- (1.) B. D. Agarwal, J. The Nagar Palika, Chitrakut Dham Karwi in district Banda framed certain bye-laws in the exercise of powers under Section 298 (2) F (a) of the U. P. Municipalities Act, 1915. The bye-laws in question in Writ Petition No. 3800 of 1975 relate to the holding of cattle market, Bye-law No. 5 says that the cattle market shall be held on the land held or taken an rent by the Nagar Palika as the Palika may decide. Bye- law No. 6 provides that none residing within the limits of the Nagar Palika shall have the right to hold cattle market on his own land except with the Permission of the Nagar Palika. According to bye-law No. 7 the Board is competent under the bye-laws to hold the cattle market itself or to auction the right to hold such market for one year each on temporary basis. The sale and purchase of cattle in the market shall have to be got registered with the Registration Officer by the seller or the buyer as the case may be, upon payment of registration fee as enumerated in the Schedule contained in bye-law No. 12.
(2.) IN Writ Petition No. 6562 of l975 the bye-laws impugned relate to the vegetables and fruit market. According to bye-law No. (Ka) thereof no other place except such as is decided upon by the Nagar Palika under a special resolution shall be used for wholesale dealings in fruit and vegetables. Bye-law No. 1 (kha) makes similar provision in respect of retail dealings in these Articles, Bye-law No. 1 (ga) provides that subsequent to these bye-laws coming into force, nobody shall hold vegetable market on his own land anywhere within the municipal area. The Board shall have the right to realise the dues either by granting theka by auction or through its employees directly. The Board may at its option grant. Theka for holding vegetable market for one year or permanent basis for five years (bye-law v. No. 1-Gha), According to bye-law No. a person desirous to deal in fruit and vegetables in retail shall apply for licence to the Executive Officer. This shall be accompanied with the security of Rs. 100 (bye-law No. 3) and the licence fee payable shall be as provided in bye-law No. 8. In both these sets of bye-laws provision is also made to the effect that their breach shall be punishable with fine up to Rs. 1,000 and in the case of recurring breach the fine may extend up to Rs. 25 per day: The draft bye-laws were approved by the Nagar Palika at its meeting held on May 15, 1973, whereafter these were published. The petitioner filed objections. These were rejected and the Commissioner, Jhansi Division accorded his approval. The bye-laws were published in the Gazette dated 28th Dec. , 1974. A copy of the relevant bye-laws is annexed as Annexure 1 to these petitions.
(3.) BAIJ Nath, the petitioner, is a resident of Karvi, district Banda and holds plots Nos. 852/1 and 618 at Chitrakut Dham on permanent lease. For nearly 27 years preceding these petitions he has held cattle market in plot No. 852/1 and the vegetables and fruit market in plot No. 618. Traders from different places come to these market to sell the respective articles. According to the petitioner, the impugned bye-laws impose complete prohibition against the exercise of his fundamental right of carrying on business and the Nagar Palika has arrogated unrestricted and untrammelled powers to itself. Aggrieved, the petitioner has approached this Court under Art. 226 of the Constitution seeking the relief of certiorari for these bye-laws to be quashed and mandamus restraining the respondents from interfering with the petitioner in the exercise of his rights. The petitions are being disposed of together since they give rise to common issues of facts and law. Sri S. M. Dayal, learned Counsel for the petitioner urged that the impugned bye-laws are ultra vires the powers of the Nagar Palika under Section 241 (1) read with S. 298 (2) F (a) of the U. P. Municipalities Act. 1916. The Nagar Palika has, it is contended, created monopoly in itself to which it is not entitled and further appropriate provision for grant of licence is non existent. In reply it was argued that the bye-laws only require the petitioner to obtain licence from the Nagar Palika under Section 241 for holding the cattle market. The Nagar Palika is within its rights, it is submitted to hold its own cattle market or auction the cattle market held by it. The petitioner is not restrained from holding the cattle market on his plot except for the fact that he has to obtain the licence. No counter-affidavit has been filed, however, in writ Petition No. 6562 of 1975 that concerns the bye-laws governing the vegetables and fruit market.;