The District Board, Ghazipur Vs.
Lakshmi Narain Sharma [1960] INSC 180 (26 October 1960)
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION: 1961 AIR 356 1961 SCR (2) 81
ACT:
Regulation and Control of Trade-District
Board, Power of-If impliedly repealed-Sanitation, connotation of--U. P. District
Boards Act, 1922 (U. P. X of 1922), ss. 91(q) and 174-U. P. Panchayat Raj Act,
1947 (U. P. XXVI of 1947), ss. 15 and III.
HEADNOTE:
The appellant framed bye-laws for the
regulation and control of flour, rice and oil mills under which a licence had
to be obtained on payment of licence fee for running a mill. The bye-laws were
framed under s. 174 of the U. P. District Boards Act, 1922. The respondent
contended that the byelaws were ultra vires and void as the District Boards had
been divested of their powers to regulate and control trade under the District
Boards Act on account of s. III of the P. P. Panchayat Raj Act, 1947, which
operated in the same field.
Held, that the bye-laws had been validly made
and that the District Boards were not divested of their powers to regulate and
control trade under the District Boards Act, 1922, by the provisions of U. P.
Panchayat Raj Act, 1947. Section 91(q) of the District Boards Act cast a duty
on the District Boards to make provisions for regulating offensive, dangerous
or obnoxious trades, callings or practices and s. 174(2)(k) specifically
empowered District Boards to make bye-laws in this respect. There was no
similar duty or power conferred upon Village Panchayats under the Panchayat Raj
Act and consequently the question of the later enactment prevailing over the
former did 82 not arise. The reference to "sanitation" in s. 15(c) of
the Panchayat Raj Act did not cover regulation and control of trade. Though the
word " sanitation " in its widest connotation was capable of
including this, it was not used in its widest sense in s. 15(c) but only in its
ordinary sense in relation to conservancy, drainage and the like.
Section III of the Panchayat Raj Act was in
general terms, but bye-laws could be framed under it only in respect of the
functions and duties imposed upon a Gram Panchayat under ss. 15 and 16.
Held, further, that the licence fee charged
by the District Board could not be struck down on account of fees being charged
from the respondent in respect of his mills under the U. P. Rice and Dal Mills
Control Order, 1948, and the U. P. Pure Food Act. The licence fee charged by
the District Board was for the regulation of obnoxious trades and the purpose
of this regulation was different from the purpose for which fee was charged
from the respondent under the Essential Supplies Act and the Pure Food Act.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 372 of 1956.
Appeal from the judgment and order dated
January 18, 1956, of the Allahabad High Court in Special Appeal No. 43 of 1955.
G. C. Mathur, for the appellant.
G. P. Singh and K. P. Gupta, for the
respondent.
S. P. Sinha and P. C. Agarwala, for Intervener
No. 1.
Radheylal Agarwala and P.C. Agarwala, for
intervener No. 2.
Frank Anthony and M. I. Khowaja, for
Intervener No. 3.
1960. October 26. The Judgment of the Court
was delivered by WANCHOO J.-This is an appeal on a certificate granted by the Allahabad
High Court. The respondent is carrying on the trade of hulling rice, milling
grains and extracting oil in village Nandganj within the area of Gaon Sabha
Barapur. He obtained licences for the three trades under the United Provinces
Rice and Dal Control Order, 1948, as also under the Uttar Pradesh Pure Food
Act, 1950. Further the Gaon 83 of Rs. 8/on each mill within its jurisdiction
and the respondent had been paying that as well. In 1953 the District Board,
Ghazipur, in which district the village is situate, enforced bye-laws for the
regulation and control of flour, rice and oil mills in the rural areas of the
district under which a licence has to be obtained by such mills on payment of
Rs. 20/as licence-fee per year per mill. When the respondent was served with a
notice to take out a licence for each mill and to pay the licence-fee, he
objected to the legality and validity of the levy and thereafter filed a writ
petition in the High Court under Art. 226 of the Constitution. His contention
in this connection was three-fold, namely-(i) After the constitution of Gaon
Sabha Barapur under the U. P. Panchayat Raj Act, No.
XXVI of 1947, the District Board had been
divested of its power and jurisdiction in the matter of regulation and control
of trade under the relevant provisions of the U. P. District Boards Act, No. X
of 1922; (ii) the respondent had paid the necessary licence-fees under the U.P.
Rice and Dal Control Order, 1948 and the U. P. Pure Food Act, 1950 and could
not be asked to pay the licence-fees over again under the District Boards Act;
and (iii) in any case the levy was too high and not in proportion to the actual
and probable expenses which the District Board would have to incur in
controlling or regulating trade and was meant to augment the general revenues
of the District Board.
