
of the Town Areas Act both provided for the regulation of offensive trades and
admittedly the trade carried on by the appellant was an offensive trade. The
District Boards had the power under s. 174(1)(k) to frame bye-laws for rural
areas which included town areas. But s. 93(3) of the District Boards Act took
away the power of the District 716 Boards to exercise within the limits of a
town area any authority which was vested in a 'Town Panchayat'. Though the
words 'Town Panchayat' were replaced by the words " Town Area Committee
" in the Town Areas Act by an amendment in 1934 there was no corresponding
amendment in s. 93(3) Of the District Boards Act. The respondent contended that
as there were no Town Panchayats as such now, s. 93(3) did not bar the District
Board from framing bye-laws for town areas.
Held, that the respondent had no power to
frame bye-laws for the town area and, consequently, the prosecution of the
appellant was bad. As the word 'committee' was merely a translation of the word
'panchayat', the -substitution of the word 'committee' for the word 'Panchayat'
in the Town Areas Act did not make any substantial change and consequently the
restriction under s. 93(3) Of the District Boards Act continued in full force.
When there is a body dealing with a larger
area and from that area is carved out a smaller area which is entrused to
another body, the law giving power to the body governing the smaller area must
prevail over the law giving power to the body governing the larger area. If the
Act of 1934 amending the Town Areas Act brought into existence a new body, the
Town Area Committee, then it means that a smaller area was carved out from a
larger area in 1934 and the powers given to the new statutory body would
Where two statutes give authority to two
bodies to exercise powers which cannot co-exist, the earlier is repealed by the
later statute. On this principle also the power of the Town Area Committee, if
it be deemed to be a new body coming into existence in 1934, must prevail over
that of the District Board.
King v. The Justices of Middlesex, (1831) 169
E. R. 1347 and Daw v. The Metropolitan Board of Works, (1862) 133 R.R. 311,
The power to regulate a trade includes the
power to frame bye-laws requiring the taking out of a licence.
Mohamad Yasin v. The Town Area Committee,
jalalabad,  S.C.R. 572, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 119 of 1956.
Appeal from the judgment and order dated May
11, 1956, of the Allahabad High Court in Criminal Revision No. 1724 of 1955,
against the Order dated July 13, 1955, of the Additional District Magistrate
(J), Muzaffarnagar, in Criminal Revision No. 17/18 of 1955 upholding that of
the Magistrate 1st Class, Muzaffarnagar, dated February 14, 1955, in Cr. Case
No. 132 of 1955.
717 Rameshwar Nath and S. N. Andley, for the
C.K. Daphtary, Solicitor-General of India and
P. C. Aggarwal, for the respondent.
1958. December 3. The Judgment of the Court
was delivered by WANCHOO, J.-This appeal on a certificate granted by the
Allahabad High Court raises a question relating to the interpretation of
certain provisions of the U. P. District Boards Act, (U. P. X of 1922), and the
U. P. Town Areas Act (U. P. No. II of 1914). It is necessary to state the facts
on which the question has arisen. Asa Ram appellant runs certain machines with
the aid of power in premises which are in a locality which is admittedly within
the Jalalabad town area since the year 1953-54. He did not take out a licence
for running these machines for 1953-54, as required by bye-law (7) of the
Muzaffarnagar Factories Byelaws, framed by the District Board of Muzaffarnagar,
under s. 174(1) (k) read with s. 106 of the District Boards Act.
Consequently, he was prosecuted for
contravening the byelaws in question. He admitted that he was running these
machines with the aid of power; but his contention was that as the premises
where the machines were running were in the town area of Jalalabad, the
bye-laws framed by the District Board did not apply to him and it was not
necessary for him to take out a licence, and his prosecution at the instance of
the District Board for contravening the bye laws was bad.
