Wariam Singh vs Municipal Committee

Chopra, J.—This is a suit for a declaration that the bye-laws framed by Municipal Committee, Nabha and published in the Government. Gazette of 24-12-1950 are ultra vires and void and that the Committee had no authority to ask the Plaintiffs to discontinue their business as whole-sale vendors of fruits and vegetables at their present premises. The suit was originally brought in the Court of the Sub-Judge, II Class, Nabha, but since a substantial question as to the interpretation of the Constitution of India was involved, it was withdrawn from that Court and was ordered to be tried by this Court in its original jurisdiction.

The Plaintiffs are whole-sale vendors of fruits and vegetables carrying on their business at different premises in the municipal limits of Nabha. On 24-12-1950 the Nabha Municipality published certain bye-laws framed by it under Sections 197 and 188(e)(ii) of the Punjab Municipal Act (Act 2 of 1911) and in pursuance of those bye-laws the Defendant Committee demarcated a few plots in qila Mubarik, Nabha, for the purpose of carrying, on the whole-sale business in fruits and vegetables and leased them to the highest bidders. While auctioning the plots, the Committee announced that no one except those who got these plots leased out to them, would be allowed to carry on business after 1-4-1951. On 3-5-1951 the Defendant Municipal Committee-issued notices to the Plaintiffs to suspend their business within six months of the service of the notices. This gave rise to the present suit by the Plaintiff. The facts as stated above were not disputed by the Defendant except that it was asserted that the Municipal Committee was within its rights to frame the bye-laws, demarcate the plots for the sale or auction of fruits and vegetables and consequently stop the Plaintiffs from carrying on business-at their present premises.

The pleadings of the parties gave rise to the following issues:

Are the bye-laws framed by the Municipal Committee, Nabha, and published in the Government Gazette dated 14-12-1950 ultra vires the Punjab Municipal Act? O.P.

Do the bye-laws create a monopoly and are they, therefore, repugnant to Articles 13 and 19 of the Constitution of India and void? O.P.

To what relief the Plaintiff is entitled? O.P.

The bye-law in question purported to be made under Sections 197 and 188 (e) (ii) of the Punjab Municipal Act 1911 by the Municipal Committee of Nabha in their emergent meting held on 30-7-1950 and published, after its approval by the Government, in Pepsu Government Gazette of 24-12-1950 is to the following effect:

(1)(a) No person shall sell whole-sale or by auction any fruit, vegetable or sugarcane within the municipal limits, at any premises other than those specially demarcated by the municipal committee in this behalf.

(b) The Municipal Committee shall demarcate premises for the purpose of sale whole-sale or by auction, of any fruit, vegetable or sugarcane.

The only relevant clause of Section 197, Punjab Municipal Act (Act 3 of 1911) is Clause (a) and it reads as follows:

The Committee may, and shall if so required by the Provincial Government by bye-law:

(a) prohibit the manufacture, sale, or preparation or exposure for sale, of any specified articles of food or drink, in any place or premises not licensed by the Committee.

The other provision of law from which authority to frame the bye-law is derived is Section 188(e) and it provides:

A Committee may, and shall if so required by bye-law:

(e) provide....

(ii) for the inspection and proper regulation of markets for the preparation and exhibition of a price current and for fixing the fees, rents and other charges, to be levied in such markets.

It is common ground between the parties that this last provision of law does not authorise the Committee to frame the bye-law in question and it can readily be disposed of Section 188(e)(ii) only provides for framing of bye-laws for "inspection and proper regulation of markets". The bye-law undoubtedly has nothing to do with the inspection of markets and it is equally clear that it does not fall under ''proper regulation of the markets''. The exercise to regulate does not authorise the absolute prohibition of the subject matter upon which the authority is to be exercised. In the exercise of the powers to regulate, the Municipal Committee may exercise all reasonable forms of restraint over the thing regulated so long as it stops short of actual prohibition. To regulate means to govern by or subject to certain rules or restrictions. In other words, it implies a power of restriction and restraint as to the manner of conducting specified business and also as to the building or section in or upon which the business is to be conducted, but it does not include the power of a general prohibition of a business to be conducted at any place except the one demarcated by the Municipality. It might direct the mode in which the business is to be carried on or impose restrictions under which it is to be conducted at a particular place, but that does not confer the power to stop business at every place except the one fixed for it by the Committee.

