Babu Ram v. Nagar Palika, Bulandshahr — 1972 DIGILAW 175 (ALL)

JUDGMENT K.N. Singh, J. - This is a petition under Article 226 of the Constitution challenging the validity of bye-laws framed by the Nagar Mahapalika, Bulandshahr, requiring the petitioner to take licence for the retail sale of vegetables and to carry on that business within the area fixed for the purpose by the Municipality. 2. The petitioner carries on business of selling fruits and vegetables within the municipal limits of Nagar Palika, Bulandshahr. He has been carrying on his business in Mohalla Deputy Ganj in the town of Bulandshahr in his own shop for the last several years. The Municipal Board, Bulandshahr is under supersession and an Administrator has been appointed by the State Government to discharge the functions and perform the duties of the Municipal Board. The Administrator in exercise of powers under Sec. 298 (2-F) (a) and (b) of the Municipalities Act framed bye-laws regulating sale of vegetables and fruits within the municipal limits of Bulandshahr. The bye-laws were published in the gazette on 6th September, 1971. A copy of the bye-laws has been annexed as annexure A to the petition. The impugned bye-laws prohibit retail sale of fruits and vegetables at any other place within the municipal limits except at the Sabzi Mandi of Lal Talab, the area prescribed by the Municipality for the purpose. The petitioner has no shop of his own in mohalla Lal Talab, whereas he has a shop of his own in mohalla Deputy Ganj. The petitioner has challenged the impugned bye-laws. 3. Learned counsel for the petitioner has urged that the impugned bye-laws are ultra vires of the Act and it places unreasonable restrictions on the petitioner's right to carry on trade and business for selling fruits and vegetables. The petitioner has challenged the impugned bye-laws. 3. Learned counsel for the petitioner has urged that the impugned bye-laws are ultra vires of the Act and it places unreasonable restrictions on the petitioner's right to carry on trade and business for selling fruits and vegetables. The impugned bye-laws have been framed under Sec. 298 (2-F) (a) and (b) which runs as under :- (a) prohibiting, subject to the provisions of Sec. 241, the use of any place as a slaughter house, or as a market or shop for the sale of animals intended for human food, or of meat or fish, or as a market for sale of fruit or vegetables, in default of a licence granted by the Board or otherwise than in accordance with the conditions of licence so granted; (b) prescribing the conditions subject to which and the circumstances in which, and the area or localities in respect of which, licences for such use may be granted, refused, suspended or withdrawn. 4. Sri T.P. Asthana, learned counsel for the petitioner has urged that the impugned bye-laws place unreasonable restrictions on the petitioner's right to carry on his trade or business. Hence, the bye-laws are violative of Article 19 (1) (g) and 31 of the Constitution. Under the impugned bye-laws restrictions have been placed on the sale of fruits and vegetables by a retail dealer at every place within the Municipal Limits according to his choice. The bye-laws require that the sale of fruits and vegetables should be held at the place fixed by it, which has been especially earmarked for vegetable and fruit market. A dealer is further required to obtain a licence from the Municipal Board and a fee of Rs. 5/- has been prescribed for that purpose. None of the petitioner's property, trade or business has been acquired by the State, hence Article 31 is not attracted. As regards the reasonableness of the restrictions, there can be no doubt that the impugned bye-laws have been framed for the furtherance of municipal administration under the Act. Regulation of market and especially that of fruits and vegetables is necessary for keeping the locality clean and maintaining health and safety of the inhabitants of the town. As regards the reasonableness of the restrictions, there can be no doubt that the impugned bye-laws have been framed for the furtherance of municipal administration under the Act. Regulation of market and especially that of fruits and vegetables is necessary for keeping the locality clean and maintaining health and safety of the inhabitants of the town. If the fruits and vegetables market is not regulated and the dealers are left free to carry on their trade and business at any place in the town or their own choice, public interest would suffer. Under Article 19 (1) (g) a citizen has right to carry on any occupation, trade or business, but the State has the right to impose restrictions, which may be necessary in public interest. The impugned bye-laws do not prohibit the petitioner from carrying on his business as the restrictions are not absolute. The petitioner's right is merely regulated inasmuch as he is required to obtain a licence and carry on business at the place earmarked for the purpose by the Municipal Board. The bye-laws, in my opinion, do not place any unreasonable restrictions on the petitioner's right to carry on trade or business therefore those are not violative of Article 19 (1) (g) of the Constitution. 