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Municipal Board, Lucknow Vs. Sardar Iqbal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 10 of 1958
Judge
Reported inAIR1958All853
ActsUttar Pradesh Municipalities Act, 1916 - Sections 7, 8, 111 and 298(2); Constitution of India - Article 19(1)
AppellantMunicipal Board, Lucknow
RespondentSardar Iqbal Singh and ors.
Appellant AdvocateIqbal Ahmad and ;B.L. Kaul, Advs.
Respondent AdvocateB.K. Dhaon, Adv.
DispositionAppeal dismissed
Excerpt:
(i) constitution - municipalities - sections 7 and 8 of u.p. municipalities act, 1916 - discretionary function of board while laying down duties - board cannot undertake its discretionary function by merely passing resolution and board has to make some bye laws also. (ii) validity of bye laws - sections 111 and 298(2) of u.p. municipalities act, 1916 - board made bye laws imposing restriction on numbers of rickshaws and issue of licenses and detention of unlicensed rickshaws - held, powers which the board purported to exercise and for which it made the impugned bye laws were not contained in schedule i - so this power cannot be exercised by passing mere resolution and therefore the bye is invalid. - - the relief sought by this petition was for the issue of a writ of mandamus.....b. mukerji, j.1. this is a special appeal against the decision of the learned chief justice made in an application for a writ of mandamus or any other appropriate writ or direction which may be issued to command the respondent, first, to issue certain licences applied for by the petitioners for plying rickshaws within the municipal limits of lucknow and secondly to refrain from impounding certain rickshaws belonging to the petitioners found plying within the municipal limits for hire.the learned chief justice allowed the petition to the extent that he directed the issue of a writ commanding the municipal board to issue licences to the petitioners to ply rickshaws for hire within the municipal limits provided the petitioners fulfilled the requirements laid down in the relevant municipal.....
Judgment:

B. Mukerji, J.

1. This is a special appeal against the decision of the learned Chief Justice made in an application for a writ of mandamus or any other appropriate writ or direction which may be issued to command the respondent, first, to issue certain licences applied for by the petitioners for plying rickshaws within the municipal limits of Lucknow and secondly to refrain from impounding certain rickshaws belonging to the petitioners found plying within the municipal limits for hire.

The learned Chief Justice allowed the petition to the extent that he directed the issue of a writ commanding the Municipal Board to issue licences to the petitioners to ply rickshaws for hire within the municipal limits provided the petitioners fulfilled the requirements laid down in the relevant municipal bye-laws.

2. In order to appreciate the scope of the controversy that arose for decision in the writ petition it is necessary to state a few facts, The petitioners, who are the respondents in this appeal, were five in number and between them they owned a considerable number of rickshaws which they wished to ply for hire within the limits of the Lucknow Municipality.

Under the bye-laws framed by the Municipal Board of Lucknow any person who wanted to ply a rickshaw within the Municipal limits had first to obtain a licence from the Municipal Board. The petitioners, therefore, made applications to the Municipal Board complying with the requirements laid down in the relevant bye-laws for the grant of licences.

The Municipal Board was at the relevant period under the administration of an administrator for the Municipal Board itself had been superseded in the year 1948. This application for writ which was filed by the respondents was the culmination of a series of disputes that had been going on between the Municipal Board on the one hand and these rickshaw owners on the other from the year 1951.

In 1950 the State Government introduced in Lucknow the State bus service which charged considerably lower fares than were charged by alternative forms of conveyance and as a result of this there was a lot of unemployment amongst tongawalas and rickshaw pullers with the result that there was a demand from those who had already been in the trade of transport by other means than buses that there should be no further increase in the number of tongas and rickshaws so as not to worsen the unemployment situation.

On 17-1-1951, the number of rickshaw licences issued by the Municipal Board had reached the figure of 3152 and it appears that a decision had been taken by the Board that no fresh rickshaw licences were to be issued after the number of licences had reached the figure of 3250, and in case that figure was not reached by 31-1-1951, no further licences were to be issued after that date.

It was stated before the learned Chief Justice at the time of hearing of the writ petition that although the last number of rickshaw licence Issued was 31.52 on 17-1-1951, yet in actuality the number of rickshaws plying on municipal licences at the time was in the neighbourhood of only 2400. The practical result of this fact was that in effect the number of rickshaws which were actually to ply within the Municipal limits was to be increased to the maximum number of about 2500.

3. The consequence of the decision of the Municipal Board not to issue further licences after 31st January, 1951, was that by the year 1953 a large number of applications for licences which had been made during that period remained pending and no decision was taken thereon, although the applicants kept on pressing the Municipal Board for the issue of licences to them.

In September 1953 there appears to have been a change in the policy of the Municipal Board with the result that the Board directed that additional licences be issued provided the total number of rickshaws on the road did not at one time exceed 3250.

4. Between the years 1955 and 1956 the Municipal authorities found a large number of rickshaws plying within the Municipal limits which purported to bear numbers of licences issued by the Lucknow District Board. The Municipal Board objected to the plying of rickshaws on licences which had not been issued by them.

There were, therefore, certain representations and negotiations between the Municipal Board and the District Board Rickshaw Owners Association and as a result of these negotiations the Municipal Board again reconsidered its policy in regard to the issue of licences and they decided some time in January 1957 among other things that with effect from the 1st April of that year no one person was to be granted more than five licences for the plying of rickshaws.

It was further decided that if reducing the issue of licences to individuals brought down the number of rickshaws, then fresh licences were to he granted but in no case was the maximum figure of 3250 to be exceeded. As a consequence of this decision some 1500 new applications for licences to fill up some 700 vacancies so to speak were made to the Board.

For several reasons the consideration of a majority of these applications was postponed but the Municipal Board appears to have Issued some licences to those persons who had previously been plying rickshaws within the municipal limits under what purported to be licences issued by the Lucknow District Board. Some of the applicants who had been thrown out of employment because of the refusal of tho Municipal Board to issue licences to them applied and obtained from the Gaon Sabha of Ruppur Khadra licences for plying rickshaws and it was said on behalf of the Municipal Board that these rickshaws without any justification plied within the Municipal limits of Luck-now.

Respondents Nos. 2, 3, and 4 were among some of those who had obtained the Gaon Sabha licences. The licences which had been issued by the Gaon Sabha of Ruppur Khadra were subsequently cancelled and so the petitioners obtained similar licences from the Gaon Sabha Sikanclarpur Nazul. When the Municipal Board found that their attempt to restrict the plying of rickshaws within the limits of the Municipal Board was circumvented by people taking licences from the neighbouring Gaon Sabhas they started seizing some of the rickshaws bearing these Gaon Sabha numbers found plying within the Municipal limits.

There was a controversy in regard to whether or not the Municipal Board had the right to what may be called impounding of rickshaws and ultimately the rickshaws were released and it was found that the Municipal Board had no power under the then existing bye-laws to impound any rickshaws.

5. On 23-12-1957, the petitioners filed a petition in this Court in which they contended that they were prepared to comply with the requirements of the bye-laws and were willing to pay the requisite licence fees and so the Municipal Board had no right in law to withhold the issue of licences to them.

The relief sought by this petition was for the issue of a writ of mandamus requiring the Board first, to consider their applications and to issue licences in all cases in which the requirements of the bye-laws were satisfied and secondly to release the rickshaws which had been detained by the Board without levying any fees for such detention. On 27-12-1957, i. e., four days after the petition had been filed the Municipal Board published a new set of bye-laws for the regulation and control of rickshaws kept within the Municipal limits for plying for hire or for private use.

These bye-laws came into force on their publication. At the time when the writ petition was filed there was nothing in the Municipal bye-laws which could even remotely be suggested to give power to the Municipal Board to impose any restrictions on the ground of number nor did the earlier bye-laws make provision for detaining rickshaws found within the Municipal limits without a proper licence having been issued for it by the Municipal Board nor did the earlier bye-laws provide for a fee which could be charged for detaining a rickshaw in the custody of the Executive Officer which power was also not there under the old bye-laws.

