TMI Blog1958 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... and managed by the Corporation under the provisions of the Act. Prior to that date, civil administration of the City of Nagpur was conducted and managed by the Municipal Corporation of Nagpur under various Municipal Acts passed from time to time, the first one was passed in the year 1864 and the last one being the Central Provinces and Berar Municipalities Act II of 1922, hereinafter, referred to as the Municipalities Act. 3. For the purpose of administration, the municipality of Nagpur had, divided itself into two committees, the City Municipal Committee and the Civil Station Sub-Committee. Each of the two Committees exercised jurisdiction over certain defined areas and each of them had made its own byelaws. The byelaws with which we are concerned however are very similar and we would be referring to the byelaws framed by the City Municipal Committee of Nagpur. 4. It is not in dispute that in the City of Nagpur sale of meat and the markets in which meat was sold were under the control of and were regulated by the aforesaid municipal committees in accordance with the provisions of the Municipalities Act and the byelaws made thereunder. The provisions of the Municipalities Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e places fixed for this purpose under Section 140 of the Central Provinces and Berar Municipalities Act, 1922. Clause (3) thereof provides that all meat intended for sale shall be produced before the slaughter-house inspector appointed by the committee, who shall examine it, and if he passed it as fit for human consumption, shall stamp it in ink as class I, II or III with meat stamps approved by the committee. No meat shall be sold unless it has been so passed and stamped. Clause (4) of the said byelaw provides that meat not sold on the day on which it was passed and stamped shall not be sold, unless it is re-examined and passed in accordance with Clause (2) of this byelaw. Byelaw No. 10 provides that if, during the course of the day, meat which has been passed and stamped deteriorates and becomes unfit for human consumption, it shall no longer be exposed or sold. Byelaw No. 12 provides that no person shall sell meat or expose it for sale to the public within the limits of the municipality without a licence which shall be issued and renewed by the secretary or any officers of the committee specially empowered in this behalf. Byelaws No. 13(1) provides that a fee of As. 8 shall be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, there are also 12 single stalls built either by the municipal committee or the Corporation in different parts of the City. They are known as nakas and are also included in the term 'Municipal meat markets'. We are informed that some of the meat markets and nakas are very near the weekly markets. Licenced mead sellers occupying stalls, kenas or nakas in the municipal markets have to pay certain fees either on monthly or yearly basis. These fees are settled either by auction or otherwise by the municipal officers. It is common ground that last time when auction was held was in the year 1948. Thereafter an attempt was made to hold auction in the year 1952 but it was of no avail. The stall holders are exempt from paying two annas every day as are required to be paid by meat sellers in the weekly markets. 10. It appears that besides the aforesaid weekly markets and municipal meat markets, meat was also allowed to be sold in eight private stalls and to them two types of licences were issued; one licence was for selling meat and the other was for selling meat in that particular place. It is not clear whether these places were fixed as places to be used for selling meat unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 480-0-0 56' Market 1-8 6-0-0 each monthly * * * * 69 Machhisath Meat Stall 1 300-0-0 annual 2,7,9, 12,13, 15,16, 18,20, 240-0-0 each annual. 21,25, 26,28. 8,10,17,24,27 260-0-0 each annual, 11 285-0-O 14 275-0-0 19 265-0 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intimation dated 29-5-58 on all the municipal slaughter-houses. The translation of the said intimation, as admitted by all the parties, is contained in Exhibit A-2 in Special Civil Application No. 198 of 1958. It reads: INTIMATION. All Khatiks and butchers are informed that sale of mutton has been stopped in the weekly markets in accordance with resolution No. 77 dated 28-3-58. Proper proceedings will be taken against any person who puts up a shop in the market and sells mutton. And Corporation will not be responsible for your damage. Sd/- Illegible, Market Superintendent. 14. It would be noticed that the combined effect of the aforesaid resolution dated 28-3-1958 and the intimation dated 29-5-1958 was that the sale of meat in the weekly markets and in private stalls was prohibited. The sale of meat was permitted only in the municipal meat markets. But the meat sellers who had been carrying on their business in the stalls or kenas in Hansapuri and Machhisath municipal meat markets were required to pay higher fees. It is not in dispute that the approximate increase effected by the aforesaid resolution was from Rs. 5 and Rs. 9 to Rs. 20 and Rs. 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the market: (Halsbury's Laws of England, 2nd Edition, Volume 22, Paragraph 65 at page 47). The right available to an intending seller in a public market in India was also the same though it could be curtailed by a statute and such was the position till the advent of the Constitution. The aforesaid right of a seller available to him in Common law, in our opinion, is now enshrined in and is guaranteed to him under Article 19(1)(g) of the Constitution. The learned Chief Justice of the Supreme Court (Das J. as he then was) delivering the judgment of the Supreme Court in Mohd. Yasin v. Town Area Committee, Jalalabad, [1952]1SCR572 observed: Under Article 19(1)(g) the citizen has the right to carry on any occupation, trade or business which right under that clause is apparently to be unfettered. The only restriction to this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in Clause (6) of that Article. 18. Turning to Clause (6) of Article 19 of the Constitution, it would be noticed that there are two limitations imposed on the power of the State to make a law relating to restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e customers for the stalls therein it in prohibiting sale of meat in weekly markets. In short, Shri Bobde's contention is that the action taken by the Corporation in prohibiting the sale of meat is mala fide. In third instance, Shri Bobde contends that, at any rate, the restrictions imposed are not reasonable but are excessive. According to the Corporation authorities the sale of meat in weekly markets was prohibited to secure hygienic conditions for the sale of meat. The Corporation has contended that in weekly markets meat offered for sale was exposed to sun and rain, it was coming in contact with mud in the rainy season and thus caused its deterioration and to present this action was taken. According to Shri Bobde, if that was the object in prohibiting sale of meat then the same thing could have been achieved by imposing a condition on the meat sellers in weekly markets that meat offered for sale should be stored in boxes covered on the top so as to prevent exposure of meat to sun, rain, with a wire netting to the side to secure passage of free air and light to the meat. This could have been achieved without putting meat sellers to unnecessary expense. Now, if meat sellers h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation has done is not to prohibit the sale of meat in weekly markets for all the time but the sale is only prohibited temporarily till such time as the Corporation is in a position to make adequate arrangements by building stalls therein for the sale of meat. 22. As regards the second contention of Shri Bobde, Shri Phadke says that the Corporation has not prohibited the sale of meat in weekly markets with a view to achieve any financial gain. The conditions under which meat was sold in weekly markets were very unhygienic and it was only in the interests of the public health that the Corporation had prohibited the sale of meat in weekly markets. As regards the third contention Shri Phadke says that the restrictions imposed are not unreasonable, but on the other hand that is the only alternative to secure sale of meat in hygienic conditions. 23. The byelaws made for regulating the sale of meat appearing at page 91 of the Book are made under the provisions of Sections 179(1), (b-1), (d) and (cc), Section 180(a), (b), (c), (d) and (g) and Section 178(5) of the C.P. and Berar Municipalities Act. 24. It is common ground that there is no section in the Municipalities Act au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le with the general one, the particular intention is considered an exception to the general one: (Maxwell on Interpretation of Statutes, 10th Edition, page 172). No doubt, in Section 57(1)(m), general intention expressed is that the Corporation should make adequate provisions by any means or measures which it may lawfully use or take for regulating markets but the particular intention of the Legislature as disclosed in Section 415, Clause (35), in general and in Clause (b) in particular makes it abundantly clear that the intention of the Legislature so far as it relates to the sale of meat is that it should be regulated by making byelaws and this particular intention of the Legislature has to be construed as an exception to the provisions of Section 57(1)(m). Even assuming that Section 57(1)(m) conferred a power on the Corporation to regulate meat markets merely by passing resolutions and it was not obligatory upon the Corporation to make byelaws in that respect, it cannot be doubted that Section 415(35)(b) gave an option to the Corporation to make byelaws in that respect. The municipal committees had made byelaws regulating meat markets as appear at page 91 of the Book. Under Sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale of meat in weekly markets cannot be therefore upheld under the provisions of Section 57(1)(m) of this Act. 26a. The other ground on which Shri Phadke claims to sustain the action of the Corporation is the alleged power of the Corporation under byelaw No. 1 appearing at page 64 of the Book. Turning to the byelaws at page 64 it would be seen that they were made under Section 179, Sub-section (1), Clause (b) and Section 178(5) of the C.P. Municipalities Act II of 1922. It would be seen that the word 'markets' had been omitted from Clause (b) of Section 179(1) by the Amending Act of 1934 (the Central Provinces and Berar Act IV of 1934) and for the purpose of regulating markets a separate Clause (b-1) was added by the same Amending Act. It therefore necessarily follows that it was not competent to the Municipal committee to make byelaws regulating meat markets under Clause (b) of Section 179(1) of the Municipalities Act after the year 1934 and the byelaws which were made prior to the year 1934 for regulating markets would become redundant by the passing of the Amending Act of 1934. Byelaw No. 1 appearing at page 64 appears to be a byelaw made prior to 1934. It canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make such an order with the previous sanction of the Deputy Commissioner. It is also not possible for us to accept the contention of Shri Phadke that the sale of meat is only temporarily suspended in weekly markets till the Corporation is in a position to make adequate arrangements for the accommodation of meat sellers. This contention is not based on any plea raised in any of the returns filed by the Corporation and further the statement is too vague. We asked Shri Phadke as to the approximate time within which the Corporation expects to make necessary arrangements but we could get no definite answer from him. In these circumstances it is not possible for us to hold that the Corporation has not prohibited the sale of meat in weekly markets but has only suspended the sale in weekly markets. 28. It is also necessary to deal with one more contention raised by the Corporation in the pleadings and in arguments which is that it was not the intention of he Corporation to prohibit the sale absolutely in weekly markets and that was not the object with which the resolution dated 28-3-1958 was passed or intimation dated 29-5-1958 was posted on the slaughter houses. The intention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls on the basis of the estimated profit that the stall holder is able to make from the stall. These stalls are beyond the capacity of an ordinary meat seller to take and the policy of the Corporation serves to enhance the price of meat to the detriment of public interest. (Para 13 of Sp. C.A. No. 198 of 1958). It is therefore clear that it was known to the petitioners that the Corporation was claiming that the action taken by it was for maintaining sanitary conditions in the markets and it is the case of the petitioners that that stand of the Corporation was mala fide. Now, the plea raised by the Corporation was that he sale of meat in weekly markets was carried on in very insanitary conditions and it is for this reason that this action was taken. The plea raised by the Corporation finds support in the pleas raised by the petitioners themselves. The conditions prevailing in weekly meat markets in the words of the petitioners are: The market is held on open plots of land without any construction of pavement, platforms, flooring, roof or any protection from sun, rain, mud, flies or encroaching dogs. Meat is exhibited for sale on ground which becomes muddy whenever rain falls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 . Shri Bobde contends that if we look to the resolution dated 28-3-1958 it is clear that it was passed only with a view to augment the finances and it was never in contemplation of the Corporation to render any additional service. It is therefore not open to the Corporation to say that the fees have been raised as the former fees were not commensurate with the services rendered or that the Corporation had intended to render some additional service to the meat sellers. Shri Bobde further contends that the defence raised by the Corporation that the fees fixed by the resolution dated 28-3-1958 were commensurate with the services rendered is mala fide, Shri Phadke, on the other hand, contends that though the word used in byelaw No. 3 is 'fees' it is not a fee in the legal sense. It is in reality a rent. The Corporation is therefore free to charge by way of rent any amount as it likes to the stall holders. Shri Phadke further contends that though this is the right of the Corporation it, in fact, does not charge anything more than that which is commensurate with the services rendered by the Corporation to the stall holders. In support of this contention, Shri Phadke referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pation of the municipal property and not in connection with any services that the municipality may render to the occupiers of its property. 