1. The appellant, the Deputy Commissioner of Kheri, is the manager of the Court of 'Wards of the Mahowa estate which is the owner of the land in Nimsar on which the Aruwas fairs are held. The respondent is the Notified Area Committee of Misrikh-cum-Nimsar which was constituted by a Notification No. 3439/XI-194, dated 26th; November 1931, under Section 337, U.P. Municipalities Act- vide Ex, A-1.
2. Under the powers conferred upon it by Section 338 (1), the Provincial Government has ex-tended to all notified Areas a large number of sections of the U.P. Municipalities Act, most of them in a modified form-vide Notification No. 72-M. o/xi-70 H, dated 6th June 1917, and Notification No. 2127/XI70-H, dated 22nd June 1917. Among the sections extended are 7, 8, 220 to 223, 293, 294 and 298, all in a modified form. They are printed in the Notified Area Manual at pp. i to 107.
3. By another Notification No. 2032/xI 70 H dated 11th June 1917, the Provincial Government, acting under Section 327, U.P. Municipalities Act, has delegated some of its powers under Section 338 to all Commissioners of Divisions. Our attention has, however, not been drawn to any order of the Commissioner or any other Notification of the Provincial Government extending any other sections of the U.P. Municipalities Act either to all Notified Areas or to the Misrikh-cum-Nimsar Notified Area in particular.
4. The Notified Area Committee of Misrikh-cum-Nimsar purporting to act under Section 298 (2) 3 (d), Municipalities Act, framed some bye-laws 'for the management and upkeep of the sanitation of the Somwati Amawas and ordinary Amawas fairs held at Nimsar-vide the schedule attached to the plaint.'
5. The bye-laws constitute a Mela Committee to which they gave powers for the control of the fairs and for imposing fees or rents according to a prescribed schedule, upon hawkers, shopkeepers and others carrying on business within the area on which the fairs are held.
6. The appellant as the zamindar of this mela area felt this to be an infringement of his rights which was not justified by any law. Accordingly, on 30th March 1948, he commenced the suit out of which this appeal arises in the Court of the Civil Judge, Sitapur. In para. 6 of the plaint he alleged that
out of the said bye-laws, those relating to the collection and fixation of rent and other dues and the scales thereof and the apportionment of the proprietor's share therein and other matters affecting the proprietary interests of the aforesaid Thakur Jai Indar Bahadur Singh, in particular, bye-laws No. 9 Sub-clauses (2), (4), (9), (10) and (12) and bye laws Nos. 13, 20,21, 22, 23, 25, 28, 29 and 31 and also the penalty clause and the schedule of rates are entirely beyond the powers of the defendant.
7. The relief prayed for was as follows:
That a declaration be made that the bye-laws referred to in para. 5 of the plaint are ultra vires and illegal and beyond the powers of the defendant and not binding on the said Thakur Jai Indar Bahadur Singh, his successors and assigns and the Court of Wards, Mahowa estate.
8. The Notified Area Committee resisted the rait alleging that the bye-laws were lawfully made and wore not ultra vires.
9. The learned Additional Civil Judge of Sitapur, to whose Court the case was transferred for disposal, held that the bye-laws complained of were ultra vires and granted the following relief:
It is declared that the bye-laws framed by the defendant Notified Area Committee as regards the realization of the ground rent from the shop-keepers at the Somvati Amawas and ordinary Amawas melas at Nimsar and as regards the letting out of land for shops and bazars, are ultra vires and illegal and are not binding upon the zamindar of the mela grounds.
He also directed a perpetual injunction to issue against the Notified Area Committee forbidding it from enforcing the above bye-laws.
10. The Committee was not satisfied with this decision and it appealed to the District Judge of Sitapur who partly allowed the appeal. He found that bye-laws 9 (9) and 10,21, 22 and 23 are unobjectionable and intra vires. He found that the other bye-laws specifically mentioned in para. 5 of the plaint were not properly worded but that they could, by means of verbal alterations, be made legal and operative. He accordingly directed that:
The injunction forbidding the enforcement of the bye-laws regarding the realisation of the ground rent shall be accompanied by a rider making it clear that this does not prevent the Committee from imposing a mela tax or licence fee as distinct from ground rent and the injunction prohibiting the enforcement of the bye-laws regarding the letting out of lands for shops shall not be interpreted as prohibiting 'the Committee from allocating an area for shops in the mela grounds and demarcating the boundaries of the individual shops therein.
