M.L. Chaturvedi, J. - (1.) This is a petition Under Article 226 of the Constitution.
(2.) The 16 Petitioners are owners of shops and other commercial establishments in the town of Khurja, district Bulandshahr. They are also employers within the meaning of the word as used in Sec. 2(6) of the UP Shops and Commercial Establishments Act, 1947 thereinafter called the Act). The provisions of the Act were extended to the town of Khurja by a notification published in the UP Gazette dated 15 -6 -1955. As a result of this notification all the employers were required to choose one day in the week on which they would close their shops or commercial establishments. The Petitioners chose Tuesday as the day on which they would like to close their shops every week. They communicated their choice of the day and the papers were put up before the District Magistrate, who is the person authorised to approve of the choice under the Act. It appears that the Sub -Divisional Magistrate also submitted a report saying that Tuesday may be fixed as the weekly closing day for the shops and commercial establishments for Khurja town. On this report the District Magistrate passed an order on 17 -6 -1955 saying, "yes" to the suggestions contained in the report. The Sub -Divisional Magistrate then informed the Tahsildar, Khurja, that Tuesday had been declared as weekly closing day for Khurja for all the traders. After the District Magistrate's order, the representatives of the Grain and Ghee Mandis shop keepers submitted a petition and they expressed their choice of the close day for Sunday in every week. On the second representation being made, the District Magistrate had no objection to Sunday being declared as the close day Under Sec. 10 of the Act. Another representation was then made to the District Magistrate and some shop keepers insisted on having Tuesday as the close day. The District Magistrate accordingly wrote to the sub -Divisional Magistrate on 3 -7 -1955 that the District Magistrate could not legally fix a day, which was to be observed as the close day, and he could only approve of the proposal of the shop keepers to have a particular day as the close day. He further said that, if the majority of shop keepers in any particular Bazar or market, wanted to close their shops on some day other than Sunday, the District Magistrate would have no objection. In order to find out the majority opinion, votes in writing were taken on 7 -7 -1956 from the shop keepers of different Mohallas of Khurja town. The result of this voting is given in paragraph No. 6 of the counter -affidavit and the contents of that paragraph show that in every single Mohalla the majority of the shop keepers preferred Sunday to be declared as the close day. In the order dated 27 -7 -1955 the District Magistrate had declared Sunday to be the close day and, in view of the votes taken, there was no reason to alter the day. The present petition was then filed on 5 -9 -1955 praying that the order of the District Magistrate dated 27 -6 -1955, declaring Sunday to be the close day, be quashed.
(3.) The facts given above are not disputed and the learned Counsel for the Petitioner has urged two points in support of this petition. His first submission is that it is primarily for the shop keepers to select the day in the week on which they would like to close their shops, and the Petitioners having selected Tuesday as the day and that having been approved by the District Magistrate, the Petitioners are entitled to close their shops on Tuesday. It is said that the District Magistrate has no jurisdiction to impose a different day upon them. The other point is that the Petitioners have no right to alter the day during the course of the calendar year and they now cannot give a different choice to the District Magistrate. They, therefore, are entitled to close their shops on Tuesdays instead of on Sundays. In order to appreciate the argument I may quote Sec. 10 of the Act, which is as follows: 10(1) Every employer shall close his shop or commercial establishment not included in the schedule, on one day of the week and such day shall hereinafter be referred to as 'the close day.' (2) Except as provided in the Negotiable Instruments Act, 1881, or any other enactment applying to a shop or a commercial establishment, the choice of a close day shall subject to the approval of such authority as may be appointed in this behalf, rest with the employer, and shall be specified by him in a notice permanently exhibited in a conspicuous place in the shop or commercial establishment: Provided that where a close day is prescribed in or under the Negotiable Instruments Act, 1881, or other enactment applying to a shop or commercial establishment, such day shall be specified in the notice above referred to. (3) The close day specified "under Sub -section (2) shall not be altered by the employer except once in a year and am alteration shall take effect only as from first January in any year and shall be subject to the approval of such authority as may be appointed Under Sec. 10 (2): Provided that the employer shall by affixing a notice in a conspicuous place in the shop or commercial establishment not later than December 15 next preceding give previous intimation of his intention so to alter the close day.;