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PETITIONER: AFZAL ULLAH

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 20/09/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. SHAH, J.C. DAYAL, RAGHUBAR

CITATION:  1964 AIR  264            1964 SCR  (4) 991  CITATOR INFO :  R          1970 SC1173  (45)  R          1971 SC2039  (14)  R          1974 SC1281  (8)  R          1977 SC1884  (26)

ACT: United  Provinces   Municipalities  Act,  1916  (No.  II  of 1916),ss. 298.299(1) and bye-law cl. 3(a)-"Market"  meaning of- Whether bye-law ultra vires.

HEADNOTE: The  appellant-accused  was  charged  with  committing   the offence under s.299(1)    of   the   United    Provinces Municipalities  Act, read with cl.3(a) of the relevant  bye- laws framed by Respondent No.2. The     case   against   the appellant  was  that  he was running  a  market  Within  the Municipal area in which vegetables, fruits, fish and  grains were  sold.   It  was alleged that he was bound  to  take  a licence  for  the  aforesaid market under cl.  3(a)  of  the relevant  bye-laws and since he had failed to do so, he  had committed  a breach of the said bye-laws.  He was  tried  by the  Tehsildar of Tanda on the said charge.   The  Tehsildar acquitted him.  The Tehsildar held that he was running  only a  grain market and Respondent No. 2 (the Municipality)  had no power to make bye-laws for the running of a purely  grain market  and so the impugned bye laws were ultra  vires.   On appeal, the High Court set aside the. order of acquittal and convicted the appellant under s. 299(1) of the Act read with cl. 3(a) of the relevant bye-laws.  It has been 65-2 S C  India/64 992 found  by both courts below in the present case that on  the plot  belonging to the appellant, more than four  shops  arc kept and they sell food grains. HELD : (i) These shops standing on the plot of the appellant constitute a market within bye-law 3 (a). (ii)There  is  no  substance in  the  contention  that  the impugned bye-law 3(a) is invalid because it is  inconsistent with  s. 241(1) of the Act.  There is no  justification  for

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adding the word "only" to the last part of s. 241 (1) of the Act.   If  the  word  "only" cannot be  added  to  the  said section,  then it must follow that in addition to  the  bye- laws  made  under heading F to s. 298, the  Board  may  make other bye-laws in respect of the markets failing within  the purview of s. 241(1), provided, of course, the said bye-laws arc otherwise valid under s. 298. (iii)Section 241(1) does not apply to the market  which is  run on the appellant’s plot because it is a  market  for sale of grains. (iv)There  can be no doubt that cl. (d) of s. 298(2)(F)  of the  Act conferred power on respondent No. 2 to make a  bye- law   in  regard  to  the  establishment,  regulation,   and inspection  of  the  market  such as  is  run  on  the  plot belonging  to the appellant.  If cl. (d) is held to  justify the  making of the impugned bye-law 3(a), the other  clauses which  prescribe  the-  procedure  for  the  application  of licences, their grant and other incidental matters would  be valid under cl. (d) of s. 298(2)(F) of the Act.   Therefore, there  is  no doubt that the impugned bye-law 3(a)  and  the other cognate bye-laws are justified by cls. (d) and (dd) of s. 298(2)(F) of the Act. (v)It  is  now well-settled that the  specific  provisions such  as are contained in the several clauses of  s.  298(2) are   merely  illustrative  and  they  cannot  be  read   as restrictive  of  the generality of powers prescribed  by  s. 298(1).  If the impugned bye-laws come within the purview of s.  298(1)  of the Act, it cannot be said  that  the  powers enumerated under s. 298(2) control the general words used by s. 298(1). The  impugned  bye-laws in regard to the markets  framed  by respondent  No.  2  arc for  the  furtherance  of  municipal administration  under  the Act, and so,  would  attract  the provisions of s. 298(1). Emperor  v. Sibnath Banerji & Ors., A.I.R. 1945 P.  C.  156, relied on. (vi)The validity of the bye-laws must be tested by reference to  the  question as to whether the Board had the  power  to make those bye-laws.  If the power is otherwise established, the  fact that the source of the power has been  incorrectly or  inaccurately indicated in the preamble to the  bye-laws, would not make the bye-laws invalid. P. Bglakotish v. Union of India. [1958] S.C.R. 1052followed, 993 (vii)The  plea of malafides cannot be permitted  to  be raised for the first time in appeal for the reason that  for proving   malafides  the  appellant  ought  to   have   made appropriate  allegations  at  the stage  of  trial  and  led evidence to prove them.

