Skip to content

Municipal Board Vs. Rizwan Beg - Court Judgment

LegalCrystal Citation
CourtAllahabad High Court
Decided On
Case NumberCriminal Appeal No. 1427 of 1962
Reported inAIR1964All544; 1964CriLJ627
ActsUttar Pradesh Municipalities Act, 1916 - Sections 298; Constitution of India - Article 13
AppellantMunicipal Board
RespondentRizwan Beg
Appellant AdvocateG.P. Bhargava, Adv.
Respondent AdvocateYudhishthir, Adv.
DispositionAppeal dismissed
.....application for licence or to issue an order prohibiting the preparation of ice. (ii) validity of byelaws - byelaw no.1 under byelaws for regulation and control of ice factory - court cannot interpret a byelaw to confine its operation to managers or proprietors of an ice factory - held, void for unreasonableness and for uncertainty. - - by means of his letter, the respondent had complained to the medical officer of health that, although a sum of rs. 6. the trial was a summons case trial, and, therefore, no formal charm was framed against the respondent but, the questions put under section 342. cri. 5. if samples of ice from any factory are persistently unsatisfactory, the chairman may order the factory to be closed and disobedience of such an order shall constitute an offence the..........a plain and ordinary interpretation of it, persons other than those who may be responsible for running a factory will be covered by the byelaw in question. in my opinion this byelaw is also void for not having been reasonably connected with or confined to the purposes for which such byelaws can be lawfully made under section 298 of the u. p. municipalities act.17. mr yudhisthir, appearing for the respondent relied in the course of a carefully prepared argument, upon a number of english authorities for the contention that a byelaw must be shown to be reasonably connected with the purposes for which it can be made in order to be valid. these authorities are: alty v. farrell (1896) 1 qb 638; kruse v. johnson, (1898) 2 qb 91, scott v. pilliner, (1904) 2 kb 855, repton school governors.....

M.H. Beg, J.

1. This appeal against an order of acquittal passed by Bench Magistrates of Ghaziabad has come up after obtaining special leave to appeal under Section 417(8), Cri. P. C. The respondent, amanager; of an ice factory, is alleged to have violated byelaws of the Municipal Board Ghaziabad for the - 'Regulation and Control of Ice Factories' in the Ghaziabad Municipality, framed under Section 298 of the U. P. Municipalities Act, 1916, and notified in the Government Gazette, under notification No. 2366/XXIII-37(1)-48-49 dated May 6, 1949.

2. The Magistrates who tried the case held that the complaint was not made in accordance with the 'requirements of laws in this behalf' They did not specify in their judgment any provision of law for the making of the complaint which had not been complied with by the complainant. I have examined the complaint, and I find that the learned Magistrates were in error in holding that the complaint itself was legally defective.

3. The learned Magistrates then observed that the 'main offence' alleged against the respondent 'seems the letter' written by the respondent Manager on behalf of R. B. Ram Ratan Prem Nath, Dasna Road, Ghaziabad the owner of the Ice Factory. It is difficult to understand what the Magistrates meant by this observation. Neither the letter nor the writing of the letter by the respondent, on behalf of the proprietor of the Ice Factory, could constitute an offence under the above mentioned byelaws. I am afraid the judgment of the learned Magistrates discloses that they did not duly apply their minds either to the facts of the case or to the law applicable.

4. The letter to which the Magistrates refer was written by the respondent in reply to the communication sent by the Medical Officer of Health, Municipal Board. Ghaziabad, dated 16th of July, 1959, by which the Medical Officer had ordered the respondent to stop making the ice immediately as the application of the respondent, dated 1st of July, 1959, for the issue of a license, had been rejected. By means of his letter, the respondent had complained to the Medical Officer of Health that, although a sum of Rs. 50/- was already in deposit with the Municipal Board for the issue of a license and the Ice Factory in question had been running since 1945 and had complied with all the rules and regulations relating to the running of such a factory, yet no licence had been granted to the respondent. The respondent had also requested the Medical Officer of Health in this letter to give the Ice Factory an opportunity of getting its water tested at Delhi instead of getting it tested at Lucknow because the containers in which the water had been sent in the past to Lucknow, which was far from Ghaziabad, had broken on each occasion in transit.

