Pich Rowther Hameedu Rowther vs The Pampady Fanchayath and Another

Varadaraja Iyengar, J.—These are two petitions under Article 226 of the Constitution filed by two different persons, calling in question the

restraint imposed more or less similarly, on their trade or business by two different Panchayat authorities respectively.

These Panchayats have been constituted by Government under the Tranvancore-Cochin Panchayats Act 2 of 1950 with a view to make better

provisions (or the administration of village affairs. Their functions, powers and property are dealt With in Chapter 3 of the Act under 8s. 43 to 51.

Of these it is enough for us to note the general provision in Section 44 and also the Clause (d) thereof, as follows:

Subject to such rules as may be prescribed a Panchayat shall also make arrangements for carrying out the requirements of the panchayat area in

respect of the following matters, namely :...

(d) control of offensive and dangerous trades.

Chapter 5 contains provisions as to public safety, convenience and health under various sub-heads. It is necessary to note the sub-head

Industries"" and Section 80 under it. Section 80 consists of five clauses. The first three clauses which alone concern us run as follows:

(1) The panchayat may, with the previous approval of the Director, notify that no place within the limits of the panchayat area shall be used for any

of the purposes specified in the rules made in this behalf being purposes Which, in the opinion of Government, are likely to be offensive or

dangerous to human life or health or property, without a licence from the executive authority and except in accordance with the conditions specified

therein;

Provided that no such notification shall take effect until sixty days from the date of its publication,

(2) The owner or occupier of every such place shall, within thirty days of the publication of such notification apply to the executive authority for a

licence for the use of such place for such purposes.

(3) The executive authority may by an order and under such restrictions and conditions as he thinks fit grant or refuse to grant such licence.

The statutory functionary referred in Clause (1) is defined u/s 2(4) as an officer of Government. Then Chapter 6 deals generally with licences and

permissions and Chapter 7 contains the usual provisions reserving powers respectively to Government to make rules and to the Panchayat u/s 99

with the approval of the Director, to make bye-laws, among other things for

(vii) for the sanitary control and supervision of places used for any of the purposes notified u/s 80 and of any trade or manufacture carried on there

:

Now it is conceded by both the respondent panchayats that no rules have so far been prescribed u/s 44 Clause (d), with reference to the

control of offensive and dangerous trades. It is also conceded that there has been no notification published or rules made as contemplated by

Section 80 Clause (1). Similarly also that no bye-laws have been framed u/s 99 Clause (vii) of the Act.

The question has arisen, in these petitions, as to what, in the circumstances, is the scope of the powers of a panchayat to control or regulate

trades or activities, which in their opinion, affect the public health. These petitions may now be dealt with separately.

O. P. No. 37 of 1955. The petitioner here is one Picha Rowther Hameedu Rowther. He had been carrying on the business of selling meat in

stall erected for the purpose, within the area of respondent 1, Pampady Panchayat. On 27-3-1954 he filed application for licence before

respondent 1 to carry on the business but it was refused.

Subsequently on 1-5-1954 respondent 1 conducted an auction of the exclusive right to open meat stalls at Pampady when a stranger bid for and

purchased the same. The petitioner did not wind up his business but continued to carry it on. Respondent 1 therefore forcibly put a stop to it and

further launched criminal prosecution against the petitioner for alleged offence u/s 104 of the Act before the Second Class Magistrate, Kottayam.

That case is still pending.

Meanwhile fresh auction of the exclusive right as above for the year 1955 was held on 5-3-1955 and as petitioner would not still cease his

business, fresh prosecution is threatened against him. The petitioner avers that interim stay passed by the Director at various stages at the instance

of the petitioner were disregarded by respondent 1. The petitioner has therefore prayed for

(a) a writ of mandamus or any other appropriate writ, order or direction be issued, directing respondent 1 not to prohibit this petitioner from

carrying on his trade of selling meat and conducting a meat stall within the Panchayat area : (b) appropriate directions be issued directing

respondent 2 to withdraw the prosecution in C. C. No. 600 of 1954 of the Stationary Second Class Magistrate''s Court, Kottayam.

The State has been impleaded in the petition as respondent 2.

The contest is raised by respondent 1, mainly on the basis that it is the duty of the Panchayat to regulate the business activity in question by grant

of permissions or licenses as it involves the conduct of offensive and dangerous trade and as such there cannot be any question of want of

jurisdiction. Objection was also taken that alternative remedy was available to the petitioner within the ambit of the Act, and the extraordinary

jurisdiction of this Court should not, in that view, be allow-ed to be invoked.