JUDGMENT: CIVIL APELLATE JURISDICTION : Civil Appeal No. 1 of 1962. Appeal  by special leave from the Judgment and  order  dated August  29,  1961, of the Allahabad High Court  in  Criminal Appeal No. 379 of 1961. B.   C. Misra, for the appellant. C.   B. Agarwala and C. P. Lal, for the respondent No. September 20, 1963.  The judgment of the Court was delivered by GAJENDRAGADKAR,  J.-This  appeal by special leave  raises  a short  question  about Validity of bye law No. 3  and  other relevant bye-laws framed by respondent No. 2, the  Municipal Board  of Tanda, on the 21st January, 1958.   The  appellant

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Chaudhari  Afzal  Ullah is a resident of Tanda  and  owns  a piece of land and superstructures standing on it along  with the compound, in the town of Tanda.  On his own land, within the  compound,  he has established a market in  which  food- grains are sold.  The Chairman of respondent No. 2 served  a notice on the appellant calling upon him to obtain a licence for  running  the  said market, and on the  failure  of  the appellant  to  comply  with said notice,  respondent  No.  2 initiated  criminal proceedings against the appellant.   The appellant was tried by the Tehsildar of Tanda (Cr.  Case No. 141/1960).   The case against the appellant was that he  was running  a  market  in which vegetables,  fruits,  fish  and grains  were sold.  It was alleged that under  the  relevant bye-laws,  the  appellant was bound to take  a  licence  and since  he had failed to do so, he had committed a breach  of the said bye-laws and hid thus rendered himself liable to be punished  under  section  299(1)  of  the  United  Provinces Municipalities  Act,  1916 (No.  II  of  1916)  (hereinafter called  ’the  Act’).   The  said  Tehsildar  held  that  the prosecution had failed to prove the fact that in the  market established   on  the  plot  belonging  to  the   appellant, vegetables, fruits and fish were sold; evidence showed  that only grains were sold in the shops 994 run  in that market.  The Tehsildar further held that  there was  nothing in the Act which empowered respondent No. 2  to make bye-laws for the running of a purely grain market,  and so, his conclusion was that the relevant bye-laws which were alleged to have been contravened were ultra vires.  That  is why the Tehsildar acquitted the appellant. Respondent  No. 2 then preferred an appeal against the  said -order of acquittal in the High Court of Allahabad.  It  was urged  on its behalf that though the shops situated  on  the plot  belonging  to  the appellant sold  only  grains,  they constituted a market within the meaning of the relevant bye- laws  and  it was obligatory upon the appellant  to  take  a licence under the said relevant bye-laws.  Respondent No.  2 also  contended that the Tehsildar was in error  in  holding that  it had no power to make bye-laws even in regard  to  a purely  grain market.  These pleas have been upheld  by  the High  Court,  with the result that the  order  of  acquittal passed in favour of the appellant has been set aside and  he has  been  convicted under s. 299(1) of the  Act  read  with clause  3(a) of the relevant bye-laws.  The High  Court  has sentenced  the  appellant  to pay a fine  of  Rs.  20/-;  in default,  it has ordered that the appellant  should  undergo simple imprisonment for one week.  It is against this  order that  the appellant has come to this Court, and in  addition to respondent No. 2, the Board, lie has impleaded the  State of U.P. as respondent No. 1. Mr. Misra for the appellant contends that the High Court was in error in coming to the conclusion that the relevant  bye- laws  are  valid.   He  urges that  the  said  bye-laws  are invalid, because they are outside the authority conferred on respondent No. 2 to make bye-laws by s. 298 of the Act,  and he  further argues that they are invalid for the  additional reason  that they are inconsistent with s. 241 of  the  Act. Before dealing with these contentions, it would be  relevant to  consider  the said bye-laws, indicate their  scheme  and refer to the specific bye-laws with which we are  concerned. These bye-laws purport to have been framed under section 298 A(a),  (b),  (c) and j(d) of the Act.  The preamble  to  the ’bye-laws  avers that the said bye-laws had been  sanctioned by  the  Commissioner as required by section 301(2)  of  the Act’.  The bye-laws thus framed are seventeen in number  and

