# 1%3 Afzal Ullah · v. The.Stllk of Uttar Pradesh

- **Citation:** [1964] 4 S.C.R. 991
- **Court:** Supreme Court of India
- **Decided:** 1961-08-29
- **Bench:** P. B. Gajendragadkar, K. SuBBA RAO, K. N. WAN"cHoo, J. C. Shah, Raghtjbar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-3-afzal-ullah-v-the-stllk-of-uttar-pradesh-3197
- **Pages:** 11

## Headnote

U•ited Provinces Municipalities Act, 1916 (No. II of 1916),
ss. 298. 299(1) and bye-law cl. 3(a)--.!'Markd' meaning of1-V !tether bye-lau1 ultra vires.
The appellant-accused was charged \Vith committing the off~nu
under s. 299(1) of the United Provinces Municipalities Act, read
with cl. 3(a) of the relevant bye-laws framed by Respondent No.
2.
The case against the appellant was that he was running a
n1arket \Vithin the municipal area in which Yegetables, fruit•, fish
and grains were sold.
It was alleged that he was bound to take
a licence for the aforesaid market under cl. 3(a) of the rdevant
bye-laws and since he had failed to do so, he had committed •
breach of the said bye-laws.
He was tried by the Tchsildar of
Tanda on the said charge. The Tehsildar acquitted him. The Tehsildar held that he was running only a grain market and Respondent No. 2 (the Municipality) had no power to make bye-laws for
the running of a purely grain market and so the in1pugned bye~
laws were ultrQ vireJ',
On appeal, the High Court set a~ide- the
order of acquittal and com·icted the appellant under s. 299( I) of
the Act read with cl. 3(a) of the relevant byo-laws,
It has ~
65-2 S C lndia/64
K•u1halyfl &mi
v,
Gop.J Si"fll
Sinha, C, /.
'
1963
1%3
Afzal Ullah ·
v.
The.Stllk of
Uttar Pradesh
992
SUPREME COURT REPORTS
l1964]
found by both courts below in the present case that on the plot
belonging to the appellant, more than four shops are kept and they
sell food grains.
HELD: (i) These shops standing on the plot of the appellant
constitute a market within bye-law 3(a).
(ii) There is no substance in the contention that the impugned
bye-law 3(a) is invalid "because it is inconsistent with s. HI(!) of
the Act. There is no justification for adding the word "only" to
the last part of s. 241(1) of the Act. If the word "only" cannot be
added to the said section, then it must follow that in addition to
the bye-laws made under heading F to s. 298, the Board may make
other bye-laws in respect of the markets falling within the purview
of s. 241(1), provided, of course, the said bye-laws arc otherwise
valid under ~ 298.
(iii) St.1ion 241(1) docs not apply to the market which is run
on the appellant's plot because it is a market for sale of grains.
(iv) There can be no doubt that cl. (d) of s. 298(2)(F) of
the Act conferred power on tespondcnt No. 2 to make a bye-law
in regard to the establishment, regulation, and inspection of the
market such as is run on the plot belonging to the appellant. If
cl. (cl) is held to justify the making of the impugned bye-law 3(a),
the other clauses which prescribe the procedure for the application
of licences, their grant and other incidental matters would be valid
under cl. (dd) of s. 298(2)(F) of the Act. Therefore, there is
no doubt that the impugned bye-law 3(a) and the other cognate
bye-laws are justified by els. (d) and (dd) of s. 298(2)(F) of the
Act.
( v) It is now well-settled that the specific provisions such as
arc contained in the several clauses of s. 298(2) are merely illustrative and they cannot be read as restrictive of the generality
of powers prescribed by s. 298(1).
If the impugned bye-laws
come within the purview of s. 298( 1) of the Act, it cannot be said
that the powers enumerated under s. 298(2) control the general
words used· by s. 298(1).
The impugned bye-laws in regard to the markets framed by
respondent No. 2 are for the furtherance of municipal administration under the Act, and so, would attract the provisions. of s.
298(1).
Emperor v. Sibnath Banerji & Ors., A.LR. 1945 P. C. 156,
relied on.
· (vi) The validity of the bye-laws must be tested by reference
to the question as to whether the Board had the power to make
those bye-laws. If the power is otherwise established, the fact that
the source of Jhe power has been incorrectly or inaccurately indicated in the preamble to the bye-laws, would not make the bye.
laws invalid.
P. B•l•lr..011'gk v. rJm'on of InJig, (1955) S.C.R. 1052 followed,
-
4 $.C.R.
SUPREM

## Text

-
4S.C.R.
SUPREME COURT REPORTS
held that the provisiom of s. 417(4) were a 'special law'
within the meaning of s. 29(2) of the Limitation Act. In
that case, the High Court has dealt with the decisions of the
different High Courts on the question and with the reasonings for those decisions. As we agree with the conclusions of
the High Court of Bombay, we do not think it necessary to
repeat the observations made therein, bearing on the reasons
given by the High Courts of Albhaba<l, Andhra Pradesh
and Madras for coming to contrary conclusions.
For the reasons given above, we hold that the view taken
by the High Court of Punjab is entirely correct. The appeal
is accordingly dismissed.
Appelll dismismJ.
AFZAL ULLAH
"·
THE STATE OF UTTAR PRADESH
(P. B. GAJENDRAGADKAR, K. SuBBA RAO, K. N. WAN"cHoo,
J. C. SHAH AND RAGHTJBAR DAYAL, JJ.)
U•ited Provinces Municipalities Act, 1916 (No. II of 1916),
ss. 298. 299(1) and bye-law cl. 3(a)--.!'Markd' meaning of1-V !tether bye-lau1 ultra vires.
The appellant-accused was charged \Vith committing the off~nu
under s. 299(1) of the United Provinces Municipalities Act, read
with cl. 3(a) of the relevant bye-laws framed by Respondent No.
2.
The case against the appellant was that he was running a
n1arket \Vithin the municipal area in which Yegetables, fruit•, fish
and grains were sold.
It was alleged that he was bound to take
a licence for the aforesaid market under cl. 3(a) of the rdevant
bye-laws and since he had failed to do so, he had committed •
breach of the said bye-laws.
He was tried by the Tchsildar of
Tanda on the said charge. The Tehsildar acquitted him. The Tehsildar held that he was running only a grain market and Respondent No. 2 (the Municipality) had no power to make bye-laws for
the running of a purely grain market and so the in1pugned bye~
laws were ultrQ vireJ',
On appeal, the High Court set a~ide- the
order of acquittal and com·icted the appellant under s. 299( I) of
the Act read with cl. 3(a) of the relevant byo-laws,
It has ~
65-2 S C lndia/64
K•u1halyfl &mi
v,
Gop.J Si"fll
Sinha, C, /.
'
1963
1%3
Afzal Ullah ·
v.
The.Stllk of
Uttar Pradesh
992
SUPREME COURT REPORTS
l1964]
found by both courts below in the present case that on the plot
belonging to the appellant, more than four shops are kept and they
sell food grains.
HELD: (i) These shops standing on the plot of the appellant
constitute a market within bye-law 3(a).
(ii) There is no substance in the contention that the impugned
bye-law 3(a) is invalid "because it is inconsistent with s. HI(!) of
the Act. There is no justification for adding the word "only" to
the last part of s. 241(1) of the Act. If the word "only" cannot be
added to the said section, then it must follow that in addition to
the bye-laws made under heading F to s. 298, the Board may make
other bye-laws in respect of the markets falling within the purview
of s. 241(1), provided, of course, the said bye-laws arc otherwise
valid under ~ 298.
(iii) St.1ion 241(1) docs not apply to the market which is run
on the appellant's plot because it is a market for sale of grains.
(iv) There can be no doubt that cl. (d) of s. 298(2)(F) of
the Act conferred power on tespondcnt No. 2 to make a bye-law
in regard to the establishment, regulation, and inspection of the
market such as is run on the plot belonging to the appellant. If
cl. (cl) is held to justify the making of the impugned bye-law 3(a),
the other clauses which prescribe the procedure for the application
of licences, their grant and other incidental matters would be valid
under cl. (dd) of s. 298(2)(F) of the Act. Therefore, there is
no doubt that the impugned bye-law 3(a) and the other cognate
bye-laws are justified by els. (d) and (dd) of s. 298(2)(F) of the
Act.
( v) It is now well-settled that the specific provisions such as
arc contained in the several clauses of s. 298(2) are merely illustrative and they cannot be read as restrictive of the generality
of powers prescribed by s. 298(1).
