Afzal Ullah Vs. The State of Uttar
Pradesh [1963] INSC 195 (20 September 1963)
20/09/1963 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
SUBBARAO, K.
WANCHOO, K.N.
SHAH, J.C.
DAYAL, RAGHUBAR
CITATION: 1964 AIR 264 1964 SCR (4) 991
CITATOR INFO:
R 1970 SC1173 (45) R 1971 SC2039 (14) R 1974
SC1281 (8) R 1977 SC1884 (26)
ACT:
United Provinces Municipalities Act, 1916
(No. II of 1916),ss. 298.299(1) and bye-law cl. 3(a)-"Market" meaning
ofWhether bye-law ultra vires.
HEADNOTE:
The appellant-accused was charged with
committing the offence under s.299(1) of the United Provinces Municipalities
Act, read with cl.3(a) of the relevant byelaws framed by Respondent No.2. The
case against the appellant was that he was running a market Within the
Municipal area in which vegetables, fruits, fish and grains were sold. It was
alleged that he was bound to take a licence for the aforesaid market under cl.
3(a) of the relevant bye-laws and since he had failed to do so, he had
committed a breach of the said bye-laws. He was tried by the Tehsildar of Tanda
on the said charge. The Tehsildar acquitted him. The Tehsildar held that he was
running only a grain market and Respondent No. 2 (the Municipality) had no
power to make bye-laws for the running of a purely grain market and so the
impugned bye laws were ultra vires. On appeal, the High Court set aside the.
order of acquittal and convicted the appellant under s. 299(1) of the Act read
with cl. 3(a) of the relevant bye-laws. It has been 65-2 S C India/64 992 found
by both courts below in the present case that on the plot belonging to the
appellant, more than four shops arc kept and they sell food grains.
HELD : (i) These shops standing on the plot
of the appellant constitute a market within bye-law 3 (a).
(ii)There is no substance in the contention
that the impugned bye-law 3(a) is invalid because it is inconsistent with s.
241(1) of the Act. There is no justification for adding the word
"only" to the last part of s. 241 (1) of the Act. If the word
"only" cannot be added to the said section, then it must follow that
in addition to the byelaws made under heading F to s. 298, the Board may make
other bye-laws in respect of the markets failing within the purview of s.
241(1), provided, of course, the said bye-laws arc otherwise valid under s.
298.
(iii)Section 241(1) does not apply to the
market which is run on the appellant's plot because it is a market for sale of
grains.
(iv)There can be no doubt that cl. (d) of s.
298(2)(F) of the Act conferred power on respondent No. 2 to make a byelaw in
regard to the establishment, regulation, and inspection of the market such as
is run on the plot belonging to the appellant. If cl. (d) is held to justify
the making of the impugned bye-law 3(a), the other clauses which prescribe theprocedure
for the application of licences, their grant and other incidental matters would
be valid under cl. (d) of s. 298(2)(F) of the Act. Therefore, there is no doubt
that the impugned bye-law 3(a) and the other cognate bye-laws are justified by
cls. (d) and (dd) of s. 298(2)(F) of the Act.
(v)It is now well-settled that the specific
provisions such as are contained in the several clauses of s. 298(2) are merely
illustrative and they cannot be read as restrictive of the generality of powers
prescribed by s. 298(1). If the impugned bye-laws come within the purview of s.
298(1) of the Act, it cannot be said that the powers enumerated under s. 298(2)
control the general words used by s. 298(1).
The impugned bye-laws in regard to the
markets framed by respondent No. 2 arc for the furtherance of municipal
administration under the Act, and so, would attract the provisions of s.
298(1).
Emperor v. Sibnath Banerji & Ors., A.I.R.
1945 P. C. 156, relied on.
(vi)The validity of the bye-laws must be
tested by reference to the question as to whether the Board had the power to
make those bye-laws. If the power is otherwise established, the fact that the
source of the power has been incorrectly or inaccurately indicated in the
preamble to the bye-laws, would not make the bye-laws invalid.
P. Bglakotish v. Union of India. [1958]
S.C.R. 1052followed, 993 (vii)The plea of malafides cannot be permitted to be
raised for the first time in appeal for the reason that for proving malafides
the appellant ought to have made appropriate allegations at the stage of trial
and led evidence to prove them.