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in addition, they contain a clause prescribing the  penalty, Bye- 995 law 3(a) reads thus:- "No  person  shall  allow  any  land  or  building  in   his possession  or  control  within  the  limits  of  the  Tanda Municipality to be used as a market or shop for the sale  of vegetables,   fruits  and  grains  unless  a   licence   has previously been obtained from the Board in this behalf." There  is  an explanation to this bye-law which  shows  that "market"  means and includes any place or places for  buying and selling, inter alia, grains where more than four  stalls or  shops  are kept on any plot of land owned  by  the  same owner  or owners, or where wholesale transaction by  way  of auction  or sale of more than twenty maunds is  carried  on. It is thus clear that if on any plot, more than four  stalls or  shops are kept and they sell grains, they  constitute  a market  within bye-law 3(a).  It has been found by both  the courts below in the present case that on the plot  belonging to  the  appellant, more than four shops are kept  and  they sell  grains.  Thus, there can be no doubt that these  shops constitute a market within bye-law 3(a).  It is not disputed that if bye-law 3(a) is valid, the appellant would be  under an obligation to obtain a licence as required by it. Bye-law  3(b) provides that no person shall sell  or  expose for sale any fruit, vegetable or grain in any market or shop (not licenced by the Board) and not being a Municipal market or shop. Bye-law  4 prescribes conditions which have to be  satisfied before  a licence can be granted.  Bye-law 5  specifies  the officer  who  can  act as a licensing  officer.   Bye-law  6 requires that the place occupied by the shops shall be  pro- perly paved and drained.  Bye-law 7 authorises the  relevant authorities to inspect the shops.  Under bye-law 8, sale  of vegetables, fruits and grains which are rotten or unfit  for human  consumption  is prohibited.  Bye-law 9  requires  the shop-keepers to remove rotten stuff and prescribes that  the shops shall be kept clean and tidy.  Under bye-law 10,  sale of certain fruits and vegetables can be stopped if such sale is  likely  to  spread disease or  may  prove  injurious  to health.   Similarly,  under bye-law 11, a  person  suffering from contagious disease can be prevented from working on the shop for the sale of fruits, vege- 996 tables  and grains.  Bye-law 12 prescribes the  penalty  of. forfeiture  of-. licence if any rubbish or  other  injurious matter  is allowed to be collected or deposited by  a  shop- keeper.   Bye-law  13 provides that on  an  application  for licence, the licensing officer may either grant the  licence or for reason to be recorded refuse to grant it.  Under bye- law 14, the power to cancel or suspend a licence is given to the  licensing officer.  Bye-law 15 provides for  an  appeal against certain orders, whereas bye-law 16 prescribes a  fee for  granting a licence which may amount up to  Rs.  1,000/- depending  upon the services rendered by the  Board.   Under bye-law  17,  the life of the licence is limited to  a  year ending  on  March 31 next following the date from  which  it takes  effect.   The  concluding paragraph  provides  for  a penalty  for  breach of any of the bye-laws  and  prescribes that  a  fine up to 500/- may be imposed and if  the  breach continues,  a fine of Rs. 10/- every day may follow.   That, in sliort, is the scheme of the bye-laws. Let  us now look at the relevant sections of die Act  before addressing  ourselves  to  the question as  to  whether  the impugned  bye-law 3(a) and the other bye-laws passed  by  it

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arc  ultra-vires.   There arc only two sections of  the  Act which  are relevant for our purpose in the  present  appeal; they are sections 241 and 298.  Section 241(1) reads thus :- "The right of any person to use any place, within the limits of  a  municipality,  other than a municipal  market,  as  a market  or  shop  for  the sale of  animals,  meat  or  fish intended  for  human food, or as a market for  the  sale  of fruit  or vegetables, shall be subject to bye-laws (if  any) made under heading F of s. 298." Section 298 confers power on the Board to make bye-laws. Section 298    (1) reads thus :- "A  board by special resolution may, and where  required  by the State Govt. shall, make bye-laws applicable to the whole or  any part of the municipality, consistent with  this  Act and  with  any  rule,  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 this Act." 997 Section  298(2)-F  which consists of six  sub-clauses  deals with  bye-laws  which  can be made in  respect  of  markets, slaughterhouses, sale of food, etc.  The two sub-clauses of               s.    298(2)-F which are material read thus :- "(d)  Providing for the establishment, and except so far  as provision may be made by bye-laws under sub-had (c) for  the regulation  and inspection of markets and  slaughter-houses, of livery stables, of encamping grounds of sarais, of flour- mills,   of  bakeries,  of  places  for   the   manufacture, preparation or sale of specified articles of food or  drink, or  for  keeping or exhibiting animals for sale or  hire  or animals  of  which  the produce is sold, and  of  places  of public  entertainment  or  resort, and for  the  proper  and cleanly conduct of business therein; (d            ) Prescribing the conditions subject to which,               and the circumstances in which, and the  areas               or locality in respect of which, licences  for               the  purposes of sub-head (d) may be  granted,               refused,  suspended, or withdrawn, and  fixing               the  fees  payable  for  such  licences,   and               prohibiting  the  establishment  of   business               Places mentioned in sub-head (d) in default of               licence granted by the board or otherwise than               in accordance with the conditions of a licence               so granted." Mr. Misra contends that bye-law 3(a) is invalid, bbecause it is  inconsistent  with s. 241(1).  For the purpose  of  this argument, he assumes that the said bye-law is not  justified by any of the clauses of s. 298(2)-F.  He argues that s. 241 provides that the appellant’s right to use his own place for the  purpose of running a market can be regulated only by  a bye-law  which is framed under s. 298(2)-F and by  no  other bye-law.   The form in which the argument is thus  presented at once discloses the fact that Mr. Misra is adding the word "only"  to  the  last part of s.  241(1).   When  s.  241(1) provides  that  the  right of a person to run  a  market  as therein indicated shall be subject to bye-laws, if any, made under heading F of F, 298, Air.  Misra assumes that it means that  the  regulation can be imposed only by  bye-laws  made under the said heading.  We see no justification for  adding the word CC only" in that behalf.  If the word "only" cannot be  added to the said section, then it must follow  that  in addition to. 998 the  bye-laws made under heading F to s. 298,  the  Boardmay make other bye-laws in respect of the markets falling within

