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Municipal Committee Versus Haji Ismail And Anr.

1965 (8) TMI 95 - PUNJAB-HARYANA HIGH COURT

Dated:- 24-8-1965 - D Falshaw And M Singh, JJ. JUDGMENT Mehar Singh, 1. In this appeal under Clause 10 of the Letters Patent from the judgment, dated September II, 1961, of a learned Single Judge accepting the prayer of Haji Mohd. Ismail respondent, in a petition under Article 226 of the Constitution, that the bye-laws framed by the appellant, Municipal Committee of Malerkotla, whereby the sale of vegetables and fruits, wholesale or by auction, has been limited to those obtaining a right to do s .....

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Sabzi Mandi of Malerkotla. 2. The learned Judge has answered these questions in favour of the respondent and against the appellant Municipality. On the first question the learned Judge has relied upon Ghanaya Lal v. Municipal Committee, Montgomery, AIR 1928 Lah 540, Mula Mal v. Emperor, AIR 1929 Lah 607, and Wariam Singh, v. Municipal Committee, Nabha, AIR 1953 Pepsu 127, the ratio of which cases completely supports the view taken by the learned Judge. On the second question the learned Judge ha .....

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1959, bye-laws with regard to fruits and vegetables appear at page 23. It is stated that those bye-laws have been made under Sections 197 and 188 (e) (ii) of Punjab Act 3 of 1911. Bye-laws 5, 6 and 7 concern the matter of licence fee and the conditions of a licence, the remaining four bye-laws are relevant and are in this form- "1. (a) No person shall sell wholesale or by auction any fruit, vegetables or -sugar-cane within the Municipal Limits, at any premises other than Sabzi Mandi or any .....

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he enforcement of these bye-laws such applications may be made at any other time, and that licence fee shall be in proportion to the portion of the year for which licence is granted. 3. In the Sabzi Mandi or in any other specified premises number of plots to be licensed shall be fixed by the Committee and each plot shall be let out by public auction on the plot under an agreement drawn by the Committee for this purpose. 4. Lessee of each of the above auctioned plots shall be granted a licence by .....

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, of fruits and vegetables is confined to those four shops in the Sabzi Mandi, and the effect of the bye-laws is that the appellant Municipality has precluded itself from granting licence for such sale in or on any premises other than those four shops. There was once Clause (d) in Section 197 of the Act which read- "The committee may, by bye-law, fix the places in which any specified article of food or drink may be sold or exposed for sale or the places in which it may not be sold or expose .....

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ation or exposure for sale, of any specified articles of food or drink, in any place or premises not licensed by the committee." It is obvious that the power under this clause is to prohibit such sale except in premises licensed by the committee, but it is not a power, as was the case in the old Clause (d), to fix a particular place or places for that purpose. It is clear that the scope and nature of the power is entirely different from what was the power under old Clause (d) that has been .....

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his power does not mean fixation of a defined and a particular place or places for that purpose. Any places considered proper and suitable by a municipal committee may be licensed for the purpose stated in Clause (a) and it may then proceed to prohibit that no premises not having a licence For that purpose will be used for same. The conclusion of the learned Judge is, therefore, correct that the power in Clause (a) of Section 197 does not extend to fixing and limiting the sale of fruits and vege .....

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mentioned in the beginning of the bye-laws under which the same have been made. There is Clause (v) of Section 188 which gives power to a municipal committee to make bye-laws to 'generally provided for carrying out the purposes of this Act'. Some reliance was placed on this clause before the learned Judge, but no provision in the Act was referred to with reference to which the bye-laws under consideration could be considered under this clause. The learned counsel for the appellant Munic .....

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power for the 'proper regulation of markets', and it is contended by him that the word 'regulation' has within its ambit complete prohibition. The learned counsel refers to the meaning of the word 'regulation' as given in 76 Corpus Juris Secundum 615, and takes from the variety of meanings given there only this that this word is same as restriction and then relies upon Narendra Kumar v. The Union of India, AIR 1960 SC 430, to press that the word 'restriction' inc .....

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s been used. It appears from the very meaning of this word in 76 Corpus Juris Secundum 615 that it is variously defined as meaning a rule prescribed for conduct; a rule or order prescribed for management or Government; a rule, order, or direction from a superior or competent authority; a governing direction; a regulating principle, a precept; a law; a prescription; a method. The word is also defined as meaning an exercise of control; the act of regulating; the act of reducing to order; or of dis .....

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in this sense when it is considered with the whole context of that sub-clause along with other matters that are dealt with in that sub-clause and when the meaning is taken in the light of those matters. The word is not to be read in isolation, but it is to be read in the context in which it has been used and in that context it does not bear the meaning which the learned counsel has tried to give it. Under Section 188 (e) (ii) the appellant Municipality has not the power to make the type of regu .....

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of persons is more than one who can have a licence for maintaining such a business and trade in any one of the four shops in the Sabzi Mandi at Malerkotla, it is not a case of a monopoly. He has said that it could only be a case of monopoly if it was confined to one person. Black in his Law Dictionary, 1951 Edition, at page 1158, gives this meaning to the word monopoly'- "Monopoly, A privilege or peculiar advantage vested in one or more persons or companies, consisting in the exclusive .....

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rt of the market-supply or output of a given commodity as to stiffle competition, restrict the freedom of commerce, and give the monopolist control over prices." This completely meets the argument of the learned counsel that a monopoly must necessarily be confined to one person. There can be a monopoly in the case of more persons, than one, so long as exclusive right or power to carry on a particular business or trade or the like is granted as a privilege to such persons. The learned counse .....

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vegetables. The observations of their Lordships in that case with regard to the business of liquor obviously can have no bearing on a case like the present in which what is sought by the respondent is a licence to carry on the business of selling fruits and vegetables. Similarly Arunachala Nadar v. State of Madras, AIR 1959 SC 300, has no bearing so far as the present case is concerned, because that was a case in which constitutional validity of the Madras Commercial Crops Markets Act, 1933, was .....

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asonable restriction on the respondent and the persons like him who wish to engage themselves in such business or trade. The only difference between that case and the present case is that there the Board had prohibited establishment of a market for wholesale transactions in vegetables except with its permission, it made no bye-laws for issuing license in that respect, and in fact it granted a monopoly contract to one man for that business according to one of the bye-laws. Their Lordships observe .....

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