SHIV NARAIN CHAUDHRI Vs. STATE

JUDGEMENT

(1.) SRI Shiv Narain Chaudhry, the Appellant before the Sessions Judge, Allahabad, was found guilty Under Section 240 of the UP Kshettra Samitis and Zila Parishad Adhiniyam (XXXIII of 1961), to be referred to hereafter as the Zila Parishad Act and fined a sum of Rs. 200/ - for running a brick kiln with two chimneys without having obtained a licence therefor from the Zila Parishad. Sri Shiv Narain Chaudhary went up in appeal to the Sessions Judge before whom it was contended that the bye -laws which require the obtaining of licence and the payment of licence fee were invalid as the fee was levied without there being any rendition of service by the Zila Parishad in respect of the brick kilns and consequently amounted to a tax and not a fee. The Sessions Judge appears to be of opinion that it was so; but since he thought that in view of Section 432 of the Code of Criminal Procedure he could not declare the bye -laws levying the (fee) invalid or ultra vires, he has made this reference under the aforesaid section for decision of this Court.

(2.) IT appears to me, however, as was conceded by the Learned Counsel appearing for Sri Shiv Narain Chaudhry that the reference is incompetent. A reference Under Section 432(1) of the Code of Criminal Procedure can be made only when the case before a court "involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case and is of the opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative...." It is, therefore, only when "an Act, Ordinance or Regulation" or any provision therein is in the opinion of the Court invalid or inoperative that a reference is to be made Under Sub -section (1) of Section 432 of the Code of Criminal Procedure. The levy of licence fee for running a brick kiln is made under certain bye laws which have been framed by the Allahabad Zila Parishad Under Section 239(2), Clause (E)(a)(iv) of the Zila Parishad Act. These bye laws have to be confirmed by the State Government and were so confirmed Under Sub -section (1) of Section 242, but even so they remain bye -laws framed by the Zila Parishad. It is obvious that these bye -laws are neither an Act nor an Ordinance. The only thing which remains to be considered is whether they can be treated as a "Regulation", but the expression "Regulation" is defined in the section itself in the explanation which follows Sub -section (1) of Section 432. This explanation reads:

(3.) THE bye -laws which have, now been framed by the Zila Parishad are definitely not a Regulation of the Bengal, Bombay or Madras Code. The Regulation as defined in Section 3(50) of the General Clauses Act X of 1897 means: