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imam Baksh and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All903; 158Ind.Cas.919
Appellantimam Baksh and ors.
RespondentEmperor
Excerpt:
.....is to regulate offensive trades. where a board is satisfied that any building or place within the limits of the municipality which any person uses or intends to use as a place of business for disposal of any article is likely to occasion a public nuisance, the board may require by notice the owner or occupier to refrain from using it for such purpose, or only to use, or allow it to be used, the building or place for such purposes under such conditions or after such alterations as the board imposes with the object of rendering the use of the building or place for such purposes free from objection. obviously this section deals with particular cases which are brought to the notice of the board and in respect of which the board is satisfied that there is a danger of a public nuisance being..........keep stalls in the municipal market of almora but ultimately left that market, shifted outside the municipal limits and opened meat stalls within a mile of the municipal limits. under a notification published in the government gazette of 1st october 1932, the provisions of section 245, municipalities act, were extended by the commissioner, to whom the power had been delegated by the local government. in the notification the words actually used are that the limits of the board are extended, etc., but there is no doubt that what was intended was that the provisions of section 245 were being made applicable to this extended area, inasmuch as that particular section was actually quoted in the notification.2. the notice of this extension of the limits for purposes of section 245 was given to.....
Judgment:

Sulaiman, C.J.

1. This is an application in revision from the order of the Additional Magistrate of Almora, dismissing the applicants appeal from their convictions by the Magistrate and sentences of fine imposed upon them. The applicants are butchers who used to keep stalls in the municipal market of Almora but ultimately left that market, shifted outside the municipal limits and opened meat stalls within a mile of the municipal limits. Under a notification published in the Government Gazette of 1st October 1932, the provisions of Section 245, Municipalities Act, were extended by the Commissioner, to whom the power had been delegated by the Local Government. In the notification the words actually used are that the limits of the board are extended, etc., but there is no doubt that what was intended was that the provisions of Section 245 were being made applicable to this extended area, inasmuch as that particular section was actually quoted in the notification.

2. The notice of this extension of the limits for purposes of Section 245 was given to all these persons, but they did not obtain any license for carrying on their business and slaughtered animals without bringing them to the municipal office to get them passed. Accordingly the Officiating Executive Officer made a complaint to the City Magistrate that these accused persons had infringed the municipal bye-laws already notified. Before the Magistrate as well as the appellate Court there was some dispute as to whether the limits to which the Act was made applicable were in excess of the maximum of one mile provided in Section 245(3). The lower appellate Court is satisfied that so far as the shops occupied by the accused are concerned they are well within one mile. It therefore seems wholly unnecessary to consider whether the appellate Court's finding that the entire limits are within one mile is based on any legal evidence. If the accused have been carrying on business at places within one mile of the limits of the Municipal Board, then the notification is applicable to these places, notwithstanding its inapplicability to certain other areas which may be beyond one mile. We see no force in this objection.

3. The trying Magistrate came to the conclusion that the business carried on by the accused was likely to be a nuisance, and therefore the bye-law framed by the Municipal Board under Section 298 would be applicable. No doubt he thought that to a certain extent the purpose of the board for imposing a license fee appeared to be to increase their revenue because owing to the transfer of the shops to the outskirts the income of the board from the meat market had been affected, and that the fact that the board Inspector did not compel the goats of those shops which were within the limits to be examined, clearly showed that the board was concerned more with their income rather than the health of the public. All the same he came to the conclusion that the bye-laws made by the board were perfectly valid and a breach of the bye-laws was an offence committed by, the accused. On appeal this view has been affirmed by the lower appellate Court.

4. There can be no doubt that the Commissioner under the authority vested in him has made the provisions of Section 245, Municipalities Act, applicable to the area over which the accused's shops stand. But Section 245(3) entitled him to make the provisions of that section and of any bye-law made under heading G of Section 298 applicable and did not authorise him to make other bye-laws made under headings applicable to such areas. Professedly it were the bye-laws under the headings F and J which were made applicable. For this the learned Commissioner had no authority and the bye-laws therefore are ultra vires so far as this area is concerned.

5. It may well be that bye-law F which refers to markets, slaughter-houses, sale of food, etc., can prohibit the use of any place as a shop for the sale of meat and prescribe conditions under which licenses may be granted, and provide for inspection and regulation of the conduct of business would be applicable to a meat trade of this kind. On the other hand, bye-law G relates, to offensive trades like boiling or storing of blood, etc., storing hides etc., tanning, etc.

6. It may be argued, that G (13)(b) and (c) provide for inspection and regulation of the conduct of business in a place, so as to secure cleanliness therein or to minimize any injurious, offensive or dangerous effect arising or likely to arise therefrom. But these are intended to relate to offensive trades of the kind mentioned in G. It may also be assumed that under J(d) a bye-law can fix charges of fees for any municipal service rendered. But bye-laws under F and J cannot be made applicable under Section 245(3) at all, and admittedly the bye-laws under G have not been made applicable by the notification to the area outside the municipal limits.

7. The next point which has been argued by the learned Assistant Government Advocate is that even independently of the bye-laws, the board had authority under the substantive section itself, Section 245, to serve notice on the accused and to demand that they should take out a license on payment of a fee and that a non-compliance with this notice renders them liable under Section 245(2) to be convicted and fined.

8. Now, Section 245 refers to nuisances from certain trades and professions and the marginal heading also indicates that the object is to regulate offensive trades. And that is why only bye-laws under G are mentioned in Sub-section (3). For the regulation of meat trade there are special bye-laws under Section 298 F, which cannot be made applicable by virtue of Section 245 to areas outside the municipal limits. Where a board is satisfied that any building or place within the limits of the municipality which any person uses or intends to use as a place of business for disposal of any article is likely to occasion a public nuisance, the board may require by notice the owner or occupier to refrain from using it for such purpose, or only to use, or allow it to be used, the building or place for such purposes under such conditions or after such alterations as the board imposes with the object of rendering the use of the building or place for such purposes free from objection. Obviously this section deals with particular cases which are brought to the notice of the board and in respect of which the board is satisfied that there is a danger of a public nuisance being occasioned. It does not contemplate the framing of general bye-laws which would be applicable to all places and buildings within the municipal limits and would govern all residents. Now, Section 294, Municipalities Act, empowers a board to charge a fee to be fixed by a bye-law for any license, sanction or permission which it is entitled or required to grant under this Act. Without framing a bye-law the board is not entitled to demand a license fee. Nor can Section 294 be made applicable under Section 245(3). It follows that if Section 245 does not authorise a board to frame a bye-law under F it has no power to demand a license fee. We are therefore unable to accept the contention urged on behalf of the Crown that the Municipal Board had authority under the substantive Section 245 to demand the license fee or insist on payment of license fee before business is carried on. Of course it is open to the board to approach the Local Government for the extension of the limits of the Municipal Board under Section 3 of the Act. Without such extension there seems to be no provision in the Act under which bye-laws under F which are appropriate can be made applicable outside municipal limits.

9. We accordingly allow this revision and setting aside the convictions and sentences passed on the accused acquit them of the offences with which they were charged and direct that the fines, if paid, be refunded.


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