Y.S. Tambe, J.
1. The aforesaid applications will be disposed of by this judgment. In our opinion, it would be convenient to dispose of all these applications by this common judgment, as they arise out of the same set of facts culminating in the passing of resolution No. 77 on 28-3-1958 and the action taken by the Corporation thereafter. The respondent in all the aforesaid applications is the Corporation of the City of Nagpur, hereinafter referred to as the Corporation.
2. Facts giving rise to these applications are: The Corporation was constituted on 2-3-1951 under the City of Nagpur Corporation Act, 1948 (Central Provinces and Berar Act No. II of 1950) hereinafter referred to as the Act. Since that date, i.e. 2-3-1951, civil administration 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 provisions of the Municipalities Act under which the byelaws were made for the inspection of meat markets as well as stalls and for regulating the sale or exposure for sale of meat within the municipal area of Nagpur were Section 179(1) (b-1), (d) and (cc), Section 180(a), (b), (c), (d) and (g) and Section 178(5) of the Municipalities Act. The Byelaws which were in force on the date the Corporation was constituted were those made by the Civil Station Sub-Committee under the aforesaid sections on 3-8-1932 and those made by the City Municipal Committee under the aforesaid sections on 25-7-1939. Sub-section (2) of Section 3 of the Corporation Act provides that every byelaw made under the Central Provinces and Berar Municipalities Act, 1922, shall, so far as it relates to the Municipality of Nagpur and so far as it is in force at the commencement of, and is not inconsistent with, this Act, be deemed to have been made, under the provisions of this Act and shall unless previously altered, modified, cancelled or suspended, as the case may be, under this Act remain in force for the period, if any, for which it was so made. The aforesaid byelaws thus became byelaws under the Corporation act and were in force at the material time.
5. As already stated the byelaws of both the committees are similar and we would be referring only to the byelaws of the City Municipal Committee. These byelaws are at page 91 of Part III of the Book styled as 'Corporation of the City of Nagpur Byelaws framed by the Nagpur Municipal Committee', and in the preface of this Book the Chief Executive Officer has announced that these bye laws unless they are repugnant to the present Act will continue in force till new byelaws are framed under the City of Nagpur Corporation Act, 1948 (II of 1950).
6. It would be convenient to refer to some of the byelaws which are material for the purpose of these case. Byelaw No. 1 provides that the committee shall, with the sanction of the Deputy Commissioner, from time to time, fix a place or places to be used as meat markets or meat stalls and no meat shall be stored, sold, hawked or exhibited for sale at any place other than markets or stalls so fixed. Byelaw No. 3 provides that meat markets with the stalls therein shall remain open daily from sunrise to sunset. Clause (2) of byelaw No. 9 provides that no meat shall be sold or exposed for sale except 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) provides that a fee of As. 8 shall be charged for such a licence. It further provides that the licence issued would remain in force till the 31st of March of next following. Byelaw No. 14 enumerates grounds on which the licence could be refused. Byelaw No. 15 empowers the municipal authorities to suspend or cancel a licence in case the licence-holder commits a branch of the conditions of the licence or by the byelaws. Byelaw No. 17 enumerates the steps which the licence-holder has to take to secure cleanliness. Byelaw No. 21 provides that every occupier of a stall shall keep all his meat exposed to light and air and shall not place it in any box or closed receptacle. Byelaw No. 30 relates to penalties for a breach of the byelaws.
7. On pleadings of the parties it is common ground that the places fixed for being used as meat markets and meat stalls under the aforesaid byelaw No. 1 were weekly markets, meat markets and nakas owned by the Corporation.
8. As regards the first place, viz., the weekly markets, since a long time in the City of Nagpur for six days in a week markets are being held in different parts of the City at fixed places. On Mondays and Thursdays, however, markets are held in Sitabuldi. In those weekly markets sellers and buyers gather to transact business in various types of goods, and commodities such as, grain, cloth, vegetable, fruits, fish, flesh, poultry etc. In these markets a portion of land is set apart for the sale of meat and there the holders of licences for the sale of meat go to sell meat and every day they have to go to different places to sell meat, except on Mondays and Thursdays when they go to the Sitabuldi market. We are informed that except in one or two markets there are no chabutras built for these meat sellers to sit for the purpose of selling meat and they have to squat on the ground and for the occupation of the ground they have to pay two annas every day.
9. As regards other places fixed, viz., municipal meat markets, there are 11 meat markets constructed by the municipal committees (Corporation) and they are spread over different parts of the City. These markets are well-built structures consisting of 141 stalls, both big and small, the bigger ones are called stalls, while the smaller ones are known as kenas and the occupiers of the kenas are known as kenawalas. These kenawalas sell heads, hoofs, liver etc of goats. 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 -/2/- 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 be used for selling meat under byelaw No. 1. It is a matter of regret that the Corporation was not in a position to produce before us the order or notification which must have been issued by it under the byelaw No. 1. Shri Phadke contends that these places must have been fixed as places for selling meat under byelaw No. 1. He further contends that at any rate, the Corporation had power under Section 348 of the Corporation Act to grant licences to those eight persons. We, however, need not concern ourselves with these eight persons as they are not petitioners before us.
11. On 28-3-1958, the Corporation passed a resolution bearing resolution No. 77. The translation of the material part of this resolution as admitted by all the parties is contained in Exhibit A-1 in Petition No. 222 of 1958. It reads as follows:
'No. 77. The House took into consideration the question of deciding what should be the policy of the Corporation regarding the rent of shops and sites given on behalf of the market department from 1-4-58.
* * * After this the House after taking into consideration the office proposal given in Schedule B and considering the amendment shown in Schedule C unanimously sanctioned the rent of shops and sites in accordance with Schedule D. The House directed that this enhancement of rent shall remain in force only for three years i.e., from 1-4-58 to 31-3-61.
S.No.Name of marketShop NoFees payable after
****55Hansapuri Mutton Market1480-0-0annual2412-0-0'3446-0-0'4480-0-0'5412-0-0'63(SIC)0-0-0'7360-0 -0'8480-0-0'9480-0-0'10480-0-0'56'Hansapuri Boti Maiket1-86-0-0each monthly****69Machhisath Meat Stall1300-0-0annual2,7,9,12,13,15,16,18,20,240-0-0each annual.21,25,26,28.'8,10,17,24,27260-0-0each annual,'11285-0-O''14275-0-0''19265-0 0''22255-0-0''23270-0-0'****
Since many complaints are received against the shop-keeper of private meat shops, licenses to run private meat shops should not be given and Corporation should build shops owned by it wherever necessity for meat shops exists.
Similarly, licenses should not be given to those licensees who sell meat after 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 also be given in writing. If taking into consideration the above matter you cannot afford to take the license, the shop in your possession should be immediately vacated and handed over to the Market Superintendent of the Corporation. In default, the Corporation will take legal proceedings against you and will not at all be responsible for the loss incurred by you.
Date 30-3-58. Corporation of the City of
13. In the second instance, the Market Superintendent of the Corporation of the City of Nagpur, put up a similarly worded intimation dated 29-5-58 on all the municipal slaughter-houses. The translation of the said intimation, as admitted by all the parties, is contained in Exhibit A-2 in Special Civil Application No. 198 of 1958. It reads:
All Khatiks and butchers are informed that sale of mutton has been stopped in the weekly markets in accordance with resolution No. 77 dated 28-3-58. Proper proceedings will be taken against any person who puts up a shop in the market and sells mutton. And Corporation will not be responsible for your damage.
14. It would be noticed that the combined effect of the aforesaid resolution dated 28-3-1958 and the intimation dated 29-5-1958 was that the sale of meat in the weekly markets and in private stalls was prohibited. The sale of meat was permitted only in the municipal meat markets. But the meat sellers who had been carrying on their business in the stalls or kenas in Hansapuri and Machhisath municipal meat markets were required to pay higher fees. It is not in dispute that the approximate increase effected by the aforesaid resolution was from Rs. 5 and Rs. 9 to Rs. 20 and Rs. 25 per month per stall and from Rs. 3 to Rs. 6 per kena per month.
15. Feeling aggrieved by the aforesaid action of the Corporation, 159 persons (petitioners in Special Civil Applications Nos. 198/58 and 286/58) who claim to be doing business of selling meat in weekly markets; 42 persons (petitioners in Special Civil Application No. 222 of 1958), who claim to be the stall-holders or the kenawalas in Hansapuri and Machhisath, municipal meat markets and 5 per sons (petitioners in Special Civil Application No. 243 of 1958), who say that they want to do business of selling meat in private stalls have approached 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 in weekly markets as their ancestral business. It however admits that some of them have been doing this business. Common law right of a person who intends to sell his goods in the markets in the words of the well renowned and learned author Lord Halsbury is as follows:
'General rights of the public.
At all times when a market ought lawfully to be held every member of the public has, of common right, the liberty to enter and frequent the market place for the purpose of bringing thither and there exposing for sale and selling, or of buying, such commodities as are vendible in the market: (Halsbury's Laws of England, 2nd Edition, Volume 22, Paragraph 65 at page 47).
The right available to an intending seller in a public market in India was also the same though it could be curtailed by a statute and such was the position till the advent of the Constitution. The aforesaid right of a seller available to him in Common law, in our opinion, is now enshrined in and is guaranteed to him under Article 19(1)(g) of the Constitution. The learned Chief Justice of the Supreme Court (Das J. as he then was) delivering the judgment of the Supreme Court in Mohd. Yasin v. Town Area Committee, Jalalabad, : 1SCR572 observed: 'Under Article 19(1)(g) the citizen has the right to carry on any occupation, trade or business which right under that clause is apparently to be unfettered. The only restriction to this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in Clause (6) of that Article.'
18. Turning to Clause (6) of Article 19 of the Constitution, it would be noticed that there are two limitations imposed on the power of the State to make a law relating to restrictions of the carrying on of a trade or occupation or business and those restrictions are that the law must be in the interests of the general public and the restrictions must be reasonable.
19. In the instant cases it cannot be doubted that the petitioners were, at any rate, some of them had been carrying on the business of selling meat in weekly markets and as a result of the aforesaid resolution and the intimation posted on the slaughter houses they have now been prohibited from selling meat in weekly markets. This has resulted in imposing restriction on their freedom to do their business in weekly 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 the Deputy Commissioner before prohibiting the sale of meat in weekly markets. The corporation not having done so, the action taken by it was illegal. In this connection reference was made to Section 20 of the C.P. and Berar General Clause Act. In the second instance, Shri Bobde contends that even if it is assumed that the action taken was under any provision of law, it was not taken in the interests of the general public but was taken purely for securing a financial gain to the Corporation. The Corporation has raised rents of meat stalls in two municipal meat markets and to secure customers for the stalls therein it in prohibiting sale of meat in weekly markets. In short, Shri Bobde's contention is that the action taken by the Corporation in prohibiting the sale of meat is mala fide. In third instance, Shri Bobde contends that, at any rate, the restrictions imposed are not reasonable but are excessive. According to the Corporation authorities the sale of meat in weekly markets was prohibited to secure hygienic conditions for the sale of meat. The Corporation has contended that in weekly markets meat offered for sale was exposed to sun and rain, it was coming in contact with mud in the rainy season and thus caused its deterioration and to present this action was taken. According to Shri Bobde, if that was the object in prohibiting sale of meat then the same thing could have been achieved by imposing a condition on the meat sellers in weekly markets that meat offered for sale should be stored in boxes covered on the top so as to prevent exposure of meat to sun, rain, with a wire netting to the side to secure passage of free air and light to the meat. This could have been achieved without putting meat sellers to unnecessary expense. Now, if meat sellers have to carry on the business they would be required to hire six different stalls in six different markets. These stalls they could use only once or twice in a week and yet they would be required to pay Rs. 50/- per stall per month. Even if they build their own stalls they would be required to build six stalls in six different markets and each stall might easily cost about Rs. 1500/-. Thus the cost involved either in hiring stalls in six weekly markets or in building private stalls being exorbitant the meat sellers would be forced to stop their business. The restrictions, thus Shri Bobde contends, are not reasonable 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 byelaws appearing at page 64 that the Corporation has prohibited the sale of meat in weekly markets. He further contends that even assuming that the byelaw No. 1 at page 91 governed this case the provisions of Section 20 of the General Clauses Act had no application to the facts of the present cases as the byelaws framed under the Municipal Act is not a law. Therefore though sanction of the Deputy Commissioner is required for fixing a place for the sale of meat, under the aforesaid byelaw No. 1, his permission is not required for its discontinuance. Shri Phadke faintly argued that what the Corporation has done is not to prohibit the sale of meat in weekly markets for all the time but the sale is only prohibited temporarily till such time as the Corporation is in a position to make adequate arrangements by building stalls therein for the sale of meat.