6. Three of the new bye-laws, viz. 9, 12 and 15 provide for matters which have just been referred to. The passing of the new bye-laws and their having been made applicable from 27-12-1957 filtered the legal position to a considerable extent to the prejudice of the petitioners. The petitioners therefore applied on 11-1-1958, for leave to amend their petition.

Leave was granted and the petition was accordingly amended. By the amendment the petitioners attacked the validity of the new bye-laws and reiterated their prayer for a writ of mandamus directing the Municipal Board to issue licences applied for by them for plying rickshaws within the Municipal limits. They further reiterated their prayer in respect of the Municipal Board being restrained from impounding the rickshaws belonging to the petitioners found plying within the Municipal limits on hire.

7. Six contentions were advanced on behalf of the petitioners before the learned Chief Justice at the hearing of the petition. These contentions the learned Chief Justice very succinctly stated as follows:

(1) That the Board could not lawfully impose a limit on the number of rickshaw licences which it shall issue.

(2) That the order No. 828 made by the Board on 11-1-1958 purporting to fix the maximum number of rickshaws which may ply for hire at 3250, is invalid.

(3) That if a limit was permissible, then the limit which had been fixed namely 3250 was unreasonable and constituted an infringement of the right of the petitioners to carry on the business of rickshaw plying guaranteed to them by Article 19(1)(e) of the Constitution.

(4) That the Executive Officer or his delegate who had been empowered under the bye-laws to grant licences was vested with an unfettered discretion in the exercise of those powers which rendered the bye-laws invalid.

(5) That the Board had in issuing licences discriminated against the petitioners, and

(6) That the Board had neither power to detain unlicensed rickshaws nor had the power to levy any fees in respect of such detention.

8. The learned Chief Justice in respect of the first question held that the Municipal Board had the power to impose a limit on the number of rickshaws plying for hire within the Municipal limits but he held that that power which the Board may have to restrict the number of rickshaws plying for hire within the Municipal limits could only be exercised under the authority of law inasmuch as the exercise of that power placed restrictions on the right of an individual to ply a particular trade -- a right which had been guaranteed to the individual by the Constitution.

9. In regard to the second contention, the learned Chief Justice came to the conclusion that the order of the Board dated ll-l-1958f Order No. 828 which purported to fix the maximum number of rickshaws to 3250 was invalid.

10. In regard to the third contention, it was held that the limit which had been fixed by the Board of rickshaw licences was not an unreasonable limit, for the learned Chief Justice came to the conclusion that the petitioners failed to satisfy that a limitation of the number of rickshaws entitled to ply for hire in Lucknow to 3250 was art unreasonable restriction.

He referred in this connection to a portion of the order of the Municipal Board dated 11-1-1958, where it was said that general interest of the public including the gradual elimination of the use of human labour for transporting human beings and avoiding congestion on the road led the Municipal Board to place a restriction on the number of rickshaws which could be permitted to ply on the streets of Lucknow and as such it was a reasonable restriction.

11. In regard to the fourth contention, the learned Chief justice held that under the bye-laws as framed and published on 27-12-1957, an unfettered discretion had been vested in the licencing authority for the bye-laws gave no indication as to the principle which was to guide the executive, officer who was to issue the licence in regard to his making a choice amongst the applicants.

It was pointed out that the bye-laws did not even accord any priority to holders of licences during the financial year nor was any principle of first come first served to be resorted to.

12. In regard to the fifth contention, the learned Chief Justice came to the conclusion that no such material had been placed before him on which he could definitely come to the conclusion that the Municipal Board had in fact discriminated in the matter of granting licences.

13. In regard to the last contention on which the second relief of the petition was founded it was hold that the question of impounding was unlikely to arise in the view that he was taking and therefore the second relief was not granted to the petitioners, although the learned Chief Justice entertained doubt as to whether bye-law No. 12 in its present form or bye-law No. 15 (a) in its present form could be justified.

14. The Municipal Board has now come up in appeal against the decision of the learned Chief Justice by which he granted relief to the petitioners to which we have already referred earlier.

15. Sir Iqbal Ahmad appearing on behalf of the Municipal Board contended that the Municipal Board had the power to place restrictions on the grant of licences. He further contended that the fact that the Municipal Board had the power to issue licences and the fact that no one could without the grant of such licences ply a rickshaw within the Municipal limits showed that the Municipal Board had the inherent power to restrict the issue of licences.

Sir Iqbal Ahmad contended that it was within the discretion of the Municipal Board to refuse to give licences without having to give any adequate reasons for such refusal. Sir Iqbal Ahmad further contended that the bye-laws which had been framed, in particular bye-laws 9, 12 and 15 were not invalid. Alternatively, he contended that even if bye-law No. 9 in its present form was legally defective, even then the Board had the power by order to regulate the grant of licences and he contended therefore that the order made by the Municipal Board on 11-1-1958 -- Order No. 828 --was valid and within the competence of the Municipal Board. The new bye-law No. 9 is in these words :--

'General restriction on issue of licence.

9. The Board reserves to itself the right to impose such restrictions from time to time on the number of rickshaws to be licensed for (1) plying for hire, and (2) for private use, respectively, as might be necessary to ensure the general interest of the public including gradual elimination of the use of human labour for transporting human beings and avoiding congestion on the roads.

The Board also reserves to itself the right to impose from time to time such restrictions on the number of rickshaw licences to be issued to any one individual rickshaw owner as may be necessary to ensure the general interests of the public at large including elimination of exploitation of human labour for transporting human beings as an organized trade or commerce and the elimination of monopolistic tendencies.'

According to the learned Chief Justice on the words of bye-law No. 9 no new power was being taken or conferred on the Board in the matter of placing restrictions on the grant of licences; this was clear from the use of the word 'reserves' in the opening words, of the bye-law. If the Board had the power independently of this bye-law, then as the learned Chief Justice pointed out there was no purpose in making this bye-law, but if the Board had, no such power then the bye-law as it stood did not confer the power of restriction on the Board.

Sir Iqbal Ahmad's contention was that the Board had the power to place restrictions and that power he said was in the Board by virtue of Section 8 of the U. P. Municipalities Act, It, therefore, becomes necessary to see whether or not this contention was justified on the wordings of that section. The relevant portions of Section 8 or portions on which reliance could be placed and was in fact placed by Sir Iqbal Ahmad are in these words:

'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--

......

(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 and .....'

It is to be noticed that Section 8 provides for the discretionary functions of the Board while Section 7 lays down the duties of Municipal Board. under Section 7 a Municipal Board has to make reasonable provision within the Municipality for a certain number nf things catalogued in that section while under Section 8 the Municipal Board has been given authority to make provision for other things catalogued in that section if it so chooses.

What is to be particularly noticed is that these discretionary functions of the Board can be exercised only by making proper provision. Can it be said, as it was by Sir Iqbal Ahmad, that a Board can undertake any of its discretionary functions enumerated in Section 8 by merely passing a resolution and leaving it to the executive officer of the Board to give effect to that resolution? We are of the opinion that it cannot.

The use of the words 'make provision' is to our minds a clear indication 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. Merely passing a resolution cannot, in our opinion, come within the purview of the words 'make provision'. Indeed the Municipal Board did not purport to act in this matter of regulating rickshaw traffic or regulating the issue of licences by merely making a resolution, for the Board did in fact make bye-laws for this purpose.

While making the impugned bye-laws the Board purported to act under the provisions of Section 298 (2) read with list I, II (c) and (d) of the U. P. Municipalities Act. In this connection it is relevant to notice that Section 111 of the Act indicates the powers which a Board can exercise by the passing of a resolution. S, 111 is in these words:

'111. 'Powers of which the exercise is reserved to a board acting by resolution'.--(1) The powers, duties, and functions specified in the second column of Schedule I, with the exception of those against which an entry is shown in the third column of that schedule, may be exercised, and shall he performed or discharged, by a hoard by resolution passed at a meeting of the board and not otherwise.

(2) Nothing in Sub-section (1) shall be construed to prevent a resolution of a board being carried into execution by any agency duly authorised in this behalf by or under this Act, or by a servant of the board acting within the scope of his employment.'

An examination of Schedule I would indicate that the powers which the Board purported to exercise and for which it made the impugned bye-laws Nos. 9 and 15 were not contained in that list, so that this power could not in our opinion be exercised by passing a resolution. Reliance was placed by Sir Iqbal Ahmad, as we pointed out earlier on two orders of the Board, one numbered 820 and the other numbered 829. The first one, namely No. 828, was in these words:--

'In exercise of the powers of the Board under bye-law No. 9 of the bye-laws published in the U. P. Gazette dated 4-1-1958 (Pausa 14, 1879 Saka Era) through notification No. 403/XXXII-10 (1) (1)-58-57 dated 27-12-1957 the Municipal Board, Lucknow with a view to ensure the general interests of the public including gradual elimination of the use of human labour for transporting human being and avoiding congestion on the roads, hereby imposes the restriction that the number of rickshaws to be licensed under the said bye-laws for plying for hire within the limits of the Municipality of Lucknow shall not exceed 3250 for the time being.'

No. 829 was in these words:--

'In exercise of the powers of the Board under bye-law No. 9 of the bye-laws published in the U. P. Gazette dated 4-1-1958 (Pausa 14, 1879 Saka Era) through notification No. 463 XXXII-10 (1) (1)-56-57, dated 27-12-1957, the Municipal Board, Lucknow with a view to ensure the general interests of the public at large including elimination of exploitation of human labour for transporting human being as an organised trade and the elimination of monopolistic tendencies hereby imposes the restriction that the number of rickshaw licences to be issued to any one individual rickshaw owner under the said bye-laws for plying for hire within the limits of this Municipality shall not exceed five.'

As will be noticed both of the aforequoted orders of the Board were made under the powers which the Board thought was vested in it by the impugned bye-laws No. 9. These orders were not made under any other power or authority which the Board may have thought it had under the Municipalities Act, so that it cannot in any way be contended that these 'orders' which were made by the Board could have legal effect in upholding the action of the Board which has been challenged by the writ petition, apart from the impugned bye-law No. 9.

16. The impugned bye-law, as we have already pointed out was made under the powers conferred on the Board under Section 298 (2) read with list I, H (c) and (d). The relevant portion of Section 298 reads thus:

' '298. Power of board to make bye-laws'.--(1) A board by special resolution may, and where required by the State Government shall, make-bye-laws applicable to the whole or any part of the municipality consistent with this Act and With any rule, for the purpose of promoting or maintaining the health, safety, and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under this Act.

(2) In particular, and without prejudice to the generality of the power conferred by Sub-section (1), the board of a municipality, wherever situated, may, in the exercise of the said power, make any bye-law, described in List I below and the board of a municipality, wholly or in part situated in a hilly tract may further make, in the exercise of the said power, any bye-laws described in List II below.'

Clauses (c) and (d) of list I, H are in these words:

'(c) imposing the obligation of taking out licences on the proprietors or drivers of vehicles-other than motor vehicles, boats or animals kept or plying for hire, or on purpose of carrying loads within the limits of the municipality, and fixing the fees payable for such licences and the conditions on which they are to be granted and may be revoked:

(d) limiting the rates which may be demanded for the hire of a carriage, cart, boat or other conveyance, or of animals hired to carry loads or for the services of persons hired to carry loads and the loads to be carried by such conveyance, animals or persons when hired within the municipality for a period not exceeding twenty-four hours or for a service which would ordinarily be performed within twenty-four hours;'

17. In our opinion the two aforequoted clauses of list I, H do not empower the Board to make the kind of bye-laws that they have made, that is to say the impugned bye-laws Nos. 9, 12 and 15. The impugned bye-law No. 9 as we have already noticed makes, no specific provision which could fall either under Clause (c) or Clause (d) of List I, H of Section 298. The impugned bye-law No. 12 is in these words:

'12 (a) If the rickshaw is found on the roadwith an unlicensed driver or coolie or the rickshaw itself be unlicensed and the police officer orthe Executive Officer is not satisfied about the correctness of the name and address given by theperson in charge of the same, the officer concerned may order the rickshaw to be taken to theMunicipal Office and the rickshaw may be detained and kept at such suitable place or places asmay from time to time be fixed by the ExecutiveOfficer, till such time as the name and addressof the person concerned is satisfactorily ascertained for the purposes of a prosecution under thesebye-laws.

