TAHIR HUSSAIN Vs. DISTRICT BOARD MUZAFFARNAGAR

JUDGEMENT

(1.) This petition under Article 32 of the Constitution raises the question of the constitutional validity of bye-law No. 2 made by the District Board, Muzaffarnagar, U. P., which is challenged as being 'ultra vires' the powers of the Board under Section 174(2)(1)of the United Provinces District Board Act X of 1922 and as being an infringement of the fundamental right of the petitioner under Article 19(1) (g) of the Constitution.

(2.) The petitioner is a tenant of certain land in village Banat in the District of Muzaffarnagar. He owns a piece of land measuring 35 bighas near this village and holds a market (Painth) for sale of cattle on this land every Wednesday, and charges some commission on sales. The petitioner says that in consideration of this commission he looks after the comfort and convenience of the public visiting the market. The District Board of Muzaffarnagar owns no land in the village, nor holds any market therein. It is alleged that the petitioner and his partner were served with a notice by the District Board not to hold the market and to show cause why they should not be prosecuted. This notice was issued under bye-law No. 2 which is to the following effect:

(3.) This court had to consider the validity of a more or less similar bye-law made by the Municipal Board, Kairana which provided that no person shall establish any new market or place for wholesale transactions of vegetables without obtaining the previous permission of the Board, and another bye-law which permitted the grant of a monopoly to a contractor to deal in whole-sale transactions at the place fixed as a market. The monopoly to do wholesale business in vegetables was auctioned by the Board to the highest bidder and a place was also fixed as the market where such business could be carried on. A person who had been carrying on wholesale business in vegetables before the bye-laws came into force applied for a license to carry on his business at his shop but his application was rejected and he was prosecuted for contravention of the bye-laws. This court upheld the fundamental right of the aggrieved person under Article 19(1)(g) and held that the prohibition imposed by the bye-law became absolute in the absence of pro-visions authorising the issue of a licence and as the Municipal Board had put it out of its power to grant a license by granting a monopoly, the restrictions imposed were not reasonable within the meaning of Article 19(1) (g) of the Constitution and the bye-laws were accordingly void. See - 'Rashid Ahmed vs. Municipal Board, Kairana', AIR 1950 SC 163 (A).