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PETITIONER: ASA RAM

       Vs.

RESPONDENT: THE DISTRICT BOARD, MUZAFFARNAGAR

DATE OF JUDGMENT: 03/12/1958

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. SUBBARAO, K.

CITATION:  1959 AIR  480            1959 SCR  Supl. (1) 715

ACT:        Conflict  of Statutes-Two statutes conferring same power  on        two     different    bodies-Construction-’Committee’     and        ’Panchayat’, if identical in meanning-Power to regulate,  if        includes  power  to  require taking out  of  licence-U.   P.        District  Boards Act (U.  P. X of 1922), ss. 93(3), 106  and        174(1)(k)-U.   P.  Town  Areas Act (U.  P. II  of  1914)  as        amended in 1934, S. 26(a).

HEADNOTE: The appellant was running machines with the aid of power  in a  locality which was admittedly within the  jalalabad  Town Area.   He  did  not  take out a  licence  for  running  the machines as required by the Muzaffarnagar Factories Bye-laws framed by the respondent, the District Board  Muzaffarnagar, under  s. 174(1)(k) read with s. 106 of the U.  P.  District Boards  Act,  and  was prosecuted by  the  respondent.   The appellant  contended that the bye-laws did not apply to  the town  area  and it was not necessary for him to take  out  a licence.   Section 174(1)(k) of the District Boards Act  and s.  26(a)  of  the  Town Areas Act  both  provided  for  the regulation  of  offensive trades and  admittedly  the  trade carried  on  by the appellant was an offensive  trade.   The District  Boards had the power under s. 174(1)(k)  to  frame bye-laws for rural areas which included town areas.  But  s. 93(3) of the District Boards Act took away the power of  the District 716 Boards  to  exercise within the limits of a  town  area  any authority  which was vested in a ’Town  Panchayat’.   Though the words ’Town Panchayat’ were replaced by the words " Town Area  Committee " in the Town Areas Act by an  amendment  in 1934 there was no corresponding amendment in s. 93(3) Of the District Boards Act.  The respondent contended that as there were  no Town Panchayats as such now, s. 93(3) did  not  bar the District Board from framing bye-laws for town areas. Held, that the respondent had no power to frame bye-laws for the  town  area and, consequently, the  prosecution  of  the appellant  was  bad.  As the word ’committee’ was  merely  a

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translation  of the word ’panchayat’, the  -substitution  of the  word ’committee’ for the word ’Panchayat’ in  the  Town Areas   Act  did  not  make  any  substantial   change   and consequently the restriction under s. 93(3) Of the  District Boards Act continued in full force. When  there  is a body dealing with a larger area  and  from that area is carved out a smaller area which is entrused  to another body, the law giving power to the body governing the smaller  area must prevail over the law giving power to  the body governing the larger area.  If the Act of 1934 amending the  Town Areas Act brought into existence a new  body,  the Town  Area Committee, then it means that a smaller area  was carved  out from a larger area in 1934 and the powers  given to the new statutory body would prevail. Where two statutes give authority to two bodies to  exercise powers which cannot co-exist, the earlier is repealed by the later statute.  On this principle also the power of the Town Area Committee, if it be deemed to be a new body coming into existence  in 1934, must prevail over that of  the  District Board. King v. The Justices of Middlesex, (1831) 169 E. R. 1347 and Daw v. The Metropolitan Board of Works, (1862) 133 R.R. 311, relied upon. The  power to regulate a trade includes the power  to  frame bye-laws requiring the taking out of a licence. Mohamad Yasin v. The Town Area Committee, jalalabad,  [1952] S.C.R. 572, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 119 of 1956. Appeal  from the judgment and order dated May 11,  1956,  of the  Allahabad High Court in Criminal Revision No.  1724  of 1955,  against  the  Order  dated  July  13,  1955,  of  the Additional   District  Magistrate  (J),  Muzaffarnagar,   in Criminal  Revision No. 17/18 of 1955 upholding that  of  the Magistrate  1st  Class, Muzaffarnagar,  dated  February  14, 1955, in Cr.  Case No. 132 of 1955.                             717 Rameshwar Nath and S. N. Andley, for the appellant. C.K.  Daphtary,  Solicitor-General  of India  and  P.  C. Aggarwal, for the respondent. 1958.   December 3. The Judgment of the Court was  delivered by WANCHOO,  J.-This  appeal on a certificate  granted  by  the Allahabad  High  Court  raises a question  relating  to  the interpretation  of certain provisions of the U. P.  District Boards Act, (U.  P. X of 1922), and the U.   P.  Town  Areas Act  (U.  P. No. II of 1914).  It is necessary to state  the facts  on which the question has arisen.  Asa Ram  appellant runs  certain  machines with the aid of  power  in  premises which  are  in  a locality which is  admittedly  within  the Jalalabad town area since the year 1953-54.  He did not take out a licence for running these machines for 1953-54, as re- quired  by bye-law (7) of the Muzaffarnagar  Factories  Bye- laws,  framed by the District Board of Muzaffarnagar,  under s.  174(1) (k) read with s. 106 of the District Boards  Act. Consequently,  he was prosecuted for contravening  the  bye- laws  in  question.  He admitted that he was  running  these machines with the aid of power; but his contention was  that as the premises where the machines were running were in  the town area of Jalalabad, the bye-laws framed by the  District Board did not apply to him and it was not necessary for  him