22. As regards the second contention of Shri Bobde, Shri Phadke says that the Corporation has not prohibited the sale of meat in weekly markets with a view to achieve any financial gain. The conditions under which meat was sold in weekly markets were very unhygienic and it was only in the interests of the public health that the Corporation had prohibited the sale of meat in weekly markets. As regards the third contention Shri Phadke says that the restrictions imposed are not unreasonable, but on the other hand that is the only alternative to secure sale of meat in hygienic conditions.
23. The byelaws made for regulating the sale of meat appearing at page 91 of the Book are made under the provisions of Sections 179(1), (b-1), (d) and (cc), Section 180(a), (b), (c), (d) and (g) and Section 178(5) of the C.P. and Berar Municipalities Act.
24. It is common ground that there is no section in the Municipalities Act authorising municipal committees to regulate markets save and except by making byelaws and these byelaws could be made under the provisions referred to above. Section 57(1)(m) of the Corporation Act provides that the Corporation shall make adequate provision, by any means or measures which it may lawfully use or take, for each of the following matters, namely:
* * * * '(m) the construction and maintenance of public markets and slaughter-houses and the regulation of all markets and slaughter-houses.'
On the strength of this clause, the first contention of Shri Phadke is based. According to him, 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 certain respects and Clause 35 relates to the management of municipal markets and the supervision of the Manufacture, storage and sale of food and item (b) thereof specifically relates to the sale of meat. In our opinion, therefore, so far as it relates to regulating meat markets the means and measures which the Corporation can lawfully take in making adequate provisions for regulating it is by making byelaws in that respect and not by merely passing a resolution. It is well-known rule of construction that where a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one: (Maxwell on Interpretation of Statutes, 10th Edition, page 172). No doubt, in Section 57(1)(m), general intention expressed is that the Corporation should make adequate provisions by any means or measures which it may lawfully use or take for regulating markets but the particular intention of the Legislature as disclosed in Section 415, Clause (35), in general and in Clause (b) in particular makes it abundantly clear that the intention of the Legislature so far as it relates to the sale of meat is that it should be regulated by making byelaws and this particular intention of the Legislature has to be construed as an exception to the provisions of Section 57(1)(m). Even assuming that Section 57(1)(m) conferred a power on the Corporation to regulate meat markets merely by passing resolutions and it was not obligatory upon the Corporation to make byelaws in that respect, it cannot be doubted that Section 415(35)(b) gave an option to the Corporation to make byelaws in that respect. The municipal committees had made byelaws regulating meat markets as appear at page 91 of the Book. Under Sub-section (2) of Section 3 of the Corporation Act those byelaws would be deemed to be the byelaws made under the Corporation Act. That sub-section gave an option to the Corporation to alter, modify, cancel or suspend a byelaw. The Corporation has not chosen to do so. In these circumstances it will have to be assumed that though the Corporation had a right to regulate meat markets by making resolutions it has by its own action circumscribed its alleged power under Section 57(1)(m) by making the byelaws and therefore the action which the Corporation could lawfully taken in regulating meat markets 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 Government that it has made byelaws for regulating the sale of meat. On account of this the Government might not have called upon the Corporation to make byelaws relating to the sale of meat. The Corporation cannot now turn round and say that it would regulate meat markets irrespective of the provisions of the byelaws. In our opinion therefore, it is not possible for us to concede in the instant case that the Corporation had any authority of law to regulate meat markets and prohibit the sale of meat in weekly markets by merely passing a resolution. The action of the Corporation in prohibiting the sale of meat in weekly markets cannot be therefore upheld under the provisions of Section 57(1)(m) of this Act.
