Shri Kishori Lal v. M st. Challibai

Does s. 93(3) of the District Boards Act amount to a divestment of authority of the District Board in favour of the Town Area Committee ? On the first question, the learned Judge was of the opinion that the machines run by Asa Ram would come within the provisions of s. 26(a) of the Town Areas Act, though he also took the view that it was not necessary for him to decide the point. On the second question, he held that 'regulation' did not include the power of granting a licence, though this was against a Division Bench authority of that High Court reported as Municipal Board, Hathras v. Behrey Narain Dutt (1 ). He relied on a decision of this Court in Mohamad Yasin v. The Town Area Committee, J alalabad (') also in this connection. On the third ques tion he was of the view that s. 93(3) barred the Dis trict Board from exercising any authority in a town area which is vested in the body mentioned in it. He was further of the view that the amendment of the Town Areas Act in 1934 by which the word 'Pancha yat' occurring in the Town Areas Act was substituted throughout by the word 'Committee' made no difference even though s. 93(3) of the District Boards Act was not simultaneously amended by substituting the words 'Town Area Committee' for the words 'Town Panchayat' therein in conformity with the change made in the Town Areas Act. But in view of his decision on the second question, viz., that 'regulation' did not include the power of granting a licence, he held that bye-laws framed by the District Board for taking out licences applied to premises within the town therefore, set aside the acquittal and areas. He, (1) A.I.R. 1948 All. 1. (2) [1952J S.C.R. 572. r (1} S.C.R. SUPREME COURT REPORTS 719 ordered a. retrial. He also gave leave to appeal to this Court. The three points formulated by the High Court · r95B A R sav. am arise for decision before us also. The learned Solicitor The District Boaul,_ General appearing for the District Board does qot chal- Muzaffamagar lenge the correctness of the decision on the first point, namely, whether the running of the machines which the Wanchoo J. appellant is running would come within the relevant words of s. 26(a) of the Town Areas Act. It is, enough in t)iis connection to set out the two provision~ in the two Acts to see that the decision is correct. Section 174 (l){k) of the District Boards Act, under wh~ch the bye-laws were framed is in these t,:erms- " regulating slaughter houses and offensive, dangerous or obnoxious trades, callings, or pfactices and prescribing fees to defray the expenditure incurred by a board for this purpose." Section 26(a) of the Town Areas Act terms- · is in these " The Committee may by general or speci~l order in writing provide and if so ad vised by the district magistrate shall provide for a.11 or any of the following matters within the town area, namely :- (a) the regulation of offensive callings or trades; .......................................................... ., .. " It is obvious therefore thats. 26(a) of the Town Areas Act is co-extensive with s. 174(1) (k) of the District Boards Act, so far as regulation of offensive traides or callings is concerned. As the learned Solicitor General does not contest the finding of the High Court th11t the trades in question carried on by Asa Ram with his machines with the aid of power are offensive trades, it follows that the Town Area Committee has power to regulate these trades as well as the District Board. So far as the second point is concerned, the le1i.rned Solicitor General concedes that 'regulation' would include the power of issuing a licence-and · very rightly so. No case has been brought to our notice in which this Court held that power of 'regulation'. does not include the power of issuing a licence and that issue of a licence amounts to prohibition and is not a. 720 SUPREME COURT REPORTS [1959) Supp. r95B Wan•hoo J. Asa Ram v. restriction on carrying on a trade or business. It is enough to point out that the District Boards Act under which these bye-laws have been framed does not Th• Disfricl Board, specifically provide anywhere for granting of licences. Muzaffarn•c•• Section 174(1) (k) itself speaks only of regulating offen sive trades, etc., and has not given in so many words power to issue licences. It is true that s. 106 provides that the board may <Jharge a fee to be fixed by bye. Jaw for any licence, sanction or permission which it is entitled. or required to grant by or under the Act ; but tha.t section merely provides for levying of fee where a licence is necessary under other provisions of the Act and is not in itself an authority for issue of licences. Therefore, when the Board framed a. bye. Jaw relating to issue of licences it di<l so under its power of regula tion. The High Court with respect seems to have mis ). That case turn. understood Mohamad Yasin's case {1 ed on the question whether the