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Valjibhai Lalabhai and ors. Vs. the Municipal Corporation of the City of Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 75 of 1966
Judge
Reported inAIR1973Guj211; (1973)0GLR307
ActsBombay Provincial Municipal Corporations Act, 1949 - Sections 376 and 458; Constitution of India - Article 14 and 19(1)
AppellantValjibhai Lalabhai and ors.
RespondentThe Municipal Corporation of the City of Ahmedabad
Appellant Advocate H.B. Shah, Adv.
Respondent Advocate M.D. Pandya, Adv. for G.N. Desai, Adv.
Cases ReferredRashid Ahmed v. The Municipal Board
Excerpt:
.....but does not prohibit reasonable classification - classification between person who kept milch cattle for sale of milk and person who kept same for private use is not class legislation - bye-laws did not forbid sale of milk in prohibited area - it only forbids keeping milch cattle in that area - it does not amount to prohibitions in particular trade of one's choice - violation of fundamental right under articles 14 and 19 (1) not proved. - - shah, the by-law therefore, framed under section 458 of the act were clearly discriminatory and prohibitroy in nature. section 376 of the said act say that--(1) except under and in conformity with the terms and conditions of licence granted by the commissioner, no person shall--(a) keep in or upon any premises any article specified in..........living in the municipal limits of the city of ahmedabad and carrying on occupation of keeping milch cattled and selling milk. they has kept their cattle sheds within the municipal limits of the city of ahmedabad and were personally looking after them. however, the defendants municipal corporation of the city of ahmedabad issued notices dated 26-12-1963, 7-3-1964 and 26-3-1964 respectively asking them to remove their milch cattle within two months, from the walled city ahmedabad, failing which they were threatened wit prosecution. the plaintiff therefore, filed a suit alleging that the notice issued by the defendants- municipal corporation were illegal, unauthorised and beyond the powers under the bombay provincial municipal corporation act, 1949 or the by-law framed thereunder.....
Judgment:

1. This appeal is directed against the judgment and decree of the learned Judge, City Civil Court, 9th Court, Ahmedabad, dismissing the plaintiffs' suit with costs.

2. The facts giving rise to this appeal in a nut-shell are as under:--

The plaintiff are the permanent resident living in the municipal limits of the city of Ahmedabad and carrying on occupation of keeping milch cattled and selling milk. They has kept their cattle sheds within the municipal limits of the city of Ahmedabad and were personally looking after them. However, the defendants Municipal Corporation of the city of Ahmedabad issued notices dated 26-12-1963, 7-3-1964 and 26-3-1964 respectively asking them to remove their milch cattle within two months, from the walled city Ahmedabad, failing which they were threatened wit prosecution. The plaintiff therefore, filed a suit alleging that the notice issued by the defendants- Municipal Corporation were illegal, unauthorised and beyond the powers under the Bombay Provincial Municipal Corporation Act, 1949 or the by-law framed thereunder farmed and that they were not bound to comply with the said notice. They stated that the cattle sheds were kept clean according to the terms of the licence and that their cattle did not cause any damage, nuisance or annoyance to the health, life or safety of the citizens of the round about area; that the defendants has no power to cause loss of the plaintiff's occupation, trade can and business; that the said notice were discriminatory in the sense that while they prohibited keeping of milch cattle for the purpose of selling milk, they did not prohibit keeping of cattle as such or houses or other animals in the city area for private use. According to the plaintiff's therefore was no distinction between the premises where milch cattle for sale of milk were kept and where cattle and horses were kept for private use. Thus, the by-law framed under the said Act and the notice issued pursuant to the same were discriminatory and opposed to the guarantee contained in Art. 14 or the Constitution of India; that they were under Art. 19(1)(g) of the Constitution to carry on occupation, trade or business of their choice. It was therefore alleged that section 376-A 376(1)(c)(d) and 458 and the by-law and the rules made thereunder empowering the defendants and its officer and the notice issued there under were violative of the fundamental rights of the plaintiff guaranteed under Arts. 14 and 19(1)(g) of the constitution of India. They , therefore, stated that the said by-law were unconstitutional and void and were not binding on the,. The defendants- Municipal Corporation by it s written statement Ex. 9 contended that no cause of action has arisen to the Plaintiff as alleged by them, as no notice under Section 458 of the said Act were served on them. They denied that the relevant provisions of the Act, by-law and the rules made thereunder were discriminatory or prohibitory in nature as alleged by the plaintiff. They denied that they were arbitrary, capricious and colourable exercise of the power for collators purpose. They stated that those provision were not volative of Art. 14 or 19(1)(g) of the Constitution of India; that the by-law were validly farmed after following proper procedure prescribed in that behalf. Under the circumstance, they prayed that the suit be dismissed with costs. From the pleadings of the parties, the learned Judge farmed issues at Ex. 24. According to the learned Judge, S. 376-Act read with Section 376(1)(c)(d) of the Act was not violative of Arts. 14 and 19(1)(g) of Constitution of India. The leaned Judge also held that the by farmed under Section 458 of the Act were not prohibitory in nature and were no ultra vires the constitution of India as alleged. In view of his findings, the learned Judge dismissed the plaintiff suit. Against the said judgment and decree, the plaintiff have preferred the present appeal to this Court.

3. Mr. H. B. Shah, learned Advocate for the appellants raised the following contentions before me--

(1) that Section 376-Act is unconstitutional as being violative of the fundamental rights under Art. 14 of the constitution.

(2) that the notices, Exts. 13, 14 and 15 are violative of Arts. 14 and 19(1)(g) of the Constitution;

(3) that the by-law framed under Section 458 which prohibited keeping of milch cattle for sale milk are unconstitutional as being arbitrary and discriminatory under Art 14 of the Constitution.

(4) that the said by-law are unconstitutional also under Art. 19(1)(g) of the Constitution.

In support of these contentions, Mr. Shah urged that in the instant case, the effect of the by-law was that the private person who keep milch cattle private use were exempted from the operation of the Act while the persons who keep milch cattle for purpose of selling milk were penalised and were not permitted to keep the same within the four walled portion of the city. According to Mr. Shah, the by-law therefore, framed under Section 458 of the Act were clearly discriminatory and prohibitroy in nature. He submitted that the effect of the by-law would be that he present appellants would be prohibited from the conducting the trade or business of their choice which was guaranteed to them Art. 19(1)(g) of the Constitution. He, therefore, urged that Section 458 and the by-law framed thereunder were violative of Arts. 14 and 19(1)(g) of the Constitution and therefore they were ultra vires, void and inoperative.

4. In order to appreciate the contentions raised by Mr. Shah, it will be wroth-while to refer to the relevant section and the by-law framed by the Municipal Corporation in order to find out whether they were discriminatory and prohibitory in nature as alleged by the learned Advocate for the appellants. Section 376 of the said Act say that--

'(1) Except under and in conformity with the terms and conditions of licence granted by the Commissioner, no person shall--

(a) keep in or upon any premises any article specified in the rules--

(i) in any quantify or in excess of the quantity specified in the rules as the maximum quantity of such article which may at one time be kept in or upon the same premises without a licence, and ...................'

Section 376-Act is material for the purpose of this appeal, It says--

'Whether the Commissioner is of opinion that the use of any premises for any of the purpose specified in sub-section (1) of Section 376 is dangerous to life, health or property or is causing a nuisance either from its nature or by reason of a the manner in which or the condition under which the use is made and such danger or nuisance should be immediately stopped, the Commissioner may, notwithstanding anything contained in Section 376, require the owner or occupier of the premises to stop such danger of nuisance within such time specified in such requisition as the Commissioner considers reasonable, and in the event of the failure of the owner or occupier to comply with such, requisition, the Commissioner may himself or by an officer subordinate to him cause such a use to be stopped'.

Thus, if Section 376 and 376-Act are read together, it will be very clear that under Section 376-A, only order to stop danger or nuisance to the public, the Municipal Commissioner has been authorised to require the owner or occupier of the premises to stop such danger or nuisance within such time specified in such requisition as the Commissioner think reasonable. This section nowhere makes any distinction between person and person. This section does not also a completely prohibit a person fro doing a particular trade of his choice. It cannot, therefore, be said by any stretch of imagination that S. 376 read with S. 376-A of he Act is in any way violative of Art. 14 or Article 19(1)(g) of the Constitution, as submitted by the learned Advocate for the e appellants has been unable to show as to how Section 376-A is in any way violative of the fundamental right guaranteed under Art. 14 or 19(1)(g) of the Constitution of India. In facts, Mr. Shah did not specifically plead before me that Section 376-A is violative. He, however, laid stress on the by-law framed by the Corporation under Section 458 of the Act under which a person keeping milch cattle in the walled city of Ahmedabad was prohibited from keeping milch cattle in that area. By-law No. 4 relates to keeping of milch cattle in the walled city of the Ahmedabad, farmed by the Municipal Corporation of the city of Ahmedabad. It says that--

'4. A person shall not be entitled to a licence to use and place for keeping milch cattle in the walled city of Ahmedabad and in city surveyed village sites except in the following case:--

(1) The Municipal Commissioner may allowed stabling of milch cattle in the area prohibited in the following circumstance :--

(a) The milch cattle are kept for bona fide private use only,

(b) The number of milch cattle so kept is not more than three with their young once necessary for milking purposes.

The stabling arrangement of the milch cattle shall be in conformity with the prescribed by-law

In respect of area not prohibited above on person shall be entitled to the licence to use of keeping milch cattle stable which does not fulfill the conditions prescribed by by-law 6 '.

Mr. Shah made grievance that this by-law permits keeping of milch cattle in the area (sic) for bona fide private use while at the same time, it prohibits keeping of milch cattle in the walled city of Ahmedabad if the owner wanted to sell milk. According to Mr. Shah this by-law was clearly discriminatory in nature,. He referred to Art. 14 of the Constitution which says--

'14. The State shall not deny to any person equality before the law of the equal protection of the laws within the territory of India'.

He urged that in the suit case, a private person keeping milch cattle for personal use was permitted to keep them in the prohibited area, while a person who wanted to pursue a trade of selling milk by keeping milch cattle a trade in the prohibited area was not permitted to do so. This clearly amounted to discrimination and it violated the fundamental right guaranteed under Art. 14 of the Constitution.

5. Mr. Mayur D. Pandya, learned advocate appearing on behalf of Mr. G. N. Dasai for the respondent-Municipal Corporation on the other hand urged that in the instant case, the act of the Municipal in farming by-law cannot be said to be discriminatory in the sense that they did not prohibit the occupier to carry on his trade. He can as well sell the milk in the walled portion of the city if the milch cattle are kept outside the walled city of Ahmedabad. Secondly, he urged that his by-law cannot be said to be discriminatory in nature for the simple reason that between the same class of person, there was no discrimination. The by-law merely enjoyed on the person who wanted to trade in milk to keep their milch cattle outside the walled city of Ahmedabad. Therefore, so far as the by-law in general were concerned, there was n o discrimination between them. He submitted that it was open to the Government to frame any legislation or any by-law prescribing such acts fro certain classes of people. If the classification is genius and is made on certain well defined principles there was no discrimination of particular act is permissible and the other is not and cannot be said to be violative of Art. 14 of the Constitution. Mr Pandya, in support of his case, referred to the case of the State of Bombay v. F. N. Balsara, AIR 1951 SC 318 wherein at page 326, at para 19, the following observations were made--

'I now come to Section 39 of the Act which has been impugned on the ground that it offends been against Art. 14 of the Constitution which states that 'the state shall not deny to any person equality before the law or the equal protection of the law within the territory of India'. The meaning and scope of the this Article has been fully discussed in the case of Chiranjit Lal v. The Union of India : [1950]1SCR869 and the principles laid down in the case may be summarised as following:--

1. The presumption is always in favour of the constitutionality of an enactment, since it must by-law assumed that the legislature understands and correctly appreciates the needs of its own people, that is laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.

2. The presumption may be rebutted in certain cases by showing that on the fact of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class and yet the law hits only a particular individual or class.

3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstance in the same position and the varying needs of different classes of persons often require separate treatment.

4. The principle does not taken away from the State the power of classifying persons for legitimate purposes.

5. Every classification is in some degree likely to produce some inequality and mere production of inequality is not enough.

6. If a law deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that if has no application to other persons.

7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification cannot be made arbitrarily and without any substantial basis'.

