Decided on March 30,1963



N.M.MIABHOY - (1.) This is a group of 23 appeals in one of which two questions relating to municipal law and in the rest one such question arise for decision. The facts involved in all the 23 appeals are the same except that the dates are different. We will narrate the facts obtaining in Criminal Appeal No. 400 of 1961 in order to understand the points in dispute in that appeal and the point in dispute in the rest of the appeals. After narrating the facts we will formulate the points and proceed to discuss them. Criminal Appeal No. 400 of 1961 is by the State of Gujarat. The respondent in that appeal is one Shri Nathumal Visandas. He was a hawker in fruits and vegetables hawking his articles in a handbarrow within the limits of the Municipality of Dwarka. The latter Municipality was constituted during the old Baroda regime and there is no dispute that it is now governed by the Bombay District Municipal Act 1901 (hereafter called the Act). This Municipality framed two rules under section 46 and five by-laws under section 48 of the Act which affect hawkers of fruits and vegetables. By the second rule the Municipality levied a licence fee on hawkers of vegetables and fruits charging them with a daily fee of four annas or a monthly fee of Rs. 5/or a yearly fee of Rs. 50.00. By-law No. 1 directs every hawker of fruits and vegetables (hereafter called hawker simpliciter) to take out a daily permit or a monthly or yearly licence for hawking his wares within the municipal limits. By-law No. 2 casts a duty upon the Secretary of the Municipality or any other person authorised in that behalf to grant daily permit or monthly or yearly licence in the form specified in the Schedule A to the by-laws after collecting fee at the rate specified in rule 2. By-law No. 4 enacts that a hawker who commits breach of by-law No. I shall be liable to pay a fine of Rs. 10/for the first day and Rs. 2/for each subsequent day. By-law No. 3 enacts the conditions of licence and by-law No. 5 renders a licencee committing a breach of any of these conditions liable to payment of a fine not exceeding Rs. 25/and makes him also liable to have his licence cancelled or withdrawn. These rules and by-laws came into force on 15th of January 1956. It appears that the respondent in appeal No. 400 of 1961 and the respondents in the other appeals either took out daily permits or yearly or monthly licences upto 1st of July 1960 but failed to do this as and from that date. However inspite of this failure all the respondents continued to carry on their business of hawking fruits and vegetables within the limits of the Municipality. The consequence was that these respondents carried on the business of hawking without proper permits or licences having been taken out under by-law No. 1 and without payment of the licence fee as provided for in rule No. 2. Therefore on 8th August 1960 the secretary of the Municipality addressed a notice to the respondent in appeal No. 400 of 1961 (hereafter called respondent simpliciter) informing him that he should obtain daily monthly or yearly permit before doing his business and drawing his attention to the fact that the above business could not be continued without obtaining such a permit. The notice further stated that by conducting the business after 1st July 1960 the respondent had committed a breach of the rules and by-laws relating to the conduct of business in sale of fruits and vegetables (hereafter called rules and by-laws). The notice ended by stating that the respondent should obtain a licence according to the rules and by-laws failing which further action would be taken against the respondent The respondent did not give any reply to this notice. On 20th August 1960 The Municipality at its meeting held on that day passed a unanimous resolution in which it resolved that the Municipal President was invested with all the powers for Making arrangements for filing complaints for infringement of the municipal rules and by-laws and further resolved that the President should make arrangements and incur expenditure in relation thereto. On 9th December 1960 the President addressed a letter to Shri H. K. Somani Assistant Sanitary Inspector of the Municipality in which he authorized that officer to file complaints against the respondent and the respondents in 17 other appeals for breach of the aforesaid rules and by-laws. Armed with this authority Shri Somani filed the complaint Ex. 1 in appeal No. 400 of 1961 in which he complained that the respondent had since 1st July 1960 continued to sell fruits and vegetables by hand lorry within municipal limits aforesaid without having obtained any permit or licence from the Municipality as per the rules and that inspite of a notice he had committed a willful breach of those rules and by-laws by selling fruits and vegetables. This complaint was filed in the Court of the learned Judicial Magistrate First Class Dwarka. In the course of the hearing of this complaint two substantial points were raised on behalf of the defence. The Municipality led evidence to show that the respondent had carried on the business of hawking in vegetables and fruits without obtaining a licence and without payment of the fee required under rule No. 2. The respondent contended that he had paid a sum of Rs. 3-12-0 after 1st July 1960 but did not contend that he had taken out the licence or permit as required by law No. 1. The evidence led by the Municipality showed that the respondent had not made any such payment. The respondent did not lead any evidence in the case to prove that he had made the payment of Rs. 3-12-0. He did not file any receipt evidencing such payment to the Municipality. Therefore on the prosecution evidence there is no doubt that the respondent did not take out a licence as required by by-law No. 1 and that he did not pay the licence fee as required by rule No. 2. Though the complaint contains a statement at the top that the respondent had committed a breach of the rules and the by-laws it is quite clear from the contents thereof that the only gravamen of the Municipality was that respondent had carried on the business of hawking without having obtained a permit or licence from the Municipality and therefore the offence which was alleged against the respondent was the offence under by-law No. 4. At the top of the complaint it was mentioned that the charge was under by-law No. 4 read with by-law No. 1 It is true that at the top it was also mentioned that the charge was also under by-law No. 4 read with rule No. 2. But having regard to the language of by-law No. 4 there is no doubt whatsoever that the charge was only that the respondent had carried on the business of hawking without obtaining the necessary permit and there was no question of any breach of rule No. 2 The question of payment of licence or permit fee would arise only if an application for licence or permit is made and