26a. The other ground on which Shri Phadke claims to sustain the action of the Corporation is the alleged power of the Corporation under byelaw No. 1 appearing at page 64 of the Book. Turning to the byelaws at page 64 it would be seen that they were made under Section 179, Sub-section (1), Clause (b) and Section 178(5) of the C.P. Municipalities Act II of 1922. It would be seen that the word 'markets' had been omitted from Clause (b) of Section 179(1) by the Amending Act of 1934 (the Central Provinces and Berar Act IV of 1934) and for the purpose of regulating markets a separate Clause (b-1) was added by the same Amending Act. It therefore necessarily follows that it was not competent to the Municipal committee to make byelaws regulating meat markets under Clause (b) of Section 179(1) of the Municipalities Act after the year 1934 and the byelaws which were made prior to the year 1934 for regulating markets would become redundant by the passing of the Amending Act of 1934. Byelaw No. 1 appearing at page 64 appears to be a byelaw made prior to 1934. It cannot therefore be relied on for regulating the sale of meat in meat markets. Byelaws appearing at page 91 are made in July 1939 and are specifically made under Section 179(1)(b-1) and it would therefore be these byelaws which would govern the regulation of meat market. Further, even assuming that byelaw No. 1 appearing at page 64 is a valid byelaw, it is a byelaw in the nature of a general provision while byelaw No. 1 appearing at page 91 specifically deals with the regulation of the sale of meat and when there is a specific provision relating to a particular topic so far as that topic is concerned 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 being the position in law Section 20 of the General Clauses Act would in terms be attracted. Therefore in the event the Corporation wants to discontinue sale of meat in weekly markets by issuing an order under byelaw No. 1 appearing at page 91, it will have to obtain a prior sanction of the Deputy Commissioner for issue of such an order. It is not the case of the Corporation that it had discontinued the sale of meat in weekly markets by issuing an order under byelaw No. 1 appearing at page 91; it is therefore not necessary to consider whether it would be within the powers of the Corporation to make such an order with the previous sanction of the Deputy Commissioner. It is also not possible for us to accept the contention of Shri Phadke that the sale of meat is only temporarily suspended in weekly markets till the Corporation is in a position to make adequate arrangements for the accommodation of meat sellers. This contention is not based on any plea raised in any of the returns filed by the Corporation and further the statement is too vague. We asked Shri Phadke as to the approximate time within which the Corporation expects to make necessary arrangements but we could get no definite answer from him. In these circumstances it is not possible for us to hold that the Corporation has not prohibited the sale of meat in weekly markets but has only suspended the sale in weekly markets.
28. It is also necessary to deal with one more contention raised by the Corporation in the pleadings and in arguments which is that it was not the intention of he Corporation to prohibit the sale absolutely in weekly markets and that was not the object with which the resolution dated 28-3-1958 was passed or intimation dated 29-5-1958 was posted on the slaughter houses. The intention of the Corporation was that meat should not be sold in weekly markets on the open ground as it was being done before, that it should be sold in built stalls which would afford protection to the meat against sun, rain, mud and flies, that the Corporation is ready and willing to grant licenses to those persons who are ready to build stalls in weekly markets and negotiations on this basis were carried on with the meat sellers but they were not willing to accept this condition and therefore the Corporation had to prohibit the sale of meat. Now, on the byelaws as they stand today, refusal to build stalls for selling 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 pleas raised by the petitioners. On the other hand the plea in the words of the petitioners is:
'In confining the sale of meat to the markets owned by the Corporation the Corporation is using mala fide the powers given to it by byelaws for maintaining sanitary conditions in the market for the purpose of its own enrichment by creating in its favour a monopoly of meat markets. At these meat markets the Corporation adopts a policy of getting maximum revenue from persons desiring to have stalls by putting the stalls to auction or by fixing a so-called license fee for the use of the stalls on the basis of the estimated profit that the stall holder is able to make from the stall. These stalls are beyond the capacity of an ordinary meat seller to take and the policy of the Corporation serves to enhance the price of meat to the detriment of public interest.' (Para 13 of Sp. C.A. No. 198 of 1958).
