constitution

Rashid Ahmed Vs The Municipal Board, Kairana[SC 1950]

1950-Fundamental rights

There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs but the powers given in this Court under Art. 32 are much wider and are not confined to issuing prerogative writs only.

AIR 1950 SC 163 : (1950) SCR 566 : (1950) SCJ 324

(SUPREME COURT OF INDIA)

Rashid Ahmed Appellant
Versus
The Municipal Board, Kairana Respondent

(Before : M. H. Kania, C.J.I., Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, B. K. Mukherjea And S. R. Das, JJ.)

Petition No. 10 of 1950, Decided on : 19-05-1950.

Constitution of India, 1950—Articles 13(1), 19 and 32—Fundamental right— Uttar Pradesh Municipalities Act, 1916—Section 241(2).

Counsel for the Parties:

Shri Nur-ud-Din, Advocate, Supreme Court, instructed by Shri Naunitlal, Agent -for Petitioner.

Shri Radhelal Agrawala, Advocate, Supreme Court, instructed by Shri Tarachand Brejmchanlal, Agent – for Opposite Party

Shri M.C. Stalvad, Attorney- General for India (Shri S. M. Sikri, Advocate, Supreme Court, with him) instructed by Shri P. A. Mehta, Agent – for the Union of India.

Shri Pearylal Banerji Advocate-General of U. P.(Shri Shri Ram, Advocate, Supreme Court, with him) Instructed by Shri Tarachand Brijmchanlal, Agent – for the State of Uttar Pradesh.

Judgment

S. R. Das, J—I am reading the judgment of the Court.

2. This is an application under Art. 32 of the Constitution of India made by Rashid Ahmed for enforcement of his fundamental right to carry on his business which is said to have been completely stopped by the respondent the Municipal Board of Kairana. The facts shortly are as follows:

3. The petitioner is an Artia (commission agent) carrying on wholesale business in vegetables and fruits at Kairana in the District of Muzaffarnagar in the State of Uttar Pradesh. He has been carrying on this business for the last two years at a rented shop in bazar Jame Masjid in the town of Kairana. Until recently there were no bye-laws of the respondent Board regulating the sale of vegetables and fruit within the limits of the municipality. In march 1949 the respondent Board published certain proposed bye-laws made under S. 298, U. P. Municipalities Act, 1916. These bye-laws were passed by the respondent Board on 19th April 1949. After confirmation by the commissioner these bye laws came into operation on and from 1st January 1950 In anticipation of these new bye laws coming into effect the respondent Board on 21st May 1949 auctioned ‘the contract for wholesale of vegetables’, presumably meaning thereby the monopoly right to do wholesale business on vegetables. The contract was given to one Habib Ahmad, who was the highest, or three years at and for ` 72,750-0-0 payable in equal quarterly instalments in advance. On 31st December 1949, respondent Board notified a place near Police Post Imam as the market for wholesale purchase and sale of vegetables and fruits. The petitioner applied for a license to carry on his wholesale Aratia business at his shop. On or about 22nd December 1949, the respondent Board by resolution No.188 rejected the petitioner’s application. This decision was communicated to the petitioner on 9th February 1950. The order of the Chairman of the respondent Board was in these terms:

“According to resolution N. 188 dated 22nd December 1949 the application of Mr. Rashid Ahmed is rejected and he be informed accordingly.”

No reason was assigned by the respondent Board’s resolution for the rejection of the petitioner’s application. We are now informed by the learned advocate for the respondent Board that the application was rejected as there was no bye law for entertaining such application or granting such license as was prayed for. The fact that the respondent Board had already auctioned the contract to Habib Ahmad might conceivable have had some bearing on this refusal to grant a licence to the petitioner. In the meantime on 28th January 1950 a notice was served on the petitioner in the following terms:

“You are hereby informed that the Municipal Board, Kairana, have given the contract of wholesale purchase and sale of the vegetable, which is in force from the 1st day of January 1950. It has been repeatedly promulgated, in the city by the beat of drum, through a Khakrob (sweeper) that excepting the contractor of vegetables the Municipal Board, Kairana, nobody shall deal in wholesale purchase and sale of vegetables at a place other than the one approved by the Municipal Board aforesaid (i. e., the place near police Post Imam). As against this, you in the first place kept selling vegetables by wholesale, at the house near Jama Masjid otherwise known as Qaz wala, despite occasional verbal warnings requiring you to desist therefrom, which were conveyed through an employees of the Board. On your failure to comply you were warned by a notice in writing, dated 3rd January 1950. That notice was duly served on you. But still you paid no heed. Accordingly a complaint was lodged against you, under the byelaws, quoted above, in the Court of Pargana Officer, Tahsil Kairana. The complaint is still pending. Now your are selling wholesale by auction, vegetable at another place in Jama Masjid Bazar, which is a thoroughfare.

