BADHYAMAL NARAYAN DAS Vs. CHAIRMAN DISTRICT BOARD BANARAS

JUDGEMENT

(1.) THIS petition has been filed under Article 226 of the Constitution praying that a writ of mandamus 'be issued directing the opposite party, the Chairman, District Hoard, Banaras, not to enforce the bye-laws framed by the said opposite party No. 1, under Section 174 (2) (k) of the U. P. District Boards Act, 10 of 1922. It is further prayed that an order be issued to the opposite party No. 1 not to demand any licence fee, as contemplated by the said bye-law for the running of the brick-kiln and a writ of certiorari be issued quashing the notification.

(2.) THE applicant is a brick manufacturer in the district of Banaras and is carrying on his business within the limits of the District Board. In the year 1945 the bye-laws were framed under Section 174 (2) (k) of the U. P. District Boards Act providing that each brick-kiln owner shall have to take a licence from the Board for running a brick-kiln and pay a licence fee of Rs. 10/ -. Attempts were made subsequently by the District Board to enhance the licence fee from Rs. 10/- to Rs. 50/ -. The amount of licence fee has now been increased to Rs. 200/- and the necessary sanction has been accorded by the Commissioner to the bye-laws. The applicant protested against the payment of such a heavy licence fee but no attention has been paid to the protest by the District Board. The licence fee is out of all proportion to the expenditure which the Board has to incur for granting a licence and it is stated in the affidavit that the heavy fee has been imposed with a view to increase the general revenue of the Board. On these facts it is prayed that a writ of mandamus be issued directing the Board not to realise the heavy licence fee from the applicant. Notices' were issued to the other side. No counter-affidavit has been filed challenging the facts set out in the affidavit filed in support of the -petition and no attempt has been made on behalf of the Board to prove that the fee is enough to meet the expenses which the Board has to incur for the purpose of granting licence and realising the amount of licence fee.

(3.) THE Standing' Counsel has raised a number of preliminary points to the maintainability of the petition. Firstly it is contended that the petition is not in accordance with the rules framed by this court. Reliance has been placed on Chapter XXII of the rules, framed under the Act which provides that the application under Article 226 of the Constitution must contain brief statement of facts supported by an affidavit and the grounds on which the relief is claimed. It is urged that in the present case the application only says that "for the reasons given in the accompanying affidavit the following prayer may be granted. " it does not give a brief statement of the case. The affidavit no doubt does not set out the facts in brief but the grounds for the reliefs claimed are very elaborate and it cannot be said that the parties have been prejudiced on account of the failure of the petitioner to make a brief statement of the facts. The. affidavit has been filed in support of the petition and all the necessary facts, have been stated in that affidavit. It cannot, therefore, be said that the application is not maintainable on account of the non-compliance with the provisions of the rules.