Learned Counsel for the petitioner has urged two points. Firstly - that in the absence of the necessary rules, notifications and bye-laws under the

relevant sections of the Act, as noticed above, there was no scope for the exercise, by the Panchayat, of any powers for the regulation or control

of any trade or business however offensive or dangerous in their opinion it may be. Secondly - that there was an invasion of the petitioner''s

fundamental right under Article 19(1)(g) to carry on his trade, when he was prohibited from carrying It on, because an exclusive right to trade had

been granted by the Panchayat to some one else.

We may say at once that no satisfactory answer has been made to either of these arguments from the respondent''s side. Learned Counsel for

respondent suggested, however, as a last resort, that Section 80 of the Act could not be said to be exhaustive with respect to the control of

offensive and dangerous trades, and it was open to respondent 1 Panchayat to resort to any other provision as for example Section 71 for purpose

of controlling the petitioner''s business activities.

Section 71 merely prohibits the opening of a new private market or the continuing to keep open a private market unless a licence to do so had

been obtained from the Panchayat. And the opening of a meat stall by the petitioner could not in any sense be said to amount to the opening of a

new market. For market implies ""a public time and appointed place of buying and selling goods"" see Wharton. The reference to Section 71 is not

therefore helpful.

Learned Counsel for the appellant referred to the decisions of the Supreme Court in Ganapati Singhji v. State of Ajmer AIR 1955 SC 188 (A),

Tahir Hussain Vs. District Board, Muzaffarnagar, and Rashid Ahmed Vs. The Municipal Board, Kairana, in support of his contentions.

The first of these cases (S) AIR 1955 SC 188 (A), involved the question of a right to hold a fair on one''s own land, The Ajmer Laws

Regulation 3 of 1877 empowered the Chief Commissioner to make rules for the establishment of a system of conservancy and sanitation at fairs

and large public assemblies. But he could do this only by bringing a system into existence and incorporating it in his rules so that all concerning

could know what the system was and make arrangements to comply with it. The rules made under the Regulation empowered the District

Magistrate to make his sys-tem and see that it was observed.

It was held that the interference under the rules with the petitioner''s right to hold fair in his own land was ultra vires, for the Chief Commissioner

had not brought his own system into existence but delegated it to the District Magistrate, and such delegation was ultra vires. The petitioner had

again a fundamental right to engage in the occupation of holding the annual fair provided he did not infringe any law imposing reasonable restrictions

on that right in the interest of the general public. On that ground also the order of the District Magistrate in the case prohibiting holding of the fair by

the petitioner was found to be bad.

Applying this decision to the facts here, we can say that no system applying Section 44 (d) or Section 80 has been evolved by the framing of

necessary rules and notifications and until that preliminary was done the panchayat authority concerned could not claim to exercise power under

those sections.

The next case in Tahir Hussain Vs. District Board, Muzaffarnagar, , considered the constitutional validity of a bye-law framed by a District

Board in the Uttar Pradesh to the effect that no person shall establish or maintain or run any cattle market in the District within its jurisdiction. It

was held that the bye-law was not one passed for regulating the market but for prohibiting a person from holding it and as such interfered with the

fundamental rights of the petitioners under Article 19(1)(g) of the Constitution, and was therefore void.

This case cited and followed the earlier decision of the Supreme Court in Rashid Ahmed Vs. The Municipal Board, Kairana, also referred to by

learned Counsel. In that case the petitioner was carrying on wholesale business in vegetables in the municipal limits of the town of Kairana in U.P.

Subsequently the municipality framed certain bye-laws u/s 298, U.P. Municipalities Act. Bye-law 2 provided that no person shall establish a

market for wholesale transactions in vegetables except with the permission of the Board. There was however no bye-law authorising the Board to

issue the necessary licence.

Further, by-law 4 provided for the grant of a monopoly to a contractor to deal in wholesale transactions at the place fixed as a market. Acting

upon this provision the Board granted a monopoly to one H to carry on the wholesale business at a place fixed as a market. The result was that the

Board became powerless to grant licence to the petitioner to carry on the business within the municipal limits and it actually refused an application

of the petitioner in that behalf on the ground that there was no bye-law under which the Board could grant the licence.

The petitioner who was thus completely prohibited from carrying on his business filed an application under Article 32 of the Constitution for

enforcement of his fundamental right to carry on his trade guaranteed by Article 19(1) of the Constitution. It was held that the prohibition in bye-

law 2, in the absence of any provision for issuing licence, became absolute and further the restrictions placed on the petitioner by by-law 4 were

more than reasonable restrictions as are contemplated by Article 19(6) and, therefore, the bye-laws Would be void under Article 13(1) of the

Constitution.