CIVIL APELLATE JURISDICTION : Civil Appeal
No. 1 of 1962.
Appeal by special leave from the Judgment and
order dated August 29, 1961, of the Allahabad High Court in Criminal Appeal No.
379 of 1961.
B. C. Misra, for the appellant.
C. B. Agarwala and C. P. Lal, for the
respondent No. September 20, 1963. The judgment of the Court was delivered by
GAJENDRAGADKAR, J.-This appeal by special leave raises a short question about
Validity of bye law No. 3 and other relevant bye-laws framed by respondent No.
2, the Municipal Board of Tanda, on the 21st January, 1958. The appellant
Chaudhari Afzal Ullah is a resident of Tanda and owns a piece of land and
superstructures standing on it along with the compound, in the town of Tanda.
On his own land, within the compound, he has established a market in which foodgrains
are sold. The Chairman of respondent No. 2 served a notice on the appellant
calling upon him to obtain a licence for running the said market, and on the
failure of the appellant to comply with said notice, respondent No. 2 initiated
criminal proceedings against the appellant. The appellant was tried by the
Tehsildar of Tanda (Cr. Case No. 141/1960). The case against the appellant was
that he was running a market in which vegetables, fruits, fish and grains were
sold. It was alleged that under the relevant bye-laws, the appellant was bound
to take a licence and since he had failed to do so, he had committed a breach
of the said bye-laws and hid thus rendered himself liable to be punished under
section 299(1) of the United Provinces Municipalities Act, 1916 (No. II of
1916) (hereinafter called 'the Act'). The said Tehsildar held that the
prosecution had failed to prove the fact that in the market established on the
plot belonging to the appellant, vegetables, fruits and fish were sold;
evidence showed that only grains were sold in the shops 994 run in that market.
The Tehsildar further held that there was nothing in the Act which empowered
respondent No. 2 to make bye-laws for the running of a purely grain market, and
so, his conclusion was that the relevant bye-laws which were alleged to have
been contravened were ultra vires. That is why the Tehsildar acquitted the
appellant.
Respondent No. 2 then preferred an appeal
against the said -order of acquittal in the High Court of Allahabad. It was
urged on its behalf that though the shops situated on the plot belonging to the
appellant sold only grains, they constituted a market within the meaning of the
relevant byelaws and it was obligatory upon the appellant to take a licence
under the said relevant bye-laws. Respondent No. 2 also contended that the
Tehsildar was in error in holding that it had no power to make bye-laws even in
regard to a purely grain market. These pleas have been upheld by the High
Court, with the result that the order of acquittal passed in favour of the
appellant has been set aside and he has been convicted under s. 299(1) of the
Act read with clause 3(a) of the relevant bye-laws. The High Court has
sentenced the appellant to pay a fine of Rs. 20/-; in default, it has ordered
that the appellant should undergo simple imprisonment for one week. It is
against this order that the appellant has come to this Court, and in addition
to respondent No. 2, the Board, lie has impleaded the State of U.P. as
respondent No. 1.
Mr. Misra for the appellant contends that the
High Court was in error in coming to the conclusion that the relevant byelaws
are valid. He urges that the said bye-laws are invalid, because they are
outside the authority conferred on respondent No. 2 to make bye-laws by s. 298
of the Act, and he further argues that they are invalid for the additional
reason that they are inconsistent with s. 241 of the Act.
Before dealing with these contentions, it
would be relevant to consider the said bye-laws, indicate their scheme and
refer to the specific bye-laws with which we are concerned.
These bye-laws purport to have been framed
under section 298 A(a), (b), (c) and j(d) of the Act. The preamble to the
'bye-laws avers that the said bye-laws had been sanctioned by the Commissioner
as required by section 301(2) of the Act'. The bye-laws thus framed are
seventeen in number and in addition, they contain a clause prescribing the
penalty, Bye995 law 3(a) reads thus:"No person shall allow any land or
building in his possession or control within the limits of the Tanda
Municipality to be used as a market or shop for the sale of vegetables, fruits
and grains unless a licence has previously been obtained from the Board in this
behalf." There is an explanation to this bye-law which shows that
"market" means and includes any place or places for buying and
selling, inter alia, grains where more than four stalls or shops are kept on
any plot of land owned by the same owner or owners, or where wholesale
transaction by way of auction or sale of more than twenty maunds is carried on.
