MUNICIPAL COMMITTEE, THROUGH R. S. KRISHNACHANDRA SHARMA Vs. FIRM KALURAM HIRALAL AND OTHERS

JUDGEMENT

(1.) THIS is an appeal from the judgment of the Additional District Judge, Saugor, in Civil Appeal No. 39A of 1937, delivered on 2nd December 1937. The suit out of which this appeal arises was instituted by eight grain merchants of Khurai town for a declaration that some bye-laws framed by the Municipal Committee, Khurai, were ultra vires and invalid, and for an injunction to restrain the committee from enforcing them. The municipal committee framed 43 bye-laws for inspecting and regulating the use of the market known as Grain-Ganj situated within the limits of the municipality under Section 179, C.P. Municipalities Act (2 of 1922) and they were duly confirmed by Local Government as required by Section 178. Exception was taken to bye-laws Nos. 4, 7, 8, 9, 11, 12, 13, 14, 16, 18, 19, 20, 24, 25, 26, 27, 30, 31, 36, 40, 41, 42 and 43 as interfering with the freedom of contract and operating in restraint of trade. The trial Court declared that bye-laws Nos. 7, 8, 9, 11, 13, 14, 16, 18, 19, 20, 26 (latter part only), 27, 30, 36, 40 (latter part only) and 41 were ultra vires. Both sides filed appeals and the lower appellate Court found that Bye-laws Nos. 9, 16, 18, 19, 20, 26 (latter part only), 30, 36, 40 (latter part) and 41 were ultra vires. The municipal committee has preferred this appeal and the respondents have filed cross-objections. The dispute in this appeal, therefore, relates to all the bye-laws singled out for attack in the plaint.

(2.) ONE of the statutory duties imposed on a municipal committee by Section 50(1), C.P. Municipalities Act, 1922, is the duty of constructing and maintaining public markets (Clause (j) ibid). These markets are vested by law in and are placed under the control of the municipal committee to be held and applied for the purposes of that Act (Section 38 (1)(a)). Section 3(h) of the Act contains a definition of the word "market" as any public building or open place within the limits of a municipality to which the public resort for the sale or purchase of goods or animals. Section 179(1)(b-1) empowers the committee to frame bye-laws for inspecting and regulating the use of the market and prohibiting the levy of unauthorised dues, and Section 70(2) permits it to charge fees for the use of any building or land belonging to or under the control of the committee, and. Section 178(5) authorises it to impose a fine for breach of any bye-law to a sum not exceeding Rs. 50.

(3.) THESE observations clearly indicate that the power of regulation is not confined merely to the prevention of nuisance or the maintenance of order but extends to the imposition of restrictions on the trade itself provided they do not have the effect of preventing or prohibiting it. In this connexion the characteristics of bye-law as described by Lord Russell C.J., in Kruse v. Johnson (1898) 2 Q.B. 91 may well be relevant: