MOHAMMAD YASIN v. THE TOWN AREA COMMITTEE, JALALABAD AND ANOTHER
Citation: [1952] 1 S.C.R. 572; 1952 INSC 11
Court: Supreme Court of India
Bench: M. PATANJALI SASTRI , MEHR CHAND MAHAJAN, BIJAN KUMAR MUKHERJEA, SUDHI RANJAN DAS, N. CHANDRASEKHARA AIYAR
Judgment date:
Case summary
1952 INSC 11. Supreme Court of India judgment dated 1952-02-27. MOHAMMAD YASIN v. THE TOWN AREA COMMITTEE, JALALABAD AND ANOTHER. Read the judgment and case...
Judgment text
572 SUPREME COURT REPORTS [1952] on the doors were not the isolated acts of a few scattered individuals. It was the mob that was doing it . and in the High Court's words, "The very fact that in the town of Katni two shots should have struck four Sindhis and none else shows that the rival community was on the move in that area. " In our opinion, the appellant did not use more force than was necessary. Indeed, the firing, far from acting as a deterrent, spurred them on and they ransacked and looted the place. We have confined our attention to the right of pri-vate defence of the person though in this case the question about the defence of property happens to be bound up with it. The appeal is allowed. The convictions and sen-tences are set aside and the appellant will be released. Agent for the appellant: 0. P. Verma. Agent for the respondent: P. A. Mehta. MOHAMMAD YASIN v. THE TOWN AREA COMMITTEE, JALALABAD AND ANOTHER. [PATANJALI SASTRI C. J.
, MEHR CHAND MAHAJAN, MUKHERJEE, DAs and CHANDRASEKHARA AIYAR JJ. ) Constitution of India. 1950, Arts. 19(l)(g), 32-U. P. Municipalities Act, 1916, ss. 293(1), 298(2) (g)(d)-Municipal byc-laws- Bye-law imposing fee for carrying on wholesale trade in vegetables and fruits within municipal area-Validity-Restraint on fundamental right to carry on trade-Licence and tqx, difference. There is a difference between a tax like the income-tax and a licence fee for carrying on an occupation, trade or business. A licence fee on a business not only takes away the property of the • licensee but also operates as a restriction on his fundamental right to carry on his business. · Therefore· if the imposition of a licence fee is without authority of law it can be challenged by way of an application under Art. , 32. Under Art.
19(1)(g) of the Constitution a citizen has the right to carry on any occupation, trade or business and the only The restriction on this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in cl. ( 6) of that article as ~mend-ed by the Constitution (First Amendment) Act, 1951. If therefore a licence fee imposed for carrying on an occupation, trade or business cannot be justified on the basis of any valid law, no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupation, trade or business under Art. 19( 1) (g), and such infringement can properly be made the subject matter of a challenge under Art. 32 of the Constitution. Bye-law No.
1 of the Bye-laws of the Town Area Committee of Jalalabad (in the United Provinces) provided that no person shall sell or purchase any vegetables or fruit within the prescribed limits of the Town Area Committee by wholesale or auction, without paying the fees fixed by these bye-laws to the licensee appointed by the Town Magistrate. Bye-law No. 4(b) provided that any person can sell in wholesale at any place in the town area provided he pays the prescribed fees to the licensee. A person who had been carrying on the business of wholesale dealer in vegetables and fruits in his own shop at Jalalabad for a period e>f seven years applied for protection under Art. 32 contending tl\. at these bye-laws infringed his fundamental right to carry on his trade guaranteed by Art. 19( I) (g) and were therefore void. Held, thats. 293(1) and s. 298(2) (J) (d) of the U. P.
Municipalities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces did not empower the Town Area Committee to make any bye-law authorising it to charge any fees otherwise than. for the use and occupation of any property vested in or entrusted to the management of the Town Area Committee including any public street. The bye-laws in question which imposed a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Are;t Committee inch;ding any public street, are obviously ultra vires the powers of the Committee and, therefore, the bye-laws cannot be said to constitute a valid law· which alone may, under Art. 19( 6) of the Constitution, impose ai restriction on the right , conferred by Art. 19(1) (g).
In the· absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must i~fringe the unfettered right of the wholesale dealer to carry oIJ& . , . his occupation, trade or hu! ;iness which is guaranteed to him by Art. 19 (1) (g) of our Constitution. Kairana ·case [1950] S. C. R. 566 and Ramji Lal v. ! ncome-ta1t Officer, Mohindargarh [ 1951] S. C. R. 127 distinguished. Ar perty vested in or entrusted to the management of the Town Area Committee including any public street -0r place of which it allows the use or occupation whether by allowing a projection thereon or otherwise. . Sections 293(1) and 298(2) (J) (d) of the United Province ~Ml! lnicipalities Act, 1916, as amended at the time they . were extended to the town areas in the United Provinces do not empower the Town Area Committet .
t::> make any bye-law authorising it to 'charge any fees otherwise than for the use or occupation of any property vested in or entrusted to the management of the Town Area Committee including . any public street. Therefore, the bye-laws prima facie go much beyond the powers conferred on the The respondent Committee by the sections mentioned above and the petitioner complains agairu,t the en-forcement of these bye-laws against him as he carries on business in his own shop and not in or on any immoveable property vested in the Town Area Committee or entrusted to their management. Learned counsel for the respondent Committee, however, urges that the growers of vegetables and fruits come on foot or in carts or on horses along the public street and stand outside the petitioner's shop and for such use of the public street the respondent Committee is well within its powers to charge the fees.
From the way the case was formulated by the learned counsel, it is quite clear that if anybody uses the public street it is the growers of vegetables and fruits who come to the petitioner's shop to get their produce auctioned by the petitioner and the petitioner cannot be charged with fees for use of the public street by those persons. In our opinion, the bye-laws which imp~ a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or oc. cupation by him of immoveable property vested in or entrusted to the management of the Town Area Committee including any; public street, are obviously ultra vires the powers of the respondent Committee and, therefore, the bye- Iaws cannot be said to constitute a valid law which alone may, under article 19(16) of the Constitution, im~e a restriction on the right conferred by article 19(·1) (g).
In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by article 19(1) (g) of our Constitution. -- 1952 In this view of the matter the petitioner is entitled, to a suitable order for protection of his fundamental Mollammtul right. The prayer in the petition, however, has been, Yasin v. expressed in language much too wide and cannot be The To""' Area granted in that form. The proper order would be to· Committee. direct the respondent Committee not to prohibit the /altdtlbail petitioner from carrying on the business of a wholesale dealer in vegetables and fruits within the limits· v.. 1. of the Jalalabad Town Area Committee until proper and valid bye-laws are framed and tl1ereafter except in accordance with a licence to be obtained by the· petitioner under the b)ie-laws to be so framed.
The· . respondent Committee will pay tlie costs of thj. g application to the petitioner. Agent for the petitioner: Nan nit Lal. Agent for the respondent: P. C. Aggarwal- ·~ ' . , GIPN-S3--6 S. C. India/71-12-10-72-700.
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