The decision of this point depended upon the
construction of s. 93(3) of the District Boards Act and s. 26 of the Town Areas
The trial Magistrate was of the opinion, on a
construction of the sections above-named, that the bye. laws framed by the
District Board were not applicable to premises within the Jalalabad town area,
and, therefore, Asa Ram need not have taken out a licence. He consequently
acquitted Asa Ram. There was a revision application by the District Board,
which was dismissed by the Additional District Magistrate (Judicial),
Muzaffarnagar, who agreed with the view of the 718 Magistrate. The District
Board then went up in revision to the High Court of Allahabad. The revision was
heard by a learned Single Judge, who framed three questions which arose for
determination, namely, (1) Is running of a flour mill, etc., an offensive trade
? (2) Does the word 'regulation' used in s. 26(a) U. P. Town Areas Act include
the power of issuing a licence ? and (3)Does s. 93(3) of the District Boards
Act amount to a divestment of authority of the District Board in favour of the
Town Area Committee ? On the first question, the learned Judge was of the
opinion that the machines run by Asa Ram would come within the provisions of s.
26(a) of the Town Areas Act, though he also took the view that it was not
necessary for him to decide the point. On the second question, he held that
'regulation' did not include the power of granting a licence, though this was
against a Division Bench authority of that High Court reported as Municipal
Board, Hathras v. Behrey Narain Dutt (1). He relied on a decision of this Court
in Mohamad Yasin v. The Town Area Committee, Jalalabad (2 ) also in this
connection. On the third question he was of the view that s. 93(3) barred the
District Board from exercising any authority in a town area which is vested in
the body mentioned in it. He was further of the view that the amendment of the
Town Areas Act in 1934 by which the word 'Panchayat' occurring in the Town
Areas Act was substituted throughout by the word 'Committee' made no difference
even though s. 93(3) of the District Boards Act was not simultaneously amended
by substituting the words 'Town Area Committee' for the words 'Town Panchayat'
therein in conformity with the change made in the Town Areas Act.
But in view of his decision on the second
question, viz., that ' regulation' did not include the power of granting a licence,
he held that bye-laws framed by the District Board for taking out licences
applied to premises within the town areas. He, therefore, set aside the
acquittal and (1) A.I.R. 1948 All. 1.
(2)  S.C.R. 572.
719 ordered a retrial. He also gave leave to
appeal to this Court.
The three points formulated by the High Court
arise for decision before us also. The learned Solicitor General appearing for
the-District Board does not challenge the correctness of the decision on the
first point, namely, whether the running of the machines which the appellant is
running would come within the relevant words of s. 26(a) of the Town Areas Act.
It is enough in this connection to set out the two provisions in the two Acts
to see that the decision is correct. Section 174 (1)(k) of the District Boards
Act, under which the bye-laws were framed is in these terms" regulating
slaughter houses and offensive, dangerous or obnoxious trades, callings, or
practices and prescribing fees to defray the expenditure incurred by a board
for this purpose." Section 26(a) of the Town Areas Act is in these terms"
The Committee may by general or special order in writing provide and if so
advised by the district magistrate shall provide for all or any of the
following matters within the town area, namely:(a)the regulation of offensive
callings or trades;
It is obvious therefore that s. 26(a) of the Town Areas Act is co-extensive
with s. 174(1) (k) of the District Boards Act, so far as regulation of
offensive trades or callings is concerned. As the learned Solicitor General
does not contest the finding of the High Court that the trades in question
carried on by As& Ram with his machines with the aid of power are offensive
trades, it follows that the Town Area Committee has power to regulate these
trades as well as the District Board.
So far as the second point is concerned, the
learned Solicitor General concedes that regulation' would include the power of
issuing a licence-and very rightly so. No case has been brought to our notice
in which this Court held that power of 'regulation' does not include the power
of issuing a licence and that issue of a licence amounts to prohibition and is
not a 720 restriction on carrying on a trade or business. It is enough to point
out that the District Boards Act under which these bye-laws have been framed
does not specifically provide anywhere for granting of licences. Section 174(1)
(k) itself speaks only of regulating offensive trades, etc., and has not given in
so many words power to issue licences.
