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Municipal Board, Farrukhabad Vs. Babu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 201 of 1967
Judge
Reported inAIR1972All542
ActsUttar Pradesh Municipalities Act, 1916 - Sections 8(1) and 298
AppellantMunicipal Board, Farrukhabad
RespondentBabu Ram and ors.
Appellant AdvocateL.P. Nathani, ;S.K. Suri, ;Sridhar and ;Ashok Mohiley, Advs.
Respondent AdvocateK.C. Saxena, ;S.S. Chandrawaria, Kamla Nath, Advs. and ;Standing Counsel
DispositionAppeal allowed
Excerpt:
civil - bye laws - section 8 of u.p municipalities act, 1916 - power to frame bye-laws for an area outside municipal limits - held, such bye-laws are valid provided they are confirmed by the prescribed authority. - - 8. we may observe that the learned advocate-general at the hearing of the appeal before us stated that in spite of the success of the appeal the municipal board will not prosecute the stall holders in the land in dispute for the violation of the bye-laws during the period ending with today......to have been passed under head 'f' of list i appended to section 298 (2). section 298 permits a board to make bye-laws for thepurpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under the act. under sub-section (2), without prejudice to the generality of the power conferred by sub-section (1), the board has the power to make bye-laws for matters described in list i. under head 'f' of list 1, bye-laws can be made for markets, slaughter-houses, sale of food, etc. these subjects are, in our opinion, covered by the phrase 'safety and convenience' occurring in subsection (1) of section 298 and also in clause (m) of section 8 (1) of the act. the law seeking to regulate the sale of.....
Judgment:

Satish Chandra, J.

1. Respondent No. 1 instituted a writ petition against the Municipal Board, Farrukhabad. His grievance was that though he had obtained a licence from the Ramlila Committee for holding a market for the sale of potatoes on a piece of land owned by it yet the municipal authorities have instituted prosecution against the shop keepers who have opened stalls under a permission granted by the petitioner. At the hearing of the writ petition no one appeared on behalf of the Municipal Board nor was any counter affidavit filed. It was argued on behalf of the petitioner respondent that the bye-laws under which the persons selling potatoes could be required to obtain a licence from the Municipal Board were ultra vires their powers and hence their action in prosecuting the stall holders was illegal. A learned Single Judge accepted this submission and allowing the writ petition, he quashed the proviso added to the bye-laws under notification dated July 8, 1954. The Municipal Board was restrained from interfering with the respondent's holding the market. Aggrieved, the Municipal Board has come up in appeal.

2. The appeal was filed beyond the prescribed period of limitation. By a separate order we have condoned the delay.

3. It appears that the Municipal Board had under Section 299 of the U. P. Municipalities Act framed and published certain bye-laws for regulating the markets within the municipal limits and also within an area of one mile around the municipal limits of Farrukhabad-cum-Fatehgarh Municipality. The bye-laws were amended by a notification dated July 8, 1954 by adding the phrase 'but excluding tobacco and potato' at the relevant place in bye-law No. 1. On January 12, 1961, the Municipal Board amended the bye-laws again. On this occasion the phrase 'but excluding tobacco and potato' which had been added on July 8, 1954, was deleted with the result that tobacco and potato sellers carne within the purview of the bye-laws. Bye-law No. 1 required the traders in the mentioned, commodities to obtain a licence before they are entitled to continue the trade.

4. The land where the respondent was holding the market was situate outside the municipal limits of Farrukhabad though it was within the one mile area around it. The question, therefore, is whether the Municipal Board has power to frame bye-laws in relation to this subject for an area falling outside the limits of the Municipal Board.

5. Mr. Advocate-General appearing for the Municipal Board has invited our attention to Section 8 of the U. P. Municipalities Act. This section states:--

'8. Discretionary functions of boards.--(1) A board may make provision, within the limits of the municipality, and with the sanction of the prescribed Authority outside such limits for-

.....

(iii) taking measures to promote tradeand industry;

.....

(m) adopting any measure, other than a measure specified in Section 7 or in the foregoing provisions of this section, likely to promote the public safety, health, or convenience;

.....

6. In Municipal Board, Lucknow v. Sardar Iqbal Singh, 1958 All LJ 643 = (AIR 1958 All 853) a Division Bench of this Court held that the words 'make provision' in Section 8 are indicative of the fact that something in the nature of a bye-law has to be made in order to enable the Board to perform any of the discretionary functions enumerated in Section 8. It is thus clear that the bye-law making power of the Board is utilisable for enabling the Board to perform its discretionary functions mentioned in Section 8. The impugned notifications are admitted by both the parties to have been passed under head 'F' of List I appended to Section 298 (2). Section 298 permits a Board to make bye-laws for thepurpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under the Act. Under Sub-section (2), without prejudice to the generality of the power conferred by Sub-section (1), the Board has the power to make bye-laws for matters described in List I. Under head 'F' of List 1, bye-laws can be made for markets, slaughter-houses, sale of food, etc. These subjects are, in our opinion, covered by the phrase 'safety and convenience' occurring in subsection (1) of Section 298 and also in Clause (m) of Section 8 (1) of the Act. The law seeking to regulate the sale of goods would also be within the purview of Clause (iii) of Section 8 (1) because regulation of the sale of food etc., would be taking measures to promote trade in those goods. We are of the opinion that the impugned bye-laws were intra vires the powers of the Municipal Board conferred by Section 8 (1) of the Municipalities Act read with Section 298 thereof.

7. Under these provisions the Municipal Board had power to frame bye-laws for an area outside the municipal limits provided it obtained the sanction of the prescribed Authority. In the case of the appellant Board the prescribed Authority was the Commissioner of the division. The impugned notifications on their face show that the proposed amendments have been confirmed by the Commissioner. Thus this requirement was also fulfilled. We see no illegality in the impugned notifications. In We result the appeal succeeds and is allowed. The judgment of the learned Single Judge is set aside and the writ petition is dismissed. Under the circumstances we make no order as to costs.

8. We may observe that the learned Advocate-General at the hearing of the appeal before us stated that in spite of the success of the appeal the Municipal Board will not prosecute the stall holders in the land in dispute for the violation of the bye-laws during the period ending with today.


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