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TMI Blog1958 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the City of Nagpur is conducted 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the flesh of animals slaughtered at the 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) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Besides the aforesaid 141 stalls, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving Re. 0-8-0 as license fee. But license should be given to those who sell meat in shops licensed by the Corporation. These licensees who are in arrears of rent on 1-4-58 should not be given the concession of renewing the leases." 12. Acting in pursuance of the decision taken in this resolution the Market Superintendent, in the first instance, served a notice on 30-3-58 on all the stall holders in Hansapuri and Machhisath municipal markets. The translation of that notice is admitted by all the parties, is as given in Exhibit A-2 in Special Civil Application No. 222 of 1958. It reads: * * * "Mr. ----- is hereby given notice that you took the licence (parvana) for 1957-58 of the Corporation shop No.----- in your possession in the ----- mutton market at ----- for Rs. ----- per year. Its period ended on 31-3-58. The Corporation has by its resolution No. 77 dated 28-3-1958 determined the fee (shulk) for the shop in your possession to be Rs.----- per year. If you want to take the license from 1-4-58 at this rate, three months fee in advance and the current license fee for April at the rate of Rs. ----- per year should be deposited in eight days and agreement should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court under Article 226 and 227 of the Constitution. 16. Though a large number of allegations were made and various reliefs were asked in these applications at the stage of arguments reference was not made to all of them. We therefore do not consider it necessary to reproduce in detail the pleas raised and the reliefs asked. It will be convenient to refer to the material pleas raised when we deal with the applications specifically. 17. Turning now to Special Civil Applications Nos. 198 of 1958 and 286 of 1958, as already stated the petitioners in these applications claim that they had been doing the business of selling meat in the weekly markets. We have already referred above to the manner in which this business was conducted. According to the petitioners weekly markets are being held from time immemorial and meat is also being sold therein from time immemorial and they claim that the business of selling meat in weekly markets has been their ancestral business. The Corporation admits that weekly markets are being held and meat is being sold in these markets from time immemorial. It however does not admit that all the petitioners had been doing the business of selling meat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... markets. It has therefore to be first seen whether there is any valid law under which this restriction has been imposed, and if there is any valid law to sustain this restriction then it would be necessary to see whether the restriction imposed was in the interests of the general public and whether it is reasonable. 20. Shri Bobde, learned counsel for the petitioners in these two petitions, in the first instance, contends that the action taken by the Corporation in prohibiting the petitioners from selling meat in weekly markets by merely passing a resolution and fixing an intimation of the slaughter houses was not within the competence of the Corporation as it is not authorised by any provision of the law. He says that these markets are of very ancient origin and to prohibit the sale of meat in these markets it is necessary for the Corporation to have a byelaw to that effect made. At any rate, he further contends that as byelaw No. 1 provides that the places where meat is to be sold are to be fixed with the previous sanction of the Deputy Commissioner -- weekly markets being places so fixed for the sale of meat -- it was necessary for the Corporation to have obtained sanction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable but are excessive. 21. Shri Phadke, learned counsel for the Corporation, on the other hand contends that the Corporation is authorised to prohibit sale of meat in weekly markets by passing a resolution under the provisions of Section 57(1)(m) of the City of Nagpur Corporation Act. He further contends that byelaw No. 1 only fixes the outer boundary of the market within the limits of which meat can be allowed to be sold. It does not fix the place within those limits where meat is to be allowed to be sold. The power to fix that place is contained in the byelaws framed under Section 179, Sub-section (1), Clause (b) of the C.P. Municipalities Act which are reproduced at page 64 of Part III of the Book styled as "Corporation of the City of Nagpur Byelaws framed by the Nagpur Municipal Committee." He contends that this place is fixed under byelaw No. 1 appearing at page 64 of the Book. For fixing such a place no sanction of the Deputy Commissioner is required. It was therefore not necessary for the Corporation to have obtained the sanction of the Deputy Commissioner to prohibit the sale of meat in weekly markets and it is under the provisions of byelaw No. 1 of the bye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though under the Municipalities Act there was no provision empowering a municipal committee to regulate markets apart from the provisions made in the byelaws, now under the Corporation Act itself Clause (m) of Sub-section (1) of Section 57 specifically confers a power to regulate markets on a municipal committee. The action of the Corporation in prohibiting sale of meat by passing a resolution was therefore an action authorised by law. It is not possible for us to accept the contention of Shri Phadke that Section 57(1)(m) confers a power on the Corporation to regulate markets merely by passing a resolution. What Sub-section (1) provides is that it empowers the Corporation to make adequate provision by any means or measures which it may lawfully use or take to regulate. What is intended by the Legislature in saying "by any means or measures which it may lawfully use or take?" To find an answer to this question it is necessary to turn to other provisions of law and when we turn to Section 415(35) of the Corporation Act in general and to item (b) in particular we find that it provides that the Corporation may, and if so required by the State Government shall, make byelaws in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets could only by acting under the byelaws and not by passing a resolution. 