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to  take out a licence, and his prosecution at the  instance of the District Board for contravening the bye laws was bad. The decision of this point depended upon the construction of s.  93(3) of the District Boards Act and s. 26 of  the  Town Areas Act. The  trial Magistrate was of the opinion, on a  construction of  the sections above-named, that the bye. laws  framed  by the  District Board were not applicable to  premises  within the  Jalalabad town area, and, therefore, Asa Ram  need  not have  taken  out a licence.  He consequently  acquitted  Asa Ram.   There  was  a revision application  by  the  District Board,  which  was  dismissed  by  the  Additional  District Magistrate  (Judicial), Muzaffarnagar, who agreed  with  the view of the 718 Magistrate.  The District Board then went up in revision  to the  High Court of Allahabad.  The revision was heard  by  a learned Single Judge, who framed three questions which arose for  determination, namely, (1) Is running of a flour mill, etc., an offensive trade ? (2)  Does the word ’regulation’ used in s. 26(a) U. P.  Town Areas Act include the power of issuing a licence ? and (3)Does  s. 93(3)  of the District Boards Act amount to  a divestment  of authority of the District Board in favour  of the Town Area Committee ?   On  the  first  question, the learned  Judge  was  of  the opinion  that the machines run by Asa Ram would come  within the provisions of s. 26(a) of the Town Areas Act, though  he also  took  the view that it was not necessary  for  him  to decide  the  point.  On the second question,  he  held  that ’regulation’  did  not  include  the  power  of  granting  a licence, though this was against a Division Bench  authority of  that High Court reported as Municipal Board, Hathras  v. Behrey  Narain  Dutt (1).  He relied on a decision  of  this Court in Mohamad Yasin v. The Town Area Committee, Jalalabad (2 ) also in this connection.  On the third question he  was of  the  view that s. 93(3) barred the District  Board  from exercising  any authority in a town area which is vested  in the  body mentioned in it.  He was further of the view  that the  amendment  of the Town Areas Act in 1934 by  which  the word  ’Panchayat’  occurring  in  the  Town  Areas  Act  was substituted  throughout  by  the word  ’Committee’  made  no difference  even though s. 93(3) of the District Boards  Act was  not  simultaneously amended by substituting  the  words ’Town Area Committee’ for the words ’Town Panchayat’ therein in  conformity with the change made in the Town  Areas  Act. But  in view of his decision on the second  question,  viz., that  ’ regulation’ did not include the power of granting  a licence, he held that bye-laws framed by the District  Board for taking out licences applied to premises within the  town areas.  He, therefore, set aside the acquittal and (1) A.I.R. 1948 All. 1. (2) [1952] S.C.R. 572. 719 ordered  a  retrial.  He also gave leave to appeal  to  this Court. The  three  points formulated by the High  Court  arise  for decision  before  us also.  The  learned  Solicitor  General appearing  for  the-District Board does  not  challenge  the correctness  of  the decision on the  first  point,  namely, whether  the running of the machines which the appellant  is running would come within the relevant words of s. 26(a)  of the Town Areas Act.  It is enough in this connection to  set out  the  two  provisions in the two Acts to  see  that  the decision  is  correct.  Section 174 (1)(k) of  the  District