(b) The rickshaw shall not be returned unless the full Detention Fee is paid up.'

The impugned bye-law No. 15 is in these words:

'15 (a) A fee of rupee one per day to be called Detention Fee shall be charged by the Executive Officer for the period during which the rickshaw is detained in the custody of the Executive Officer under bye-laws 12 and 14.

(b) If a rickshaw is detained and released the same day, the minimum fee of rupee one shall be charged. In other cases the day of detention shall be counted as one day but the day o release shall be excluded.

(c) No detention fee shall he charged for holidays observed in the Municipal Board, if the holiday or holidays occur on the day following the day on which a rickshaw is detained.

(d) In no case the total detention fee in respect of one continuous previous period of detention shall exceed a total of Rs. 15.

(e) If a detained rickshaw is not claimed and paid for within 30 days from the date of detention including the latter day, the dues of the Board shall be realisable under Chapter VI of the Municipalities Act.'

A note is added to this bye-law and it reads thus:

'Clauses Nos. (c) and (d) of bye-law No. 15 are in force with retrospective effect from 16-1-1951.'

This note to our mind was a curious one and gives a clear indication of the outlook of the framers of the bye-law and the note appended thereto.

18. An examination of the aforequoted bye-laws would indicate that they could not come within the purview of the clauses of list I, H of Section 298., under which the Board purported to make them. When learned Counsel for the Board was faced with this situation, he argued that even though the impugned bye-laws could not strictly come within Clauses (c) and fd) of list I, H, they could be justified on the strength of what was provided by Clause (m) of that list. Clause (m) is in these words:

'prohibiting or regulating, with a view to promoting the public safety or convenience, any act which occasions or is likely to occasion a public nuisance and for the prohibition or regulation of which no provision is made under this heading.'

We do not consider that Clause (m) was the appropriate clause under which the impugned bye-laws-could be made. It was next contended that if Clause (m) was not applicable, then the bye-laws were justified under Clause (b). Clause (b) is in these words:

'providing for the regulation or prohibition of any description of traffic in the streets, where such regulation or prohibition appears to the board, to be necessary.'

This clause to our mind makes the nearest approach to the power which has been attempted to be taken by the Board by the impugned bye-laws, but wo do not express any considered opinion on this question because in our view if the Board has not purported to act under this clause, then it is not open to the Board to justify the bye-law under this clause when the Board has itself purported to act under a different clause of list I, H.

19. The impugned bye-law No. 9 was attacked by the petitioners on another ground, viz., that this bye-law places in the hands of the Executive Officer of the Municipal Board an unrestricted power under which he could discriminate between one applicant and another. It was contended that there were no principles laid down in the bye-laws by which the discretion of the Executive Officer could be controlled or was controlled.

Where the Board decides to fix a certain number for licences which were to be granted, then in that was inherent the fact that there had to be some amount of picking and choosing. The impugned bye-laws do not provide for this contingency at all for they give no indication as to the principle which should guide the Executive Officer in making a choice between the various applicants; the bye-laws even do not say that old licence-holders would be accorded any priority or that the principle of first come first served would be followed.

20. It was next contended by Sir Iqbal Ahmad on behalf of the Board that the grant of a licence was a discretionary matter and that the Board could without giving any reasons at all refuse to grant a licence to anyone who applied for it. We do not think this contention to be sound, but even if the matter of granting a licence or refusing one had an element of discretion in it, even so that discretion when it affected ft fundamental right could not be an uncontrolled discretion; it has to be controlled by clear rules so as to come within the category of reasonable restrictions.

This was pointed out by their Lordships of the Supreme Court in the case of Pannalal Binjraj v. Union of India, (S) AIR 1957 SC 397-(A), where their Lordships said this:

'There is a broad distinction between discretion which has to be exercised with regard to a fundamental right guaranteed by the Constitution and some other right which is given by the Statute. If the Statute deals with a right which is not fundamental in character the Statute can take it away but a fundamental right the Statute cannot take away. Where for example, a discretion is given in the matter of issuing licences for carrying on trade, profession or business or where restrictions are imposed on freedom of speech, etc., by the imposition of censorship, the discretion must be controlled by cigar rules so as to come within the category of reasonable restrictions.'

