Afzal Ullah vs The State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 1 of 1962

Decision Date: 20 September, 1963

Coram: P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, Raghubar Dayal

In this case, the Court noted that the appellant, Afzal Ullah, had been charged with an offence under section 299(1) of the United Provinces Municipalities Act, 1916, read with clause 3(a) of the bye‑laws made by the municipality identified as Respondent No 2. The charge alleged that the appellant was operating a market within the municipal area where vegetables, fruits, fish and grains were sold, and that the operation required a licence under clause 3(a); the appellant’s failure to obtain such a licence was said to constitute a breach of the bye‑laws. The matter was tried before the Tehsildar of Tanda, who acquitted the appellant on the ground that only a grain market was being run on the appellant’s plot and that the municipality had no authority to frame bye‑laws for a purely grain market, rendering the impugned bye‑law ultra vires. The High Court, on appeal, reversed the acquittal and convicted the appellant under the same statutory provision together with clause 3(a). Both courts observed that more than four shops were situated on the appellant’s plot and that these shops sold food grains. The Supreme Court held that the shops on the appellant’s plot did constitute a market within the meaning of clause 3(a). The Court found no merit in the argument that clause 3(a) was invalid because it conflicted with section 241(1) of the Act, and it rejected any addition of the word “only” to the latter provision. The Court explained that if the word “only” could not be inserted, then the Board was authorized to make additional bye‑laws concerning markets covered by section 241(1), provided those bye‑laws were otherwise valid under section 298. The Court further stated that section 241(1) did not apply to the market on the appellant’s plot because the market dealt in grains. Finally, the Court concluded that clause (d) of section 298(2)(F) vested the municipality with the power to make a bye‑law regarding the establishment, regulation and inspection of the market situated on the appellant’s plot, and that the other clauses prescribing procedures for licence applications, grants and related matters were likewise valid under that same clause of the Act.

The Court observed that the municipal board possessed the authority to make a bye‑law concerning the establishment, regulation and inspection of a market such as the one operated on the appellant’s plot. The Court explained that, if clause (d) of section 298(2)(F) of the Act is accepted as the source of authority for the impugned bye‑law 3(a), then the remaining clauses that set out the procedure for applying for licences, the grant of those licences and other incidental matters would likewise be valid under the same clause (d). Consequently, the Court found no doubt that bye‑law 3(a) and the other related bye‑laws were supported by clauses (d) and (dd) of section 298(2)(F). The Court further noted that it is now well‑settled that the specific provisions contained in the various clauses of section 298(2) are only illustrative and must not be interpreted as limiting the broader powers granted by section 298(1). Accordingly, if the impugned bye‑laws fall within the scope of section 298(1), the enumerated powers in section 298(2) cannot override the general language of section 298(1). The Court held that the bye‑laws dealing with markets framed by respondent 2 were enacted for the purpose of furthering municipal administration under the Act and therefore attracted the provisions of section 298(1), relying on the precedent Emperor v Sibnath Banerji & Ors., A.I.R. 1945 P.C. 156. The Court then stated that the validity of the bye‑laws must be examined by asking whether the board had the power to make them; if such power existed, an erroneous or inaccurate reference to the source of that power in the preamble would not render the bye‑laws invalid, citing P. Balakotish v Union of India [1958] S.C.R. 1052. The Court further ruled that a plea of malafides could not be introduced for the first time on appeal, because the appellant should have raised appropriate allegations and produced evidence of malafides at the trial stage. The judgment proceeded to note that this civil appeal, number 1 of 1962, was filed by special leave against the August 29 1961 judgment and order of the Allahabad High Court in Criminal Appeal 379 of 1961. Counsel for the appellant and counsel for the respondent were mentioned. The appeal raised a narrow question concerning the validity of bye‑law 3 and other related bye‑laws framed by the Municipal Board of Tanda on 21 January 1958. The appellant, Chaudhari Afzal Ullah, a resident of Tanda, owned land and superstructures with a compound in which he had established a market for the sale of food grains. The chairman of respondent 2 served a notice to the appellant directing him to obtain a licence to operate the market, and on the appellant’s failure to comply with that notice…

The Municipal Board of Tanda served a notice on the appellant requiring him to obtain a licence for operating the market that he had established on his own land, and when the appellant failed to comply, the Board instituted criminal proceedings against him. The appellant was tried before the Tehsildar of Tanda in criminal case number 141 of 1960. The prosecution alleged that the appellant was operating a market in which vegetables, fruits, fish and grains were sold, and that the bye‑laws applicable to such a market mandated the possession of a licence; consequently, the appellant’s alleged failure to obtain a licence constituted a breach of those bye‑laws and made him liable to punishment under section 299(1) of the United Provinces Municipalities Act, 1916. The Tehsildar examined the evidence and found that the prosecution had not proved that vegetables, fruits or fish were actually sold in the market; the evidence demonstrated that only grains were sold in the shops situated on the appellant’s plot. Moreover, the Tehsildar held that the Act did not confer upon the Municipal Board the power to make bye‑laws regulating a market that dealt solely in grain, and therefore the bye‑laws said to have been violated were beyond the Board’s authority. On that basis the Tehsildar acquitted the appellant. Dissatisfied with the acquittal, the Municipal Board appealed the order to the Allahabad High Court. In the appeal the Board contended that, notwithstanding the fact that the shops sold only grain, they nevertheless fell within the definition of a market under the relevant bye‑laws and that a licence was therefore mandatory. The Board also submitted that the Tehsildar was in error in holding that the Board lacked power to make bye‑laws concerning a purely grain market. The High Court accepted these arguments, set aside the Tehsildar’s acquittal, and convicted the appellant under section 299(1) read with clause 3(a) of the bye‑laws. The High Court imposed a fine of twenty rupees on the appellant and, in default of payment, ordered a simple imprisonment of one week. The appellant challenged this order before the Supreme Court, and the State of Uttar Pradesh was also impleaded as respondent No. 1. Counsel for the appellant argued that the High Court erred in holding the bye‑laws to be valid, asserting that the bye‑laws were beyond the authority granted to the Municipal Board by section 298 of the Act and further that they were inconsistent with section 241 of the Act. The Court indicated that, before addressing these submissions, it would be necessary to examine the scheme of the bye‑laws and identify the specific provisions under consideration.

The statutory instrument under review consisted of a set of seventeen bye‑laws that were claimed to have been framed pursuant to section 298A(a) to (d) of the Act. According to the introductory statement, the Commissioner had sanctioned these bye‑laws in compliance with the requirement of section 301(2) of the Act. In addition to the seventeen substantive provisions, the instrument incorporated a clause that outlined the penalty applicable for violations. Clause 3(a) stipulated that no person could permit any land or building within the limits of the Tanda Municipality to be used as a market or shop for vegetables, fruits or grains unless a licence had previously been obtained from the Board. An explanatory note attached to clause 3(a) defined the term “market” to include any location where more than four stalls or shops, owned by the same proprietor or proprietors, sold grains, or where a wholesale transaction of more than twenty maunds was conducted. Consequently, any plot on which more than four stalls or shops sold grains was deemed to constitute a market for the purposes of clause 3(a). Both the lower court and the appellate court found that the appellant’s plot contained more than four shops that were engaged in the sale of grains. Therefore, the courts concluded that the shops on the appellant’s premises unquestionably fell within the definition of a market under clause 3(a). The parties did not dispute that, assuming clause 3(a) was valid, the appellant would be required to obtain the licence prescribed by that provision.

Clause 3(b) prohibited any person from selling or exposing for sale any fruit, vegetable or grain in any market or shop that was not licensed by the Board and that was not a municipal market or shop. Clause 4 enumerated the conditions that had to be satisfied before a licence could be granted by the Board. Clause 5 identified the specific officer who was empowered to act as the licensing officer for the purpose of issuing licences. Clause 6 mandated that the premises occupied by the shops be properly paved and provided with adequate drainage. Clause 7 gave the relevant authorities the power to inspect the shops to ensure compliance with the regulations. Clause 8 banned the sale of vegetables, fruits or grains that were rotten or otherwise unfit for human consumption. Clause 9 required shop‑keepers to remove any rotten produce and to keep the shop premises clean and tidy. Clause 10 allowed the Board to halt the sale of certain fruits or vegetables when such sale was likely to spread disease or to cause injury to health. Clause 11 similarly permitted the Board to prevent any person suffering from a contagious disease from working in a shop that sold fruits, vegetables or grains. Clause 12 prescribed the penalty of forfeiture of the licence if any rubbish or other harmful material was allowed to be collected or deposited by a shop‑keeper. Finally, the concluding paragraph of the instrument provided that a breach of any of the bye‑laws could attract a fine of up to five hundred rupees, and that continued violation could result in a daily fine of ten rupees.

The Court observed that Bye-law 13 stipulated that when an applicant submitted a request for a licence, the licensing officer possessed the authority either to grant the licence or to refuse it, provided that the reasons for refusal were recorded in writing. Bye-law 14 conferred upon the licensing officer the power to cancel or suspend an existing licence. Bye-law 15 created a right of appeal against certain orders issued under the bye-laws, while Bye-law 16 prescribed a fee for the issuance of a licence, stating that the amount could be as high as Rs 1,000 depending upon the services rendered by the Board. According to Bye-law 17, the duration of any licence was limited to one year, with the licence terminating on March 31 of the year following the date on which it became effective. The final paragraph of the scheme of bye‑laws set out a penalty provision for any breach of the bye‑laws. It provided that a fine of up to Rs 500 could be imposed for a violation, and that if the violation continued, an additional fine of Rs 10 per day could be levied. After outlining the entire framework of the bye‑laws, the Court turned to examine the relevant provisions of the Act in order to decide whether the impugned Bye‑law 3(a) and the other bye‑laws were beyond the authority granted by the statute. The Court identified two sections of the Act that were material to the present appeal, namely sections 241 and 298.