25. Looking at the case from another aspect, by allowing these byelaws to remain in force the Corporation has represented to the general public that it would regulate meat markets in accordance with those byelaws. It would not therefore be open to the Corporation to act in excess of the byelaws in regulating meat markets. 26. There is also another aspect to this case. Looking to the provisions of Section 415 it would be noticed that in respect of the items enumerated therein the State Government had a right to compel the Corporation to make byelaws in respect of any or more items contained in that section; sale of meat was one of such items. Had there been no byelaws in existence regarding the regulation of sale of meat, may be, that the State Government would have compelled the Corporation to make byelaws in that respect. It would be seen that the procedure for making byelaws is elaborate and consent of the Government to make byelaws is required. This in its turn affords a check on the action of the Corporation. By allowing the byelaws to remain in force the Corporation, so to say, has represented to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be that specific provision alone that would govern that topic and not a general provision. It is therefore not possible for us to uphold the action of the Corporation prohibiting the sale of meat on the strength of byelaws appearing at page 64 of the Book. It is also possible for us to accept the contention of Shri Phadke that byelaw No. 1 appearing at page 91 fixes the outer limits of the market and not the place within that limit where meat is allowed to be sold. A mere reading of byelaw No. 1 repels this argument of Shri Phadke. 27. It is also not possible for us to accept the argument of Shri Phadke that it was not necessary for the Corporation to have obtained the sanction of the Deputy Commissioner for prohibiting the sale of meat in weekly markets. It would be seen that Section 419 of the Corporation Act provides that all byelaws and rules made by the Corporation shall have effect as if enacted in the Corporation Act. As already stated, the byelaws made by the Municipalities have by virtue of the provisions of Sub-section 2 of Section 3 become byelaws made under the Corporation Act. They must therefore have the effect as if enacted in the Corporation Act. That bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling meat is not one of the ground on which licenses to sell meat could be refused. The Corporation, therefore, as the matters stand today, had no authority in law to put such a condition for the granting of licenses to meat sellers to sell meat in weekly markets. 29. For the reasons stated above in our opinion, the first contention of Shri Bobde must succeed. The action of the Corporation in prohibiting the sale of meat in weekly markets not being authorised by law has to be struck down. 30. In view of our finding on the first question it is not necessary to express ourselves on the second and third question. however, we find that the bona fides of a public body, the Corporation are challenged and therefore we think it necessary to express ourselves on the second question raised by Shri Bobde relating to the bona fides of the Corporation. As already stated the contention of Shri Bobde is that the action of the Corporation was with a view to secure a financial gain and was not in the public interests, while, according to Shri Phadke, the action taken was to secure sale of meat under hygienic conditions. The contention raised by Shri Bobde in arguments has no foundation in the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on admission of the petitioners they are the conditions prevailing in the market, it cannot be said that the action of the Corporation in prohibiting the sale of meat was mala fide. True, we have held that the action taken by the Corporation in prohibiting the sale of meat in the instant cases has to be set aside but that is only because the action impugned in these petitioners was taken merely by passing a resolution and by posting an intimation on the slaughter-houses which was not authorised by law. It should not be understood that we are of the view that the present insanitary conditions should continue. It will be open to the Corporation to take adequate steps to remove the present insanitary conditions under due authority of law. 31. Turning now to Special Civil Application No. 222 of 1958, as already stated this is an application by 42 persons who had been selling meat in stalls in Hansapuri and Machhisath markets. Their only grievance is against the increased rent. The increase is from Rs. 5/- and Rs. 9/- to Rs. 20/- and Rs. 25/- per stall per month and form Rs. 3/- to Rs. 6/- per kena per month. Relying on the provisions of byelaw No. 3 of the byelaws appearing at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the month of March, the shops and stalls in any market shall be leased out for one year beginning with the 1st of April, next following. (c) The fees payable for the lease shall be settled by public auction or in such other manner as may be determined by the market sub-committee." Reading these three clauses