- (1.) This is an application under Art. 32 of the Constitution made by Muhammed Yasin for the protection of his fundamental right of carrying on his business which, according to him, is being infringed by the respondent.
(2.) The case sought to be made out in the petition may be shortly stated as follows: The petitioner is a wholesale dealer in fresh vegetables and fruits at Jalalabad in the district of Muzaffarnagar in the State of Uttar Pradesh and claims to have been carrying on such business for the last 7 years or so at his shop situated in the town of Jalalabad. The vegetable and fruit growers used to bring their goods to the town and get them auctioned through any of the vegetable dealers of their choice who used to charge one anna in the rupee as and by way of commission. The respondent Committee which is a Town Area Committee has framed certain bye-laws under which all right and power to levy or collect commission on sale or purchase of vegetables and fruits within the limits of the town vest in the respondent Committee or any other agency appointed by the Committee and no one except the respondent Committee is authorised to deal in wholesale vegetables and fruits and collect the commission thereof in any place and in any event. The respondent Committee has by auction given the contract for sale of vegetables and fruits and for collecting the commission for the current year to the respondent Bishamber who, it is alleged, has never dealt in vegetables and fruits. The respondent Committee has not set up any market nor has it framed any bye-law for issue of licenses to the vegetable and fruit merchants. The bye-laws also provide for prosecution for the breach of any of the provisions of these bye-laws. Although, in terms, there is no absolute prohibition against carrying on business as wholesale dealer in vegetables and fruits, the result of the bye-laws requiring the wholesale dealers to pay the prescribed fee of one anna in the rupee to the contractor who holds the monopoly is, in effect, to bring about a total prohibition of the business of the wholesale dealers in vegetables and fruits. The petitioner contends that by granting a monopoly of the right to do wholesale business in vegetables and fruits to the respondent Bishamber the respondent Committee has in effect totally prevented the petitioner from carrying on his business and has thereby infringed his fundamental right under Art. 19 (1) (g) of the Constitution. In the alternative, the petitioner contends that the respondent Committee has no legal authority to impose a tax of the kind it has sought to do, that the imposition of a tax calculated at one anna in the rupee is in the nature of a sale-tax and cannot be regarded as a license fee and such unauthorised impost constitutes an illegal restraint on his fundamental right under Art. 19 (1) (g).
(3.) The notice of motion has been served on the respondent Committee as well as on respondent Bishamber. The respondents have entered appearance and filed an affidavit in opposition to the present application affirmed by their agent on record. Paragraph 4 of that affidavit is as follows: "4. Paragraphs 4, 5, 6 and 7 of the petition was wrong and misleading and do not convey the correct idea. If the bye-laws are read from beginning to end, the correct position is that the Town Area Committee has law-fully imposed certain taxes on the purchase and sale of fruits and vegetables within the ambit of the Town Area; and instead of collecting the aforesaid taxes departmentally the Committee finds it more convenient and less expensive to auction the 'right to collect the taxes' and give the contract to the highest bidder or whomsoever it thinks fit and proper. There is absolutely no restriction on anybody who wants to purchase or anybody who wants to sell; only he must pay the prescribed tax to the Town Area Committee through the Contractor. The market is open, and writ large throughout the territory of the T. A. C. and anybody can purchase from anybody and anybody can sell to anybody, without any control or intervention by the contractor, whose position is simply that of a tax collector on behalf of the T. A. C. Instead of getting the pay, he gets the profits, if any, and runs the risk of incurring losses if his gross realisation are less than what he paid. This is clearly the position, and it is submitted, there is nothing wrong with it legally and no interference of the petitioner's rights.";