It is therefore clear that it was known to the petitioners that the Corporation was claiming that the action taken by it was for maintaining sanitary conditions in the markets and it is the case of the petitioners that that stand of the Corporation was mala fide. Now, the plea raised by the Corporation was that he sale of meat in weekly markets was carried on in very insanitary conditions and it is for this reason that this action was taken. The plea raised by the Corporation finds support in the pleas raised by the petitioners themselves. The conditions prevailing in weekly meat markets in the words of the petitioners are:
'The market is held on open plots of land without any construction of pavement, platforms, flooring, roof or nay protection from sun, rain, mud, flies or encroaching dogs. Meat is exhibited for sale on ground which becomes muddy whenever rain falls and people are required to purchase meat in that condition. When any considerable rain falls selling becomes impossible and the sellers are put to great losses because much meat remains unsold and becomes unfit for sale unless heavy costs are incurred for its preservation. The only exceptions to this are that in Budhwari Market platforms for sale are constructed, floor is paved and the place is screened by old iron sheets. In Mangalwari market platforms are constructed for sale though their number is not adequate.' (Para 13 of Sp. C.A. No. 286 of 1958).
If these be really the conditions 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 page 64, it is contended by Shri Bobde that under this byelaw the Corporation was entitled to charge only a fee for the use and occupation of the stalls. Under law the fees have to be commensurate with the services rendered by the Corporation to the stall holders. No additional service is rendered by the Corporation or was proposed to be rendered to the stall holders when it increased the fees, by the resolution dated 28-3-1958. Reliance is placed by Shri Bobde on the decision of the Supreme Court reported in the Commr. Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar, : 1SCR1005 . Shri Bobde contends that if we look to the resolution dated 28-3-1958 it is clear that it was passed only with a view to augment the finances and it was never in contemplation of the Corporation to render any additional service. It is therefore not open to the Corporation to say that the fees have been raised as the former fees were not commensurate with the services rendered or that the Corporation had intended to render some additional service to the meat sellers. Shri Bobde further contends that eh defence raised by the Corporation that the fees fixed by the resolution dated 28-3-1958 were commensurate with the services rendered is mala fide, Shri Phadke, on the other hand, contends that though the word used in byelaw No. 3 is 'fees' it is not a fee in the legal sense. It is in reality a rent. The Corporation is therefore free to charge by way of rent any amount as it likes to the stall holders. Shri Phadke further contends that though this is the right of the Corporation it, in fact, does not charge anything more than that which is commensurate with the services rendered by the Corporation to the stall holders. In support of this contention, Shri Phadke referred us to various facts and figures appearing in the returns as well as schedules which he filed before us. It is first necessary to see whether the amount which the Corporation is authorised to demand for the occupation of stalls is, in law, a fee, or rent.
32. It is common ground that the fees fixed by the resolution of 28-3-1958 were under the powers conferred on the Corporation by byelaw No. 3 appearing at page 64. That byelaw reads thus:
'3(a) Fees shall be charged for the use of shops and stalls in any market, such fees being determined in the manner following.
(b) Every year in 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 lese 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 and Clause (a) of Sub-section (1) of Section 38 shows that 'market' is one of the items of properties that vest in the municipal committee. Section 42 confers absolute power on the municipal committee to lease its immovable property for a period of three years. Sub-section (2) of Section 70 empowers the municipal committee to charge such fees as will be fixed by byelaws for the use of any building or land belonging to, or under the control of, the committee. Looking to all these provisions it appears that the word 'fees' is used in connection with occupational charges for the occupation of the municipal property and not in connection with any services that the municipality may render to the occupiers of its property.