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the purview of s. 241(1), provided, of course, the said bye- laws  are otherwise valid under s. 298.  That is  the  first answer to Mr. Misra’s argument. The  second answer is that s. 241(1) does not apply  to  the market  which is run on the appellant’s plot, because it  is not  a market for the sale of fruits or vegetables,  or  for the  sale of animals, meat or fish intended for human  food; it is a market for sale of grains and such a market does not appear to be included under section 241(1). Besides,  as we will presently point out, the impugned  bye- law  can  be  justified under s. 298(2)-F (d)  &  (dd)  and, therefore,  even if s. 241(1) was held to be  applicable  to the  market  of the appellant, the requirement of  the  said section  is satisfied.  Therefore, we do not think there  is any  substance in the contention that the impugned  bye-laws are invalid because they are inconsistent with s. 241(1). The  next  point to consider is whether these  bye-laws  are justified  by  s. 298.  We have already read clauses  (d)  & (dd) of s. 298(2)-F.  Section 298(2)-F deals, inter alia, with  markets, and in the absence of any definition  of  the word "market" prescribed by the Act, it would be  legitimate to  take the word "market" occurring in s. 298 (2)-F (d)  in its  dictionary meaning.  If four or more shops are  selling grains  on the plot belonging to the appellant, they make  a market  in  the ordinary sense of the word  and  clause  (d) confers  power on the Board to make bye-laws  providing  for the establishment, and for the regulation and inspection  of markets.   There can be no doubt that the power to  regulate the  establishment  of markets which is  specified  in  this clause  would  sustain  the  relevant  bye  law  framed   by respondent  No.  2. Mr. Misra attempted to  argue  that  the markets  referred to in this clause must be markets run  for the sale of specified articles of food or drink, or  keeping or  exhibiting animals for sale, and he suggested that  this condition  was not satisfied by the market in question.   In our  opinion, this argument is entirely misconceived.   What the clause purports to do is to authorise the making of bye- laws   providing  for  the  establishment,  regulation   and inspection of markets and several other places.  The  latter clause on which Mr. Misra, relies 999 does  not  qualify the word "markets" which  occurs  in  the earlier part.  Therefore, there can be no doubt that  clause (d) conferred power on respondent No. 2 to make a bye-law in regard  to the establishment, regulation and  inspection  of the  market  such  as is run on the plot  belonging  to  the appellant. Clause   (dd)  which  flows  as  a  consequence  of   clause (d)empowers the Board to prescribe the conditions subject to which and the circumstances in which licence may be granted, and  if  clause  (d) is held to justify the  making  of  the impugned bye-law 3(a), the other clauses which Prescribe the procedure  for the application of licences, their grant  and other incidental matter would be valid under clause (dd). The  scheme  of the six clauses under heading  F  is  clear. Clauses  (a)  to  (c) deal, with places which  are  used  as slaughter  houses  or as markets or shops for  the  sale  of animals  and  other  commodities mentioned  in  clause  (a). Clause  (b) in Particular deals with a bye-law  which  pres- cribes  the conditions subject to which places mentioned  in clause  (a) should be run; and clause (c) deals with  a  bye law providing for the inspection of such places.  Clause (d) is  wider  in its sweep and it takes in  places  covered  by clause  (a) and adds some other Places, such as  markets  in their generic sense.  Therefore, there is no doubt that  the