Here not only were there no rules or notification or bye-laws empowering respondent 1 Panchayat to control any trade or business activity

within their area by issue of licences but they put it out of their power, by giving monopoly of meat stalls to stranger party, to grant licences to any

one else to carry on business of sale of meat within the area. There can be no doubt that the Panchayat concerned have over-stepped the limits of

their powers in seeking to prevent the petitioner from carrying on his business. The prosecution started against petitioner cannot in the

circumstances also stand.

Learned Counsel for respondent 1 Panchayat then said that this Court ought not to interfere in view of the petitioner''s failure to pursue his

relief by way of appeal to the Panchayat in the first instance, and then to the Government if necessary, u/s 115 of the Act before invoking this

Court''s special original jurisdiction under Article 226 of the Constitution.

The appeals so provided for are in respect of acts done ""under the Act"" but we are here dealing with acts alleged to be ultra vires the statutory

authority and particularly such as interfere with fundamental rights guaranteed by the Constitution. In such cases it must be certainly open to the

complaining parties to approach the Court and get immediate relief by way of writs and other appropriate remedies. Indeed the presence of

alternative remedy has always been held to fetter the jurisdiction of the High Court under Article 226 of the Constitution. We therefore overrule

this contention.

We must not omit to mention that our attention has been drawn to certain Rules made by Government in exercise of the powers conferred by

Sections 80 and 97 of the Act 2 of 1950 specifying certain purpose, which in their opinion are likely to be offensive or dangerous to human life or

health or property. But these rules were published in the Government Gazette of 22-3-1955, that is, after the acts complained of in this case, had

taken place. They do not therefore govern this case and we have accordingly not referred to them.

We therefore issue the direction to respondent 1 Pampady Panchayat to forbear from interfering with the carrying on of the business of the

meat stall of the petitioner within their area unless under proper rules and notifications made in that behalf. We also direct the withdrawal by

respondent 1 of the prosecution launched by it against the petitioner in C. C. No. 600 of 1954 on the file of the Kottayam Second Class

Magistrate. The petition herein is thus allowed with costs as against respondent 1. Advocate''s fee Rs. 100/-. Ordered accordingly.

O. P. No. 38 of 1955. This petition is filed by one Picha Rowther Kasim Rowther. The Vijayapuram Panchayat which figures as respondent 2

in the petition auctioned the exclusive right to sell meat from the year commencing 1-3-1955 in the area of its 8th ward in favour of respondent 3

Hassan Bava Rowther. Thereafter respondent 2 issued notice to the petitioner, who had been carrying the same business within area, to desist

from Belling meat as and from 1-3-1955.

In this petition the petitioner has questioned the jurisdiction of respondent 2 to issue notice as above in the absence of any bye-law or rules with

respect to the control or licensing of meat stalls or carrying on the trade of the sale of meat. The question is also raised that respondent 2, in

granting the monopoly of the right to sell meat to respondent 3, has violated the fundamental rights of the petitioner under Article 19(1)(g) of the

Constitution. The prayer is therefore made for:

(a) a writ of certiorari, or any other appropriate writ, order or direction be issued calling for the records with respect to the notice No. 20/55 dated

12-2-1955 from respondent 2 to this petitioner and the above notice be quashed : and

(b) a writ of mandamus or such other appropriate writ, order or direction be issued directing respondent 2 not to prohibit the petitioner from

carrying on the trade of selling meat and conducting a meat stall within the panchayat area. The State has been made respondent 1.

Respondent 2 contests the petition on the sole ground that the action taken by them was conceived in the best interests of the public health in

the Panchayat to regulate the trade in question by way of limiting a single shop to each ward. According to the Panchayat, the Act of 1950

contained sufficient provision empowering the Panchayat to control such trade, but they did not refer to any particular rule or notification or bye-

law in the matter.

The question involved in this petition is the same as in O. P. No. 37 of 1955 we are disposing of herewith. For the reasons mentioned in our

order in O. P. No. 37 of 1955, we allow the writ motion herein also.

The notice dated 12-2-1955 issued by respondent 2 to the petitioner will accordingly stand quashed. We also direct respondent 2 not to

Interfere with the petitioner in his business of carrying on the trade of selling meat or conducting a meat stall within the Panchayat area, unless under

proper rules and notifications in the matter. Respondent 2 will pay the costs of the petitioner. Advocate''s fee Rs. 100/-. Ordered accordingly.