5. The learned Magistrates stated in their judgment that they had inspected the Factory and found its premises and reservoir for collecting water, its walls, and its drains in accordance with the byelaws. They also pointed out that no objection was taken to the manner in which the ice was being made in this Factory for fifteen years until the objection taken suddenly by means of the communication of 1st July, 1959 by the Medical Officer of the Ghaziabad Municipal Board it is not clear why the Magistrates made references to the condition and equipment of the factory as there does not appear to be any specific complaint directed against these.

6. The trial was a summons case trial, and, therefore, no formal charm was framed against the respondent But, the questions put under Section 342. Cri. P. C. to the respondent indicate that the charges were:

Firstly that the respondent was found running his Ice Factory without a license on 25-6-59; and, Secondly, that the ice prepared at the factory was neither properly formed nor clean and, Thirdly, that the ice in this condition was being sent to the market for being sold; and,

Fourthly, directions given by the Medical Officers had been disobeyed.

The respondent admitted the first charge, but be denied the other three charges in his statement under Section 342, Cri. P. C. There was no objection taken on behalf of the respondent that there was any misjoinder or multiplicity of charges probably because the charges are not very clear. I shall dear with each of the four charges mentioned above in the reverse order.

7. I have been taken through the whole set or the byelaws for the Regulation and Control of Ice Factories in the Ghaziabad Municipality, but I have not been shown any provision in the byelaws Investing the Medical Officer of the Municipal Board with the jurisdiction to reject the application for a licence or to issue an order prohibiting the preparation of ice Byelaws Nos. 3, 4, 5 and 6 run as follows:

'3. (a) Samples of ice and the water from which ice is made will be taken weekly and, if such samples are not unto the bacteriological or chemical standards, as often as necessary.

(b) The factory owner and employees shall afford every facility in connection of samples.

4. If a sample is unsatisfactory and the Medical Officer of Health considers that the ice should not be allowed to be sold, he will have the ice destroyed to his satisfaction with the help of his staff.

5. If samples of ice from any factory are persistently unsatisfactory, the Chairman may order the factory to be closed and disobedience of such an order shall constitute an offence The factory shall not be reopened until the Chairman is satisfied that proper arrangements have been made for the manufacture of public ice.

6. An appeal shall lie from an order of the Chairman passed under para 5 of these byelaws to the Board if made within ten days of the communication of the order to the applicant.' It is clear from the above mentioned byelaws that it is only the Chairman who has the power, under byelaw No. 5, to order the Ice Factory to be closed provided the samples of ice from the factory are 'persistently unsatisfactory' It is the disobedience of the order of the Chairman which, is an offence and not the disobedience of the order of the Medical Officer of Health who has no jurisdiction to pass an order for closing an ice factory. The power of the Medical Officer of Health is confined, under byelaw No. 4, to ordering the destruction of ice which, in his opinion ought not to be sold The disobedience of the particular order passed by the Medical Officer in this case could not constitute an offence under the byelaws shown to me. Hence, the respondent could not be convicted of the fourth charge mentioned above.

8. So far as the third and second charges mentioned above are concerned, the Magistrate have mentioned these grounds of complaint at the beginning of their judgment, but, after that, there is neither any examination of evidence on these matters nor any reference to or discussion of these grounds at all in the judgment After having examined the record, I find that there is evidence in the case on these matters. But, the only part of the byelaws which could he said to have been infringed, even if the prosecution evidence on these charges were accepted, is so ambiguously worded that, apparently, only the owner of the factory s made liable for its violation. Cleanliness in the processes of manufacturing ice is dealt with in byelaw No. 2.