The writ petition was heard by a learned
Single Judge of the High Court who appears to have dismissed it in limine by a
reasoned judgment negativing all the three contentions raised by the
respondent. The respondent then went in appeal and the Appeal Court allowed the
appeal holding that in view of s. 111 of the Panchayat Raj Act, the District
Board had lost its power to make bye-laws for the regulation and control of
trade under s. 174 of the District Boards Act. The Appeal Court was further of
the view that the levy was not out of proportion to the expenses to be incurred
by the District Board in the matter of regulation and control and was not a
tax. It did not decide the third point raised on behalf of the 84 respondent.
The District Board then applied for a certificate to appeal to this Court,
which was granted and that is how the matter has come up before us.
The main question which falls for
consideration in this appeal is whether the view of the Appeal Court that the
District Board has lost its power to make bye-laws under s. 174 of the District
Boards Act for regulation and control of trade in view of s. 111 of the
Panchayat Raj Act, is correct. Learned counsel for the appellant puts his
argument on this point in two ways. In the first place, he urges that the
Panchayat Raj Act does not contain any provision by which the Gaon Sabha or the
Gaon Panchayat has been given the power to regulate or control trade and
therefore even if the Panchayat Raj Act is to prevail over the District Boards
Act, where the two deal with the same matter, this particular power remains in
the District Board as it is not included within the powers exercisable by
Panchayats under the Panchayat Raj Act. In the alternative, he urges that the
intention of the legislature was not that those provisions of the District
Boards Act which are common in the two Acts should be repealed by necessary
implication, and therefore the District Board's power to control and regulate
trade would remain whatever may be the provision of the Panchayat Raj Act.
We shall therefore examine the first
contention raised on behalf of the appellant under this head, for if the
Panchayat Raj Act has not provided for the control and regulation of trade by
the Gaon Sabha or the Gaon Panchayst, there will be no question of any
inconsistency between the District Boards Act and the Panchayat Raj Act and
therefore no question of the later Act (i. e., the Panchayat Raj Act)
prevailing over the earlier Act (i. e., the District Boards Act). Section 91 of
the District Boards Act provides for what may be called compulsory duties of
District Boards and cl. (q) of this section lays down that every board shall
make reasonable provision within the district for regulating offensive,
dangerous or obnoxious trades, callings or practices. Section 106 of the
District Boards Act gives power to the Board to charge a fee 85 to be fixed by
bye-law for any licence, sanction or permission which it is entitled or
required to grant by or under the District Boards Act. Section 174 gives power
to the District Board to frame bye-laws consistent with the Act and with any
rules framed by the State Government for the purpose of promoting or
maintaining the health, safety and convenience of the inhabitants of the area
and for the furtherance of the administration of the district under the Act. In
particular, power is given by s. 174 (2) (k) to the District Board to frame
bye-laws for regulating slaughterhouses and offensive, dangerous or obnoxious
trades, callings or practices and prescribing fees to defray the expenditure
incurred by it for this purpose. It is not in dispute that the District Board
has power under these provisions to frame bye-laws for regulation of these
trades, (namely, hulling rice, milling grains and extracting oil).
Therefore, unless this power is taken away
expressly or by necessary implication by any provision of the Panchayat Raj
Act, the District Board would be entitled to frame the byelaws which it did in
1953 and charge licence-fees there under.
Turning now to the Panchayat Raj Act, we find
that s. 15 of this Act provides for what may be called the compulsory duties of
a Gaon Panchayat while s. 16 provides for what may be called its optional
dutiee,. Section Ill gives power to the prescribed authority to make bye-laws
for a Gaon Panchayat within its jurisdiction consistent with the Act and the
Rules made thereunder for the purpose of promoting or maintaining the health,
safety and convenience of persons residing within the jurisdiction of a Gaon
Panchayat and for furtherance of the administration of Gaon Panchayats under
the Act. The prescribed authority in this case is the Executive Committee of
the District Board (see, s. 56 of the District Boards Act) which may be assumed
for present purposes to be different from the District Board as such.
