LAKSHMI NARAIN SHARMA Vs. DISTRICT BOARD GAZIPUR

JUDGEMENT

(1.) This is an appeal from a judgment of a learned single Judge of this Court dated 24-2-1955 dismissing a petition under Article 226 of the Constitution. The appellant is one of the proprietors of a firm which carries on the business, 'inter alia', of running of flour mill, a rice mill and an oil mill at Nandganj in the district of Gazipar and within the jurisdiction of the Gaon Sabha of Barahpur. It appears that the three mills occupy one premises.

(2.) On 27-3-1953, a set of bye-laws for the regulation and control of flour, rice and oil mills in the rural areas of the Ghazipur District was made by the District Board of Ghazipur under Section 174, District Boards Act, 1922. Bye-law No. 1 defined mills as including all flour rice and oil mills worked by any mechanical contrivance, and bye-law No. 2 provided that no person shall establish or maintain a mill within the rural area except in accordance with the conditions laid down in bye-law No. 3. Bye-law No. 3 specified the conditions, and exception is taken by the appellant to Clauses (i), (j) and (k). Clause (i) requires any person desiring to start one of such mills to obtain a licence from the Board upon payment of a fee of Rs. 20/-. Clause (k) provides that if a mill is used for more than one of the specified purposes, that is as a flour, rice or oil mill, a separate licence fee shall be paid in respect of each purpose. Bye-law No. 4 makes provision for the form of application for a licence and bye-law No. 5 requires the owner or manager of an existing mill to obtain a licence within one month from the date of the publication of the bye-laws. The appellant challenges the validity of these bye-laws and particularly of Clauses (i), (j) and (k) of bye-law No. 3 and bye-laws 4 and 5; and the relief which he seeks is the issue of a writ of 'mandamus' (1) commanding the District Board to forbear from enforcing the impugned bye-laws and (2)' restraining it from interfering with the business of the appellant or taking any steps to recover from the appellant the licence fees under the bye-laws. The learned Judge was of opinion that the impugned bye-laws were valid, and he accordingly dismissed the petition. The appellant now appeals from that order.

(3.) The first argument is that the licence fee of Rs. 20/- per mill is not proportionate to the expense Incurred by the respondent Board in regulating and controlling the flour, rice and oil mills in question, and is in the nature of a tax. The affidavit filed in support of the petition contained no facts from which it could be inferred that this fee was excessive. In the counter-affidavit filed by the Board It is stated that there are about one hundred mills affected by the bye-laws and that the Board has to maintain a staff to inspect the mills and to take such steps as are necessary to secure compliance with the provisions of the bye-laws. These assertions are denied in the rejoinder affidavit, and the correctness of the figures mentioned by the Board is challenged. This Court has pointed out on a number of occasions that it is the duty of the petitioner to state fully the facts upon which he relies in the affidavit or affidavits accompanying the petition, and that the practice of disclosing, the facts which the petitioner deems to be relevant only in the rejoinder affidavit is one which this Court will discourage. On the material before us we are not satisfied that a licence fee of Rs. 20/, which 'prima facie' is not unreasonable, is excessive. The appellant then says that although a licence fee of Rs. 20/- in respect of a single mill may be unobjectionable, it is unreasonable to charge a fee in respect of more than one mill if the additional mills are housed in the same building as the expenses of the Board are not thereby Increased. It appears to us that such expenses may well be increased as additional inspection, possibly by different inspectors, will be necessary, and in the absence of any evidence to the contrary we are not disposed to accept this submission.