Full Judgment Text
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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impliedly repealed-Sanitation, connotation of--U. P.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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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