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Boards Act, under which the bye-laws were framed is in these terms- "  regulating slaughter houses and offensive,  dangerous  or obnoxious  trades,  callings, or practices  and  prescribing fees to defray the expenditure incurred by a board for  this purpose." Section 26(a) of the Town Areas Act is in these terms- "  The Committee may by general or special order in  writing provide  and if so advised by the district magistrate  shall provide  for all or any of the following matters within  the town area, namely:- (a)the regulation of offensive callings or trades;    ........................................." It is obvious therefore that s. 26(a) of the Town Areas  Act is  co-extensive with s. 174(1) (k) of the  District  Boards Act, so far as regulation of offensive trades or callings is concerned.   As  the  learned  Solicitor  General  does  not contest  the  finding of the High Court that the  trades  in question  carried on by As& Ram with his machines  with  the aid of power are offensive trades, it follows that the  Town Area Committee has power to regulate these trades as well as the District Board. So  far  as  the  second point  is  concerned,  the  learned Solicitor  General concedes that regulation’  would  include the power of issuing a licence-and very rightly so.  No case has been brought to our notice in which this Court held that power of ’regulation’ does not include the power of  issuing a licence and that issue of a licence amounts to prohibition and is not a 720 restriction  on  carrying  on a trade or  business.   It  is enough to point out that the District Boards Act under which these  bye-laws  have  been  framed  does  not  specifically provide  anywhere for granting of licences.  Section  174(1) (k) itself speaks only of regulating offensive trades, etc., and has not given in so many words power to issue  licences. It is true that s. 106 provides that the board may charge  a fee  to  be fixed by bye-law for any  licence,  sanction  or permission  which it is entitled or required to grant by  or under the Act; but that section merely provides for  levying of  fee where a licence is necessary under other  provisions of  the Act and is not in itself an authority for  issue  of licences.   Therefore,  when  the  Board  framed  a  bye-law relating  to issue of licences it did so under its power  of regulation.  The High Court with respect seems to have  mis- understood  Mohamad Yasin’s case (1).  That case  turned  on the question whether the Town Areas Committee could impose a fee  and  did not deal with the question  whether  it  could issue  a  licence.   It  was in  that  connection  that  the following  sentence  which the High Court  has  picked  out, appeared in that judgment- "  We have not been referred to any notification whereby  a. 294  of  the U. P. Municipalities Act was  extended  to  the respondent committee." Section  294 of the Municipalities Act is in the same  terms as  s.  106 of the District Boards Act and  deals  with  the power  of, levying fees.  The High Court seems to have  lost sight  of  the distinction between granting  licences  which depends  on the power of regulation and levying of  licence- fees,  which  can  only  be  levied  if  there  is  specific provision  to that effect in the law. Mohamad  Yasin’s  case (1)  decided  that as there was no provision  authorising  a Town Area Committee to levy licence-fee it could not do  so. That,  however,  did  not mean  that  ’regulation’  did  not include the power of issuing licences, though in the absence

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of  a provision for charging licence-fees, licences must  be issued  without charge, if bye-laws require the issue  of  a licence in order to regulate trades or callings which a Town Area Committee can regulate under s. 26(a) of the (1)[1952] S.C.R. 572. 721 Town  Areas Act.  The view of the learned Judge,  therefore, that the Town Area Committee could not issue a licence  when framing rules regulating offensive trades or callings is not correct.  The Town Area  Committee would thus have the power to  frame bye-laws requiring taking out of licences in  case it  exercises its power of regulation under s. 26(a) of  the Town  Areas Act in the same way as a District Board has  the power of framing bye-laws under s. 174(1)(k) requiring those carrying  on  certain  trades to take  out  licences.   This brings  us to the third question, namely, what happens  when two  statutory  bodies  have concurrent power  in  the  same field? The  power of the District Board to frame bye-laws under  s. 174(1)(k) is confined to rural area as defined in s.  3(10). We understand that this section has been amended recently in 1958 and now town areas are to be excluded from the ambit of rural area’; but at the relevant time it ran as follows:- " ’Rural area’ means the area of a district excluding  every municipality   as   defined   in   the   United    Provinces Municipalities Act, 1916 and every cantonment as defined  in the Cantonment Act, 1910." Therefore,  at the relevant time, the District  Board  would have  the power to frame bye-laws even for town  areas.   In order, however, to resolve any conflict, which may arise, s. 93  (3) was included in the District Boards Act.  It  is  in these terms :- "Nothing  in  this  Act shall entitle a  board  to  exercise within  the  limits  of  any  municipality,  notified  area, cantonment  or town area, any authority which is  vested  in the  municipal  board, notified area  committee,  cantonment committee,  district magistrate, or town panchayat,  as  the case may be." There  are certain exceptions to this provision, but we  are not  concerned with them in the present case.  The  argument of the learned Solicitor General in this behalf is that  the District  Board will be divested of its power to frame  bye- laws  for regulating offensive trades and callings  in  town areas,  if  the  same  authority  is  vested  in  the   town panchayat.  He goes. on that  91 722 now  there are no Town Panchayats having authority  in  town areas,  for  the words " Town Panchayat " appearing  in  the Town  Areas  Act have everywhere been    substituted  by the words  "Town  Area  Committee".   It  is  submitted  that  a corresponding  amendment  was  not made in s.  93  (3)  and, therefore,  though  the District Board would have  no  power upto  1934  to  frame bye-laws for town  areas  relating  to regulation  of  offensive  trades or  callings,  which  were covered  by s. 26 (a) of the Town Areas Act, it  would  have that power after the amendment of 1934. We  must  say that this is a very technical  argument.   The Town  Areas Act was passed in 1914 and in the Act as it  was originally  passed the authority conferred by s.  26(a)  was vested  in  the Town Panchayat.  In 1920 the U.  P.  Village Panchayat Act was passed creating panchayats for any village or  groups of villages.  It seems that it was  then  thought fit,  to change the name in the Town Areas Act to Town  Area Committee  to avoid confusion with the Panchayats under  the