9. Byelaw No. 2 of the Municipal Board is really a whole series of byelaws numbered 2(a) to 2(s). Byelaws 2(a) to 2(g) lay down general rules about the location, construction, and equipment of an ice factory. The only byelaw which mentions the duty of a Manager, together with that of the Owner, is byelaw No. 2(e) which runs as follows:

'Where drains communicating with Municipal drains cannot be constructed, a separate receptacle shall be kept by the owner or manager for the reception of all foul water and the contents thereof shall be removed daily to such place as the Medical Officer of Health may direct.'

After that, byelaws 2(h) and 2(i) deal with source of water to be used. Then follow byelaws 2(j), 2(k), 2(l) which run as follows:

'(j) The owner of the building shall not suffer any animal to be kept within 30 feet of the freezing and store rooms of the Factory.

(k) He shall not suffer any hookah or other appliance for smoking or any bedding or soiled clothes or other articles not required for the purpose of the Factory to be kept in the factory.

(l) He shall cause the utmost creanliness to be observed in the various processes of manufacture and the premises and all appliances to be kept in a thoroughly clean and sanitary condition.'

10. It appears quite legitimate to conclude, from the language used, that only the owner of the factory was being made responsible for carrying out the duties imposed by byelaws 2(j) and 2(k) and 2(l). If the intention was to make whoever runs the factory responsible the byelaws should have said so instead of using language making only 'He' (presumably the 'Owner' only) responsible. If persons who ought to be made responsible for the observance of the byelaws escape punishment, in these circumstances, the extremely unsatisfactory drafting of the byelaws of the Municipal Board is to be blamed. It was not possible for the Magistrates to convict the respondent for a violation of the above mentioned byelaws. The third and second charges were thus bound to fail.

11. Coming now to first charge of running the factory without a licenses which is admitted by the respondent, I Find that the byelaw alleged to have been violated is couched in the following words:

'1 No person shall use any place within the Municipality for the preparation of ice, unless the condition noted by byelaw No. 2 are complied with

(1)(a) No person shall prepare ice unless he is granted a licence.

(b) For every license under these byelaws a fee of Rs. 50/- shall be charged. Provided that duplicate copy of me license will be supplied at a cost of annas 8.

(c) Every license under these byelaws shall be for the period ending March 31.

(d) This license shall be in addition to the license under Factory Act.'

12. The reasons given by the Magistrates for acquitting the respondent of the offence of running the factory without a license were, in their own words, as follows:

'The manager or any particular servant cannot be prosecuted when any offence is alleged to have been committed by the company itself. The manager cannot be held responsible for the acts of the factory or the company. The Ice Factory with its designation was to be prosecuted through any responsible functionary or through anyone of its proprietors.'

The language used by the Magistrates is not clearer than that of the byelaws. It seems that the Magistrates intended to hold that the offence was not committed by the respondent in his capacity as a Manager, but the offence of running the factory without a license could only be the act of the proprietors of the Factory. In my opinion, if the running of an ice factory itself without a license had been clearly and properly made an offence, the respondent could, as the Manager-in-charge found running the factory, be held liable for running the Factory without a license.

13. The difficulty in this case arises from the fact that byelaw No. 1, which has been already quoted above, is so ambiguous that it is difficult to ascertain its correct meaning. It is apparently so wide that it would also be void for unreasonableness. It is the cryptic language of the byelaw which seems to have confused the, learned Magistrates. The question of the validity of the byelaw was not argued before the Magistrates, but it has been argued before me on behalf of the respondent. I will, therefore, examine the byelaw in question and state my reasons for holding that it is void for uncertainty as well as for unreasonableness.

