Lakshmi Narain Sharma v. District Board

Mootham, C.J:— This is an appeal from a judgment of a learned single Judge of this Court dated the 24th February, 1955, dismissing a petition under Art. 226 of the Constitution. The appellant is one of the proprietors of a firm which carries on the business, inter alia, of running of flour mill, a rice mill and an oil mill at Nandganj in the district of Ghazipur and within the jurisdiction of the Gaon Sabha of Barahpur. It appears that the three mills occupy one premises.

2. On the 27th March, 1953, a set of bye-laws for the regulation and control of flour, rice and oil mills in the rural areas of the Ghazipur District was made by the District Board of Ghazipur under Sec. 174 of the District Boards Act, 1922. Bye-law No. 1 defined mills as including all flour, rice and oil mills worked by any mechanical contrivance, and bye-law No. 2 provided that no person shall establish or maintain a mill within the rural area except in accordance with the conditions laid down in bye-law No. 3. Bye-law No. 3 specified the conditions, and exception is taken by the appellant to clauses (i), (j) and (k). Clause (i) requires any person desiring to start one of such mills to obtain a licence from the Board upon payment of a fee of Rs. 20/-. Clause (k) provides that if a mill is used for more than one of the specified purposes, that is as a flour, rice or oil mill, a separate licence fee shall be paid in respect of each purpose. Bye-law No. 4 makes provision for the form of application for a licence and bye-law No. 5 requires the owner or manager of an existing mill to obtain a licence within one month from the date of the publication of the bye-laws. The appellant challenges the validity of these bye-laws and particularly of clauses (i), (j) and (k) of bye-law No. 3 and bye-laws 4 and 5; and the relief which he seeks is the issue of a writ of mandamus (1) commanding the District Board to forbear from enforcing the impugned bye-laws and (2) restraining it from interfering with the business of the appellant or taking any steps to recover from the appellant the licence fees under the bye-laws. The learned Judge was of opinion that the impugned bye-laws were valid, and he accordingly dismissed the petition. The appellant now appeals from that order. The first argument is that the licence fee of Rs. 20/- per mill is not proportionate to the expense incurred by the respondent Board in regulating and controlling the flour, rice and oil mills in question, and is in the nature of a tax. The affidavit filed in support of the petition contained no facts from which it could be inferred that this fee was excessive. In the counter-affidavit filed by the Board it is stated that there are about one hundred mills affected by the bye-laws and that the Board has to maintain a staff to inspect the mills and to take such steps as are necessary to secure compliance with the provisions of the bye-laws. These assertions are denied in the rejoinder affidavit, and the correctness of the figures mentioned by the Board is challenged. This Court has pointed out on a number of occasions that it is the duty of the petitioner to state fully the facts upon which he relies in the affidavit or affidavits accompanying the petition, and that the practice of disclosing the facts which the petitioner deems to be relevant only in the rejoinder affidavit is one which this Court will discourage. On the material before us we are not satisfied that a licence fee of Rs. 20/-, which prima facie is not unreasonable, is excessive. The appellant then says that although a licence fee of Rs. 20/- in respect of a single mill may be unobjectionable, it is unreasonable to charge a fee in respect of more than one mill if the additional mills are housed in the same building as the expenses of the Board are not thereby increased. It appears to us that such expenses may well be increased as additional inspection, possibly by different inspectors, will be necessary, and in the absence of any evidence to the contrary we are not disposed to accept this submission.

3. The second submission is that the bye-laws are invalid, and this is said to be so on several grounds the most important of which is that as the power to make bye-laws for the purpose of promoting the health, safety and convenience of persons residing within the jurisdiction of the Gaon Panchayat is now by virtue of Sec. 111 of the U.P Panchayat Raj Act, 1947, vested in the prescribed authority under that Act, the District Board has been divested of its power under Sec. 174 of the United Provinces District Boards Act, 1922, to legislate in respect of these matters.

4. Sec. Ill of the Panchayat Raj Act reads as follows—

“111. Powers of district boards to frame bye-laws.—The prescribed authority may, and when required by the State Government shall, make bye-laws for a Gaon Panchayat within its jurisdiction consistent with the Act and the rules made thereunder for the purpose of promoting or maintaining the health, safety and convenience of persons residing within the jurisdiction of a Gaon Panchayat and for furtherance of administration of Gaon Panchayats under this Act;”.

5. Although this section is headed ‘Powers of district boards to frame bye-laws’, the section confers no powers on a district board, it may clearly be intended by the draftsman of the Act that the power to make bye-laws should be vested in the district board for a Gaon Panchayat within its jurisdiction, but it appears that during the progress of the bill through the Legislature the words “prescribed authority” were substituted for “district board” without it being realized that the words ‘within its jurisdiction’, appropriate in the case of a district board, might not be appropriate in the case of a prescribed authority. The jurisdiction of the prescribed authority is nowhere stated in the Act. The prescribed authority for the purposes of this section is the Executive Committee of the District Board (Notification No. 4913.PRD/22/44 published in the official Gazette on the 26th March, 1949). The first question then is whether the Executive Committee of a District Board, as distinct from the District Board itself, can be said to have a territorial jurisdiction for the purposes of this section.

6. Provision for an Executive Committee of a Board is made in Sec. 56 of the District Boards Act, and the Committee's powers are stated in clauses (c) and (d) of sub-sec. (1) of that section. It is clear that when it exercises its powers it does so on behalf of the Board which is a much larger body, and it is interesting, if not strictly relevant, to note that the Executive Committee cannot make bye-laws which is a function which must be performed by the Board by resolution passed at a meeting of the Board and not otherwise.

7. The position of an Executive Committee is somewhat peculiar. It is a statutory Committee which may exercise such powers and shall perform or discharge such duties and functions as are either specified in the Act or are delegated to the Committee by the Board under Sec. 68. The statutory powers, duties and functions of an Executive Committee are specified in Schedule I to the Act, and in the exercise by the Executive Committee of these powers the Board, it appears, has no authority to interfere.

8. The legal position is therefore this, that the Executive Committee is vested with statutory power to exercise on behalf of the Board certain powers, duties and functions which nominally are vested in the Board but in respect of which the Board as such has no control. The Executive Committee is in effect an authority within an authority, and inasmuch as it has duties and functions which it is required by law to exercise within the territorial jurisdiction of the District Board we are of opinion that it has jurisdiction within that area for the purposes of Sec. 111 of the Panchayat Raj Act.

9. We are further of opinion that as we can find nothing repugnant in the subject or context the words “a Gaon Panchayat” in this section include the plural by virtue of Sec. 13 of the U.P General Clauses Act, 1904. We are consequently of the view that the prescribed authority (in the present case) has under Sec. 111 been vested with a power to make bye-laws as provided in Sec. 111 for one or more of the Gaon Panchayats within the area over which the District Board exercises jurisdiction.

10. Now Sec. 174(i) of the U.P District Boards Act, 1922, provides that

“174(1). Powers of the board to make bye-laws. A Board by special resolution may, and where required by the State Government shall, make bye-laws applicable to the whole or any part of the rural area of the district consistent with this Act, and with any rule, for the purpose of promoting or maintaining the health, safety, and convenience of the inhabitants of such area and for the furtherance of the administration of the district under this Act.”

11. It will be observed that one of the purposes for which bye-laws may be made, namely the promotion or maintenance of the health, safety and convenience of the persons residing in a particular area, is the same under both Acts. The area under Sec. 174(1) is the whole or any part of the rural area of the district; under Sec. 111 it is the area within the jurisdiction of the one or more Gaon Panchayats within the rural area of the district. The only qualification on the generality of the power conferred by either section is that its exercise must be consistent with the Act under which it is made or any rule thereunder. It is to be noticed that the Panchayat Raj Act does not contain any provision such as is to be found in Sec. 93(3) of the District Boards Act restricting the exercise by the Executive Committee of its powers under Sec. 111 of the Panchayat Raj Act.

12. It was not said in argument that the impugned bye-laws were inconsistent with anything in the Panchayat Raj Act or in the rules made thereunder, and we hold therefore that within the jurisdiction of the Gaon Panchayats of the Ghazipur district the power to make such bye-laws has been vested in the District Board under the District Boards Act and in the prescribed authority under the Panchayat Raj Act. Now if two statutes give authority to two public bodies to exercise powers which cannot consistently with the object of the legislature co-exist, the earlier must necessarily be repealed by the later statute. This was so held in Daw v. The Metropolitan Board of Works 12 C.B.N.S in which Willes, J., stated the rule in these words:

“So soon as you find the legislature is dealing with the same subject matter in both Acts, so far as the later statute derogates from and is inconsistent with the earlier one, you are under the necessity of saying that the legislature did intend in the later statute to deal with the very case to which the former statute applied.”

13. A similar view had been taken in the earlier case of The King v. Justices of Middlesex 2B. and A.D, 819. In that case the duty of repairing and maintaining certain roads had been imposed on two different authorities by two different statutes which had been passed in the same session of Parliament and were to come into effect on the same date. It was held that so far as the two Acts were contradictory to each other, that which last received the Royal assent must prevail. We are of opinion that the principle enunciated in these cases applies to the matter before us, and that accordingly, to the extent to which such powers overlap the power of the Executive Committee of the District Board to make bye-laws under Sec. 111 of the Panchayat Raj Act prevails over the power of the District Board under Sec. 174.

14. It has been argued on behalf of the Board that the question is not whether there exists any inconsistency between Sec. 174(1) of the District Boards Act and Sec. 111 of the Panchayat Raj Act but whether there is any inconsistency between the bye-laws made by the District Board under the former section and bye-laws made by the prescribed authority under the latter, and that as no bye-laws regulating the operation of flour, rice and oil mills had been made by the prescribed authority the question of conflict does not arise. We are unable to accede to this argument, for if bye-laws had been made by the prescribed authority which were in conflict with the bye-laws made by the District Board we are of opinion that the former would prevail, not on the ground that the bye-laws were repugnant but on the ground that the statutory powers under which the bye-laws were made were repugnant. This argument also overlooks the situation which would arise if one authority considers a bye-law to be desirable and the other does not.

15. In the circumstances it is unnecessary for us to consider the other grounds upon which it was argued that the impugned bye-laws were invalid. We are of opinion for the reasons we have stated that the appellant's submission is well founded that this appeal must be allowed. We accordingly set aside the order of the learned Judge dated the 24th February, 1955, and direct the issue of a writ of mandamus commanding the respondent Board to forbear from enforcing the impugned bye-laws against the appellant. The appellant is entitled to his costs in both courts. The costs in this Court we assess at Rs. 200/-.

16. We are obliged to learned counsel for the careful arguments which have been addressed to us.