- (1.) THE circumstances in which the question of interpretation and true scope of the expression "regulation" in Section 188 (e) (ii) of the Punjab Municipal Act (3 of 1911) (hereinafter called the Act) has arisen in this writ petition are these.
(2.) THE petitioners who are the Jhatka meat sellers carrying on business in different localities of Hoshiarpur have filed this petition to impugn the notification of the Punjab Govt. , dated September 12, 1975 (Annexure P-1), which is in the following terms:-- "the following amendment in Jhatka bye-laws published with Punjab government Notification No. 403 dated the 8th July, 1974, as subsequently amended vide Notification No. 6826-C-49/54188, dated 29-8-1949, made by the Administrator, Municipal Committee, hoshiarpur, in exercise of the powers conferred on it by Sections 188 and 189 of the Punjab Municipal Act, 1911, having been confirmed by the Governor of Punjab as required by Section 201 of the said Act is published for general information and shall come into force within the municipality of Hoshiarpur on 15-10-1975: amendment "in bye-law XVI the following shall be substituted: 'meat whether boiled or unboiled prepared by the Jhatka process shall be sold only in the shops licensed by the committee and only in shops situated in the Municipal Meat market near City Kotwali. '" What happened in pursuance of the notification wag that the petitioners were pressed to shift their business from their existing shops to the specified market near the Kotwali. The petitioners have resisted the action on the following three grounds:- (i) that the impugned notification could not have been issued under Section 188 or 189 of the Act; (ii) that the framing of the bye-law in question is illegal as the same had been done without complying with the statutory requirements of section 200 of the Act; and (iii) that the respondent No. 2 Committee has not provided the petitioners with shopping accommodation in the new market and it is not possible for them to do so.
(3.) IT is conceded by the learned counsel for the respondents that the reference to Section 189 in the notification Annexure P-l is intended to be to Section 197 of the Act. It is settled law that mere reference to a wrong provision of law does not affect the validity of an order or a notification if it is otherwise authorised under some provision of law. The notification is said to have been issued under section 188 (e) (ii) read with Section 197 (a) of the Act. Section 197 (a) reads as follows:-" the committee may, and shall if so required by the State government, by bye-law (a) prohibit the manufacture, sale or preparation or exposure for sale, of any specified articles of food or drink, in place or premises not licensed by the committee. " It cannot be seriously disputed that tha above-quoted provision merely authorises the Municipal Committee to prohibit tha sale, etc. , of articles in any place of pre-mises not licensed by the Committee, that is, the only prohibition which can be imposed under this provision is not to allow the trade being carried on without license. In fact this is conceded by the learned counsel for the respondents. The only question that remains for consideration is whether the restriction imposed by the bye-law in question is authorised by Section 188 (e) (ii) of the Act. That provision is in the following terms.- "a committee may, and shall ii' so required by the State Government by bye-law,-- (a) to (d ). . . . . (e) provide. . . . . (i ). . . . . (ii) for the inspection and proper regulation of markets and stalls, for the preparation and exhibition of a price nur-rent and for fixing the fees, rents and other charges to be levied in such markets and stalls. " The question that calls for decision is whether in exercise of the power to make a bye-law providing for "proper regulation of markets and stalls" can a bye-law be framed providing for a particular commodity being sold only in shops situate in a particular market in a particular locality within the concerned municipal area. Mr. R. S. Bindra, the learned senior counsel for the petitioners, who has vehemently argued this petition has relied on the following judgments in order to persuade us to answer the above question in the negative:- (i) Ghanya Lal v. Municipal Committee; Montgomery, AIR 1928 Lah 540; (ii) Mula Mal v. Emperor, AIR 1929 Lah 607; (iii) Wariam Singh v. Municipal Committee, Nabha, AIR 1953 Pepsu 127; (iv) Haji Ismail Haji Mohd. Ramzan v. Municipal Commit'tee, Malerkotla, air 1962 Punj 364; and (v) Municipal Committee, Malerkotla v. Haji Ismail, AIR 1967 Punj 32. The only provision of the Act with which Shadi Lal, C. J. , dealt in the case of ghanya Lal (supra) was clause (a) of Section 197 of the Act. It was held that the bye-law prohibiting the sale by auction of fresh fruits and vegetables at any place other than the one specified therein could have been framed under clause (d) of Section 197 which had since been repealed. Similarly in the case of Mula mal (supra) Sub-clause (ii) of clause (e) of Section 188 of the Act did not at all come up for consideration as the discussion in that case was also confined to the scope of clause (a) of Section 197. The learned single Judge of the Pepsu high Court who decided Wariam Singh's suit (which suit had been transferred to the original side of the High Court) no doubt held that the power to regulate does not authorise the absolute prohibition of the subject-matter upon which the authority is to be exercised. It was observed that in the exercise of the powers to regulate, the Municipal Committee may exercise all reasonable forms of restraint over the thing regulated so long as it stops short of actual prohibition as "to regulate means to govern by or subject to certain rules or restrictions. " there is no quarrel with the proposition of law laid down to the above extent. I agree with the observations of the learned Judge to the effect that the power to regulate implies a power of restriction and restraint as to the manner of conducting specified business and also as to the building or section in or upon which the business is to be conducted, I, however, regret my inability to agree with him that the scope of the word "regulation" does not extend to include the power of prohibition of a business being conducted at any place except the one earmarked by the Municipal Committee for that purpose. There is no warrant for holding that "regulation" of a market or a stall can merely be confined to the mode in which the business is to be carried on, and does not extend to earmarking areas in localities in which alone particular kind of goods may be sold in the accommodation provided by the Municipal Committee for the purpose. The learned Judge has in the course of the judgment observed as below:-- "it (the bye-law framed by the Municipality under Section 188 (e) (ii), might direct the mode in which the business is to be carried on or impose restrictions under which it is to be conducted at a particular place, but that does not con-fer the power to stop business at every place except the one fixed for it by the Committee". There appears to me to be a slight contradiction in the proposition of law laid down in the above sentence by the learned Judge. If it is once conceded that a bye-law framed under the relevant provision can authorise that a business should be conducted only at a particular place, it does not stand to reason how it can then be held that there is no power to stop business at every place except that particular place.;