Shri Jagan Nath, the learned Counsel for the Plaintiffs, vehemently contends that the other provision of law on which reliance is placed, does not also authorise the Committee to frame a bye-law to demarcate a specified place for the purpose of carrying on a particular business. The contention appears to have much (force. Section 197 allows the Committee to prohibit the sale of any specified article of food in any premises which is not licensed by the Committee. The word ''license'' means leave for grant of permission. The section, therefore empowers the Committee to frame bye-laws requiring the subject to obtain license for the sale of specified articles of food and drinks and prohibiting the sale of such articles in premises for which no license is taken. The bye-law framed by the Committee does not provide for any license to be obtained for the sale or exposure for sale for the commodities. On the other hand it allows the sale of articles in one particular locality only, namely, the one specifically demarcated by the Committee for the purpose. This withdraws the right to sell those articles in any other place even after applying for obtaining a license from the Committee.

The matter is still more clarified by reference to the section as it stood before its amendment in 1923. Clause (d) of Section 197, before the amendment, was in the following terms:

The Committee may by bye-law fix the place in which any specified article of food or drink may be sold or exposed for sale or the place in which it may not be sold or exposed for sale.

This provision of law expressly authorised the committee to demarcate any particular place for the sale or exposure for sale of certain articles. The committee would no doubt have been justified to frame the bye-law in question under this or any other such provision. But by the Amendment Act of 1923 this Clause (d) of Section 197 was omitted and Clause (a) altered to the one which has already been reproduced above. In two cases decided by the Lahore High Court similar bye-laws framed by Municipal Committees under Clause (d) of the old section were held to go beyond the scope of the amended Clause (a) of Section 197 and to have no longer remained in force after the amendment. In -''Ghanaya Lal v. Municipal Committee Montgomery'' AIR 1928 Lah 540 a person was prosecuted and convicted for the breach of a similar bye-law framed u/s 197(d) after its amendment in 1923 and on a reference made to the High Court, Shadi Lal C.J. made the following observations:

Clause (d) of Section 197, Municipal Act has been repealed and Clause (a) of that section does not authorise the Municipal Committee to frame a bye-law prohibiting the sale by auction of fresh fruits and vegetables at any place other than the Ladhasingh Chauk.

In this case it was consequently held that no person could be prosecuted for the breach of the bye-law framed under the old Section 197(d) when the alleged offence was committed after the promulgation of the amendment of 1923.

Exactly the same question with respect to an identical bye-law, framed by Municipal Committee, Muketsar, arose in -''Mula Mal v. Emperor'' AIR 1929 Lah 607 and Bhide J. who delivered the judgment of the Division Bench, with which Zaffar Ali J. concurred, observed as follows:

Clause (a) of Section 197 does not authorise a Municipal Committee to frame any bye-law prohibiting the sale of fresh fruits and vegetables. The bye-law, therefore, framed under the old section before the amendment in 1923 prohibiting a person from selling wholesale or by auction any fruit or vegetables except at vegetable markets cannot be considered to remain in force and goes beyond the scope of Clause (a) of Section 197.

I am in respectful agreement with these observations. Sardar Baldev Singh, the learned Counsel for the defendant, had not been able to support the action of the Municipal Committee and has frankly conceded the correct position of law on the point. I have, therefore, no hesitation to hold that the bye-law No. 1 framed by the Municipal Committee, Nabha and published in the Pepsu Gazette of 24-12-1950 was ultra vires the powers conferred on the Municipal Committee by the Pun jab Municipal Act of 1911. In view of my finding on issue No. 1 the other issue need not be gone into.

In the result the suit is decreed and it is declared that the said bye-law is ultra vires the Act and consequently the notices issued to the Plaintiffs by the Municipal Committee Nabha under that bye-law are ineffective. In view of the question of law involved in the, case the parties are left to bear their own costs