14. Byelaw No. 1 has been added to by a notification dated 9-3-1951 which has resulted in the appendages Nos. 1 (a) to 1 (d). Prima facie, byelaw No. 1 is not logically connected with the subsequent additions of 1951. Byelaw No. 1 prohibits any person from using any place within the Municipality for the preparation of ice unless conditions given in byelaw No 2 are complied with. Now, the conditions given in byelaw No. 2 only relate to the situation of a factory and its construction and the manner to which the equipment at the factory will be kept and the ice at the factory prepared This means that no person other than a person who has a factory can prepare any ice at all within the Ghaziabad Municipality The prohibition is not restricted to persons preparing ice for purposes of selling the ice. It is so general that it amounts to a prohibition against any preparation of ice within the Municipality without complying with the byelaw No. 2. A person who prepares ice in his own refrigerator at his own house, either for his own consumption or for any other use, would, according to the natural and plain meaning of byelaw No. 1, be hit by the prohibition contained in the byelaw and would commit an offence. I am afraid that a byelaw framed in such wide terms cannot be considered reasonable or within the purview of Section 298 of the U.P. Municipalities Act.

15. It is well settled that a byelaw-making power must be exercises reasonably so that the byelaw can be used only for the purpose for which the byelaw can be made and not for other purposes. Section 208 of me U.P. Municipalities Act vests a power in the municipality to make byelaws for the purpose of 'promoting or maintaining the health, safety, and 'convenience of the inhabitants of the municipality.' The byelaw in question could not be made for the purpose of merely imposing burdens or inconveniences upon the inhabitants of the municipality without promoting, in any reasonable way, the health or safety of the inhabitants. I do not see how or why it is necessary that ice should be prepared only in a factory in order that the health, safety, and convenience of the inhabitants may be promoted or Maintained. If byelaw No. 1 were valid, no person could, as I have already pointed out, prepare ice without constructing and maintaining a factory in accordance with byelaw No. 2 of the Municipal Board. The heading of the byelaws shows that they should have been confined to Regulation and Control of ice factories. Nevertheless, byelaw No. 1 is so widely worded that it would apply to all persons using any place, even their own houses, for the preparation of any ice in any manner for any purpose. This may not be the object of the byelaw. But, the byelaw is so framed that one cannot say that it is confined to the purposes contained in Section 298 of the U. P. Municipalities Act or restricted to Regulation and Control of Ice Factories only.

16. The appendages to byelaw No. 1 include byelaw No. (1)(a) which imposes a duty upon every person who prepares ice to take out a license. Here again the byelaw is so widely worded that, upon a natural and plain construction of the words used in the byelaw, every worker in a factory preparing ice, every servant in a house-hold preparing ice in his master's refrigerator in obedience to his master's orders, every house-wife preparing ice in her own refrigerator, would be debarred from doing so unless a licence is taken out This may again, not be the intention of the byelaw But, I am afraid, the byelaw is clearly worded so widely that, upon a plain and ordinary interpretation of it, persons other than those who may be responsible For running a factory will be covered by the byelaw in question. In my opinion this byelaw is also void for not having been reasonably connected with or confined to the purposes for which such byelaws can be lawfully made under Section 298 of the U. P. Municipalities Act.

17. Mr Yudhisthir, appearing for the respondent relied in the course of a carefully prepared argument, upon a number of English authorities for the contention that a byelaw must be shown to be reasonably connected with the purposes for which it can be made in order to be valid. These authorities are: Alty v. Farrell (1896) 1 QB 638; Kruse v. Johnson, (1898) 2 QB 91, Scott v. Pilliner, (1904) 2 KB 855, Repton School Governors v.Repton Rural District Council, (1918) 2 KB 133; Chester v. Bateson, (1920) 1 KB 829; and Attorney General v. Denhy, 1625 Ch 596 Be relied upon two cases for contending that a byelaw could be held to be invalid for uncertainty. These cases were: Nash v. Finlay. (1901) 85 LT 082; and 1925 Ch. 596 (supra).

18. The only reply which could be put forward on behalf of the appellant to the argument directed against the validity of the above mentioned byelaw of the Ghaziabad Municipality was that mere was a presumption to favour of its validity. It was argued that unless the Court is compelled to hold that a byelaw is invalid, it should be held to be valid. This is also a well recognised proposition. In (1918) 2 KB 133 it was observed by Pickford L.J.:

'I quite agree that byelaws, especially those of public bodies, should be approached from the point of view of upholding them, if possible, and should be, as it has been described, benevolently interpreted; but still they must be reasonable.'