The contention on behalf of the appellant is
that reading ss. 15 and 16 together with s. 111 it is obvious that regulation
or control of trades, callings and practices is not within the purview of the
Panchayat Raj Act. There 86 is no doubt that neither s. 15 nor s. 16 contains
any provision corresponding to s. 91(q) of the District Boards Act. Therefore,
prima facie the Panchayat Raj Act has nothing to do with the regulation or
control of offensive, dangerous or obnoxious trades, callings or practices and
this power of the District Board is unaffected by anything in the Panchayat Raj
Act. Learned counsel for the respondent, however, urges that though there is no
specific provision relating to such regulation or control in the Panchayat Raj
Act in ss. 15 and 16, this matter of regulation and control is impliedly
covered by el. (c) of s. 15 of the Panchayat Raj Act, which enjoins on a
Panchayat the duty to make reasonable provision for sanitation and taking
curative and preventive measures to remove and to stop the spread of an
epidemic. It is urged that sanitation' must be given a very wide meaning and
that meaning will include the regulation of offensive, dangerous or obnoxious
trades. It may be that on the widest meaning of the word " sanitation
" such regulation may be included in it; but looking to the scheme of the
District Boards Act as well as the Panchayat Raj Act, it is, in our opinion,
not correct to give the widest possible connotation to the word "
sanitation " in cl. (c) of s. 15. Section 91(m) of the District Boards Act
provides for " public vaccination, sanitation and the prevention of
disease "; but in spite of this entry relating to sanitation there are
other provisions in s. 91 which deal with what would be covered by
"'sanitation " if it were to be given the widest possible meaning as,
for example, cl. (e) relating to construction and repair of public wells, etc.
and drainage works and the supply of water from them ; el. (n) relating to
provision of a sufficient supply of pure and wholesome water where the health
of the inhabitants is endangered by the insufficiency or unwholesomeness of the
existing supply, guarding from pollution water used for human consumption and
preventing polluted water from being so used; cl. (r) relating to dissemination
of knowledge on such matters as disease, hygiene, sanitation, etc. This will
show that the word " sanitation " in cl. (m) of s. 91 is not used in
its widest sense.
87 Similarly in s. 92 (which provides for
optional duties of District Boards), cl. (c) refers to reclaiming unhealthy
localities; and cl. (i) to conserving and preventing injury or contamination to
or pollution of, rivers and other sources of water supply, which matters would
be covered within the wide meaning of sanitation. It is obvious therefore that
when the word " sanitation" is used in the District Boards Act it is
used in a restricted sense.
Similarly in the Panchayat Raj Act cl. (c) of
s. 15 mentions " sanitation ". Clause (g) relates to regulation of
places for the disposal of' carcases and of other offensive matters which would
clearly be covered by " sanitation " in its widest sense and would
have been unnecessary if sanitation was to be given its widest meaning in this
section. Clause (k) of s. 15 provides for regulation of sources of water supply
for drinking purpose which would again be included within the widest meaning of
the word " sanitation ". Clause (r) provides for allotment of places
for storing manure which would again be embraced within the widest meaning of
the word " sanitation " and need not have been separately provided
for, if sanitation in cl. (c) had the wide meaning urged for it on behalf of
the respondent. Further s. 16 (which deals with discretionary functions of a
Gaon Panchayat) provides in cl. (c) for filling in of insanitary depressions
and levelling of land-a clause which would be unnecessary if " sanitation
" has the widest possible meaning. Clause (1) of s. 16 provides for
regulating the collection, removal and disposal of manure and sweepings and
making arrangement for the disposal of carcasses of animals, which again would
be covered by el. (c), if sanitation is to be given the widest possible
meaning. Clause (m) provides for prohibiting or regulating the curing, tanning
and dyeing of skins within 220 yards of the abadi, which again would be covered
by the word " sanitation " if it had the wide meaning urged on behalf
of the respondent. It would thus be clear that both in the District Boards Act
as well as in the Panchayat Raj Act when the word " sanitation " has
been used it has not been used in its widest sense; it seems to have been used
in its ordinary meaning i. e., the improvement of sanitary 88 conditions
specially with regard to dirt and infection and would thus be confined to
matters of conservancy and drainge and the like. In the context therefore of
both the District Boards Act and the Panchayat Raj Act, it seems to us that the
word " sanitation " as used in s. 91 of the District Boards Act and
A. 15 of the Panchayat Raj Act is confined to its ordinary meaning in relation
to conservancy and drainage and the like with reference to the necessity of
avoiding dirt and disease and cannot be given such a wide meaning as to include
control or regulation of trades, callings or practices. Section 18 of the
Panchayat Raj Act gives a clear indication that it is the ordinary meaning that
is intended by the word " sanitation " in cl. (c) of s. 15.