Section 241(1) provided that a person’s right to use any place within the limits of a municipality, other than a municipal market, for the purpose of operating a market or shop that sold animals, meat, fish intended for human consumption, or fruit or vegetables, would be subject to any bye‑laws made under heading F of section 298. Section 298, on the other hand, empowered the Board to make bye‑laws. Sub‑section 1 of section 298 declared that a board could, by special resolution and where required by the State Government, make bye‑laws applicable to the whole or any part of the municipality, provided that the bye‑laws were consistent with the Act and with any rule, and that the purpose of those bye‑laws was to promote or maintain the health, safety and convenience of the inhabitants and to further municipal administration. Sub‑section 2‑F of section 298 listed six sub‑clauses that described the matters on which bye‑laws could be made, relating to markets, slaughterhouses, the sale of food and other similar subjects. The two sub‑clauses that were material to the case were sub‑clause (d), which allowed bye‑laws to establish and regulate markets, slaughter‑houses, livery stables, encampments, flour‑mills, bakeries, places where food or drink was manufactured, prepared or sold, and places of public entertainment, and required that business be conducted properly and cleanly; and sub‑clause (d) (repeated in the text) which authorized the Board to prescribe conditions, circumstances, and areas for the grant, refusal, suspension or withdrawal of licences, to fix licence fees, and to prohibit the establishment of any of the places mentioned in sub‑clause (d) unless a licence had been granted in accordance with the prescribed conditions.

The provision stipulates that for any locality or area, licences may be granted, refused, suspended, or withdrawn pursuant to sub‑head (d); it also authorises the fixing of fees for such licences and prohibits the establishment of the business places mentioned in sub‑head (d) unless a licence is obtained from the board or the conditions of a licence are complied with. Mr. Misra argued that bye‑law 3(a) was invalid because it conflicted with section 241(1). For the sake of his argument, he assumed that the bye‑law could not be supported by any clause of section 298(2)‑F. He maintained that section 241 allows the appellant’s right to use his own premises for operating a market to be regulated exclusively by a bye‑law framed under section 298(2)‑F and by no other bye‑law. By presenting the argument in this manner, Mr. Misra effectively inserted the word “only” into the final clause of section 241(1). Section 241(1) merely states that a person’s right to run a market shall be subject to bye‑laws, if any, made under heading F of section 298. The insertion of “only” is not supported by the language of the statute. Consequently, if the word “only” cannot be read into the provision, it follows that, in addition to the bye‑laws made under heading F of section 298, the Board may also issue other bye‑laws concerning markets within the scope of section 241(1), provided those bye‑laws are otherwise valid under section 298. This constitutes the first response to Mr. Misra’s contention.

The second response is that section 241(1) does not apply to the market operated on the appellant’s plot because that market does not involve the sale of fruits, vegetables, animals, meat, or fish intended for human consumption; rather, it is a market for the sale of grains, a category that does not fall within the description of markets covered by section 241(1). Moreover, the impugned bye‑law can be justified under sections 298(2)‑F(d) and (dd). Accordingly, even if section 241(1) were applicable to the appellant’s market, the requirements of that section would still be satisfied by the existing bye‑law. Therefore, the contention that the impugned bye‑laws are invalid for being inconsistent with section 241(1) lacks substance. The next issue to examine is whether the bye‑laws are properly justified under section 298. The Court has already considered clauses (d) and (dd) of section 298(2)‑F, which address markets among other matters. In the absence of a statutory definition of “market,” it is reasonable to interpret the term “market” in clause (d) of section 298(2)‑F according to its ordinary dictionary meaning.

The Court observed that when four or more shops on the appellant’s plot sell grains, the place functions as a market in the ordinary meaning of the term. Clause (d) of section 298(2)‑F therefore gives the Board the authority to make bye‑laws for the establishment, regulation and inspection of such markets. The Court held that there can be no doubt that this power to regulate the establishment of markets supports the bye‑law framed by respondent No 2. Counsel Mr Misra argued that the markets contemplated in clause (d) must be limited to those operated for the sale of specific food or drink items or for keeping or exhibiting animals for sale, and he claimed that the market in question did not satisfy that condition. The Court found this argument to be entirely misplaced. It explained that the purpose of clause (d) is to authorize the making of bye‑laws concerning the establishment, regulation and inspection of markets and other places. The later clause on which Mr Misra relied does not qualify the word “markets” that appears earlier. Consequently, the Court concluded that clause (d) unequivocally conferred power on respondent No 2 to enact a bye‑law concerning the establishment, regulation and inspection of the market situated on the appellant’s plot.