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impugned  bye-law  3(a) and the other  cognate  bye-law  are justified by clauses and (dd) of- s. 298(2)-F. Even  if the said clauses did Dot justify the impugned  bye- law, there can be little doubt that the said bye-laws  would be justified by the general power conferred on the Boards by s.  298(1).   It  is  now  well-settled  that  the  specific provisions  such as are contained in the several clauses  of s. 298(2) are merely illustrative and they cannot be  readas restrictive  of  the generality of powers prescribed  by  s. 298(1)  vide Emperor v. Sibnath Banerji & Ors. (1).  If  the powers  specified by s. 298 (1) are very wide and they  take in  within their scope bye-laws like the ones with which  we are concerned in the present appeal, it cannot be said  that the  powers enumerated under s. 298(2) control  the  general words  used  by  s. 298(1).   These  latter  clauses  merely illustrate  and do not exhaust all the powers  conferred  on the Board, (1) A.I.R. 1945 P.C. 156. 1000 so that any cases not falling within the powers specified by section 298(2) may well be protected by s. 298(1),  provided of course, the impugned bye-laws can be justified by  refer- ence  to  the requirements of s. 298(1).  There  can  be  no doubt  that the impugned bye-laws in regard to  the  markets framed  by  respondent  No. 2 are  for  the  furtherance  of municipal  administration  under  the  Act,  and  so,  would attract  the  provisions  of s. 298(1).   Therefore  we  are satisfied  that  the High Court was right in coming  to  the conclusion that the impugned bye-laws are valid. It  is  true  that the preamble to the  bye-laws  refers  to clauses  A  (a),  (d) & (c) and J (d) of s.  298  and  these clauses  undoubtedly are inapplicable; but once it is  shown that  the  impugned bye-laws are within  the  competence  of respondent  No.  2, the fact that preamble to  the  bye-laws mentions  clauses which are not relevant, would  not  affect the validity of the bye-laws.  The validity of the  bye-laws must  be tested by reference to the question as  to  whether the  Board  had the power to make those  bye-laws.   If  the power is otherwise established, the fact that the source  of the power has been incorrectly or inaccurately indicated  in the  preamble to the bye-laws, would not make  the  bye-laws invalid (vide P. Balakotaiah v. Union of India & Other) (1). Mr. Misra then attempted to argue that the relevant bye-laws have  been passed mala fide out of spite and enmity for  the appellant.  His contention was that the appellant’s shop  is the  only  shop in the locality and bye-law  3(a)  has  been passed maliciously in order to hit the appellant.  We do not think  we  can allow this point to be raised for  the  first time  in  appeal.  No doubt Mr. Misra referred to  the  fact that  Aftab Ahmad has admitted that there is no other  grain market in Sakrawal except the one run by the appellant,  but that, in our opinion, can hardly afford a basis on which the plea of mala fides could be judged.  Sakrawal appears to  be a locality in the town of Tanda, and so, a statement even if it  is taken at its face value, cannot possibly justify  the assumption that there is only one grain market ill the whole of  the town of Tanda.  Besides, for proving mala fides  the appellant ought to have made appropriate allegations at  the stage of trial and led evidence to prove them. (1) [1958]  S.C.R. 1052. 1001 Therefore, the plea of mala fides cannot be permitted to  be raised. Mr.  Misra then suggested that bye-law 16  which  prescribes fee  up to Rs. 1,000/- is invalid, because it is  unreasona-

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ble.  Even this plea cannot be considered at this stage  for two reasons: it has not been raised in the courts below  and it  is  patently  premature, because no  fee  has  yet  been imposed ,on the appellant; besides, the said bye-law  merely authorises the Board to levy a fee up to Rs. 1,000/-, but it specifically adds that the amount levied by way of fee would depend upon the services rendered by the Board.  That is why it would be impossible to deal with the attack against  this bye-law in the abstract. Mr.  Misra  also  argued that the  High  Court  should  have allowed his client to take two additional points before  it. These pleas are that the bye-laws had not been published  in the local paper as required by section 94(3) of the Act  and had not been made by a special resolution as required by  s. 298(1).  As the High Court has pointed out, these are  pleas of  fact  and should have been taken at the trial.   In  our opinion,  therefore, the High Court was fully  justified  in not allowing the appellant to take these pleas for the first time at the appellate stage. The result is, the appeal falls and is dismissed. Appeal dismissed 1002