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The Jullundur Cantonment Board Vs. Firm Hindu Khandan Mushtarka Munshi Ram Sri Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 366 of 1964
Judge
Reported inAIR1976P& H265
ActsCantonments Act, 1924 - Sections 43A, 44, 198, 210, 253 and 272; Code of Civil Procedure (CPC) , 1908 - Sections 9; Cantonments Regulations - Regulations 42A and 55(1)
AppellantThe Jullundur Cantonment Board
RespondentFirm Hindu Khandan Mushtarka Munshi Ram Sri Ram and ors.
Appellant Advocate R.K. Chhibbar, Adv.
Respondent Advocate Y.P. Gandhi, Adv.
DispositionAppeal allowed
Cases Referred and Haji Ismail Haji Mohd. Ramzan v. Municipal Committee
Excerpt:
.....and that it had so delegated its powers and functions under section 210 of the act to the civil area committee and so the action taken by the civil area committee in rejecting the applications of the plaintiffs for the renewal of their licences in question and prohibiting them from carrying on their trade in the premises in question was clearly within their powers. in the alternative, it was pleaded that, in any case, the board had ratified the decision of the civil area committee vide its resolution exhibit p-52 dated 31-5-1962. it was further pleaded on behalf of the board that the residents of the locality where the plaintiffs had been carrying on their trade in toori/ bhusa (fodder) had complained in writing vide exhibit d-1 dated 6-11-1961 that the carrying on of the said trade..........their applications for the renewal of their licences for the year 1962 were rejected by the civil area committee of the said board, vide its decision exhibit p-32 dated 22-5-1962, which was conveyed to them, vide letters, exhibits p-40 to p-42, on 26-5-1962, whereby they were not only informed of the rejection of their applications for renewal of the licences but were also required not to carry on the aforesaid trade in the premises in question; that only the cantonment board, and not the civil area committee was competent to take a decision in the matter, and since the decision had been taken by the civil area committee, its decision in the matter was palpably without jurisdiction and ultra vires its power and that the said letters (treated by them as notices) were invalid as the same.....
Judgment:

D.S. Tewatia, J.

1. This appeal at the instance of the Jullundur Cantonment Board, defendant, arises out of a suit at the instance of the plaintiff-respondents, who are three in number, wherein they claimed permanent injunction against the Appellant-Board restraining it from stopping them (plaintiff-respondents) from carrying on their business of selling Toori/Bhusa (straw fodder) in the premises as mentioned in the heading of the plaint.

2. The plaintiff-respondents, which are three Joint Hindu Firms, approached the Court with the allegation that they had been carrying on business in Toori/ Bhusa in the Cantonment area at Jullundur in the premises located in the Grain Mandi for the last 14/15 years under a licence from the defendant-Board; that their applications for the renewal of their licences for the year 1962 were rejected by the Civil Area Committee of the said Board, vide its decision Exhibit P-32 dated 22-5-1962, which was conveyed to them, vide letters, Exhibits P-40 to P-42, on 26-5-1962, whereby they were not only informed of the rejection of their applications for renewal of the licences but were also required not to carry on the aforesaid trade in the premises in question; that only the Cantonment Board, and not the Civil Area Committee was competent to take a decision in the matter, and since the decision had been taken by the Civil Area Committee, its decision in the matter was palpably without jurisdiction and ultra vires its power and that the said letters (treated by them as notices) were invalid as the same did not bear the seal of the Board.