“Your above conduct is unlawful and in contravention of the Municipal Boards Bye-law 2 pertaining to vegetable contract. Moreover, highly prejudicial as it is to the interests of both the contractor and the Board you are warned that after this notice has been served, on you, you should cease to sell anymore vegetable in breach of the bye-laws above mentioned. Herein fail not”

4. This notice is rather disingenuous in that while it suggests that everybody can deal in wholesale purchase and sale of vegetables at the place approved by the Board, i. e., at the place near Police Post Imam the fact, as we are now told by the learned advocate for the respondent Board, is entirely contrary, for it is only the contractor Habib Ahmad who can carry on wholesale business at the place. The position therefore, is that the petitioner cannot do any wholesale business either at the appointed market or at his own shop where he had admittedly been doing wholesale business for two years prior to the bye-laws coming into force. In short the petitioner’s business has been wholly stopped and he is being prosecuted for alleged breach of the bye-laws. The above notice was headed as “Notice under bye-law 2 of the bye-laws pertaining to contract of vegetables. “ Bye-law 2 runs thus:

“No person shall establish any new market or place for 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.” The second part of this bye-law clearly contemplates that everybody will be entitled to do business at the place fixed by the respondents Board, but as a result of a monopoly in avour of the contractor Habib Ahmad having been created, nobody else can do business at the place as conceded by the learned advocate for the respondent Board. Under the first part of this bye-law, no person can establish a new market or place for wholesale transaction without obtaining the permission of the respondent Board . This part of the bye law clearly contemplates that the Board may permit the establishment of a new market for wholesale dealings in vegetable. The petitioner applied for this permission but it was refused. Bye-law 2 is still in force. If it requires a licence then under S.241 (2) (a) the respondent Board cannot refuse such license except on the ground that the place where the market or shop is established fails to comply with any condition prescribed by, or under the Act. It is conceded that the rejection of the petitioner’s application was not based on any such ground but that it was because there was no bye-law authorizing the issue of any licence. The Constitution by Art. 19 (1) guarantees to the Indian citizen the right to carry on trade or business subject to such reasonable restrictions as are mentioned in cl. (6) of that article. The position, however, under bye-law 2 is that while it provided that no person shall establish a market for wholesale transactions in vegetables except with the permission of the Board, there is no bye-law authorising the respondent Board to issue the licence. The net result is that the prohibition of this bye-law in the absence of any provision for issuing licence becomes absolute. Further, bye-law 4 contemplates the grant of a monopoly to a contractor to deal in wholesale transactions at the place fixed as a market. Acting upon that provision, the respondent Board has granted monopoly to Habib Ahmad and has put it out of its power to grant a licence to the petitioner to carry on wholesale business in vegetables either at the fixed market place or at any other place within the municipal limits of Kairana. This certainly is much more than reasonable restrictions on the petitioner as are contemplated by cl. (6) of Art.19. This being the position, the bye laws would be void under Art. 13 (1) of the Constitution. On the other hand, if there is no bye-law requiring the petitioner to take out licence then there can be no justification for the respondent Board to stop the petitioner’s business or to prosecute him.

5. Learned counsel for the respondent Board faintly contended that the bye-laws having come into force on 1st January 1950, i. e., before the Constitution came into force, the petitioner no longer had any right to continue the business and, therefore, his case is not governed by Art. 19 (1) (g). There is no substance in this argument for, if it were sound, Art. 19 (1) (g) would only protect persons who were carrying on business before the constitution came into force.

6. Learned Advocate-General of Uttar Pradesh appearing for the intervener drew our attention to S. 318, U. P. Municipalities Act, 1916 and submitted that the petitioner having adequate remedy by way of appeal, this Court should not grant any writ in the nature of the prerogative writ of mandamus or certiorari. There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs but the powers given in this Court under Art. 32 are much wider and are not confined to issuing prerogative writs only. The respondent Board having admittedly put it out of its power to grant a licence and having regard to the fact that there is no specific bye-law authorising the issue of a licence, we do not consider that the appeal under S. 318 to the local Government which sanctioned the bye-law is in the circumstances of this case, an adequate legal remedy.

7. We are satisfied that in this case the petitioner’s fundamental rights have been infringed and he is entitled to have his grievence redressed. The proper order in such circumstance would be to direct the respondent Board not to prohibit the petitioner from carrying on the trade of wholesale dealer and commission agent of vagetables and fruits within the limits the Municipal Board of Kairana, except in accordance with the bye-laws as and when framed in future according to law, and further to direct the respondent Municipal Board to withdraw the pending prosecution of the petitioner and we order accordingly. The respondent to pay the costs of the petitioner.