We reiterate that the impugned bye-laws in their existing form contained no rules or no principles which could be even remotely taken to control the discretion of the Executive Officer in the matter of granting or refusing licences and therefore on that ground as well we are of the opinion that the impugned bye-law No, 9, was invalid, for it is perfectly plain to us that no conferment of power of the kind which has been conferred by the impugned bye-law No. 9 on the Executive Officer can be conferred on an Executive Officer without a declaration of the policy of the law or without fixing the legal principles which are to control in given cases and without providing a standard which is to guide the official empowered to execute the law.

The standard has not to be too indefinite or general, though it may be laid down in broad general terms. It would be sufficient if any intelligible principles to guide the Executive Officer as far as reasonably practicable under the circumstances existing are laid down.

21. We are conscious that we are in a period of rapid change when the existing categories of laws seem no longer to be meeting social needs which have not yet crystallised into the definite form which they are likely to assume, that administrative authorities have to have some discretion vested in them, but nevertheless we are also clearly of the opinion that in such periods as these the Courts' have to be extra vigilant in seeing that the freedoms guaranteed to individuals under the Constitution are not lightly trampled upon.

As has been pointed out by Robson in his book 'Justice and Administrative Law (second edition), at page 294,

'Discretion is a science or understanding to discern between falsity or truth, between right and wrong, between shadow and substance, between equity and colourable glosses and pretences, not to do according to the will and private affections'. 'It must be exercised', said Lord Halsbury, 'in accordance with the rules of reason and justice, not according to private opinion; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular'.

In England the King's Bench has power to redress things that are done otherwise, notwithstanding that they are left to the discretion of those that do them, for the idea of discretion which is to be exercised by a statutory authority, has to be exercised not in a capricious and impetuous way, but in a disciplined and responsible manner. This is a conception which has had a wide application in English law and politics and we think that this holds equally good in our country. We have, therefore, no hesitation in striking down the impugned bye-law No. 9 as a bad law.

22. It was contended on behalf of the Municipal Board that the petitioners' applications were refused for adequate reasons. We have examined those reasons and we are not satisfied that they were adequate. The applications were mostly refused on the ground that the petitioners had obtained licences from the Gaon Sabha and tried to utilise those licences for plying their rickshaws within the Municipal limits.

The fact that the petitioners obtained licences from the Gaon Sabha is not denied but what was denied was that they, under the cover of those licences, plied their vehicles within the municipal limits of Lucknow in violation of any existing bye-laws. On the materials before us we are not satisfied that the Municipal Board has succeeded in establishing that the petitioners are guilty of such conduct as disentitled them from getting relief from this Court.

23. As we pointed out earlier, the learned Chief Justice did not find sufficient materials for him to hold that the Board had in fact discriminated in the matter of granting licences but in ouc view a finding on that question was not relevant to the determination of the vires of the impugned bye-laws. Further, that fact in itself does not entitle us to refuse the relief to the petitioners.

24. One other argument of Sir Iqbal Ahmad we wish to notice in particular, because this argument was placed before us with a great deal of vehemence. The argument was that the power to grant a licence had in it the power to refuse a licence and that it was not necessary for the licensing authority to give any reasons tor such refusal. This argument was raised before the learned Chief Justice also and he repelled that argument.

We also have found no substance in this argument, for on what we have already stated earlier it would be clear that the granting of a licence was not the granting of a privilege but was merely obtaining the authority to carry on a business under certain conditions laid down by law. The right of a citizen to carry on the business of plying rickshaws is within the protection afforded by Article 19(1)(g) of the Constitution : it is a right guaranteed and the validity of any restriction or any refusal to let a person exercise that guaranteed right of his can only be upheld if it could be justified on the ground of its being a reasonable restriction placed on that right as provided for by the Constitution.

25. For the reasons given above we have found no merits in this appeal which we accordingly dismiss with costs. Stay order dated the 8th April, 1958 is hereby vacated.


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