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TMI Blog1952 (2) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... In this view of the matter the petitioner is entitled to a suitable order for protection of his fundamental right. The proper order would be to direct the respondent Committee not to prohibit the petitioner from carrying on the business of a wholesale dealer in vegetables and fruits within the limits of the Jalalabad Town Area Committee until proper and valid bye-laws are framed and thereafter except in accordance with a licence to be obtained by the petitioner under the bye-laws to be so framed. Appeal allowed. - Petition No. 132 of 1951 - - - Dated:- 27-2-1952 - DAS, SUDHI RANJAN V., SASTRI, M. PATANJALI (CJ) V., MAHAJAN, MEHR CHAND V., MUKHERJEA, B.K. and AIYAR, N. CHANDRASEKHARA. JJ. For The Petitioner Nuruddin Abroad for the petitioner. For The Respondents K.N. Aggarwal for the respondents . JUDGMENT: Petition under Art. 32 of the Constitution for a writ in the nature of mandamus. The material facts are set out in the judgment. 1952. February 27. The Judgment of the Court was delivered by DAs J.--This is an application under article 32 of the Constitution made by Mohammad Yasin for the protection of his fundamental right of carrying on his business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to impose a tax of the kind it has sought to do, that the imposition of a tax calculated at one anna in the rupee is in the nature of a sale-tax and cannot be regarded as a licence fee and such unauthorised impost constitutes an illegal restraint on his fundamental right under article 19 (1) (g). The notice of motion has been served on the respondent Committee as well as on respondent Bishamber. The respondents have entered appearance and filed an affidavit in opposition to the present application affirmed by their agent on record Paragraph 4 of that affidavit is as follows :-- 4. Paragraphs 4, 5, 6 and 7 of the petition are wrong and misleading and do not convey the correct idea. If the bye-laws are read from beginning to end, the correct position is that the Town Area Committee has lawfully imposed certain taxes on the purchase 576 and sale of fruits and vegetables within the ambit of the Town Area; and instead of collecting the aforesaid taxes departmentally the Committee finds it more convenient and less expensive to auction the right to collect the taxes and give the contract to the highest bidder or whomsoever it thinks fit and proper. There is absolutely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the contractor appointed by auction, will necessarily have to charge the growers of vegetables and fruits something over and above the prescribed lee so as to keep a margin of profit for themselves but in such circumstances no grower of vegetables and fruits will have his produce sold to or auctioned by the wholesale dealers at a higher rate of commission but all of them will flock to the contractor who will only charge them the prescribed commission. On the other hand, if the wholesale dealers charge the growers of vegetables and fruits only the commission prescribed by the bye laws they will have to make over the whole of it to the contractor without keeping any profit themselves. In other words, the wholesale dealers will be converted into mere tax collectors for the contractor or the respondent Committee without any remuneration from either of them In effect, therefore, the bye-laws, it is said, have brought about a total prohibition of the business of the wholesale dealers in a commercial sense and from a practical point of view. We are not of opinion that this contention is unsound or untenable. Learned counsel for the petitioner, however, does not leave the matter th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the respondents then refers us to the U.P. Town Areas Act (No. 11 of 1914) which governs the respondent Committee. Section 14 of this Act requires the Committee to annually determine and report to the District Magistrate the amount required to be raised in any town area for the purposes of this Act and provides that the amount so determined shall be raised by the imposition of a tax to be assessed on the occupiers of houses or lands within the limits of the town area according either to their general circumstances or to the annual rental value of the houses or lands so occupied by them as the Committee may determine. There were, at the time when the bye-laws of the respondent Committee were framed, five provisos to this section none of which authorised the imposition of any tax on any business and, therefore, they have no bearing on the question now under consideration. Learned counsel for the respondents, however, draws our attention to section 38 of the Act which authorises the Provincial Government by notification in the Official Gazette to extend to all or any or any part of any town area any enactment for the time being in force in any municipality in the United Province ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any place in the town area, provided he pays the prescribed fees to the licensee. These bye-laws do not purport to fix a fee for the use or occupation of any immovable property vested in or entrusted to the management of the Town Area Committee including any public street or 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 Municipalities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces do not empower the Town Area Committee to 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 respondent Committee by the sections mentioned above and the petitioner complains against the enforcement 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 Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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