R.R.Rastogi, J. - (1.) This petition is directed against an order passed by the Civil Judge, Etah, on 20-10-1978 restraining the petitioners from interfering with the plaintiffs-respondents 2 to 20 in carrying on their business of parching and selling of parched grains. The petitioners are Nagar Palika Etah through its Administrator and it Officer-in-charge and the Executive Officer. The plaintiff respondents 2 to 20 are Bhurjis and they are carrying on business in parching and selling grains. For this purpose each of them has got a Bhar and the places of their business are located in G.T. Road or Civil Lines area the town of Etah. The Municipal Board, Etah framed a bye-law whereby persons carrying on this business are required to obtain a licence therefor and pay Rs. 36 per year by way of licence fee. Further a restriction has been imposed by which this business cannot be carried on in he, area of G.T. Road and Civil Lines, Etah. Apart f.om this, a person carrying on this business in the other localities of the city of Etah is required to construct a Chimney in the room in which he carries on this business and this chimney is to be of certain specific dimension and height. The plaintiff respondents 2 to 20 filed the suit in the court oi Munsif, Etah, for permanent injunction restraining the Municipal Bord and its officer-in-charge and the Executive Officer from enforcing this bye-law against them. They made an application for issue of an ad interim injunction. That application was rejected by the Munsif Etah, by his order-dated 8-2-1978. Aggrieved, the plaintiffs filed an appeal which has been allowed by the learned Civil Judge, Etah, by his order dated 20-10-1978. The learned Civil Judge has held that the plaintiffs have succeeded in proving that they have a prima facie case. Apart from that the balance of convenience was also in their favour and if temporary injection as prayed for is not granted they would suffer an irreparable loss. The plaintiffs had challenged the validity of the bye-law as well, but that question has not been gone into by the learned Civil Judge. He has, however taken the view that the restriction imposed in respect of carrying on this business in Civil Lines and G.T. Road areas smacks of some discrimination.
(2.) Several submissions were made before me on behalf of the petitioners by their learned counsel Sri M.P. Singh. These submissions are that the grant of interim injunction amounts to automatic decreeing of the suit. That unless the impugned bye-law is struck down, no junction can be granted ; that the restrictions imposed by the impugned bye-law are not prohibitive in nature but are intended to regulate the trade only and lastly that the impugned bye-law was duly notified in the official gazette dated 21-5-1977 and there would be a presumption that legal formalities in regard there to had been duly observed and the bye-law is valid.
(3.) Learned counsel for the plaintiff-respondents did not dispute that at this stage the validity of the impugned bye-law cannot be gone into. Further the plaintiff-respondents have no objection on to obtain a licence for carrying on their business and pay the requisite fee. They have also no objection in putting up a Chimney as required by the bye-laws. It was, however, contended that so far as the prohibition to carry on the business in the Civil Lines and G.T. Road areas is concerned, the Municipal Board Etah, was not competent to impose it. According to the learned counsel, the State Government might have imposed such a restriction but the Municipal Board, which is a delegated authority. could not have done so. It can regulate that business, but it cannot prohibit the carrying on of a business absolutely in any particular locality. It was submitted that this restriction was discriminatory and not reasonable.;