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PETITIONER: THE DISTRICT BOARD, GHAZIPUR

       Vs.

RESPONDENT: LAKSHMI NARAIN SHARMA

DATE OF JUDGMENT: 26/10/1960

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. SARKAR, A.K. SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1961 AIR  356            1961 SCR  (2)  81

ACT: Regulation and Control of Trade-District Board, Power  of-If impliedly   repealed-Sanitation,  connotation   of--U.    P. District Boards Act, 1922 (U.  P. X of 1922), ss. 91(q)  and 174-U. P. Panchayat Raj Act, 1947 (U.  P. XXVI of 1947), ss. 15 and III.

HEADNOTE: The appellant framed bye-laws for the regulation and control of flour, rice and oil mills under which a licence had to be obtained on payment of licence fee for running a mill.   The bye-laws  were  framed under s. 174 of the  U.  P.  District Boards  Act, 1922.  The respondent contended that  the  bye- laws  were ultra vires and void as the District  Boards  had been divested of their powers to regulate and control  trade under the District Boards Act on account of s. III of the P. P.  Panchayat  Raj  Act, 1947, which operated  in  the  same field. Held,  that the bye-laws had been validly made and that  the District  Boards were not divested of their powers to  regu- late and control trade under the District Boards Act,  1922, by the provisions of U. P. Panchayat Raj Act, 1947.  Section 91(q) of the District Boards Act cast a duty on the District Boards   to  make  provisions  for   regulating   offensive, dangerous or obnoxious trades, callings or practices and  s. 174(2)(k)  specifically  empowered District Boards  to  make bye-laws  in  this respect.  There was no  similar  duty  or power conferred upon Village Panchayats under the  Panchayat Raj Act and consequently the question of the later enactment prevailing over the former did 82 not arise.  The reference to "sanitation" in s. 15(c) of the Panchayat  Raj Act did not cover regulation and  control  of trade.   Though  the  word  " sanitation  "  in  its  widest connotation  was capable of including this, it was not  used in  its  widest sense in s. 15(c) but only in  its  ordinary sense  in  relation to conservancy, drainage and  the  like. Section  III of the Panchayat Raj Act was in general  terms, but bye-laws could be framed under it only in respect of the

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functions and duties imposed upon a Gram Panchayat under ss. 15 and 16. Held, further, that the licence fee charged by the  District Board  could  not be struck down on account  of  fees  being charged  from the respondent in respect of his  mills  under the U. P. Rice and Dal Mills Control Order, 1948, and the U. P.  Pure Food Act.  The licence fee charged by the  District Board  was  for the regulation of obnoxious trades  and  the purpose  of this regulation was different from  the  purpose for  which  fee was charged from the  respondent  under  the Essential Supplies Act and the Pure Food Act.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 372 of 1956. Appeal  from the judgment and order dated January 18,  1956, of  the  Allahabad High Court in Special Appeal  No.  43  of 1955. G.   C. Mathur, for the appellant. G.   P. Singh and K. P. Gupta, for the respondent. S.   P. Sinha and P. C. Agarwala, for Intervener No. 1. Radheylal Agarwala and P.C. Agarwala, for intervener No. 2. Frank Anthony and M. I. Khowaja, for Intervener No. 3. 1960.  October 26.  The Judgment of the Court was  delivered by WANCHOO J.-This is an appeal on a certificate granted by the Allahabad  High  Court.  The respondent is carrying  on  the trade of hulling rice, milling grains and extracting oil  in village Nandganj within the area of Gaon Sabha Barapur.   He obtained  licences  for the three trades  under  the  United Provinces  Rice and Dal Control Order, 1948, as  also  under the Uttar Pradesh Pure Food Act, 1950.  Further the Gaon 83 of  Rs.  8/- on each mill within its  jurisdiction  and  the respondent  had  been  paying that as  well.   In  1953  the District  Board, Ghazipur, in which district the village  is situate, enforced bye-laws for the regulation and control of flour, rice and oil mills in the rural areas of the district under  which a licence has to be obtained by such  mills  on payment of Rs. 20/- as licence-fee per year per mill.   When the  respondent  was  served with a notice  to  take  out  a licence  for  each  mill  and to  pay  the  licence-fee,  he objected  to  the  legality and validity  of  the  levy  and thereafter  filed  a writ petition in the High  Court  under Art.  226  of  the Constitution.   His  contention  in  this connection was three-fold, namely-(i) After the constitution of Gaon Sabha Barapur under the U. P. Panchayat Raj Act, No. XXVI  of 1947, the District Board had been divested  of  its power  and  jurisdiction  in the matter  of  regulation  and control of trade under the relevant provisions of the U.  P. District Boards Act, No. X of 1922; (ii) the respondent  had paid the necessary licence-fees under the U.P. Rice and  Dal Control  Order, 1948 and the U. P. Pure Food Act,  1950  and could not be asked to pay the licence-fees over again  under the District Boards Act; and (iii) in any case the levy  was too  high and not in proportion to the actual  and  probable expenses  which  the District Board would have to  incur  in controlling or regulating trade and was meant to augment the general revenues of the District Board. The writ petition was heard by a learned Single Judge of the High  Court who appears to have dismissed it in limine by  a reasoned  judgment  negativing  all  the  three  contentions raised  by  the  respondent.  The respondent  then  went  in appeal and the Appeal Court allowed the appeal holding  that

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in  view  of s. 111 of the Panchayat Raj Act,  the  District Board had lost its power to make bye-laws for the regulation and  control  of trade under s. 174 of the  District  Boards Act.  The Appeal Court was further of the view that the levy was not out of proportion to the expenses to be incurred  by the  District Board in the matter of regulation and  control and was not a tax.  It did not decide the third point raised on behalf of the 84 respondent.   The   District  Board  then  applied   for   a certificate  to appeal to this Court, which was granted  and that is how the matter has come up before us. The  main  question which falls for  consideration  in  this appeal  is  whether the view of the Appeal  Court  that  the District Board has lost its power to make bye-laws under  s. 174 of the District Boards Act for regulation and control of trade  in  view  of  s. 111 of the  Panchayat  Raj  Act,  is correct.   Learned  counsel  for  the  appellant  puts   his argument on this point in two ways.  In the first place,  he urges  that  the  Panchayat Raj Act  does  not  contain  any provision by which the Gaon Sabha or the Gaon Panchayat  has been  given  the  power to regulate  or  control  trade  and therefore  even if the Panchayat Raj Act is to prevail  over the  District Boards Act, where the two deal with  the  same matter, this particular power remains in the District  Board as  it  is  not included within the  powers  exercisable  by Panchayats under the Panchayat Raj Act.  In the alternative, he urges that the intention of the legislature was not  that those provisions of the District Boards Act which are common in the two Acts should be repealed by necessary implication, and  therefore  the District Board’s power  to  control  and regulate trade would remain whatever may be the provision of the Panchayat Raj Act. We  shall therefore examine the first contention  raised  on behalf  of  the  appellant  under  this  head,  for  if  the Panchayat  Raj  Act  has not provided for  the  control  and regulation of trade by the Gaon Sabha or the Gaon Panchayst, there  will be no question of any inconsistency between  the District Boards Act and the Panchayat Raj Act and  therefore no question of the later Act (i. e., the Panchayat Raj  Act) prevailing over the earlier Act (i. e., the District  Boards Act).   Section 91 of the District Boards Act  provides  for what may be called compulsory duties of District Boards  and cl.  (q)  of this section lays down that every  board  shall make reasonable provision within the district for regulating offensive,  dangerous  or  obnoxious  trades,  callings   or practices.   Section  106 of the District Boards  Act  gives power to the Board to charge a fee 85 to  be  fixed  by  bye-law  for  any  licence,  sanction  or permission  which it is entitled or required to grant by  or under  the District Boards Act.  Section 174 gives power  to the District Board to frame bye-laws consistent with the Act and  with any rules framed by the State Government  for  the purpose  of promoting or maintaining the health, safety  and convenience  of  the  inhabitants of the area  and  for  the furtherance of the administration of the district under  the Act.  In particular, power is given by s. 174 (2) (k) to the District  Board to frame bye-laws for regulating  slaughter- houses   and  offensive,  dangerous  or  obnoxious   trades, callings  or  practices and prescribing fees to  defray  the expenditure  incurred by it for this purpose.  It is not  in dispute  that  the  District Board  has  power  under  these provisions to frame bye-laws for regulation of these trades, (namely,  hulling rice, milling grains and extracting  oil).

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Therefore,  unless this power is taken away expressly or  by necessary implication by any provision of the Panchayat  Raj Act, the District Board would be entitled to frame the  bye- laws   which  it  did  in  1953  and   charge   licence-fees thereunder. Turning now to the Panchayat Raj Act, we find that s. 15  of this  Act  provides for what may be  called  the  compulsory duties of a Gaon Panchayat while s. 16 provides for what may be called its optional dutiee,.  Section Ill gives power  to the  prescribed  authority  to  make  bye-laws  for  a  Gaon Panchayat  within its jurisdiction consistent with  the  Act and  the Rules made thereunder for the purpose of  promoting or maintaining the health, safety and convenience of persons residing within the jurisdiction of a Gaon Panchayat and for furtherance  of the administration of Gaon Panchayats  under the  Act.   The  prescribed authority in this  case  is  the Executive Committee of the District Board (see, s. 56 of the District  Boards  Act)  which may  be  assumed  for  present purposes  to be different from the District Board  as  such. The  contention on behalf of the appellant is  that  reading ss.  15  and  16 together with s. 111  it  is  obvious  that regulation  or control of trades, callings and practices  is not within the purview of the Panchayat Raj Act.  There 86 is  no  doubt  that neither s. 15 nor  s.  16  contains  any provision  corresponding to s. 91(q) of the District  Boards Act.   Therefore,  prima  facie the Panchayat  Raj  Act  has nothing  to do with the regulation or control of  offensive, dangerous  or  obnoxious trades, callings or  practices  and this  power of the District Board is unaffected by  anything in   the  Panchayat  Raj  Act.   Learned  counsel  for   the respondent, however, urges that though there is no  specific provision  relating  to such regulation or  control  in  the Panchayat  Raj  Act  in  ss.  15  and  16,  this  matter  of regulation and control is impliedly covered by el. (c) of s. 15  of the Panchayat Raj Act, which enjoins on  a  Panchayat the  duty  to make reasonable provision for  sanitation  and taking  curative  and preventive measures to remove  and  to stop   the  spread  of  an  epidemic.   It  is  urged   that sanitation’  must  be  given a very wide  meaning  and  that meaning will include the regulation of offensive,  dangerous or  obnoxious trades.  It may be that on the widest  meaning of the word " sanitation " such regula. tion may be included in it; but looking to the scheme of the District Boards  Act as well as the Panchayat Raj Act, it is, in our opinion, not correct to give the widest possible connotation to the  word "  sanitation " in cl. (c) of s. 15.  Section 91(m)  of  the District  Boards  Act  provides for  "  public  vaccination, sanitation and the prevention of disease "; but in spite  of this entry relating to sanitation there are other provisions in  s.  91  which  deal  with  what  would  be  covered   by "’sanitation  " if it were to be given the  widest  possible meaning  as, for example, cl. (e) relating  to  construction and repair of public wells, etc. and drainage works and  the supply of water from them ; el. (n) relating to provision of a  sufficient supply of pure and wholesome water  where  the health of the inhabitants is endangered by the insufficiency or  unwholesomeness  of the existing supply,  guarding  from pollution  water used for human consumption  and  preventing polluted  water  from  being so used; cl.  (r)  relating  to dissemination  of  knowledge  on such  matters  as  disease, hygiene,  sanitation, etc.  This will show that the  word  " sanitation  " in cl. (m) of s. 91 is not used in its  widest sense. 87

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Similarly  in s. 92 (which provides for optional  duties  of District  Boards),  cl. (c) refers to  reclaiming  unhealthy localities; and cl. (i) to conserving and preventing  injury or  contamination  to  or pollution  of,  rivers  and  other sources  of  water supply, which matters  would  be  covered within  the  wide  meaning of  sanitation.   It  is  obvious therefore  that when the word " sanitation" is used  in  the District  Boards  Act  it is used  in  a  restricted  sense. Similarly in the Panchayat Raj Act cl. (c) of s. 15 mentions "  sanitation ". Clause (g) relates to regulation of  places for the disposal of’ carcases and of other offensive matters which  would  clearly be covered by " sanitation  "  in  its widest  sense and would have been unnecessary if  sanitation was to be given its widest meaning in this section.   Clause (k)  of  s. 15 provides for regulation of sources  of  water supply  for drinking purpose which would again  be  included within the widest meaning of the word " sanitation ". Clause (r)  provides  for allotment of places  for  storing  manure which  would again be embraced within the widest meaning  of the  word " sanitation " and need not have  been  separately provided for, if sanitation in cl. (c) had the wide  meaning urged  for  it on behalf of the respondent.  Further  s.  16 (which   deals  with  discretionary  functions  of  a   Gaon Panchayat) provides in cl. (c) for filling in of  insanitary depressions  and levelling of land-a clause which  would  be unnecessary  if  "  sanitation "  has  the  widest  possible meaning.   Clause (1) of s. 16 provides for  regulating  the collection, removal and disposal of manure and sweepings and making arrangement for the disposal of carcases of  animals, which again would be covered by el. (c), if sanitation is to be  given the widest possible meaning.  Clause (m)  provides for prohibiting or regulating the curing, tanning and dyeing of skins within 220 yards of the abadi, which again would be covered  by  the  word " sanitation " if  it  had  the  wide meaning urged on behalf of the respondent.  It would thus be clear that both in the District Boards Act as well as in the Panchayat Raj Act when the word " sanitation " has been used it  has not been used in its widest sense; it seems to  have been used in its ordinary meaning i. e., the improvement  of sanitary 88 conditions  specially with regard to dirt and infection  and would thus be confined to matters of conservancy and drainge and the like.  In the context therefore of both the District Boards  Act and the Panchayat Raj Act, it seems to  us  that the  word  " sanitation " as used in s. 91 of  the  District Boards Act and A. 15 of the Panchayat Raj Act is confined to its ordinary meaning in relation to conservancy and drainage and  the  like with reference to the necessity  of  avoiding dirt and disease and cannot be given such a wide meaning  as to  include  control or regulation of  trades,  callings  or practices.   Section  18 of the Panchayat Raj  Act  gives  a clear  indication  that it is the ordinary meaning  that  is intended  by  the word " sanitation " in cl. (c) of  s.  15. Section 18 deals with improvement of sanitation and provides that  a  Gaon Panchayat may by notice direct  the  owner  or occupier  of any land or building, to close, remove,  alter, repair, cleanse, disinfect or put in good order any latrine, urinal,  water-closet, drain, cesspool’or  other  receptacle for  filth, sullage-water, rubbish or refuse and so  on;  to cleanse,  repair,  cover, fill up, drain off, deepen  or  to remove  water  from a private well, tank,  reservoir,  pool, pit, depression or excavation therein which may appear to be injurious  to health or offensive to the  neighbourhood;  to clear  off  any  vegetation, undergrowth,  prickly  pear  or

