K. C. Agarwal, J. - (1.) PETITIONER no 1 is a registeied partnership of which petitioner no 2 is a Managing partner. PETITIONER no. 2 has established a cold storage in Patti Sher Singh, district Aligarh. For running the cold storage, the petitioner had been sanctioned 70 H. P. electric connection by the U. P. Electricity Board. In addition to the cold storage, the petitioner also established a small ice plant with a 3 H. P. electric motor. This ice plant was being run and operated within the cold storage premises. In exercise of the power under the Cold Storage Order, 1964, a licence was issued to the petitioner by and on behalf of the Government of India in April 1967. In 1975, the Government of Uttar Pradesh issued an Ordinance providing for various things amongst others for fixation of maximum rates at which the potatoes could be stored in the cold storages in Uttar Pradesh.
(2.) ON 19th April, 1976, the Municipal Board, Atrauli, district Aligarh, where the cold storage and the ice plant are situated, framed bye-laws under clauses (d) (dd) sub-section (2) of Section 298 F. Section 298 confers powers on the Board to make bye-laws applicable to the whole or any part of the Municipality for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under this Act. Subsection (2) of Section 298 provides :- (2) In particular, and without prejudice to the generality of the power conferred by sub-section (1), the Board of a municipality, wherever situated, may, in the exercise of the said power, make any bye-law described in list I below and the board of a municipality, wholly, or in part situated in a hilly tract may further make, in the exercise of the said power, any bye-law described in list II below Under List I of sub-section (2) of Section 298, the various heads or matters in respect of which bye-laws can be framed by the Municipal Board have been laid down. Challenge to the bye-laws in the instant case is confined to clause (d) of F of sub-section (2) of Section 298. Under clause (d), a Municipal Board is authorised to make bye-laws providing for the establishment and for the regulation of places for the manufacture, preparation or sale of specified articles of food or drink. Clause (dd) of F of sub-section (2) of Section 298 empowers a Municipal Board to prescribe the conditions subject to which, and the circumstances in which, and the areas or locality in respect of which, licences for the purposes of sub-head (d) may be granted and for fixation of fees payable for such licences.
(3.) IT was under the aforesaid clause that the impugned bye-law was framed by the Municipal Board, Atrauli. In Afzal Ullah v. State of U. P., AIR 1964 SC 264 the Supreme Court had an occasion to consider the scope of Section 298 (1) and (2). Dealing with Section 298 (2). the Supreme Court observed that specific provisions such as or contained in several clauses of Section 298 (2) are merely illustrative and they can be read as administrative without prejudice to the generality of the power prescribed by Sec. 298 (1). The powers specified by Section 298 (1) are very wide and even if the specific clause of sub-section (2) does not apply under which a bye-law purports to have been made, it can be justified by reference to the requirement of Section 298 (1). The argument on behalf of the petitioner was that the bye-law was invalid being beyond the provisions of clauses (dd) (d) of F of sub-section (2) of Section 298. Under that provision, counsel urged that the working of a cold storage could not be regulated inasmuch as the cold storage does not prepare any article of food or drink. The submission made does not appeal to us.;