It is thus clear that if on any plot, more
than four stalls or shops are kept and they sell grains, they constitute a
market within bye-law 3(a). It has been found by both the courts below in the
present case that on the plot belonging to the appellant, more than four shops
are kept and they sell grains. Thus, there can be no doubt that these shops constitute
a market within bye-law 3(a). It is not disputed that if bye-law 3(a) is valid,
the appellant would be under an obligation to obtain a licence as required by
it.
Bye-law 3(b) provides that no person shall
sell or expose for sale any fruit, vegetable or grain in any market or shop
(not licenced by the Board) and not being a Municipal market or shop.
Bye-law 4 prescribes conditions which have to
be satisfied before a licence can be granted. Bye-law 5 specifies the officer
who can act as a licensing officer. Bye-law 6 requires that the place occupied
by the shops shall be properly paved and drained. Bye-law 7 authorises the
relevant authorities to inspect the shops. Under bye-law 8, sale of vegetables,
fruits and grains which are rotten or unfit for human consumption is
prohibited. Bye-law 9 requires the shop-keepers to remove rotten stuff and
prescribes that the shops shall be kept clean and tidy. Under bye-law 10, sale
of certain fruits and vegetables can be stopped if such sale is likely to spread
disease or may prove injurious to health. Similarly, under bye-law 11, a person
suffering from contagious disease can be prevented from working on the shop for
the sale of fruits, vege996 tables and grains. Bye-law 12 prescribes the
penalty of.
forfeiture of-. licence if any rubbish or
other injurious matter is allowed to be collected or deposited by a shopkeeper.
Bye-law 13 provides that on an application for licence, the licensing officer
may either grant the licence or for reason to be recorded refuse to grant it.
Under byelaw 14, the power to cancel or suspend a licence is given to the
licensing officer. Bye-law 15 provides for an appeal against certain orders,
whereas bye-law 16 prescribes a fee for granting a licence which may amount up
to Rs. 1,000/depending upon the services rendered by the Board. Under bye-law
17, the life of the licence is limited to a year ending on March 31 next
following the date from which it takes effect. The concluding paragraph
provides for a penalty for breach of any of the bye-laws and prescribes that a
fine up to 500/may be imposed and if the breach continues, a fine of Rs. 10/every
day may follow. That, in sliort, is the scheme of the bye-laws.
Let us now look at the relevant sections of
die Act before addressing ourselves to the question as to whether the impugned
bye-law 3(a) and the other bye-laws passed by it arc ultra-vires. There arc
only two sections of the Act which are relevant for our purpose in the present
appeal;
they are sections 241 and 298. Section 241(1)
reads thus :"The right of any person to use any place, within the limits
of a municipality, other than a municipal market, as a market or shop for the
sale of animals, meat or fish intended for human food, or as a market for the
sale of fruit or vegetables, shall be subject to bye-laws (if any) made under
heading F of s. 298." Section 298 confers power on the Board to make
bye-laws.
Section 298 (1) reads thus :"A board by
special resolution may, and where required by the State Govt. shall, make
bye-laws applicable to the whole or any part of the municipality, consistent
with this Act and with any rule, for the purpose of promoting or maintaining
the health, safety, and convenience of the inhabitants of the municipality and
for the furtherance of municipal administration under this Act." 997
Section 298(2)-F which consists of six sub-clauses deals with bye-laws which
can be made in respect of markets, slaughterhouses, sale of food, etc. The two
sub-clauses of s. 298(2)-F which are material read thus :"(d) Providing
for the establishment, and except so far as provision may be made by bye-laws
under sub-had (c) for the regulation and inspection of markets and
slaughter-houses, of livery stables, of encamping grounds of sarais, of flourmills,
of bakeries, of places for the manufacture, preparation or sale of specified
articles of food or drink, or for keeping or exhibiting animals for sale or
hire or animals of which the produce is sold, and of places of public
entertainment or resort, and for the proper and cleanly conduct of business
therein;
(d ) Prescribing the conditions subject to
which, and the circumstances in which, and the areas or locality in respect of
which, licences for the purposes of sub-head (d) may be granted, refused, suspended,
or withdrawn, and fixing the fees payable for such licences, and prohibiting
the establishment of business Places mentioned in sub-head (d) in default of
licence granted by the board or otherwise than in accordance with the
conditions of a licence so granted." Mr. Misra contends that bye-law 3(a)
is invalid, bbecause it is inconsistent with s. 241(1). For the purpose of this
argument, he assumes that the said bye-law is not justified by any of the
clauses of s. 298(2)-F. He argues that s. 241 provides that the appellant's
right to use his own place for the purpose of running a market can be regulated
only by a bye-law which is framed under s. 298(2)-F and by no other bye-law.