11. The Town Area Committee has not preferred any further appeal but the Deputy Commissioner, representing the Mahowa estate, is not satisfied with these additions to the decree and has appealed. We have heard the learned Counsel for the parties at considerable length and have come to the conclusion that the appeal must be allowed.
12. The learned Counsel for the respondent contended that the bye-laws are only enabling and consequently do not affect the rights of the appellants at all because the mela committee having been duly constituted, might well enter into negotiations with the landlord for obtaining his permission to do things which it has been authorized to do. He contends that the U.P. Municipalities Act clearly reserves private rights and the bye-laws should be also interpreted as reserving those rights, although they do not expressly so provide. We do not consider the scope of these bye-laws to be so limited. If they have been duly made they have the same force as law itself and no permission is required from anyone to enforce them, none can resist them, Thus if the bye-laws in dispute are intra vires, the Mahowa estate cannot object to the mela committee allocating shops in the mela area and charging rents and fees in that area, We cannot, therefore, accept this contention.
13. The respondent's learned Counsel then took us through various provisions of the U.P. Municipalities Act and attempted to demonstrate that the bye-laws in dispute only purported to do something which the Act had already done. We are not satisfied that this is so. The various provisions of the Act to which reference was made all safeguard private rights and only confer powers with regard to public roads and places. We cannot read into the bye-laws similar limitations. It is not the function of Courts to amend bye-laws so as to make them intra vires; they can only decide whether the bye-laws as they stand are within the bye-law making power. If the Notified Area is of the opinion that it can validate the bye-laws by making some alteration in their language it is upto it to make that 'alteration.
14. Even, however, if the bye-laws only provide what the Act has itself provided the question still remains whether they are intra vires. If the Act makes, due provisions the Notified Area may rely upon the Act and utilise its provisions but that would not make the bye-laws valid unless it is shown that the Committee had power to make them. The power depends upon the provisions of S3. 837 and 298, Municipalities Act.
15. It is not necessary that Notified Areas should be constituted for all the purposes for which Municipal Boards are constituted. Section 337, U.P. Municipalities Act provides:
The Provincial Government by Notification may declare that in respect of any local area, other than a Municipality, town area or agricultural village, it is desirable to make administrative provision for some or all the matters described in Sections 7 and 8 by extending thereto the provisions of this chapter.
One of the matters described in Section 8 is that given at (1) (1) which provides for the holding of fairs and exhibitions. Apparently the Provincial Government did not consider it 'desirable to make administrative provision' for the holding of fairs or exhibitions within Notified Areas. It accordingly did not extend Clause (e) of Section 8 to Notified Areas. As a necessary corollary, it did not extend Section 298(2) J(e) which empowers Municipalities to make bye-laws for the holding of fairs and exhibitions, to Notified Areas. Thus the Notified Area does not possess the power to make any bye-laws for the conduct or the control of the Amawas fairs at Misrikh and the challenged bye-laws which purport to do nothing else, must be held to be ultra vires, unless they or any of them were justified by some other provisions of the U.P. Municipalities Act which has been extended to Notified Areas.
16. The bye-laws purport to have been framed under Section 298(2) J(d). That clause has nothing to do with the holding of fairs but it does authorise Notified Areas to frame bye-laws for charging fees in certain cases. These may be charged : (1) for services rendered by the Committee (Section 298 (2) J(d)); (2) for the use of immovable property vested in the Committee (Section 295) and (3) for granting licences, sanction or permission which it is entitled or required to grant Section 294).
17. In the present case there is no question of any charges for rendering services or allowing the use of any immovable property vested in the Committee. So far as charging fees from itinerant vendors or hawkers is concerned, Section 220 of the Act gives a certain power but that does not affect private rights and would not justify bye-laws 20, 21 and 22 which are not confined to public roads, lands or places but extend to private lands also.
18. The result is that we must hold that the challenged bye-laws are ultra vires and no occasion arises for the addition of any rider or for any clarification. We accordingly allow this appeal, set aside the decree of the District Judge and restore the decree of the Additional Civil Judge. The respondent will pay to the appellant the costs of this Court as well as of both the Courts below.