MUNICIPAL COMMITTEE Vs. HAJI ISMAIL

JUDGEMENT

(1.) IN this appeal under Clause 10 of the Letters Patent from the judgment, dated september II, 1961, of a learned Single Judge accepting the prayer of Haji Mohd. Ismail respondent, in a petition under Article 226 of the Constitution, that the byelaws framed by the appellant, Municipal Committee of Malerkotla, whereby the sale of vegetables and fruits, wholesale or by auction, has been limited to those obtaining a right to do so under a public auction in four shops only in the Sabzi mandi of Malerkotla, are void and ineffective, two questions arise for consideration, (a) whether the bye-laws in question are ultra vires the provisions of the Punjab municipal Act, 1911 (Pun-lab Act 3 of 1911), and (b) whether the same are to be struck down as creating a monopoly for the wholesale sale of vegetables and fruits in favour of four persons only who obtain right to do so on a public auction in regard to the four shops in the Sabzi Mandi of Malerkotla.

(2.) THE learned Judge has answered these questions in favour of the respondent and against the appellant Municipality. On the first question the learned Judge has relied upon Ghanaya Lal v. Municipal Committee, Montgomery, AIR 1928 Lah 540, mula Mal v. Emperor, AIR 1929 Lah 607, and Wariam Singh, v. Municipal committee, Nabha, AIR 1953 Pepsu 127, the ratio of which cases completely supports the view taken by the learned Judge. On the second question the learned judge has relied upon a case to a considerable extent similar to the facts of the present case, Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163, not accepting the applicability of the ratio to the facts of the present case in Cooverjee b. Bharucha v. Excise Commissioner, Ajmer, AIR 1954 SC 220, because that case related to the sale of liquor in consequence of an auction according to the relevant excise law in that case.

(3.) IN the official publication of the Municipal Committee of Malerkotla of 1959, bye-laws with regard to fruits and vegetables appear at page 23. It is stated that those bye-laws have been made under Sections 197 and 188 (e) (ii) of Punjab Act 3 of 1911. Bye-laws 5, 6 and 7 concern the matter of licence fee and the conditions of a licence, the remaining four bye-laws are relevant and are in this form--"1. (a) No person shall sell wholesale or by auction any fruit, vegetables or -sugar-cane within the Municipal Limits, at any premises other than sabzi Mandi or any other place specially demarcated by the Municipal committee in this behalf. (b) The Municipal Committee will demarcate premises for the purpose of sale, wholesale or by auction, of any fruit, vegetables or sugar cane, from time to time as the necessity may arise. 2. Any person wishing to obtain a licence for the premises for sale, whole-sale or by auction, of any fruit, vegetable or sugar-cane may apply to the Committee in the first week of March every year, provided that in the first year of the enforcement of these bye-laws such applications may be made at any other time, and that licence fee shall be in proportion to the portion of the year for which licence is granted. 3. In the Sabzi Mandi or in any other specified premises number of plots to be licensed shall be fixed by the Committee and each plot shall be let out by public auction on the plot under an agreement drawn by the Committee for this purpose.