It was pointed out in this case that a byelaw was void for unreasonableness if it

'would lead to a result quite unnecessary for the protection of public health and would impose a serious restriction upon the ordinary rights of a property owner without any good object.'

19. The proposition that a court ought to be slow to hold that a byelaw is void for unreasonableness was emphatically stated in 1898-2 QB 91. But, while affirming this principle, it was held by Lord Russell C.J. (p. 99) that byelaws will be void For unreasonableness in the following circumstances:

'If, for instance, they were found to be partial and unequal in their operation as between different classes; it they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous Interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.'

20. There can be a presumption, where wide powers are conferred upon public authorities, that the authorities will exercise those powers reasonably. But, when a public authority has exercised the power conferred upon it and made a byelaw creating an offence, it cannot rely upon the presumption that it will exercise its powers reasonably if it defines the offence in such a way as either to make even those punishable who could not reasonably be punished for any offence or to make it too difficult to know who could be punished for the offence created. A byelaw could certainly be made by the Municipal Board for imposing the duty upon everyone who runs an ice factory to take out a license for running it. But if it makes it obligatory upon every person who works in the factory to take out a license or leaves it uncertain whether such a person also should take out a license I am afraid the byelaw could not be held to be reasonable. The byelaw could only be made For promoting public health, safety, or convenience. A duty to take out the licence could be imposed upon those who are responsible for running a factory so that the cost of maintaining a staff charged with the duty to enforce rules relating to public health,safety, and convenience, may be defrayed by the Municipality. But, the duty to take out a license could not be reasonably imposed upon every worker in an ice factory. If this were permitted, it would result in the taxation of the incomes of workers in a factory and not in a legitimate system of licensing. It is not contended that it is the object of the byelaw to tax all those who prepare ice. But, I am afraid that the byelaw will have that result unless it is properly framed so as to be confined in its scope to legally permissible objects. It is true that, the respondent is not a worker in on ice factory and that a manager can be reasonably and lawfully made liable For running a factory without a license. But, the byelaw, as it stands, is not confined in its application to Managers or those responsible for running an ice factory. In my opinion, it is totally void for unreasonableness is well as uncertainty.

21. Courts of law cannot interpret such a byelaw in such a way as to reframe the byelaw in order to confine its operation either to Managers or Proprietors of an ice factory. The learned Magistrates who tried the respondent appeared to be conscious of the patent unreasonableness of the byelaw. They, therefore, interpreted the byelaw to mean that only proprietors of the ice factory are punishable. In my opinion, it is not permissible for a Court of law to reconstruct a byelaw in this fashion. The byelaw has to be struck down if it is patently uncertain or unreasonable in the sense that it is not reasonably related to the purposes for which the byelaw can be made.

22. I would like to emphasize the necessity for certainty in framing rules or byelaws of every kind by public authorities. Such rules or byelaws are included in the definition of the terms 'law' as used in Article 13 of the Constitution of India. Certainty is particularly essential in framing rules or byelaws creating offences. If a citizen cannot plead ignorance of law as an excuse for the commission of an offence, he is also entitled to demand reasonable certainty in the meanings of laws which create offences so that be may know what his legal obligations and liabilities are with a fair amount of assurance. As Professor W.A. Robson observed in his 'Justice and Administrative Law' (1947 edition p. 268): 'The law must be known, or at least ascertainable not only so as to enable the citizen to observe whether it is being administered consistently and equally, but also in order to enable him to comply with its provisions.'

23. For the reasons given above, I hold that the abovementioned byelaws Nos. 1 and (1) (a) are void for unreasonableness as well for uncertainty. The respondent is, therefore, entitled to an acquittal upon a ground altogether different from the grounds taken by the Bench Magistrates who acquitted the respondent.

24. Accordingly, this appeal is dismissed.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //