1. This appeal is brought by special leave from the judgment of the Allahabad High Court dated January 15, 1963 in Special Appeal No. 295 of 1961 dismissing the appeal preferred by the appellant against the judgment of the Single Judge of that court in a writ petition filed by the respondent which was allowed by him on May 18, 1961.
2. The respondent is a private limited company having its registered office in Delhi. One of their branches is at Shamli. The respondent-carries on the business of letting out on hire Kolhus and Karhais to villagers living in Muzaffarnagar District. The contract of hiring is in accordance with a written agreement which is annexure I to the writ petition of the respondent. According to the agreement the responsibility for the unkeep of the Kolhus and Karhais was upon the hirer who was bound to return the same at his own expense in a working condition after the expiry of the period of hire. Under Section 174 (1) of the U. P. District Board Act 1922 the District Board of Muzaffarnager has framed byelaws called the Muzaffarnagar Kolhus and Karhais Byelaws for the entire rural area of the District. The byelaws provided that the 'owner' shall obtain a licence on payment of Re. 1/-. The respondent, however, refused to take out any licence whereupon the appellant served a notice why it should not be prosecuted. The respondent thereafter filed Civil Misc. Writ-Petition No, 228 of 1968 under Article 226 of the Constitution in the Allahabad High Court to quash the notice issued by the District Board asking the respondent to obtain a licence. The case of the respondent was the power of the appellant to make byelaws under Section 174 (1) of the Act was for the purpose of promoting and maintaining the health, safety and convenience of the inhabitants of the area and the byelaws were Ultra vires of Section 174 (1) because the responsibility for complying with the requirement of Clause 7 was cast on persons who could not possibly discharge the responsibility. Mr. Justice Tandon who heard the Writ Petition held that the expression 'owner, would not include the respondent and accordingly the notice issued by the appellant Board asking the respondent to take out a licence was ultra vires and without jurisdiction. Being aggrieved by the decision of Tandon J., the appellant filed a special appeal under Letters Patent which was heard by a Division Bench consisting of V. Bhargava Ag. C. J. and B. D. Gupta J. The Division Bench dismissed the appeal of the appellant on the ground that the byelaws framed by the appellant were bed in law. It was pointed out that the inclusion of persons who let out on hire Kolhus and Karhais in the definition of 'owner' had the effect of responsibility for complying with the requirement laid down in Clause 7 of the byelaws cash on persons who could not possibly discharge the responsibility and could not be reasonably expected to undertake it. The Division Bench accordingly held that the byelaws were invalid in so far as they applied to persons who let out kolhus and karhais on hire.
3. Section 174 (1) of the act states:
'A board of special resolution may, and where required by the State Government shall, make byelaws applicable to the whole or any part of the rural, area of the district, consistent with this act and with any rule for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of such area and for the furtherance of the administration of the district under this Act.'
The relevant byelaws framed by the District Board are reproduced below:
'(2) These byelaws will apply to the entire rural area of the district excluding the notified areas.
(4) These byelaws will regulate the erection and unkeep of Kolhus and Karhais (pans) in the rural area of the district and will apply to the existing Kolhus and Karhais as well.
(5) 'Owner' means the person or firms or company of Society or Corporation who owns or lets out on hire Kolhus or Karhais (pans) installed for the purpose of manufacturing or boiling or refining sugar-cane juice and is responsible for their upkeep and repair and will include the agent, manager, supervisors on behalf of the 'owner'.'
(6) No 'owner' shall install or fix a Kolhu or Karhai (pan) or let them out for being installed or fixed in the rural areas of the district unless and untill he has been previously granted on payment of the requisite fee a licence for doing so by the district board and possessed the licence for a relevant pariod.
(7) An 'owner' to whom a licence is granted, under these bye laws shall comply with the following conditions in order to ensure and promote the health, safety and convenience of the inhabitants of the area:
(a) The premises of the Kolhu will be in clean surroundings and shall themselves be kept clean and healthy.
(b) No child shall be allowed to work on the Kolhu or Karhais.
(c) No person suffering from any contagious or infectious disease will be allowed to work on the premises of the Kulhus.
(d) The Kolhu, the Karhais and the receptacles of the sugar-cane juice shall be kept clean and in proper repairs.
(e) person letting out Kolhus and Karhais shall maintain a register in which they shall enter full details of Kolhus and Karhais let out by them for being installed or fixed in the rural area of the district of Muzaffarnagar and this register shall be open for inspection by the licensing officer or any other person authorised by him in this behalf and shall be bound to furnish such information or statements as is asked for by the licensing officer.'
(14) The followings licence fee shall be payable for each year of the licence and it can be recovered even if no licence was obtained or applied for:
For each kolhu Re. 1/-For each karhai orSet per kolhu Re. 1/- ..... a breach of any of the byelaws in whole or in part shall be punishable with fine which may extend to Rs. 250/-and when the breach is a continuing breach with a further fine which may extend to Rs. 10/- for every day after the date of the first conviction during which the offender is proved to have persisted in the offence '
4. In our opinion the respondent does not come within the ambit of the expression 'owner' in Clause 5 of the byelaws. The expression 'owner' has been defined in that clause to mean a person who owns or lets out on hire Kolhu or Karhais installed for the purpose of manufacturing or boiling or refining sugar-cane juice and is responsible for their upkeep and repair. It is clear that every proprietor of the Kolhu or Karhais is not an owner within the meaning of the byelaws but he must further fulfil the other condition of responsibility for their upkeep and repair. According to the terms of the agreement, in the present case, the respondent is not responsible for the upkeep of the Kolhu and Karhais during the period of the hiring agreement Clause 7 of the byelaw lays down certain duties and obligations which an owner has to carry out. The clause stipulates that the owner of the premises should keep the surroundings clean and shall not allow a child to work on the Kolhu or Karhais. No person suffering from any contagious or infectious disease should be allowed to work on the premises of the Kolhus or Karhais. It is also stipulated that the Kolhu or the Karhais should be kept clean and in proper repairs. In view of the terms of the contract or hire in the present case we are of opinion that the respondent does not come within the definition of owner in Clause 5 of the bye-laws and was therefore not liable to take a licence under Clause 14.
5. It is unnecessary to express any opinion that the other question raised by the respondent namely whether the byelaws is ultra vires of Section 174 (1) of the Act.
For these reasons we hold that this appeal fails and must be dismissed with costs.