DALIP CHAND Vs. MUKHYA NAGAR ADHIKARI

JUDGEMENT

(1.) Dalip Chand and Ramdin have filed this petition under Article 226 of the Constitution of India on the following allegations.

(2.) Dalip Chand was the owner of a rickshaw the number of which is 2462. He holds a driver's licence for the said rickshaw for the current year 1962-63. He, however, had no driver's licence for the year 1961-62. On the night between the 12th and 13th of June, 1961, he was detected by the police driving the rickshaw without a licence and was detained and taken in police custody for the same. The rickshaw was also taken by the police in its custody. Dalip Chand and Ramdin were later on prosecuted and sentences to pay a fine of Rs. 6/- each by a Magistrate. By means of this petition the validity of bye-laws Nos. 3(f)11 and 12(a) of the Lucknow Municipal Board have been challenged. There is also a prayer that the fine paid by the petitioners be refunded to them. There is, however, no prayer for the quashing of the order convicting and sentencing the petitioners nor has the Magistrate who convicted and sentences the petitioners been made a party. It seems that the petitioners have acquiesced in their conviction inasmuch as they have not filed any revision application either under section 435 or section 439 of the Code of Criminal Procedure, nor an appeal, if one lay, challenging the order convicting and sentencing them. The fine paid by the petitioners has gone to the State treasury and under these circumstances no writ of mandamus can obviously be granted to the petitioners commanding the Mukhya Nagar Adhikari and the Up Mukhya Nagar Adhikari who alone are parties to this petition to refund the fines paid by the petitioners and the writ petition to this extent is clearly misconceived. However, in view of the fact that the petitioners' are required to take a licence every year and there is a recurring liability on their part of being convicted and sentenced for the breach of the impugned bye-laws the vires of the Dye-laws has got to be investigated by this Court.

(3.) The impugned bye-laws read as follows : "3 (f). No person shall act as a driver or a coolie within Municipal limits unless such person holds driver's or coolie's licence granted by the Executive Officer and unless he has applied for and got his name noted in the register mentioned in bye-law 3 (c) or (e). 11. Any police officer or the Executive Officer may at any time demand the inspection of a licensed rickshaw, a driver's or coolie's licence, or a rickshaw licence, ant! the driver or coolie or any person in charge of the rickshaw shall be bound to comply with the demand: Provided that a six monthly general inspection of rickshaw and licences will be carried out by the Executive Officer during October and November each year. 12(a) If the rickshaw is found on the road with an unlicenced driver or coolie or the rickshaw itself be unlicensed and the police officer or the executive officer is not satisfied about the correctness of the name and address given by the person in charge of the same, the officer concerned may order the rickshaw to he taken to the Municipal Officer and the rickshaw may be detained and kept at such suitable place or places as may from time to time be fixed by the Executive Officer, till such time as the name and address of the person concerned is satisfactorily ascertained for the purposes of a prosecution under these bye-laws." These bye-laws purport to have been framed under the provisions of Section 298 (2) read with list I-H(c) and (d) of the U. P. Municipalities Act (hereinafter referred to as the Municipalities Act) (See gazette notification No. 403/XXXII-10(1) (1)-56-57) dated 22-12-1957. It is the common case of the parties that the impugned bye-laws have been confirmed by the Commissioner and have been published as required by Sub-section (2) and Section 301 of the Municipalities Act. It is not necessary to go into the allegations made in the counter and the rejoinder affidavits because the submissions by the parties that have been made before us are purely those of law and it is not necessary to advert to facts other than what we have already mentioned above.