Section 18 deals with improvement of sanitation
and provides that a Gaon Panchayat may by notice direct the owner or occupier
of any land or building, to close, remove, alter, repair, cleanse, disinfect or
put in good order any latrine, urinal, water-closet, drain, cesspool'or other
receptacle for filth, sullage-water, rubbish or refuse and so on; to cleanse,
repair, cover, fill up, drain off, deepen or to remove water from a private
well, tank, reservoir, pool, pit, depression or excavation therein which may
appear to be injurious to health or offensive to the neighbourhood; to clear
off any vegetation, undergrowth, prickly pear or scrub-jungle; and to remove
any dirt, dung, nightson. manure or any noxious or offensive matter there from
and to cleanse the land or building. It must therefore be held that the
Panchayat Raj Act does not provide for control and regulation of trades,
callings or practices like s. 91 (q) of the District Boards Act.
It is however urged that even though ss. 15
and 16 do not specifically deal with control and regulation of trades, callings
or practices, s. Ill is in very general terms and gives powers to the
prescribed authority to frame any byelaws relating to promotion or maintenance
of health, safety and convenience of persons residing within the jurisdiction
of a Gaon Panchayat. It is true that these words in s. III are of wide
amplitude ; but they cannot, in our opinion, be widened 89 beyond the duties
imposed on a Gaon Panchayat or Gaon Sabha under as. 15 and 16 or any other
provi. sion of the Panchayat Raj Act. The bye-laws framed under section 111
which are for the promotion or maintenance of health, safety and convenience
have also to be in furtherance of the administration of Gaon Panchayats under
the Act. Therefore if Gaon Panchayats have administrative functions under as.
15 and 16 or any other provision of the Act,
bye-laws can be framed under a. 111 for these purposes in order to further the
administration of Gaon Panchayats. But, if as we have held, Gaon Panchayats are
not invested with the duty to control and regulate trades, callings and
practices, there can be no question of framing bye-laws in that behalf under s.
111 on the basis of the wide words used therein. The power to frame bye-laws
under s. 111 is, in our opinion, conditioned by the duties and functions
imposed on a Gaon Panchayat under ss. 15 and 16 as well as other provisions of
the Panchayat Raj Act. It is not in dispute that there is no other provision of
the Panchayat Raj Act which imposes a duty on Gaon Panchayats to control or
regulate trades, callings or practices and therefore the power under s. 111
does not extend to prescribing bye-laws for that purpose.
The only other section to which our attention
is drawn is s. 37(d) by which a Gaon Sabha has been given the power to impose a
tax on trades, callings and professions, not exceeding such rate as may be
prescribed. This in our opinion has nothing to do with the regulation of
trades, callings and practices and levying of licence-fees in that behalf. What
this provision refers to is what is provided in item 60 of List II of the
Seventh Schedule and not fees properly so-called. We are therefore of opinion
that as the Panchayat Raj Act does not provide for control or regulation of the
nature mentioned in s. 91(q) of the District Boards Act, there is no question
of the power of the District Board under s. 174 to frame bye-laws and to
prescribe fees in that behalf being taken away by s. 111 of the Panchayat Raj
Act.
It seems that this aspect of the matter was
not argued in the High Court at all and it 90 appears to have been assumed
there that the Panchayat Raj Act also provided for the same matter as was
covered by s. 91(q) of the District Boards Act and it was probably on that
basis that the High Court held that s. Ill of the Panchayat Raj Act prevailed
over s. 174 of the District Boards Act.
In the view we have taken it is not necessary
to consider the alternative argument raised on behalf of the appellant in
respect of this point.
This brings us to the point which was not
considered by the Appeal Court, though the learned Single Judge had dealt with
it and held against the respondent. That contention is that certain fees are
being levied on the respondent in respect of these mills under the U. P. Rice
and Dal Mills Control Order, 1948 and the U. P. Pure Food Act and therefore the
District Board cannot levy any further licence-fee under s. 91(q) of the
District Boards Act read with s. 174. As pointed out by the learned Single
Judge, the fees levied under the Control Order of 1948 which depends for its
existence on the Essential Supplies Act and under the U. P.
Pure Food Act are for different purposes of
those Acts. The fee charged by the District Board is for regulation of
obnoxious trades and the purpose of this regulation is different from the
purpose for which fees are levied under the Essential Supplies Act-and the Pure
Food Act. Under these circumstances we see no reason for striking down the
regulatory provisions made under the District Boards Act and the licence-fee
charged there under. The fact that there may be some overlapping between the
regulatory provisions made under the U. P. Pure Food Act and those made under
the District Boards Act can have no relevance on the validity of the bye-laws
and the licence-fee charged under them.
In this view of the matter, the appeal is
allowed, the order of the Appeal Court set aside and the writ petition
dismissed. However, as the point on which the appellant has succeeded in this
Court was not specifically raised in the High Court, we order the parties to
bear their own costs throughout.
Appeal allowed.
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