Sinha, J. - (1.) The petitioner states that he has been carrying on the trade or business of butchering; animals within the Garden Reach Municipality, under a license duly granted by the said Municipality. It appears that there is a slaughter house of which the petitioner is a part owner, and this has been licensed by the Municipality, and the slaughter house obtained the requisite certificate as provided for in Section 4 of the West Bengal Animal Slaughter Control Act 1950 (Act XII of 1950). It is stated by the petitioner that the animals which were intended to be slaughtered used to be kept in a stockyard or place attached to the slaughter house, previous to their being transferred to the slaughter house for the purpose of slaughter. It is also stated that there is a quarantine pen attached to the said slaughter house as required by law. On the 11th March, 1953 the Commissioners of the Garden Reach Municipality passed a resolution, a copy whereof has been annexed to the affi-davit-in-opposition affirmed by Sri Surendra Nath Bhattacharjee on the 12th December, 1955, and marked with the letter "A". It is stated therein that for the enforcement of the Animal Slaughter Control Act 1950, in its letter and spirit, license for a separate stockyard under Section 407 of the Bengal Municipal Act 1932 is being given to Jonab Harun Rashid and Ahamadur Rahman on certain terms and conditions. It is stated that permission for the stockyard is to be for a period of 15 years and the yard should be constructed as per rules laid down in paragraph 7 of certain rules referred to therein. A license fee of Rs. 300/- per annum was to be imposed and action was to be taken as required under Section 123(2) of the said Act for taking approval of the local Government in the matter of levying fees. The rate of fees to be charged by the licensee from butchers for stocking animals in the yards was fixed at annas -/12/- and -/10/-per buffalo and cow respectively per day. On the 2nd April, 1953 the Chairman of the Municipality issued a notice, a copy whereof is annexure "A" to the petition. That notice states that for the strict enforcement of the Animal Slaughter Control Act, 1950, it is ordered that all animals intended for slaughter should be produced for proper examination in the stockyard of Jonab Harun Rashid and Ahamadur Rahman and no animal should be passed for slaughter if the same be not kept under observation in the above stockyard for at least 24 hours before examination. Then the charges for animals to be stocked in the yard are set out.
(2.) The petitioner has now made this application challenging the legality of the aforesaid action on the part of the Commissioners and the Chairman. The short point is as to whether the Commissioners of the Municipality can permit a private stockyard to be licensed, permit such a stockyard to levy charges, and lay down that unless animals are stocked in such stockyards, they will not be permitted to be slaughtered.
(3.) I must start by saying that I have not the slightest doubt that the Commissioners were imcelled by the highest of motives in doing what they have done. It is however obvious that, as a statutory body, they must have power to do what they have done, otherwise a citizen is entitled to have the order set aside. It is also conceded that the power must be found within the four-corners of the Bengal Municipal Act or the Rules and By-Laws made thereunder. The first provision in the Act to which reference has been made in Section 402 in Chapter XVII, under the heading "Markets and Slaughter-Places". The relevant provisions are as follows: "402. (1)--The Commissioners at a meeting may- (a) construct, purchase, take on lease or otherwise acquire any land or building for the purpose of establishing a..... municipal stock-yard or of extending or improving any existing..... municipal stockyard, and (b) from time to time build and maintain such .....municipal stockyards.....for the use of persons carrying on trade or business in, or frequenting such.....stockyards, and charge rent, and tolls and fees for the right to expose goods for sale.....and for the use of shops, stalls and standings therein. 2. The Commissioners at a meeting may place the collection of such rents, tolls and fees under the management of such persons as may appear to them proper or may farm out such rents, tolls and fees on such terms and subject to such conditions as they may think fit." The next section to be considered is Section 407, the relevant provisions whereof are as follows: "407. (1) Notwithstanding anything contained in Section 402, the Commissioners at a meeting may, subject to such conditions as they may impose with the approval of the State Government, grant and withdraw licenses, for the use of any premises either within or, with the sanction of the District Magistrate, without the limits of the municipality for the slaughter of animals or animals of any spe-cified description, for the sale of their flesh for human consumption. (2) When such premises have been fixed by the Commissioners beyond municipal limits, the Commissioners shall have the same power to make bylaws for the inspection and proper regulation of the same as if they were within those limits". The only other section that needs to be considered is Section 123 which gives the Commissioners power to impose taxes. Of course the license in respect of the stockyard does not come within any of the headings specified in Section 123 (1), nor is there any provision for the issuing of any license to a stockyard expressly laid down anywhere else.;