The form in which the argument is thus presented at once discloses the fact that
Mr. Misra is adding the word "only" to the last part of s. 241(1).
When s. 241(1) provides that the right of a person to run a market as therein
indicated shall be subject to bye-laws, if any, made under heading F of F, 298,
Air. Misra assumes that it means that the regulation can be imposed only by
bye-laws made under the said heading. We see no justification for adding the
word CC only" in that behalf. If the word "only" cannot be added
to the said section, then it must follow that in addition to.
998 the bye-laws made under heading F to s.
298, the Boardmay make other bye-laws in respect of the markets falling within
the purview of s. 241(1), provided, of course, they said byelaws are otherwise
valid under s. 298. That is the first answer to Mr. Misra's argument.
The second answer is that s. 241(1) does not
apply to the market which is run on the appellant's plot, because it is not a
market for the sale of fruits or vegetables, or for the sale of animals, meat
or fish intended for human food;
it is a market for sale of grains and such a
market does not appear to be included under section 241(1).
Besides, as we will presently point out, the
impugned byelaw can be justified under s. 298(2)-F (d) & (dd) and,
therefore, even if s. 241(1) was held to be applicable to the market of the
appellant, the requirement of the said section is satisfied. Therefore, we do
not think there is any substance in the contention that the impugned bye-laws
are invalid because they are inconsistent with s. 241(1).
The next point to consider is whether these
bye-laws are justified by s. 298. We have already read clauses (d) & (dd)
of s. 298(2)-F. Section 298(2)-F deals, inter alia, with markets, and in the
absence of any definition of the word "market" prescribed by the Act,
it would be legitimate to take the word "market" occurring in s. 298
(2)-F (d) in its dictionary meaning. If four or more shops are selling grains
on the plot belonging to the appellant, they make a market in the ordinary
sense of the word and clause (d) confers power on the Board to make bye-laws
providing for the establishment, and for the regulation and inspection of
markets. There can be no doubt that the power to regulate the establishment of
markets which is specified in this clause would sustain the relevant bye law
framed by respondent No. 2. Mr. Misra attempted to argue that the markets
referred to in this clause must be markets run for the sale of specified
articles of food or drink, or keeping or exhibiting animals for sale, and he
suggested that this condition was not satisfied by the market in question. In
our opinion, this argument is entirely misconceived. What the clause purports
to do is to authorise the making of byelaws providing for the establishment,
regulation and inspection of markets and several other places. The latter
clause on which Mr. Misra, relies 999 does not qualify the word
"markets" which occurs in the earlier part. Therefore, there can be
no doubt that clause (d) conferred power on respondent No. 2 to make a bye-law
in regard to the establishment, regulation and inspection of the market such as
is run on the plot belonging to the appellant.
Clause (dd) which flows as a consequence of
clause (d)empowers the Board to prescribe the conditions subject to which and
the circumstances in which licence may be granted, and if clause (d) is held to
justify the making of the impugned bye-law 3(a), the other clauses which
Prescribe the procedure for the application of licences, their grant and other
incidental matter would be valid under clause (dd).
The scheme of the six clauses under heading F
is clear.
Clauses (a) to (c) deal, with places which
are used as slaughter houses or as markets or shops for the sale of animals and
other commodities mentioned in clause (a).
