Case Note & Summary
The appeal arose from a criminal prosecution under Section 299(1) of the United Provinces Municipalities Act, 1916 read with bye-law clause 3(a) framed by the Municipal Board of Tanda. The appellant, Chaudhari Afzal Ullah, owned a piece of land with superstructures in Tanda where he established a market in which food-grains were sold. The Chairman of the Municipal Board served a notice requiring the appellant to obtain a licence for running the market. Upon the appellant's failure to comply, the Municipal Board initiated criminal proceedings. The Tehsildar of Tanda tried the appellant in Cr. Case No. 141/1960 and acquitted him, holding that the prosecution had failed to prove sale of vegetables, fruits, and fish; evidence showed only grains were sold, and the Board had no power to make bye-laws for a purely grain market. On appeal by the Municipal Board, the Allahabad High Court in Criminal Appeal No. 379 of 1961 set aside the acquittal and convicted the appellant under Section 299(1) read with bye-law 3(a), sentencing him to a fine of Rs. 20 with simple imprisonment for one week in default. The appellant then obtained special leave from the Supreme Court in Civil Appeal No. 1 of 1962. The core legal issues concerned the validity of bye-law No. 3 and other relevant bye-laws framed by the Municipal Board on 21st January 1958, particularly whether they were ultra vires Sections 298 and 241 of the Act. The appellant contended that the bye-laws were outside the authority conferred by Section 298 and inconsistent with Section 241. The Supreme Court examined the scheme of the bye-laws. Bye-law 3(a) prohibited use of any land or building as a market or shop for sale of vegetables, fruits, and grains without a licence. The Explanation defined 'market' to include any place for buying and selling grains where more than four stalls or shops are kept on any plot, or where wholesale transactions exceed twenty maunds. The Court noted that both lower courts found more than four shops on the appellant's plot selling grains, thus constituting a market under bye-law 3(a). On the interpretation of Section 241(1), the Court held that the section did not contain the word 'only' and therefore did not preclude the Board from making other bye-laws under Section 298 for markets not covered by Section 241(1). Section 241(1) applied to markets for sale of animals, meat, fish, fruit, or vegetables, but not grains, so it did not apply to the appellant's market. The Court then held that clause (d) of Section 298(2)(F) expressly conferred power to make bye-laws for the establishment, regulation, and inspection of markets, and the impugned bye-law 3(a) and cognate provisions were valid under that clause. The Court also relied on the principle that the specific clauses in Section 298(2) were illustrative and not restrictive of the general power under Section 298(1), citing Emperor v. Sibnath Banerji & Ors., AIR 1945 PC 156. Furthermore, the fact that the bye-laws' preamble incorrectly indicated the source of power did not invalidate them, following P. Balakotaiah v. Union of India, [1958] SCR 1052. Finally, the plea of mala fides could not be raised for the first time in appeal because it required allegations at trial and evidence. The Supreme Court dismissed the appeal and upheld the High Court's conviction, holding the bye-laws valid and requiring the appellant to obtain a licence.
Headnote
A) Municipal Law - Markets and Bye-laws - Definition of Market - United Provinces Municipalities Act, 1916, Bye-law 3(a) Explanation - More than four shops on same plot selling grains constituted a market within the meaning of bye-law 3(a) even though no vegetables, fruits, or fish were sold; both courts below found that more than four shops selling grains existed on appellant's plot. Held that such shops constituted a market requiring licence under bye-law 3(a). (Paras 1-8) B) Municipal Law - Bye-laws Validity - Inconsistency with Section 241(1) - United Provinces Municipalities Act, 1916, Sections 241(1) and 298 - Section 241(1) did not contain the word 'only' qualifying the categories of markets subject to bye-laws under heading F, so the Board could make other bye-laws under Section 298 for markets not covered by Section 241(1); a grain market was not covered by Section 241(1) because that section enumerated animals, meat, fish, fruit, and vegetables, not grains. Held that the impugned bye-law 3(a) was not inconsistent with Section 241(1). (Paras 1-8) C) Municipal Law - Source of Power - Section 298(2)(F)(d) and (dd) - United Provinces Municipalities Act, 1916, Section 298(2)(F)(d),(dd) - Clause (d) conferred power on the Board to provide for establishment, regulation, and inspection of markets; the impugned bye-law 3(a) and other cognate bye-laws prescribing licensing procedure were valid as incidental to regulation. Held that the bye-laws were justified under clauses (d) and (dd) of Section 298(2)(F). (Paras 1-8) D) Interpretation of Statutes - General vs Specific Powers - Section 298(1) - United Provinces Municipalities Act, 1916, Sections 298(1) and 298(2) - Specific clauses in Section 298(2) were merely illustrative and could not be read as restrictive of the generality of powers prescribed by Section 298(1); the impugned bye-laws were for furtherance of municipal administration and thus attracted Section 298(1). Relied on Emperor v. Sibnath Banerji & Ors., AIR 1945 PC 156. Held that the general power under Section 298(1) validated the bye-laws. (Paras 1-8) E) Bye-laws Validity - Incorrect Source Preamble - United Provinces Municipalities Act, 1916, Bye-laws Preamble and Section 298 - If the Board had power to make bye-laws, the fact that the source of power was incorrectly or inaccurately indicated in the preamble did not invalidate them. Followed P. Balakotaiah v. Union of India, [1958] SCR 1052. Held that the bye-laws were not invalid on this ground. (Paras 1-8) F) Criminal Procedure/Appeal - Plea of Mala Fides - Not Raised at Trial - Plea of mala fides could not be raised for the first time in appeal because proving mala fides required appropriate allegations at the trial stage and evidence. Held that the plea was rejected. (Paras 1-8)
Issue of Consideration
Whether bye-law No. 3 and other relevant bye-laws framed by Municipal Board Tanda under Sections 298 and 241 of United Provinces Municipalities Act, 1916 were ultra vires and whether the appellant's grain market required a licence under those bye-laws
Final Decision
The Supreme Court dismissed the appeal and upheld the High Court's conviction of the appellant under Section 299(1) of the United Provinces Municipalities Act, 1916 read with bye-law clause 3(a). The Court held that the bye-laws were valid, the appellant's shops constituted a market requiring licence, and the order of fine of Rs. 20 with simple imprisonment for one week in default was maintained.
Law Points
- Bye-law validity is tested by existence of power
- not correctness of preamble
- specific clauses under Section 298(2) are illustrative not restrictive of general power under Section 298(1)
- Section 241(1) does not cover grain market
- so no inconsistency
- market defined as more than four shops on same plot selling grains
- plea of mala fides cannot be raised first time in appeal