The Supreme Court quoted with approval a passage from Fourteenth Amendment of the Constitution of the United State which guaranteed equal protection of the law summed up by Professor Wills in these words--

'The guarantee of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within the it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstance and conditions both in the privileges conferred and in the liabilities imposes. The inhibition of the amendment was designed to prevent any person or class of person to from being singled out as a special subject for discriminating and hostile legislation. It doe not taken from the states the power to classify either in the adopting of police laws or tax laws, or eminent domain laws, but permits to them the exercise of the wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equally are not required. Similarly, not identify of treatment is enough. If any state of the facts can reasonably be conceived to sustain a classification, the existence of the state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon the reasonable basis'.

Similar view was taken was supreme Court in the case of Ram Krishna Dalmia v. S. R. Tendolkar : [1959]1SCR279 wherein it was observed that--

'It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two condition must be fulfilled, namely (i) that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a traditional relation to the object sough to be achieved by the statute in question. The classification may be founded on different basis, namely geographical, or according to object or occupation or the like. What is necessary is that there must be nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decision of Supreme Court that Art. 14 condemns discrimination not only by a substantive law but also by a law of procedure'.

It will thus be seen that Article 14 forbids class legislation but does not forbid reasonable classification for the purpose of legislation. Merely because person are permitted to keep milch cattle within the prohibited area for the purpose of their private use, it cannot be said that when a restriction was put on person keeping milch cattle of the purpose of sale of milk, it was discriminatory in nature. Here was a reasonable classification between person who kept ,milch cattle for the sale of milk and person who kept the same for their private use, I am unable to agree with Mr. Shah that this classification was not based on any rules or basis. The purpose of framing the by-law is very clear. The Municipal Corporation wanted to regulative the sale of milk, at the same time, seeing that the trade was not harmful and did not affect injuriously the health of the public or cause annoyance to the public. The by-law therefore did not forbid a person to seal the milk in the prohibited area. It merely prohibited him to keep milch cattle in that area. It cannot, therefore be said by any prohibition of following a particular trade of one's choice. Here, the Corporation merely regularised (regulated?) the trade by keeping the milch cattle outside the walled city of Ahmedabad. I am, therefore, unable to agree with Mr. Shah that the act of the Municipality of farming this by-law was arbitrate in nature. No facts have been alleged or proved on behalf of the appellants to show how this by-law is discriminatory in nature. Mr. Shah, however, referred to the case of Tahir Hussain v. District Board, Muzaffarnagar, AIR 1954 SC 360 wherein it was observed that--

'Where therefore certain District Board farmed a by-law to the effect that no person shall establish or maintain or run any cattle market in the district within its jurisdiction, the by-law is not one passed for regulating the market but for prohibiting a person from holding it. Such a by-law in fact of the provisions of Section 174 is obviously beyond jurisdiction. The by-law as well as the order under it interference with the fundamental right of the petitioner under Art. 19(1)(g) as it prevents him from carrying on the business of holding the market. It is thus in conflict with Art. 19(1)(g) and is void'.