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Village  Panchayat Act.  But this in our opinion was only  a formal change, for the word ’committee’ in English is  after all  a translation more or less of the word   panchayat’  in Hindi.  Therefore, when the word "committee’ was substituted in  place  of ’panchayat’ in the Town Areas  Act  there  was really  no  change of substance and the restriction  on  the power of the District Board under s. 93 (3) of the  District Boards Act to deal with matters entrusted to the town  areas continued in full force.  In this connection, our  attention was  drawn  to Shrimati Hira Devi v. District  Board,  Shah- jahanpur  (1).   In that case, s. 71 of the U.  P.  District Board’s  Act was amended but no corresponding amendment  was made   in   s.  90.   In  that  connection   the   following observations were made at p. 1131:- " It was unfortunate that when the Legislature came to amend the  old section 71 of the Act it forgot to amend s.  90  in conformity  with  the amendment of s. 71.  But  this  lacuna cannot  be supplied by any such liberal construction as  the High  Court sought to put upon the expression orders of  any authority (1)[1952] S.C.R.  1122. 723 whose  sanction is necessary’.  No doubt it is the  duty  of the  court to try to harmonise the various provisions of  an Act passed by the Legislature.  But it is certainly not  the duty  of  the  Court  to  stretch  the  words  used  by  the Legislature to fill in gaps or omissions in the  pro-visions of an Act." That   case,   however,  related   to   entirely   different circumstances.  Here we are dealing with two statutes giving power  to two statutory bodies, and if there is conflict  in view  of  the  technical  submission  made  by  the  learned Solicitor  General and s. 93 (3) cannot come to the  aid  of the Town Area Committee, we have still to see which Act will prevail in the circumstances.  The U. P. District Boards Act deals with a larger area in which the area constituting  the town area is also included.  The Town Areas Act on the other hand  deals with a smaller area and on principle when  there is  a body dealing with a larger area and from that area  is carved  out  a smaller area which is  entrusted  to  another body, the law giving power to the body Governing the smaller area  should prevail over the law giving power to  the  body governing  the larger area. if the substitution of the  word committee’ for the word  panchayat’ is merely a translation, as   observed  earlier,  it  makes  no  difference  to   the application of s. 93 (3) even after 1934.  But if it is  not treated as a mere translation and it is said that a new body was  vested  with  powers under the Town Areas  Act  by  the amendment  of  1934, then it means that a smaller  area  was carved  out from a larger area in 1934 and a  new  statutory body was created to govern it with certain powers; in  those circumstances the powers given to the now statutory body  in the  smaller  area  carved out from  the  larger  area  will prevail. Reference  in  this connection may be made  to  two  English cases, which lay down the principle how the conflict between the   two  statutes  in  similar  circumstances  should   be resolved.  In King v. The Justices of Middlesex (1), it  was held:- " Where two Acts of Parliament, which passed during the same session and were to come into (1)  (1831) 2 B. & AD. 818; (1831) 109 E.R. 1347, 1348. 724 operation  the same day, are repugnant to each  other,  that which  last  received the Royal assent must prevail  and  be

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considered pro tanto a repeal of the other."    Again in Daw, Clerk of the Commissioner of  Sewers of the City  of  London v. The Metropolitan Board of Works  it  was held- " Where two statutes give authority to two public bodies  to exercise powers which cannot consistently with the object of the  Legislature co-exist, the earlier must  necessarily  be repealed by the later statute." In that case the conflict was between s. 145 of the City  of London  Sewers Act, 1848 and s. 141 of the Metropolis  Local Management  Act,  1855, and the later was held  to  prevail. The  principle  of  these cases will apply  to  the  present circumstances, and if the words " town area committee "  are not  held to be a translation of the words " town  panchayat ",  the  result is that a Town Area Committee  being  vested with  power under s. 26 (a) to regulate offensive trades  or callings, the power of the Town Area Committee must  prevail over the power of the District Board under s. 174 (1)(k)  of the  District Boards Act.  We, therefore, allow the  appeal, set  aside  the  order  of the  High  Court  and  order  the acquittal of Asa Ram appellant.                       Appeal allowed.