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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 ..... he last 7 years or so at his shop situated in the town of Jalalabad. The vegetable and fruit growers used to bring their goods to the town and get them auctioned through any of the vegetable dealers of their choice who used to charge one anna in the rupee as and by way of commission. The respondent Committee which is a Town Area Committee has framed certain bye-laws under which all right and power to levy or collect commission on sale or purchase of vegetables and fruits within the limits of the town vest in the respondent Committee or any other agency appointed by the Committee and no one except the respondent Committee is authorised to deal in wholesale vegetables and fruits and collect the commission thereof in any place and in any event. The respondent Committee has by auction given the contract for sale of vegetables and fruits and for collecting the commission for the current year to the respondent Bishamber who, it is alleged, has never dealt in vegetables and fruits The respondent Committee has not set up any market nor has it framed any bye-laws for issue of licences to the vegetable and fruit merchants. The bye-laws also provide for prosecution for the breach of any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention by the Contractor, whose position is simply that of a taxcollector on behalf of the Town Area Committee. Instead of getting the pay, he gets the profits, if any, and runs the risk of incurring losses if his gross realisations are less than what he paid. This is clearly the position, and it is submitted, there is nothing wrong with it legally and no interference of the petitioner's rights." The petitioner has to his petition annexed copies of a set of bye-laws dated June 24, 1942, and a copy of a resolution of the respondent Committee dated March 16, 1950, recommending the addition of several bye-laws to the previous bye-laws. At the hearing of the petition before us it was agreed by and between counsel on both sides that the petition has to be disposed of on the basis of the bye-laws of 1942 only and learned counsel for the respondent Committee has produced the original bye-laws of 1942 before us. Bye-law 1 only provides that no person shall sell or purchase any vegetable or fruit within the prescribed limits of the Town Area Committee, Jalalabad by wholesale or auction,without paying the fee fixed under these bye-laws to the licensee appointed by the Town Magistrate. Bye- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of argument. He points out that as the levying of a tax without authority of law is specifically prohibited under article 265 of the Constitution, article 81(1) must be construed as referring to deprivation of property otherwise than by levying of a tax and that levying of a tax in contravention of article 265 does not amount to a breach of a fundamental right. He contends, on the authority of the decision of this Court in Ramjilal v. Income-tax Officer, Mohindargarh(1), that while an illegal imposition of tax may be challenged in a properly constituted suit, it cannot be questioned by an application under article 32. This argument overlooks the difference between a tax like the income-tax and a licence fee for carrying on a business. A licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his right to carry on his business, for without payment of such fee the business cannot be carried on at all. This aspect of the matter was not raised or considered in the case relied on by the learned counsel, and that case, therefore, has no application to the facts of this case. Under article 19(1) (g) the citizen has the right to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provinces Town Areas Act, 1914, extended the provisions of sections 293(1) and 298(2) (J) (d) of the United Provinces Municipalities Act (11 of 1916) to all the town area in the United Provinces in the modified form set forth therein. The original bye-laws produced by learned counsel purport, however, to have been framed by the respondent Committee under sections 298 (2)(F)(a)and 294 of the United Provinces Municipalities Act (11 of 1916). We have not been referred to any notification whereby section '294 of the United Provinces Municipalities Act was extended to the respondent Committee. It appears, however, that the bye-laws of the respondent Committee were revised in September 1942 and were then said to have been made under section 298 (2) (J) (d). It will have, therefore, to be seen whether these bye-laws come within The purview of section 298 (2) (J) (d) as modified in their application to the respondent Committee. It will be noticed that under section 298 (2) (J) (d) as modified as aforesaid the respondent Committee is authorised only to make bye-laws fixing any charges or fees or any scale of charges or fees to be paid under section 9.93(1) and prescribing the times at whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ybody 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 impose a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation 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 laws cannot be said to constitute a valid law which alone may, under article 19(16) of the Constitution, of impose 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 75 In this view of the matter the petitioner is entitled to a suitable order for protection of his fundamental ri ..... 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