It is true that s. 106 provides that the
board may charge a fee to be fixed by bye-law for any licence, sanction or
permission which it is entitled or required to grant by or under the Act; but
that section merely provides for levying of fee where a licence is necessary
under other provisions of the Act and is not in itself an authority for issue
of licences. Therefore, when the Board framed a bye-law relating to issue of
licences it did so under its power of regulation. The High Court with respect
seems to have misunderstood Mohamad Yasin's case (1). That case turned on the
question whether the Town Areas Committee could impose a fee and did not deal
with the question whether it could issue a licence. It was in that connection
that the following sentence which the High Court has picked out, appeared in
that judgment" We have not been referred to any notification whereby a. 294
of the U. P. Municipalities Act was extended to the respondent committee."
Section 294 of the Municipalities Act is in the same terms as s. 106 of the
District Boards Act and deals with the power of, levying fees. The High Court
seems to have lost sight of the distinction between granting licences which
depends on the power of regulation and levying of licencefees, which can only
be levied if there is specific provision to that effect in the law. Mohamad
Yasin's case (1) decided that as there was no provision authorising a Town Area
Committee to levy licence-fee it could not do so.
That, however, did not mean that 'regulation'
did not include the power of issuing licences, though in the absence of a
provision for charging licence-fees, licences must be issued without charge, if
bye-laws require the issue of a licence in order to regulate trades or callings
which a Town Area Committee can regulate under s. 26(a) of the (1) S.C.R.
721 Town Areas Act. The view of the learned
Judge, therefore, that the Town Area Committee could not issue a licence when
framing rules regulating offensive trades or callings is not correct. The Town
Area Committee would thus have the power to frame bye-laws requiring taking out
of licences in case it exercises its power of regulation under s. 26(a) of the
Town Areas Act in the same way as a District Board has the power of framing
bye-laws under s. 174(1)(k) requiring those carrying on certain trades to take
out licences. This brings us to the third question, namely, what happens when
two statutory bodies have concurrent power in the same field? The power of the
District Board to frame bye-laws under s. 174(1)(k) is confined to rural area
as defined in s. 3(10).
We understand that this section has been
amended recently in 1958 and now town areas are to be excluded from the ambit
of rural area'; but at the relevant time it ran as follows:" 'Rural area'
means the area of a district excluding every municipality as defined in the
United Provinces Municipalities Act, 1916 and every cantonment as defined in
the Cantonment Act, 1910." Therefore, at the relevant time, the District
Board would have the power to frame bye-laws even for town areas. In order,
however, to resolve any conflict, which may arise, s. 93 (3) was included in
the District Boards Act. It is in these terms :"Nothing in this Act shall
entitle a board to exercise within the limits of any municipality, notified
area, cantonment or town area, any authority which is vested in the municipal
board, notified area committee, cantonment committee, district magistrate, or
town panchayat, as the case may be." There are certain exceptions to this
provision, but we are not concerned with them in the present case. The argument
of the learned Solicitor General in this behalf is that the District Board will
be divested of its power to frame byelaws for regulating offensive trades and
callings in town areas, if the same authority is vested in the town panchayat.
He goes. on that 91 722 now there are no Town Panchayats having authority in
town areas, for the words " Town Panchayat " appearing in the Town
Areas Act have everywhere been substituted by the words "Town Area
Committee". It is submitted that a corresponding amendment was not made in
s. 93 (3) and, therefore, though the District Board would have no power upto
1934 to frame bye-laws for town areas relating to regulation of offensive
trades or callings, which were covered by s. 26 (a) of the Town Areas Act, it
would have that power after the amendment of 1934.