34. Turning now to the provisions of the Corporation Act, Section 8 thereof empowers the Corporation to hold property both movable and immovable. Section 73 enumerates the property that vests in the Corporation and municipal markets is one of the items of property that vests in the Corporation. Section 70(2)(a) empowers the Chief Executive Officer of the Corporation to grant leases of immovable property belonging to the Corporation subject to certain restrictions which are contained in Sub-section (1) of that section. Section 78 enumerates the items that are credited to the municipal fund and rent accruing from the property of the Corporation is one of the items going towards the constitution of the municipal fund. Considering all these provisions of the statute and the aforesaid byelaws, in our opinion, what the Corporation is empowered under the Act and the byelaw is to charge an amount for use and occupation of its property and not fees in the legal sense, i.e. charges for the service which is rendered by the Corporation to the occupiers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncrease in the charges made for Hansapuri and Machhisath markets was made only with the intent to bring the fees on par with those on other markets. The fees are not in any manner exorbitant. This aspect of the case, in our opinion, can only be decided on recording elaborate evidence on this question. An opportunity will have to be given to the parties to substantiate their respective cases if so desired by them. It will not therefore be possible to decide this question in these proceedings. We therefore do not decide this question here. It will be open to the petitioners to institute a suit, if they so desire and if they are so advised, to get redress against this alleged grievance. In this view of the matter, Special Civil Application No. 222 of 1958 must fail. 36. As regards Special Civil Application No. 243 of 1958, as already stated, this application is by five persons who want to do business of selling meat outside the places fixed by the Corporation. As already stated, those places are weekly markets, municipal meat markets and municipal nakas. It is the case of the petitioners that they had applied for licences to sell meat and in their applications had stated their pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nwholesome meat is not sold. Further, a check has also to be kept throughout the day that the meat which gets deteriorated during the course of the day is not thereafter offered for sale. Unless sale is confined to certain places such a check cannot be effectively exercised. 37. We may here usefully reproduce relevant observations in 64 Corpus Juris Secundum at pages 317 to 319: The municipality may enact any reasonable regulation necessary to preserve the cleanliness of market places, may confine the sale of particular articles to certain designated stands or portions of the market and prevent their sale elsewhere...... As a general rule, a municipal corporation may prohibit by ordinance or by bye-law the sale of marketable articles within certain limits or during certain hours except at the established market and it is within the power of the legislature to authorise municipal corporation to do so...... It seems to be uniformly held that under a power to regulate the vending of meats, etc., a municipality may prevent their being retailed outside the public markets. 38. The claim of the petitioners is that they must be allowed to do business at places outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (i) of byelaw No. 14, Shri Jayawant contends that in that clause very arbitrary powers have been conferred on the officers concerned which are likely to be abused by them. Clause (i) of that byelaw provides that a licence could be refused to an applicant on the ground that he is a bad character or suffering from any contagious or infectious disease. Nowhere in the byelaws it has been defined what bad character means or what is meant by a contagious or infectious disease. The officer concerned may even call cold a contagious disease and may refuse licence on that ground of cold. This clause is therefore bad in law. 40. It is true that the terms bad character and contagious or infectious disease are not defined in the byelaws but then it must be assumed that the officer concerned would understand these terms as they are generally understood by any reasonable person and that he would not be capricious and arbitrary in deciding the application for the grant of a licence. It is to be noticed that the Act makes a provision for an appeal against the decision of a subordinate officer of the Corporation. May be, that some officers in certain cases may act capriciously or arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now open to the sellers who are desirous of selling meat in the weekly markets to apply for licences. We therefore asked the petitioners whether they would like to apply for licences to sell meat either in the weekly markets or in the stalls in the municipal markets. Shri Jayawant stated before us that the petitioners are not desirous of doing business of selling meat in the weekly markets as the conditions under which meat is sold there are not suitable to them. He also stated that the fees demanded by the Corporation for selling meat in the municipal stalls in the municipal markets are beyond the means of the petitioners. Their demand is that they should be granted licences to sell meat at places of their choice or otherwise but outside the places fixed by the Corporation. In these circumstances and for the reasons stated above it is not possible for us to concede to this demand of the petitioners and the petition must therefore fail. 42. In the result Special Civil Application Nos. 198/58 and 286/58 succeed. Intimation dated 29-5-1958 issued by the Corporation under the signature of the Market Superintendent and posted on the slaughter-houses is hereby quashed. The Corporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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