3. The Board resisted the suit with the plea that by virtue of the provisions of Section 272 of the Cantonments Act, 1924, hereinafter referred to as the Act, no suit could be filed against the Board. Regarding the impugned notices and the decision of the Civil Area Committee, it was pleaded that the trade carried on by the plaintiffs was of the kind envisaged in Clause (1) of Sub-section (1) of Section 210 of the Act, the carrying on whereof required a licence; that the Cantonment Board was competent to delegate its functions under the Act to a Committee and that it had so delegated its powers and functions under Section 210 of the Act to the Civil Area Committee and so the action taken by the Civil Area Committee in rejecting the applications of the plaintiffs for the renewal of their licences in question and prohibiting them from carrying on their trade in the premises in question was clearly within their powers. In the alternative, it was pleaded that, in any case, the Board had ratified the decision of the Civil Area Committee vide its resolution Exhibit P-52 dated 31-5-1962. It was further pleaded on behalf of the Board that the residents of the locality where the plaintiffs had been carrying on their trade in Toori/ Bhusa (fodder) had complained in writing vide Exhibit D-1 dated 6-11-1961 that the carrying on of the said trade constituted a health hazard and a public nuisance and that it be immediately stopped. The complaint was marked to the Health Officer who, agreeing with the complainants, submitted his report Exhibit D.X./1 to the Board. Thereafter the Civil Area Committee passed a resolution that the carrying on of the trade in Toori/Bhusa in the Grain Market be stopped and some other place be specified for that purpose. The said resolution was confirmed by the Board, vide its resolution dated 31-5-1962.

4. The pleadings of the parties led to the framing of the two material issues which are:

'1. Whether the suit is barred under Section 272 of the Cantonments Act ?

2. Whether the orders given in para. 2 of the plaint are illegal and ultra vires for the reasons given in para. 3 of the plaint ?'

The trial Court found both the issues in favour of the defendant Board and dismissed the suit. The lower appellate Court took a contrary view under Issue No. 2 and allowed the appeal and decreed the suit without making any reference to Issue No. 1.

5. The primary questions that fall for determination are (1) whether the present suit is maintainable against the Board, and (2) whether the Civil Area Committee was competent to reject the applications of the plaintiffs for the renewal of their licences and prohibit them from carrying on the trade in question at the premises where it had been so far carried on.

6. As to the maintainability of the suit, a bare perusal of the provisions of Section 272 of the Act, which is reproduced below, would show that it does not bar a suit challenging the validity of any order passed by the Board or its functionaries:

'272. Protection of Board, Executive Officer, etc. No suit or prosecution shall, be entertained in any Court against any Board or against any Officer Commanding a station, or against any member of a Board, or against any officer or servant of a Board, for anything in good faith done, or intended to be done, under this Act or any rule or bye-law made thereunder'. What it prohibits is a suit against the Board or its functionaries for its mala fide action in passing any order under the provisions of the Act and the rules made thereunder. In other words, the provisions of Section 272 of the Act are enacted to grant immunity to the Board and its functionaries mentioned therein regarding any action taken by it under the Act and the Rules in a bona fide manner.

7. Now coming to the competence of the Civil Area Committee, I may, in the first instance, notice the relevant provisions of the statute. Section 210 of the Act, which provides for the taking of the licence, is in the following terms:

'210 (1). No person of any of the following classes, namely:--

*****

(1) dealers in hay, straw, wood, charcoal or other inflammable material.

* * * *

shall carry on his trade, calling or occupation in any part of a cantonment unless he has applied for and obtained a licence in this behalf from the Board.

(2) A licence granted under subsection (1) shall be valid until the end of the year in which it is issued and the grant of such licence shall not be withheld by the Board unless it has reason to believe that the business which it is -Intended to establish or maintain would be offensive or dangerous to the public or that the premises in which the business is intended to be established or maintained are unsuitable for the purpose.

* * * * *

Section 198, sub-sections (1) and (3), of the Act, which deal with the location of public markets, reads as under:

'198. (1) A Board may provide and maintain, either within or without the cantonment, public markets and public slaughter-houses, to such number as it thinks fit, together with stalls, shops, sheds, pens and other buildings or conveniences for the use of persons carrying on trade or business in or frequenting such markets or slaughter-houses, and may provide and maintain in any such market buildings, places, machines, weights, scales and measures for the weighment or measurement of goods sold therein.

*****

(3) The Board may at any time, by public notice, close any public market or public slaughter-house or any part thereof.

* * * * V

Section 43A of the Act which deals with the constitution of the Committees for Civil Areas, is in the following terms:

'43A. (1) Every Board constituted under Section 13 in a Class I cantonment or Class II Cantonment shall appoint a committee consisting of the elected members of the Board, the Health Officer and the Executive Engineer for the administration of such areas in the cantonment as the Central Government may, by notification in the Official Gazette, declare to be civil areas, and may delegate its powers and duties to such committee in the manner provided in Clause (e) of Sub-section (1) of Section 44.

(2) The Vice-President of the Board shall be the Chairman of the committee appointed under Sub-section (1).' Section 44 of the Act empowers the Board to make regulations consistent with the provisions of the Act and with the rules made thereunder to provide for all or any of the following matters:

'(e) the appointment of committees for any purpose and the determination of. all matters relating to the constitution and procedure of such committees, and the delegation to such committees, subject to any conditions which the Board thinks fit to impose, of any of the powers or duties of the Board under this Act other than a power to make regulations or bye-laws.' Regulation 42-A and Regulation 55 (1) framed under the powers granted by Section 44 of the Act and duly promulgated, read as under:

'42-A. (1) The Cantonment Board shall appoint a committee consisting of the elected members of the Board, the Health Officer and the Executive Engineer for the administration of such areas in the Cantonment as the Central Government, may, by notification in the official Gazette, declare to be civil areas, and may delegate its powers and duties to such committtee in the manner provided in Clause (e) of Sub-section (1) of Section 14 of the Cantonments Act, 1924.

(2) The Vice-President of the Board shall be the Chairman of the Committee appointed under paragraph (1) above.

*****

55 (1) The Civil Area Committee shall deal with all matters mentioned in Sections 178A, 179 to 185 and 210 of the Cantonments Act, 1924, and the decisions of the Committee thereon shall be final, subject to the condition that if the Health Officer disagrees to any resolution of the committee under Sections 178A and 210, the matter shall be referred to the Board by the President for a decision.

* * * * *'

8. The perusal of the relevant provisions of Section 210 of the Act would reveal that no person can carry on trade in Toori/Bhusa or straw without a licence which shall be valid until the end of the year in which it is issued and that the grant thereof shall not be refused unless the business in question is held to be offensive or dangerous to the public or that the premises in which the business is intended to be established or maintained are unsuitable for the purpose. A perusal of Section 43A would show that every Board constituted under Section 13 of the Act in a Class I Cantonment or Class II Cantonment shall appoint a committee consisting of the elected members of the Board, the Health Officer and the Executive Engineer for the administration of such areas in the cantonment as the Central Government may, by notification in the Official Gazette, declare to be civil areas, and may delegate its powers and duties to such committee in the manner provided in Clause (e) of Sub-section (1) Section 44. Clause (e) of Sub-section (1) of Section 44 of the Act reveals that a Board can make regulations consistent with the provisions of the Act and with the rules made thereunder regarding appointment of committees for any purpose and the determination of all matters relating to the constitution and procedure of such committees, and the delegation to such committees, subject to any conditions which the Board thinks fit to impose, of any of the powers or duties of the Board under this Act other than a power to make regulations or bye-laws. In pursuance of the power of delegation under Clause (e) of Sub-section (1) of Section 44 of the Act, the Board framed regulations and its Regulation 42-A is almost pari materia with Section 43A of the Act. The perusal of Regulation 55 (1) would reveal that the Civil Area Committee shall deal with all matters mentioned in Section 210 of the Act and its decisions thereon shall be final, unless the Health Officer disagrees with any of its resolutions in which case the matter shall be referred to the Board by the President for a decision; and that its minutes shall be construed as decisions of the Cantonment Board and that the Civil Area Committee shall be competent to authorise a person under Section 266 of the Act to launch prosecutions in respect of any breach of the provisions, inter alia, of Section 210 of the Act,

9. A combined reading of the provisions of Section 210, Sub-section (1), Clause (1) and Sub-section (2), Sections 43A, 44(1)(e) and Regulation 55 (1)and (2) leaves no manner of doubt that the Civil Area Committee of a Cantonment Board (in this case there is no dispute that the Jullundur Cantonment Board is of the kind mentioned in Section 43A of the Act) is competent to grant licence for the carrying on of the trade in question or to deny a licence if it came to the conclusion that the trade in question would be offensive or dangerous to the public or that the premises in which the business was intended to be established or maintained would be unsuitable for that purpose.

10. The observations of the lower appellate Court that the Civil Area Committee was not competent to take a decision as it could only enquire and report to the Board are unwarranted. It appears that the lower appellate Court did not apply its mind to the aforesaid provisions of the Act or by inadvertence was influenced by the following provisions of Regulation 56, which deals with committees, constituted under Regulation 42, which deals with the creation of committees other than the Civil Area Committee as a bare perusal thereof would show. They read:

'42(1) In pursuance of Clause (e) of Sub-section (1) of Section 44 of the Cantonments Act, 1924, the following two committees shall be appointed by the Cantonment Board:

(1) Building and Sanitary Committee,

(ii) Finance and General Purposes Committee.

(2) Each sub committee shall consist of 7 members to be elected from among the Board's members at a meeting of the Board. Out of these 3 shall be ex-officio/nominated members and 4 elected members. The Vice-President, if a member of any of these Committees shall, in virtue of his office, be the Chairman of such Committee. If he is not a member of these committees, the chairman shall be appointed by the Board.

(3) All questions coming before a meeting of any of these committees shall be decided by the majority of votes of the members present and voting.

In case of an equality of votes, the Chairman shall have a second or casting vote.

*****

56. The Cantonment Board may entrust to the Committee mentioned in Regulation 42 such other matters for enquiry and report as it thinks fit, and may, for any other purpose, constitute other Committees to work subject to its direction and control, in addition thereto.' The lower appellate Court devoted considerable space of its judgment to the effectiveness of the alternative plea if the Board that the Board had ratified the action taken by the Civil Area Committee, which in view of my finding regarding the competence of the Committee, it is not necessary to dwell upon.

11. As regards the factual question as to whether the trade in Toori/ Bhusa carried on in the premises in question is offensive or dangerous to public or whether the premises in question are suitable for the purpose, it must be observed that the lower appellate Court did not apply its mind to the material adduced on the record and wrongly observed that the defendant had led no evidence showing that the trade of Toori/Bhusa was nuisance and was injurious to the health of the public. In this regard, suffice it to mention that the defendant Board examined five witnesses who have deposed to the fact that at the time of loading and unloading of Toori/Bhusa carts and trucks at the premises, lot of dust is raised and blown about which adversely affects the health of the people who work around the said place and since the area, where these shops are located, is a grain Mandi and thus a very busy locality, the said danger to health assumes frightening proportion. The Health Officer in his report Exhibit D. X./1 had supported the aforesaid facts which had been asserted in the complaint Exhibit D-l. In his report, he has mentioned that the Toori/Bhusa dust was capable of leading to various diseases, more particularly such as affect the respiratory tract.

12. Since the carrying on of the trade in Toori/Bhusa in the locality, where it was being carried on and was sought to be carried on, constituted a health hazard and thus dangerous to public and the place where it was carried on for that reason not being suitable, the Civil Area Committee rightly declined to renew the licences.

13. As to the question whether the Civil Area Committee is competent or not to specify a particular place for the carrying on of a particular trade, the lower appellate court basing itself on the ratio of the decision reported in Wariam Singh. v. Municipal Committee Nabha, AIR 1953 Pepsu 127, and Haji Ismail Haji Mohd. Ramzan v. Municipal Committee, Malerkotla, AIR 1962 Punj 364, held that it was not within the power of the Civil Area Committee or for that matter of the Cantonment Board to specify any particular place for the carrying on of a particular trade. The ratio of the decisions relied upon by the lower appellate Court, I am constrained to observe, is not at all applicable to the present case. Those were the cases where power of the Municipal Committee was involved. In the Municipal Act, by an amendment in the year 1923. a specific power to specify places for the carrying on of the trade that existed in the statute was expressly deleted and it was for that reason that the Courts observed that any bye-law of the Municipal Committee authorising it to specify any place for the carrying on of a particular trade was ultra vires its powers, but so far as the Cantonment Board is concerned, it is competent by virtue of the provisions of Section 198 of the Act (reproduced already) to specify places for the carrying on of particular trades.

14. As regards the challenge to the validity of notices, Exhibits P-40, P-41 and P-42. on the ground of the same not having been authenticated by affixation thereon the seal of the Board before being issued by the Executive Officer of the Board, it may be observed that Section 253 of the Act (noted below) treats every notice, order or requisition issued by a Board under the Act or any rule or bye-law made thereunder as properly authenticated and valid if the same bears the signature of either the President of the Board or of the Executive Officer thereof or by any member of a Committee specially authorised by the Board in that behalf. In the present case, the notices in question have been signed by the Executive Officer of the Board and, therefore, in the eye of law, they are properly authenticated and valid.

15. It is no doubt true that Regulation 41, which is in the following terms, requires the use of the common seal of the Board on all deeds of contract, other deeds, conveyances, licenses, robkars and all notices and requisitions issued in accordance with the provisions of the Act and the bye-laws made thereunder, but this does not mean that any such document if it does not bear the common seal of the Board although it bears the signature of the person mentioned in Section 253 of the Act shall be invalid in the eye of law:--

Regulation 41

'The common seal of the Board shall remain in the custody of the Executive Officer and shall be used on all deeds of contract, other deeds, conveyances, licenses, robkars and all notices and requisitions issued in accordance with the provisions of the Cantonments Act, 1924, and bye-laws made thereunder.' Section 253

''Authentication and validity of notices issued by Board -- Every notice, order or requisition issued by a Board under this Act or any rule or bye-law made thereunder shall be signed-

(a) either by the President of the Board or by the Executive Officer;

(b) by the members of any committee especially authorised by the Board in this behalf.'

If the import of Regulation 41 is to be considered to be what has been suggested on behalf of the plaintiffs, then the Regulation is ultra vires the provisions of Section 253 of the Act and to that extent invalid.

16. In any case, the notices Exhibits P-40 to P-42, d0 not have the status of notices envisaged either in the provisions of Section 253 of the Act or Regulation 41, for these are mere communications from the Board conveying to the plaintiffs the decision of the Board rejecting their applications for renewal of their licences and additionally bringing to their notice what was obvious, that is, that in case they carried on the business of Toori/Bhusa without licence, they could be incurring penalty under the law which consequence is clearly envisaged under Section 210 of the Act and, therefore, these letters do not have the status of a notice so as to require authentication in the manner envisaged in Regulation 41 and in the provisions of Section 253 of the Act.

17. Further what is really under challenge is the decision of the Civil Area Committee declining to renew the licences of the plaintiffs to carry on the trade in the premises in question, the validity of which is not dependent upon the manner in which the information thereof was conveyed to the plaintiffs, for it is enough that the plaintiff has been apprised thereof by the Executive Officer of the Cantonment Board through notices Exhibits P-40 to P-42.

18. And lastly even if for the sake of argument the notices in question were held to be invalid for the reason aforesaid, then too it would not make any difference so far as the restriction of their right to carry on the trade in Toori/Bhusa is concerned inasmuch as they could carry on the trade of. Toori/Bhusa only if they had the licence to do so and since licence for the year 19152 was not renewed, so in any case they could not legally carry on the trade in question and thus they were not entitled to the relief sought by them.

For the reasons stated, the judgment and decree of the lower appellate court is reversed, that of the trial court is restored, the appeal is allowed and the suit of the plaintiff-respondents is dismissed with costs.


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