If the impugned bye-laws
come within the purview of s. 298( 1) of the Act, it cannot be said
that the powers enumerated under s. 298(2) control the general
words used· by s. 298(1).
The impugned bye-laws in regard to the markets framed by
respondent No. 2 are for the furtherance of municipal administration under the Act, and so, would attract the provisions. of s.
298(1).
Emperor v. Sibnath Banerji & Ors., A.LR. 1945 P. C. 156,
relied on.
· (vi) The validity of the bye-laws must be tested by reference
to the question as to whether the Board had the power to make
those bye-laws. If the power is otherwise established, the fact that
the source of Jhe power has been incorrectly or inaccurately indicated in the preamble to the bye-laws, would not make the bye.
laws invalid.
P. B•l•lr..011'gk v. rJm'on of InJig, (1955) S.C.R. 1052 followed,
-
4 $.C.R.
SUPREME COURT REPORTS
993
(vii) The pica of malafides cannot be permitted to be raised
for the first time in appeal for the reason that for proving ma/a.
fidu the appellant ought to have made appropriate allegations at the
stage of trial and led evidence to prove them.
C1v1L APPELLATE Juruso1cT10N : Civil Appeal No. 1
of 1%2.
Appeal by special leave from the judgment and order
dated August 29, 1961, of the Allahabad High Court in
Criminal Appeal No. 379 of 1961.
B. C. Misra, for the appellant.
C. B. Agarwala and C. P. Lal, for the reipondent No.
1.
September 20, 1963. The Judgment of the Court was
delivered by
GA JENDRAGADKAR, J.-This appeal by special leave raises
a short question about validity of bye law No. 3 and other
relevant bye-laws framed by respondent No. 2, the Municipal
Board of Tanda, on the 21st January, 1958. The appellant
Chaudhari Afzal Ullah is a resident of Tanda and owns a
piece of land and super-structures standing on it along with
the compound, in the town of Tanda. On his own land, within the compound, he has established a market in which food.
grains are sold. The Chairman of respondent No. 2 served a
notice on the appellant calling upon him to obtain a licence
for running the said market, and on the failure of the
appellant to comply with said notice, respondent No. 2
initiated criminal proceedings against the appellant. The
appellant was tried by the Tehsildar of Tanda (Cr. Case
No. 141/1%0). The case against the appellant was that he
was running a market in which vegetables, fruits, fish and
grains were sold. It was alleged that under the relevant byelaws, the appellant was bound to take a licence and since he
had failed to do so, he had committed a breach of the said
bye-laws and had thus rendered himself liable to be punished
under section 299(1) of the United Provinces Municipalities
Act, 1916 (No. II of 1916) (hereinafter called 'the Act').
The said Tehsildar held that the prosecution had failed to
prove the fact that in the market established on the plot
belonging to the appellant, vegetables, fruits and fish were
·sold; evidence showed that only grains were sold in the shops
. 1963
Afzal Ullah
v.
The St11te of
U1tar Pr,,Jeth
Gaiendra·
t•dltar /.
1963
Afzal U/Jah
v.
The Swe of
UttQr PTaiesh
G11.jentlra14tlkar /.
SUPREME COURT REPORTS
[1%4]
run in that market. The Tehsildar further held that there
was nothing in the Act which empowered respondent No. 2
to make bye-laws for the running of a purely grain market,
and so, his conclusion was that the relevant bye-laws which
were :illeged to have been contravened were ultra vires. That
is why the Tehsildar acquitted the appellant.
Respondent No. 2 t~en preferred an appeal against the
s:iid order of acquittal in the High Court of Allahabad. It
was urged on its behalf that though the shops situated on
the plot belonging to the appellant sold only grains, they
constituted a market within the meaning of the relev:int
bye-laws and it was obligatory upon the appellant to take a
licence under the said relevant bye-laws. Respondent No. 2
also contended that the Tehsildar was in error in holding
that it had no power to make bye-laws even in regard to a
purely grain market. These pleas have been upheld by the
High Court, with the result that the order of acquittal passed
in favour of the appellant has been set aside and he has been
convicted under s. 299(1) of the Act read with clause 3(a)
of the relevant bye-laws. The High Court has sentenced the
appellant to pay a fine of Rs. 20/-; in default, it has ordered
that the appellant should undergo simple imprisonment
for one week. It is against this order that the appellant has
come to this Court, and in addition to respondent No. 2,
the Board, he has imp leaded the State of U.P. as respondent
No. 1.