Town Areas Committee could impose a. fee and did not deal with the question whether it could issue a licence. It was in that con nection that the following sentence which the High Court has picked out, appeared in that judgment- " We ha. ve not been referred to any notification whereby s. 294 of the U. P. Municipalities Act was extended to the respondent committee." Section 294 of the Municipalities Act is in the same terms as s. 106 of the District Boards Act and deals with the power of levying fees. The High Court seems to have lost sight of the distinction between granting 'licences which depends on the power of regulation and levying of licence-fees, which can only be levied if there is specific provision to that effect in the law. Mohamad Yasin's case (1) decided that as there was no provision authorising a. Town Area Committee to levy licence.fee it could not do so. That, however, did not mean that 'regulation' did not include the power of issuing licences, though in the absence of a. provision for charging licence-fees, licences must be issued with out charge, if bye-la. ws require the issue of a. licence in order to regulate trades or callings which a. Town Area. Committee can regulate under s. 26(a.) of the (1) [1952] S.C.R. 572. (I) S.C.R. SUPREME COURT REPORTS 721 z95B The Town All"e& The District Board, Town Are&s Act. The view of the learned Judge, therefore, th&t the Town Are& Committee could not issue a. licence when framing rules regulating offensive trades or callings is not correct. Committee would thus have the power to frame h.fe- Muzaffar"agar la.we requiring taking out of licences in ca.se it exer- cises its power of regulation under s. 26{a.) of the Tdwn Wanchoo J. Areas Act .in the ea.me way as a. District Board has the power of fra.mfog bye-la.we under s. l 74{~)(k) requiring those carrying on certain trades to ta.ke out licences. This brings us to the third question, namely, what happens when two statutory bodies have con~ur- rent power in the same field ? Asa Ram v. The power of the District Board to frame hye la.ws under s. 174(l)(k) is confined to rural area as defined in s. 3(10). We understand that this section has been a.mended recently in 1958 a.nd now town areas are to be excluded from the ambit of 'rural area.'; but at the relevant time it ra.n as follows:- ' " 'Rural area' means the area of a district exclud ing every municipality as defined in the United Provinces Municipalities Act, 1916 and every canton ment as defined in the Cantonment Act, 1910." Therefore, at the relevant time, the District Board would have the power to frame bye-laws even for ~own areas. In order, however, to resolve a.ny conflict, which may a.rise, s. 93 (3) was included in the District Boards Act. It is in these terms :- " Nothing in this Act shall entitle a boa.rd to . exercise within the limits of any municipality, notified a.rea, cantonment or town area., a.ny authority which is vested in the municipal boa.rd, notified area com mittee, cantonment committee, district magistrate, or town panchayat, as the case may be." There are certain exceptions to this provision, but we are not concerned with them in the present case. 1 The argument of the learned Solicitor General in thiis be half is that the District Board will be divested pf its to frame bye.laws for regulating offensive trades and callings in town a.re&s, if the same author ity is vested in the town pa.ncha.yat. He goes oµ that 91 722 SUPREME COURT REPORTS [1959] Supp. z958 Asa Ram now there are no Town Panchayats having authority in town areas, for the words "Town Panchayat" ap· pearing in the Town Areas Act have everywhere been The Dist;;~, Board substituted by the words "Town Area Committee". Muzaffarnagar 'It is submitted that a corresponding amendment was not made in s. 93 (3) and, therefore, though the Dis- trict Board would have no power upto 1934 tO' frame bye-laws for town areas relating to regulation of offensive trades or callings, which were covered by s. 26 (a) of the Town Areas Act, it would have that power after the amendment of 1934. wanchoo J. We must say that this is a very technical argument. The Town Areas Act was passed in 1914 and in the Act as it was originally passed the authority conferred by s. 26(a) was vested in the Town Panchayat. In 1920 the· U. P. Village Panchayat Act was passed creating panchayats for any village or groups of villa ges. It seems that it was then thought fit. to change the name in the Town Areas Act to Town Area Com mittee to avoid confusion with the Panchayats under the Village Panchayat Act. But this in our opinion was only a formal change, for the word 'committee' in English is after all a translation more or less of the word 'panchayat' in Hindi. Therefore, when the word 'committee' was substituted in place of 'panchayat' in the Town Areas Act ~here was really no change of substance and the restriction on the power of the Dis trict Board under s. 93 (3) of the District Boards Act to deal with matters entrusted to the town areas continu ed in full force. In this connection, our attention was drawn to Shrimati Hira Devi v. District Board, Shah jahanpur (' ). In that case, s. 71 of the U. P. District Boards Act was amended but no corresponding amend In that connection the ment was made in s. 90. following observations were made at p. 1131 :- " It was unfortunate that when the Llgislature came to amend the old section 71 of the Act it forgot to amend s. 90 in conformity with the amend1™lnt of s. 71. But this lacuna cannot be supplied by any such liberal construction as the High Court sought to put upon the expression 'orders of any authority (1) [195z] S.C.R. u22. ; (1) S.C.R. SUPHEME COURT B.EPORTS 723 whose sanction is necessary'. No doubt it is the duty of the court to try to harmonise the various provisions of an Act passed by the Legislature. But it is cer- tainly not the duty of the Court to stretch the words 1'hc v;,1,ict Board, used by the Legislature to fill in gaps or omissions ,in Muzaffarnagar tho provisions of an Act." Asa Ram v. I95 That case, however, related to entirely different Wanchoo f. 8 circumstances. Here we are dealing with two statuyes giving power to two statutory bodies, and if there . is conflict in view of the technical submission made by the learned Solicitor General and s. 93 (3) cannot come to the aid of the Town Area Committee, we have still to see which Act will prevail in the circumstanqes. The U. P. District Boards Act deals with a larger area in which the area constituting the town area is also included. The Town Areas Act on the other hand deals with a smaller area and on principle when there is a body dealing with a larger area and from th.at area is carved out a smaller area which is entrusted to another body, the law giving power to the body governing the smaller area should prevail over the law giving power to the body governing the larger area. If the substitution of the v.-ord 'committee' for ,the word 'panchayat' is merely .a translation, as observ- ed earlier, it makes no difference to the application of s. 93 (3) even after 1934. But if it is not treated a.s a mere translation and it is said that a new body was vested with powers under the Town Areas Act by ,the amendment of 1934, then it means that a smaller area was carved out from a larger area in 1934 and a hew statutory body was created to govern it with cer~ain powers; in those circumstances the powers given to the new statutory body in the smaller area carved, out from the larger area will prevail. Reference in this connection may be made to two English cases, which lay down the principle how, the conflict between the two statutes in similar circum In King v. The Justices stances should be resolved. of Middlesex (1 ), it was held:- "Where two Acts of Parliament, which p4ssed during the same session and were ·to ,?Orne . into (r) (1831) 2 B. & AD. 818; (1831) 109 E.R. 1347, 1348. 72' SUPREME COURT REPORTS (1959] Supp. 1958 As• v~""' operation the ea.me da.y, a.re repugnant to ea.ch other, that which last received the Roya.I assent must prevail a.nd be considered pro ta.nto a repeal of the other." He Dist.ic1 Board, Again in Daw, Clerk of the Commissioner of Sewers of the City of London v. The Metropolitan Board of Worka ), it wa.s held- 1 ( Muzaffa.nag•• W••,hoo J. "Where two statutes give authority to two public bodies to exercis!l powers which cannot consistently _with the object of the Legislature co-exist, the earlier must necessarily be repealed by the later statute." In that case the conflict \11'.&S between s. 145 of the City of London Sewers Act, 1848 a.nd s. 141 of the Metro polis Local Ma.na.gement Act, 1855, a.nd the later wa.s held to prevail. The principle of these cases will apply to the present circumstances, and if the words " town area. committee " are not held to be a transla tion of the words " town panchayat ", the result is that a Town Area Committee being vested with power under s. 26 (a) to regulate offensive trades or callings, the power of the Town Area. Committee must prevail over the power of the' District Board under s. 174(l)(k) of the District Boards Act. We, therefore, allow the a.ppea.l, set aside the order of the High Court a.nd order the acquittal of Asa Ram a.ppella.nt. Appeal allowed. NARAIN AND TWO OTHERS v. THE STATE OF PUNJAB (GAJENDRAGADKAR and A. K. SARKAR, JJ.) Criminal Trial-Material witness, who is-Failure to examine -Effect of-If amounts to rejection of evidence-Indian Evidence Act, r87z (I of r87z), s. r67. Several persons attacked and seriously injured one M. After assaulting him the assailants were carrying him away when M's brother R came to rescue him and in self defence shot dead one of the assailants and carried M away. For the assault on M eight persons, including the appellants, were tried for offences under (1) (1862) C.P. u C.B.N.S. 16x; (1862) 133 R.R. 311.