34. Turning now to the provisions of the Corporation Act, Section 8 thereof empowers the Corporation to hold property both movable and immovable. Section 73 enumerates the property that vests in the Corporation and municipal markets is one of the items of property that vests in the Corporation. Section 70(2)(a) empowers the Chief Executive Officer of the Corporation to grant leases of immovable property belonging to the Corporation subject to certain restrictions which are contained in Sub-section (1) of that section. Section 78 enumerates the items that are credited to the municipal fund and rent accruing from the property of the Corporation is one of the items going towards the constitution of the municipal fund. Considering all these provisions of the statute and the aforesaid byelaws, in our opinion, what the Corporation is empowered under the Act and the byelaw is to charge an amount for use and occupation of its property and not fees in the legal sense, i.e. charges for the service which is rendered by the Corporation to the occupiers of that property. That however does not mean that it is open to the Corporation to charge or claim any amount it likes as rent for the occupation of its property like markets, stalls etc. It is an accepted principle in the American law that though municipalities may required the payment of fees from those occupying stands or stalls in a public market the charge has to be reasonable. In 64 C.J.S. page 316, paragraph 1829 under the heading 'Permits and Licenses' it is observed:
'Municipalities may require the payment of a reasonable amount as a license fee from those occupying 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 compliant 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 allegations of the petitioners are denied by the Corporation and it is the claim of the Corporation that it is not charging anything more than what is required for providing various amenities and services which are required to be maintained for maintaining the meat market. It says that it requires the services of the various departments like, the Construction Department, Sanitary Department, Public Health Department, etc., for regulating the markets and it is to meet these expenses and to find finance for improving the markets that the charges are increased. It is also a contention of the Corporation that the increase in the charges made for Hansapuri and Machhisath markets was made only with the intent to bring the fees on par with those on other markets. The fees are not in any manner exorbitant. This aspect of the case, in our opinion, can only be decided on recording elaborate evidence on this question. An opportunity will have to be given to the parties to substantiate their respective cases if so desired by them. It will not therefore be possible to decide this question in these proceedings. We therefore do not decide this question here. It will be open to the petitioners to institute a suit, if they so desire and if they are so advised, to get redress against this alleged grievance. In this view of the matter, Special Civil Application No. 222 of 1958 must fail.
36. As regards Special Civil Application No. 243 of 1958, as already stated, this application is by five persons who want to do business of selling meat outside the places fixed by the Corporation. As already stated, those places are weekly markets, municipal meat markets and municipal nakas. It is the case of the petitioners that they had applied for licences to sell meat and in their applications had stated their preference of the places where they wanted to do the business. The applications of petitioners 2 to 5 were rejected on the ground that no space was available to them. The application of petitioner No. 1 Yadavrao, however, has not been disposed of. Shri Jayawant, learned counsel for the petitioners, contends that it is not open to the Corporation to refuse a licence on the ground that there is no place for the petitioners to do their business. He says that it is the bounden duty of the Corporation to provide market places. The Corporation must therefore provide places for all those who 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 a commodity which easily degenerates and therefore special care and supervision has to be exercised over its sale. It is therefore beyond doubt that the regulation of the sale of meat by confining it to certain fixed places is in the public interest, otherwise there is a likelihood of stale and unwholesome meat being sold to the meat-eating public and thereby adversely affecting their health. Bye-law No. 1 restricts the sale of meat to the places fixed under that bye-law and, in our opinion, it is necessary to so fix such places as it is necessary to examine meat before it is offered for sale and see that unwholesome meat is not sold. Further, a check has also to be kept throughout the day that the meat which gets deteriorated during the course of the day is not thereafter offered for sale. Unless sale is confined to certain places such a check cannot be effectively exercised.
37. We may here usefully reproduce relevant observations in 64 Corpus Juris Secundum at pages 317 to 319:
'The municipality may enact any reasonable regulation necessary to preserve the cleanliness of market places, may confine the sale of particular articles to certain designated stands or portions of the market and prevent their sale elsewhere......'
'As a general rule, a municipal corporation may prohibit by ordinance or by bye-law the sale of marketable articles within certain limits or during certain hours except at the established market and it is within the power of the legislature to authorise municipal corporation to do so......'
'It seems to be uniformly held that under a power to regulate the vending of meats, etc., a municipality may prevent their being retailed outside the public markets.'
38. The claim of the petitioners is that they must be allowed to do business at places outside the places fixed for the sale of meat. This demand of the petitioners cannot be conceded. It would be very difficult for the Corporation to keep a check over such persons who would be scattered all over the City of Nagpur which in its turn would result in the possibility of a danger to the health of the meat-heating population of the City. Now, when the sale of meat has to be confined to certain places, it would necessarily follow that the accommodation available in those fixed places would be limited. Clause (ii) of byelaw 14 which empowers the Corporation 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 consumers. The allegation of the petitioners has been denied by the Corporation. It is therefore not possible for us to place reliance on the allegation of the petitioners. It has not been shown to us that there has been any general agitation by the consumers or even by the sellers that the places which had been so far fixed for sale of meat had not been adequate to meet the demand of the consumers of the City. The challenge of the petitioners to the vires of the byelaw No. 1 and Clause (ii) of the byelaw No. 14 on the ground of the alleged restrictions of the petitioners right to do business must therefore fail.