5. Learned counsel for the petitioner Sri Asthana has urged that the impugned bye-laws are ultra vires of the Act itself. The U.P. Municipalities Act does not confer any power to frame such a bye-law to regulate the business or trade carried on by an individual in his shop. The learned counsel has referred to Sec. 241 and Sec. 298 (2-F) (a) and (b) of the U.P. Municipalities Act and has contended that there is a difference in the Regulation of a market and a shop. In the present case individuals shop has been regulated by the impugned bye-laws in the absence of any authority under the law. Sub-sec. (1) of Sec. 298 confers power on a Municipal Board to frame bye-laws for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under the Act. Sub-sec. (1) is general and confers very wide powers on a Municipal Board to frame bye-laws. Sub-sec. (2) of Sec. 298 lays down various items for purposes of framing of bye-laws. Sub-sec. Sub-sec. (1) is general and confers very wide powers on a Municipal Board to frame bye-laws. Sub-sec. (2) of Sec. 298 lays down various items for purposes of framing of bye-laws. Sub-sec. (2) is illustrative in nature and it does not control or limit the general powers of the Board to make bye-laws under sub-sec. (1) of Sec. 298. Sec. 298 (2), List 1-F clause (a) provides that a Municipal Board may frame bye-laws prohibiting the use of any place for sale of fruits and vegetables in default of any licence granted by the Board; or otherwise than in accordance with the conditions of a licence so granted. The bye-laws so framed must be subject to the provisions of Sec. 241. The Municipal Board is invested with powers to issue licence for markets and shops for sale of certain articles. Sec.- 241 lays down that the right of any person to use any place within the limits of the Municipality other than the Municipal market as a market or shop for the sale of fruits or vegetables shall be subject to bye-laws, if any, made under the head "F" of Sec. 298. These provisions, therefore, make it clear that Municipal Board has power to frame bye-laws to regulate the right of any person to use any place as market or shop for the sale of fruits and vegetables. The Municipal Board may earmark a particular place for markets and for keeping the shops for the sale of fruits and vegetables, and may also prescribe licence for that purpose. The right to carry on trade and business in fruits and vegetables is to that extent permitted to be regulated by the Act. The impugned bye-laws have been flamed under Sec. 298 (2-F) (a) and (b) for regulating the market of fruits and vegetables. Thus the impugned bye-laws have validly been made under the Act. Similar bye. laws framed under Sec. 298 of the U.P. Municipalities Act by the Municipal Board of Tanda were held valid by the Supreme Court in the case of Afzal Ullah v. State of U.P., AIR 1964 SC 264 . There is thus, no force in the petitioner's contention. 6. Similar bye. laws framed under Sec. 298 of the U.P. Municipalities Act by the Municipal Board of Tanda were held valid by the Supreme Court in the case of Afzal Ullah v. State of U.P., AIR 1964 SC 264 . There is thus, no force in the petitioner's contention. 6. Learned counsel for the petitioner has lastly urged that the power to frame bye-laws is a legislative power which cannot be exercised by a single individual, viz., the Administrator, in the absence of the Board; since the impugned bye-laws were framed by the Administrator and not by the Board, the same were invalid and illegal. Admittedly, the Municipal Board, Bulandshahr was superseded by the State Government under Sec. 30 of the Act and an Administrator was appointed by the State Government under Sec. 31 of the Act exercise and perform the powers and duties of the Board, so far as may be possible under the Act. Under Sec. 31 (b) of the Act, Administrator is deemed to be the Board for all purposes. The Board as defined in Sec. 2 (1) means a Municipal Board and includes in any case, where a power is expressed as being conferred or a duty as being imposed on a Board, a committee, appointed by a Board and any member, officer or servant of a Board authorised or required by or under the Act to exercise the power or perform the duty. the Legislature in enacting Sec. 31 (b) and Sec. 2 (1) of the Act has created a fiction whereby a single individual namely Administrator is deemed to be the Board for the purposes of carrying on the administration of the municipality and for that purpose he may exercise all functions and powers of the Board under the Act. Sec. 298 confers power on a Municipal Board to frame bye-laws for the furtherance of Municipal Administration. The Administrator while exercising the powers of a Board may frame bye-laws as contemplated by Sec. 298 of the Act. If the legislative intent was that the Administrator should not exercise the legislative functions and powers of the Board an express provision to that effect would have been made in the Act. The Administrator while exercising the powers of a Board may frame bye-laws as contemplated by Sec. 298 of the Act. If the legislative intent was that the Administrator should not exercise the legislative functions and powers of the Board an express provision to that effect would have been made in the Act. The absence of such a provision and the express provision as contained in Sec. 31 (b) read with Sec. 2 of the Act imply that an Administrator has the power to frame bye-laws under Sec. 298 of the Act. Similar provision is contained in the U.P. Nagar Mahapalika Adhiniyam, 1959. Under Sec. 539 of the Adhiniyam whenever a Nagar Mahapalikl is superseded, the Administrator appointed by the State Government is empowered by Sec. 539 of the Act to exercise powers of the Nagar Mahapalika. Learned counsel for the petitioner has failed to point out any provision of law to show that a single individual cannot be authorised by the Legislature to perform subordinate legislative functions of the Board. Articles 123 and 213 of the Constitution confer legislative function on the President and the Governor under certain circumstances to issue Ordinances, though the Parliament and the State Legislature are the corporate bodies empowered under the Constitution to make laws. The conferment of such a power on a single individual under certain circumstances is not unusual. In the case of Notified Area, Samthary, Chetan Des Diwan Mal, the power of an Administrator to frame a bye-law under Sec. 298 of the Municipalities Act was upheld by this Court. There is thus no force in the petitioner's contention. 7. Since all the points raised by the learned counsel for the petitioner have failed, the petition must fail. It is accordingly dismissed with costs.