We must say that this is a very technical
argument. The Town Areas Act was passed in 1914 and in the Act as it was
originally passed the authority conferred by s. 26(a) was vested in the Town
Panchayat. In 1920 the U. P. Village Panchayat Act was passed creating
panchayats for any village or groups of villages. It seems that it was then
thought fit, to change the name in the Town Areas Act to Town Area Committee to
avoid confusion with the Panchayats under the Village Panchayat Act. But this
in our opinion was only a formal change, for the word 'committee' in English is
after all a translation more or less of the word panchayat' in Hindi.
Therefore, when the word "committee' was substituted in place of
'panchayat' in the Town Areas Act there was really no change of substance and
the restriction on the power of the District Board under s. 93 (3) of the
District Boards Act to deal with matters entrusted to the town areas continued
in full force. In this connection, our attention was drawn to Shrimati Hira
Devi v. District Board, Shahjahanpur (1). In that case, s. 71 of the U. P.
District Board's Act was amended but no corresponding amendment was made in s.
90. In that connection the following observations were made at p. 1131:"
It was unfortunate that when the Legislature came to amend the old section 71
of the Act it forgot to amend s. 90 in conformity with the amendment of s. 71.
But this lacuna cannot be supplied by any such liberal construction as the High
Court sought to put upon the expression orders of any authority (1)
723 whose sanction is necessary'. No doubt it
is the duty of the court to try to harmonise the various provisions of an Act
passed by the Legislature. But it is certainly not the duty of the Court to
stretch the words used by the Legislature to fill in gaps or omissions in the
pro-visions of an Act." That case, however, related to entirely different
circumstances. Here we are dealing with two statutes giving power to two
statutory bodies, and if there is conflict in view of the technical submission
made by the learned Solicitor General and s. 93 (3) cannot come to the aid of
the Town Area Committee, we have still to see which Act will prevail in the
circumstances. The U. P. District Boards Act deals with a larger area in which
the area constituting the town area is also included. The Town Areas Act on the
other hand deals with a smaller area and on principle when there is a body
dealing with a larger area and from that area is carved out a smaller area
which is entrusted to another body, the law giving power to the body Governing
the smaller area should prevail over the law giving power to the body governing
the larger area. if the substitution of the word committee' for the word
panchayat' is merely a translation, as observed earlier, it makes no difference
to the application of s. 93 (3) even after 1934. But if it is not treated as a
mere translation and it is said that a new body was vested with powers under
the Town Areas Act by the amendment of 1934, then it means that a smaller area
was carved out from a larger area in 1934 and a new statutory body was created
to govern it with certain powers; in those circumstances the powers given to
the now statutory body in the smaller area carved out from the larger area will
Reference in this connection may be made to
two English cases, which lay down the principle how the conflict between the
two statutes in similar circumstances should be resolved. In King v. The
Justices of Middlesex (1), it was held:" Where two Acts of Parliament,
which passed during the same session and were to come into (1) (1831) 2 B.
& AD. 818; (1831) 109 E.R. 1347, 1348. 724 operation the same day, are
repugnant to each other, that which last received the Royal assent must prevail
and be considered pro tanto a repeal of the other." Again in Daw, Clerk of
the Commissioner of Sewers of the City of London v. The Metropolitan Board of
Works it was held" Where two statutes give authority to two public bodies
to exercise powers which cannot consistently with the object of the Legislature
co-exist, the earlier must necessarily be repealed by the later statute."
In that case the conflict was between s. 145 of the City of London Sewers Act,
1848 and s. 141 of the Metropolis Local Management Act, 1855, and the later was
held to prevail.
The principle of these cases will apply to
the present circumstances, and if the words " town area committee "
are not held to be a translation of the words " town panchayat ", the
result is that a Town Area Committee being vested with power under s. 26 (a) to
regulate offensive trades or callings, the power of the Town Area Committee
must prevail over the power of the District Board under s. 174 (1)(k) of the
District Boards Act. We, therefore, allow the appeal, set aside the order of
the High Court and order the acquittal of As a Ram appellant.