the payment of the licence fee would he insisted upon by the Municipality only after such application is made and before the necessary permit or licence is granted. Therefore the question which arose for determination in the learned Magistrates Court was whether the respondent had carried on .the business of hawking without obtaining the necessary permit or licence. As already stated there was prosecution evidence to that effect and it was not the contention of the respondent that he had obtained a licence or a permit. But though this was the charge which was preferred in the complaint at the time of the first examination of the respondent the learned Magistrate did not ask any question to the respondent about his failure to have obtained a licence or a permit. Instead the learned Magistrate only put questions about the non-payment of the licence fee. In that view of the matter there is a defect in the way in which the case has been conducted in the trial Court. But from the evidence as a whole the arguments advanced and from the judgment of the learned Magistrate it does appear that the defence understood that the charge which it had to meet was that the business of hawking vegetables and fruits was conducted without the necessary permit and licence and therefore the fact that in the examination the aforesaid the question was restricted only to the non-payment of licence fee and no reference was made to the failure to take out a licence or a permit does not appear to have caused any prejudice to the respondent. This also follows from the contentions raised on behalf of the respondent in the trial Court The contentions were two in number. The first contention was that the rules and by-laws were not valid at law and the second contention was that Shri Somani was incompetent to file the present complaint. The learned Magistrate considered both these points and upheld them. He held that the rules and by-laws were not valid on three grounds. The first ground was that previous sanction of the competent authority had not been obtained before passing the by-laws. The second ground was that one months notice had not been given after publication of the rules as required by sec. 62 of the Act and the third was that section 46 did not authorize the Municipality to frame a by-law for inflicting penalty for breach of rules and by-laws. It was held that this by-law No. 4 was inconsistent with the other provisions of the Act for collection of taxes. As regards the second point the learned Magistrate held that the President was not empowered to authorize the Assistant Sanitary Inspector to file a complaint that the President himself was also not authorized to do the same and that in any case the President was not authorized to delegate the power to prosecute to Shri Somani. On these two grounds the learned Magistrate acquitted the respondent. The respondents in the other appeals opposed the prosecution on the same two grounds. The learned Magistrate however acquitted all the respondents in those appeals only on the finding that Shri Somani was not competent to file the complaint. He did not record any finding on the question of the validity of the rules and bylaws. He also further observed that there were not sufficient materials on the record of those other cases which would Justify a finding that the by-laws and the rules were invalid. However learned Assistant Government Pleader appearing on behalf of the State conceded before us that if the finding of this Court was that the by-laws or the rules in question were invalid then he would not press for conviction in the other cases. Mr. Joshi who appears on behalf of the Municipality in some of the appeals did not take any objection to this line of approach. Therefore the main questions which were argued in this Court were the same two questions which were decided in the case from which appeal No. 400 of 1961 arises. We will mention presently the several ramifications of the arguments and submissions which were made on the two points. The learned Advocates did not confine their arguments only to those sections or points which were relied upon in the trial Court but argued the matter by reference to different sections and different aspects of the same matter.
(2.) Now as regards the rules and the by-laws it is first necessary to state that in order to decide the question about the validity of these rules and by-laws we must discuss them separately because the provisions relating to rules are quite different from the provisions relating to by-laws. The question appears to have been argued and decided in the trial Court on the basis as if the rules and the by-laws were governed by the same set of sections. Probably this approach was undertaken in the trial Court because the Municipality itself framed the rules and the by-laws by one and the same resolution and adopted one and the same procedure in respect of both. The result of this as we shall presently show has been that the Municipality has fallen into a pit-fall so far as the framing of the rules is concerned. We shall first of all mention the various resolutions by which the rules and the by-laws were framed by the Municipality and thereafter consider the question as to whether these rules and by-laws are valid or not by discussing separately the validity of the by-laws.
(3.) On 2nd August 1955 at an adjourned meeting the Municipality unanimously resolved that the draft for rules and by-laws as prepared by it earlier was selected and that the same should be published in the interest of the public. Accordingly notices were published on the Office Board of the Municipality at a place called Garbi Chawk and at the office of the Mamlatdar Okhamandal. The notices invited objections in writing within one month from the date of the publication and further stated that if no objections were received in time the Municipality would take necessary steps to obtain sanction for the draft rules and by-laws. No objections were received by the Municipality from anyone. Then at an adjourned meeting on 3rd October 1955 the Municipality took into consideration the rules and by-laws and resolved that the draft be transmitted for sanction meaning thereby the sanction of the Director of Local Authorities who at the relevant time had the power to grant sanction for rules and by-laws. The original sanction granted by the Director of Local Authorities is not on the record. But from Ex. 24 it appears that that authority granted sanction both for the by-laws and the rules on 4th January 1956. After the grant of this sanction a meeting of the Municipality was called on 9 h January 1956 for passing the rules and the by-laws and on that date the Municipality by its resolution No. 163 resolved to pass those rules and by-laws and further decided that they should be put into force with effect from 15th January 1956.;

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