of byelaw No. 3 together it would be noticed that the so-called fees is only a charge for the use and occupation of the stalls that are leased by the Corporation to the occupiers and one of the modes by which the fees are fixed is by auction. These factors clearly indicate that what the Corporation is authorised to charge is a sum for the use and occupation of its property under the byelaw and the word fees is used in that sense and not in the legal sense as a charge for any special service rendered to an individual by some governmental agency or public body. 33. Turning to the provisions of the Municipal Act, Section 37 thereof provides for the incorporation of the municipal committee and confers powers on the municipal committee to acquire and hold property both movable and immovable. Section 38 enumerates the items of properties that vest in the municipal committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands or stalls in a public market, even under the general power of regulation and control, unless restricted by Statute. Charges for licenses or market privileges must, however, be reasonable and without discrimination, and cannot be imposed as a means of raising revenue but the requirement of a reasonable license fee is not objectionable as a tax for revenue." There can be no doubt that this principle, at any rate, would come into play when the Corporation is seeking to have a monopoly of the markets as in the instant case. As already stated the combined effect of the resolution of 28-3-1958 and the intimation issued is that meat sellers are now left with no option but to go to the stalls erected by the Corporation. Whether this was intended or not, the action taken by the Corporation had resulted in creating a monopoly in its own favour. The Corporation, therefore, could not have claimed any fees it liked for the use and occupation of its stalls but the charges must be reasonable. 35. It is indeed true that the complaint of the petitioners is that the fees demanded by the Corporation for the occupation of the stalls in Hansapuri and Machhisath are exorbitant but these al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o desire to do business of selling meat. The Corporation in refusing to grant licences has failed to perform its duty. He further contends that byelaw No. 1 and Clauses (i) and (ii) of byelaw 14, are ultra vires of the Constitution inasmuch as they are unreasonable restrictions on the right guaranteed to a citizen to do his business by Article 19(1)(g) of the Constitution. It is not possible for us to accept any of these contentions raised by Shri Jayawant. We have already summarized the position in law relating to the right conferred on a citizen under Article 19(1)(g) of the Constitution and we have stated that that right could be restricted by a valid legislation provided that legislation is in the public interest and the restrictions imposed are reasonable. Here, the restrictions impugned are imposed under the byelaws appearing at page 91 of the Book. As already stated, these bye-laws under the provisions of Section 419 of the Corporation Act have to be taken as part of the Act itself. The restrictions imposed by the byelaws would therefore be restrictions imposed by law. It cannot be denied that the regulations of the sale of meat is in the interest of general public. Meat is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to refuse a licence on the ground that there is no place or stall in the meat market available for the applicant cannot by itself he said to be an unreasonable restriction on the right of the petitioners to do business. It is true that the Corporation must make adequate provision to meet the demands of the City relating to the sale of meat. Whether the arrangements made are adequate or not must be judged in the light of the demand both of the sellers and that of the consumers of meat in the City of Nagpur. If these arrangements are not correlated to the demand and the places for the sale of meat are fixed in excess of the demand of the consumers to please the sellers, the possible result that would follow would be that the meat brought to the market would not get sold at the end of the lay and this would naturally result in stale meat being clandestinely sold to the consumers. It is next to impossible to keep a watch over each and every seller of meat if selling of meat is allowed at places chosen by the sellers. It is true that it is the case of the petitioners that the places provided by the Corporation for the sale of meat are not even adequate considering the demand of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port: "When a Legislature imposes restrictions upon the fundamental rights of a citizen the Court must not judge these restrictions by any absolute standard. Whether the restrictions are reasonable or not must largely depend upon what is that object the Legislature in seeking to achieve by legislation and what is the mischief it is aiming at. If the restrictions are necessary and essential in order to achieve the object and to remove the mischief, then ordinarily the Court must uphold those restrictions. To the extent that the restrictions go beyond the necessity for achieving the object or removing the mischief, the restrictions would be unreasonable. Only those restrictions are permissible which are in the interests of general public. If the law which is passed and the policy which is sought to be enforced is in the interests of the general public, then any restriction which makes it possible to enforce the law must equally be in the interests of the policy. It would be erroneous to consider every restriction from the point of view of some vague and indefinite standard which might be set up as to personal liberty and individual rights. Personal freedom and the right of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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