Further, the Court explained that clause (dd), which follows from clause (d), empowers the Board to prescribe the conditions and circumstances under which a licence may be granted. If clause (d) validates the impugned bye‑law 3(a), then the remaining provisions that prescribe the licence‑application procedure, the grant of licences and related incidental matters are also valid under clause (dd). The Court described the scheme of the six clauses under heading F as clear: clauses (a) to (c) address places used as slaughter‑houses, markets or shops for the sale of animals and other commodities listed in clause (a); clause (b) specifically deals with a bye‑law that sets conditions for operating the places mentioned in clause (a); and clause (c) provides for the inspection of such places. Clause (d) has a broader reach, encompassing the places covered by clause (a) and additionally including markets in the generic sense. Accordingly, the Court held that the impugned bye‑law 3(a) and the related bye‑laws are justified by clauses (d) and (dd) of section 298(2)‑F. Even if those specific clauses failed to justify the bye‑law, the Court noted that the general power conferred on the Board by section 298(1) would still support the bye‑law. It reiterated the settled principle that the specific provisions in the various clauses of section 298(2) are illustrative and do not limit the broader powers granted by section 298(1), citing the precedent set in Emperor v Sibnath.

In this matter, the Court observed that the powers conferred by section 298(1) are broad enough to encompass bye‑laws such as those challenged in the present appeal. Consequently, the specific powers listed in section 298(2) do not limit the general authority granted by section 298(1). The Court explained that the clauses of section 298(2) are illustrative rather than exhaustive, and therefore any bye‑law that does not fall within the narrow categories of section 298(2) may still be valid if it can be justified under the broader criteria of section 298(1). The Court further noted that the bye‑laws framed by respondent No. 2 with respect to the markets were intended to further municipal administration under the Act, and thus fell within the ambit of section 298(1). Accordingly, the Court affirmed the High Court’s finding that the impugned bye‑laws were valid. While the preamble to the bye‑laws referred to clauses A (a), (d) and (c) and J (d) of section 298, which are not applicable, the Court held that such references do not affect the validity of the bye‑laws once it is shown that the Board had the competence to enact them. The Court emphasized that the test of validity is whether the Board possessed the power to make the bye‑laws, and an error in citing the source of power in the preamble does not render the bye‑laws invalid, citing the decision in P. Balakotaiah v. Union of India & Other.

The Court then considered the argument advanced by counsel for the appellant, who claimed that the bye‑law 3(a) had been passed maliciously to target the sole grain‑market shop owned by the appellant in the locality of Sakrawal, a part of Tanda town. The Court observed that this allegation of mala fides was being raised for the first time on appeal and therefore could not be entertained. Although counsel pointed out that Aftab Ahmad had admitted the absence of any other grain market in Sakrawal, the Court found that such a statement does not establish that the appellant’s shop was the only grain market in the entire town of Tanda. Moreover, the Court stressed that to prove mala fides the appellant should have made specific allegations and produced evidence at the trial stage. Relying on the precedent set in the 1958 Supreme Court Reporter case (citation [1958] S.C.R. 1052), the Court concluded that the plea of mala fides could not be permitted.

The court stated that the allegation of mala fides could not be allowed to be raised at this stage. Counsel for the appellant then contended that bye‑law numbered sixteen, which authorises the imposition of a fee of up to one thousand rupees, was invalid because it was unreasonable. The court observed that this objection could not be entertained for two reasons. First, the question of the validity of the bye‑law had never been raised before the lower courts. Second, the objection was premature since no fee had yet been assessed against the appellant. Moreover, the provision in the bye‑law merely empowers the Board to levy a fee not exceeding one thousand rupees and further specifies that the exact amount shall be determined according to the nature of the services rendered by the Board. Consequently, the court could not examine the challenge to the bye‑law in the abstract. Counsel also submitted that the High Court should have permitted the appellant to raise two further points. Those points were that the bye‑laws had not been published in the local newspaper as required by section ninety‑four sub‑paragraph three of the Act and that the bye‑laws had not been passed by a special resolution as required by section two‑hundred‑ninety‑eight sub‑paragraph one. The court noted that, as the High Court had indicated, these matters were factual issues that ought to have been presented at the trial. In the court’s view, the High Court was therefore justified in refusing to allow the appellant to introduce these pleas for the first time at the appellate stage. As a result, the appeal was dismissed in its entirety.