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scrub-jungle; and to remove any dirt, dung, nightson. manure or any noxious or offensive matter therefrom and to  cleanse the  land or building.  It must therefore be held  that  the Panchayat  Raj Act does not provide for control and  regula- tion of trades, callings or practices like s. 91 (q) of  the District Boards Act. It  is however urged that even though ss. 15 and 16  do  not specifically  deal  with control and regulation  of  trades, callings  or practices, s. Ill is in very general terms  and gives  powers to the prescribed authority to frame any  bye- laws relating to promotion or maintenance of health,  safety and convenience of persons residing within the  jurisdiction of a Gaon Panchayat.  It is true that these words in s.  III are of wide amplitude ; but they cannot, in our opinion,  be widened 89 beyond the duties imposed on a Gaon Panchayat or Gaon  Sabha under  as.  15  and  16 or any  other  provi.  sion  of  the Panchayat  Raj Act.  The bye-laws framed under  section  111 which are for the promotion or maintenance of health, safety and  convenience  have  also to be  in  furtherance  of  the administration of Gaon Panchayats under the Act.   Therefore if  Gaon Panchayats have administrative functions under  as. 15 and 16 or any other provision of the Act, bye-laws can be framed  under a. 111 for these purposes in order to  further the  administration of Gaon Panchayats.  But, if as we  have held,  Gaon  Panchayats are not invested with  the  duty  to control  and regulate trades, callings and practices,  there can be no question of framing bye-laws in that behalf  under s.  111  on the basis of the wide words used  therein.   The power  to  frame bye-laws under s. 111 is, in  our  opinion, conditioned  by the duties and functions imposed on  a  Gaon Panchayat under ss. 15 and 16 as well as other provisions of the  Panchayat Raj Act.  It is not in dispute that there  is no other provision of the Panchayat Raj Act which imposes  a duty  on  Gaon  Panchayats to control  or  regulate  trades, callings  or practices and therefore the power under s.  111 does  not extend to prescribing bye-laws for  that  purpose. The only other section to which our attention is drawn is s. 37(d)  by  which a Gaon Sabha has been given  the  power  to impose  a  tax  on trades,  callings  and  professions,  not exceeding  such  rate  as may be prescribed.   This  in  our opinion  has  nothing to do with the regulation  of  trades, callings  and practices and levying of licence-fees in  that behalf.   What this provision refers to is what is  provided in  item 60 of List II of the Seventh Schedule and not  fees properly so-called.  We are therefore of opinion that as the Panchayat Raj Act does not provide for control or regulation of  the nature mentioned in s. 91(q) of the District  Boards Act, there is no question of the power of the District Board under s. 174 to frame bye-laws and to prescribe fees in that behalf being taken away by s. 111 of the Panchayat Raj  Act. It  seems that this aspect of the matter was not  argued  in the High Court at all and it 90 appears  to have been assumed there that the  Panchayat  Raj Act  also provided for the same matter as was covered by  s. 91(q) of the District Boards Act and it was probably on that basis that the High Court held that s. Ill of the  Panchayat Raj  Act prevailed over s. 174 of the District  Boards  Act. In  the view we have taken it is not necessary  to  consider the  alternative argument raised on behalf of the  appellant in respect of this point. This brings us to the point which was not considered by  the Appeal Court, though the learned Single Judge had dealt with

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it and held against the respondent.  That contention is that certain  fees are being levied on the respondent in  respect of  these mills under the U. P. Rice and Dal  Mills  Control Order,  1948 and the U. P. Pure Food Act and  therefore  the District Board cannot levy any further licence-fee under  s. 91(q)  of  the  District Boards Act read with  s.  174.   As pointed  out  by the learned Single Judge, the  fees  levied under  the  Control  Order of 1948  which  depends  for  its existence on the Essential Supplies Act and under the U.  P. Pure Food Act are for different purposes of those Acts.  The fee  charged  by  the District Board is  for  regulation  of obnoxious  trades  and  the purpose of  this  regulation  is different  from the purpose for which fees are levied  under the  Essential  Supplies Act-and the Pure Food  Act.   Under these  circumstances we see no reason for striking down  the regulatory provisions made under the District Boards Act and the licence-fee charged thereunder.  The fact that there may be  some overlapping between the regulatory provisions  made under  the  U.  P. Pure Food Act and those  made  under  the District Boards Act can have no relevance on the validity of the bye-laws and the licence-fee charged under them. In this view of the matter, the appeal is allowed, the order of  the  Appeal  Court  set  aside  and  the  writ  petition dismissed.  However, as the point on which the appellant has succeeded  in this Court was not specifically raised in  the High  Court,  we order the parties to bear their  own  costs throughout. Appeal allowed. 91