Relying on observations, Mr. Shah urged that in the instant case also as the present appellants were prohibited from keeping their milch cattle in the walled city of Ahmedabad, they were virtually prevented from doing the business in that portion and hence, the facts the Corporation would be hit by Art. 19(1)(g) of the Constitution. I am unable to agree with him, The case before Supreme Court can clearly he distinguished from the facts of the instant case. There, the by-law was farmed by Muzaffarnagar District Board to the effect that no person all shall maintain or run any cattle market within its jurisdiction. That by-law virtually totally prohibited a person from holding a market in a particular area. That by-law was framed under Section 174 of the Uttar Pradesh District Local Board Act. Sub-section (1) and (2) of Section 174 of that Act stated that the power of the Board to make by-law was to be exercised for the purpose of promoting or maintaining the health, safely and convenience of the inhabitants of area within its jurisdiction and that this power included the power to regulate markets. In view of these particular wordings, the Supreme Court was of the opinion that this by-law did not merely regulate but it totally prohibited the person from holding a market and hence it interfered with the fundamental right under Art. 19(1)(g) of the constitution. As stated earlier, the by-law in the instant case does not prohibit the present appellants from doing their business of selling milk within the walled city of Ahmedabad. It only prohibited them from keeping milch cattle. As already shown earlier, it was within the competence of the Corporation to frame by-law under which it can regulate the business keeping in view the health, safely and convenience of the public and in order to stop any nuisance by prohibiting the keeping of milch cattle in a large number in the area. Reliance was also placed number on the case of Rashid Ahmed v. The Municipal Board, Krishna, AIR 1950 SC 1163 by learned Advocate for the appellants. This case also could easily be distinguished. The facts of this case showed that by-law No. 2 of the be of the Municipal Board which came into force on 1-1-1950 provided that no person shall established any new market or place of wholesale transaction without obtaining the previous permission of the Board, and no person shall sell or expose for sale any vegetable, fruit, etc. at any place other than that fixed by the Board for the purpose; any by-law No. 4 permitted the grant of a monopoly to a contractor to deal in wholesale transactions at the place fixed as a market. In anticipation of these by-law the monopoly right to do wholesale business in vegetable of three years was actioned by the municipal board and granted to the highest bidder and a place was also fixed as the market where such business could not by-law carried on. the petitioner who has been carrying on wholesale business in vegetables at a rented ship within the municipality for two years before the by-law came into force applied fro licence to carry on his business at his shop but this was rejected on the ground that there was no provisions in the by-law authorising the grant of any such license, and he was prosecuted for contravention of the by-law. He applied under Article 32 of the Constitution for the enforcement of his fundamental right as a citizen to carry on his business which was guaranteed by Art. 19(1)(g) of the Constitution. On these facts, it was held that--

'................. the prohibition in by-law No. 2 became absolute in the absence of provision authorising the issue of a license, inasmuch as the municipal board had, further, put in out of the its power to grant a license to the petitioner by granting a monopoly, the restrictions imposed were not reasonable within the meaning of Art. 19(6) of the Constitution, and the by-law were accordingly void..................'

In the instant case, as already stated earlier, there is no total prohibition here. There is no denial of any licence of the appellants. The appellants are no prohibited from selling the milk in the walled city of Ahmedabad. They are only prohibited from keeping their milch cattle within the area of the Municipal Corporation. It cannot be said that the restriction put by the defendant is nor reasonable as stated in Art. 19(6) of the Constitution. There was a reasonable classification in which persons keeping milch cattle for their bona fide personal use were permitted to do so was while the persons who wanted to trade in milk were prohibited from keeping the milch cattle in that area. I, therefore, do not agree with Mr. Shah that this classification was not reasonable and that the by-law was not violate of Arts. 14 and 19(1)(g) of the Constitution. Both the case relied upon by Mr. Shah could easily be distinguished and do not help him so far a the present case is concerned.

6. In the instant case, it cannot be said that any invidious distinction or discrimination has been made by the Corporation in framing the by-law between persons similarly situated. There is no doubt that persons who pursue trade of setting milk will be keeping a large heard a of cattle. There would be hundreds of such person in a big city like Ahmedabad and they would be maintaining hundred of cattle. These cattle are required to be taken out for the purpose of grazing. Appellants No. 1 has admitted in his cross-examination that he is taking the cattle out for the purpose of grazing. It is but natural that they would be a cause of annoyance and inconvenience to the members of the public. The stink of their urine and excreta would be a danger to the public health. Thus, no question of any unequality or unequal treatment as envisaged in Art. 14 of the Constitution would arise. Similar as there is no prohibition on the appellants to pursue their trade nor is there total restriction regarding keeping of milch cattle in any other part of the city of Ahmedabad except the walled portion of the city, it cannot be said that it is not a reasonable restriction in the interest of general public. In may opinion, therefore the act of the Municipal Corporation in farming the by-law is not hit by the provisions of Art. 19(1)(g) of the Constitution also. No such consideration would arise in the case of the persons keeping milch cattle for their bona fide personal use. Thus, it can reasonably be said that here was a case of reasonable classification between two sets of person -- person keeping milch cattle for their private use and persons keeping milch cattle for the purpose of selling the milk. The learned Advocate for the appellants has been unable to show that any invidious discrimination has been made between the persons of the same classification inter se.

7. Under the circumstances, the appeal fails and is dismissed with costs.

8. Appeal dismissed.


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