Clause (b) in Particular deals with a bye-law
which prescribes the conditions subject to which places mentioned in clause (a)
should be run; and clause (c) deals with a bye law providing for the inspection
of such places. Clause (d) is wider in its sweep and it takes in places covered
by clause (a) and adds some other Places, such as markets in their generic
sense. Therefore, there is no doubt that the impugned bye-law 3(a) and the
other cognate bye-law are justified by clauses and (dd) of s. 298(2)-F.
Even if the said clauses did Dot justify the
impugned byelaw, there can be little doubt that the said bye-laws would be
justified by the general power conferred on the Boards by s. 298(1). It is now
well-settled that the specific provisions such as are contained in the several
clauses of s. 298(2) are merely illustrative and they cannot be readas
restrictive of the generality of powers prescribed by s. 298(1) vide Emperor v.
Sibnath Banerji & Ors. (1). If the powers specified by s. 298 (1) are very
wide and they take in within their scope bye-laws like the ones with which we
are concerned in the present appeal, it cannot be said that the powers
enumerated under s. 298(2) control the general words used by s. 298(1). These
latter clauses merely illustrate and do not exhaust all the powers conferred on
the Board, (1) A.I.R. 1945 P.C. 156.
1000 so that any cases not falling within the
powers specified by section 298(2) may well be protected by s. 298(1), provided
of course, the impugned bye-laws can be justified by reference to the
requirements of s. 298(1). There can be no doubt that the impugned bye-laws in
regard to the markets framed by respondent No. 2 are for the furtherance of
municipal administration under the Act, and so, would attract the provisions of
s. 298(1). Therefore we are satisfied that the High Court was right in coming
to the conclusion that the impugned bye-laws are valid.
It is true that the preamble to the bye-laws
refers to clauses A (a), (d) & (c) and J (d) of s. 298 and these clauses
undoubtedly are inapplicable; but once it is shown that the impugned bye-laws
are within the competence of respondent No. 2, the fact that preamble to the
bye-laws mentions clauses which are not relevant, would not affect the validity
of the bye-laws. The validity of the bye-laws must be tested by reference to
the question as to whether the Board had the power to make those bye-laws. If
the power is otherwise established, the fact that the source of the power has
been incorrectly or inaccurately indicated in the preamble to the bye-laws,
would not make the bye-laws invalid (vide P. Balakotaiah v. Union of India
& Other) (1).
Mr. Misra then attempted to argue that the
relevant bye-laws have been passed mala fide out of spite and enmity for the
appellant. His contention was that the appellant's shop is the only shop in the
locality and bye-law 3(a) has been passed maliciously in order to hit the
appellant. We do not think we can allow this point to be raised for the first
time in appeal. No doubt Mr. Misra referred to the fact that Aftab Ahmad has
admitted that there is no other grain market in Sakrawal except the one run by
the appellant, but that, in our opinion, can hardly afford a basis on which the
plea of mala fides could be judged. Sakrawal appears to be a locality in the
town of Tanda, and so, a statement even if it is taken at its face value,
cannot possibly justify the assumption that there is only one grain market ill
the whole of the town of Tanda. Besides, for proving mala fides the appellant
ought to have made appropriate allegations at the stage of trial and led
evidence to prove them.
(1) [1958] S.C.R. 1052.
1001 Therefore, the plea of mala fides cannot
be permitted to be raised.
Mr. Misra then suggested that bye-law 16
which prescribes fee up to Rs. 1,000/is invalid, because it is unreasonable.
Even this plea cannot be considered at this stage for two reasons: it has not
been raised in the courts below and it is patently premature, because no fee
has yet been imposed ,on the appellant; besides, they said bye-law merely
authorises the Board to levy a fee up to Rs. 1,000/-, but it specifically adds
that the amount levied by way of fee would depend upon the services rendered by
the Board. That is why it would be impossible to deal with the attack against this
bye-law in the abstract.
Mr. Misra also argued that the High Court
should have allowed his client to take two additional points before it.
These pleas are that the bye-laws had not
been published in the local paper as required by section 94(3) of the Act and
had not been made by a special resolution as required by s.
298(1). As the High Court has pointed out,
these are pleas of fact and should have been taken at the trial. In our
opinion, therefore, the High Court was fully justified in not allowing the
appellant to take these pleas for the first time at the appellate stage.
The result is, the appeal falls and is
dismissed.
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