39. As regards Clause (i) of byelaw No. 14, Shri Jayawant contends that in that clause very arbitrary powers have been conferred on the officers concerned which are likely to be abused by them. Clause (i) of that byelaw provides that a licence could be refused to an applicant on the ground that he is a bad character or suffering from any contagious or infectious disease. Nowhere in the byelaws it has been defined what 'bad character' means or what is meant by a contagious or infectious disease. The officer concerned may even call cold a contagious disease and may refuse licence on that ground of cold. This clause is therefore bad in law.
40. It is true that the terms 'bad character' and 'contagious or infectious disease' are not defined in the byelaws but then it must be assumed that the officer concerned would understand these terms as they are generally understood by any reasonable person and that he would not be capricious and arbitrary in deciding the application for the grant of a licence. It is to be noticed that the Act makes a provision for an appeal against the decision of a subordinate officer of the Corporation. May be, that some officers in certain cases may act capriciously or arbitrarily but then there is an adequate provision made in the Act to get their orders set aside by way of an appeal. In these circumstances this contention of Shri Jaywant also must fail.
41. The test to be applied in considering whether the restrictions imposed by law are reasonable or not within the meaning of Clause (6) of Article 19 of the Constitution is laid down by a Division bench of this Court in C.R.H. Readymoney Ltd. v. State of Bombay, : AIR1958Bom181 . In our opinion, it is well summarised in the first placitum of the report:
'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 individual must be circumscribed by what the Legislature considers to be in the interests of the general public.'
Applying this test to the facts of this case for reasons above, in our view, the restrictions imposed by byelaw No. 1 and Clauses (i) and (ii) of byelaw 14 are not liable to be struck down on the ground of unreasonableness. We are aware that when the applications of the petitioners Nos. 2 to 5 for the grant of licences were refused the Corporation was not intending to grant licences to sell meat in the weekly markets. We are also aware that the application of petitioner No. 1 has not yet been decided. As a result of our decision it would be now open to the sellers who are desirous of selling meat in the weekly markets to apply for licences. We therefore asked the petitioners whether they would like to apply for licences to sell meat either in the weekly markets or in the stalls in the municipal markets. Shri Jayawant stated before us that the petitioners are not desirous of doing business of selling meat in the weekly markets as the conditions under which meat is sold there are not suitable to them. He also stated that the fees demanded by the Corporation for selling meat in the municipal stalls in the municipal markets are beyond the means of the petitioners. Their demand is that they should be granted licences to sell meat at places of their choice or otherwise but outside the places fixed by the Corporation. In these circumstances and for the reasons stated above it is not possible for us to concede to this demand of the petitioners and the petition must therefore fail.
42. In the result Special Civil Application Nos. 198/58 and 286/58 succeed. Intimation dated 29-5-1958 issued by the Corporation under the signature of the Market Superintendent and posted on the slaughter-houses is hereby quashed. The Corporation is directed not to give effect to the resolution made on 28-3-1958 so far as it relates to the prohibition of grant of licences to the persons desirous of selling meat in the weekly markets. The Corporation is further directed to consider and dispose of the applications, already made, if any, or such as may be made hereafter for licences for the sale of meat in the weekly markets in accordance with law. Costs of these petitions shall be paid by the Corporation. Only one set of counsel's fee is allowed.
43. Special Civil Application No. 222 of 1958 fails and is dismissed. We however make no order as to costs as the question about the alleged exorbitant nature of the fees demanded by the Corporation for the occupation of the stalls is not decided by us.
44. As regards Special Civil Application No. 243 of 1958 it fails and is dismissed. Taking into consideration the alleged poor circumstances of the petitioners we make no order as to costs.
45. Orders accordingly.