AFZAL ULLAH Vs. STATE OF UTTER PRADESH

JUDGEMENT

(1.) This appeal by special leave raises a short question about the validity of bye-law No. 3 and other relevant bye-laws framed by respondent No. 2, the Municipal Board of Tanda, on January 21, 1958. The appellant Chaudhari Afzal Ullah is a resident of Tanda and owns a piece of land and super-structures 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 food-grains 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 the said notice respondent No. 2 initiated criminal proceedings against the appellant . The appellant was tried by the Tehsildar of Tanda (Cr. Case No. 141 of Rs. 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 had 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 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.

(2.) 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 bye-laws and it was obligatory upon the appellant to take a license 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 clauses 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, he has impleaded the State of U. P. as respondent No. 1.

(3.) Mr. Misra for the appellant contends that the High Court was in error in coming to the conclusion that the relevant bye-laws 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 298A (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 framed are seventeen in number and in addition, they contain a clause prescribing the penalty. Bye-law 3 (a) reads thus:--