Mr. Misra for the appellant contends that the High
Court was in error in coming to the conclusion that the
relevant bye-laws are valid. He urges that the said bye-laws
are invalid, because they arc outside the authority conferred
on respondent No. 2 to make bye-laws by s. 298 of the Act,
and he further argues that they are invalid for the additional
reason that they are inconsistent with s. 241 of the Act.
Before dealing with these contentions, it would be relevant
to consider the said bye-laws, indicate their scheme and refer
to the specific bye-laws with which we are concerned. These
bye-laws purport to have been framed under section 298
A(a), (b), (c) and J(d) of the Act. The preamble to the
bye-laws avers that the said bye-laws had been sanctioned by
th_e Commissioner as required by section 301 (2) of the Act.
The bye-laws thus framed are seventeen in number and in
addition, they contain a clause prescribing the penalty. Bye-
4 s.c.R.
SUPREME COURT REPORTS
law 3(a) reads thus:-
"No person shall allow any land or building in his
possession or control within the limits of the Tanda
Municipality to be used as a market or shop for the
sale of vegetables, fruits and grains unless a licence
has previoml y been obtained from the B9ard in this
behalf."
There is an explanation to this bye-law which shows that
"market" means and includes any place or places for buying and selling, inta alia, grains where more than four
stalls or shops are kept on any plot of land owned by the
same owner or owners, or where wholesale transaction by
way of auction or sale of more than twenty maunds is
carried on. It is thus clear that if on any plot, more than
four stalls or shops are kept and they sell grains, they
constitute a market within bye-law 3(a). It has been foun4
by both the courts below in the present case that on the
plot belonging to the appellant, more than four shops are
kept and they sell grains. Thus, there can be no doubt
that these shops constitute a market within bye-law 3(a).
It is not disputed that if bye-law 3(a) is valid, the appellant would be under an obligation to obtain a licence as
required by it.
Bye-law 3(b) provides that no person shall sell or
expose for sale any fruit, vegetable or grain in any market or shop (not licenced by the Board) and not being a
Municipal market or shop.
Bye-law 4 prescribes conditions which have to be
satisfied before a licence can be granted. Bye-law 5 specifies the officer who can act as a licensing officer. Bye-law
6 requires that the place occupied by the shops shall be properly paved and drained. Bye-law 7 authorises the relevant authorities to inspect the shops. Under bye-law 8,
sale of vegetables, fruits and grains which are rotten or
unfit for human consumption is prohibited. Bye-law 9 requires the shop-keepers to remove rotten stuff and prescribes that the shops shall be kept clean and tidy.
Under bye-law 10, sale of certain fruits and vegetables can
be stopped if such sale is likely to spread disease or may
prove injurious to health. Similarly, under bye-law 11, a
person suffering from contagious disease can be prevented
from working on the shop for the sale of fruits, vege1%3
Aftal UU.h
.....
TAe St4te tJf
Uftttr fNJtsh
1963
,4ful T,!llah
< v.
Tire Sla/4 of
U1tar Pradesh
,G•i•ndra·
gad~ar f.
SUPREME COURT REPORTS
[1%4J
tables and grains. Bye-law 12 prescribes the penalty of forfeiture of licence if any rubbish or other injurious matter is
allowedi to be collected or deposited by a shop-keeper. Byelaw 13 provides that on an application for licence, the
licensing officer may either grant the licence or for reason
to be recorded refuse to grant it. Under bye-law 14, the
power to cancel or suspend a licence is given to the licens·
ing officer. Bye-law 15 provides for an appeal against certain orders, whereas bye-law 16 prescribes a fee for granting a licence which may amount up to Rs. 1,000/- depending upon the services rendered by the Board.
Under
bye-law 17, the life of the licence is limited to a year end·
ing on March 31 next following the date from which it
takes effect. The concluding paragraph provides for a
penalty for breach of any of the bye-laws and prescribes
that a fine up to Rs. 500/- may be imposed and if the
breach continues, a fine of Rs. 10/- every day may follow.
That, in short, is tiie scheme of the bye-laws.
'
Let us now look at the relevant sections of the Act
before addressing ourselves to the question as to whether
the impugned bye-law 3(a) and the other bye-laws passed
by it are iiltra-vires. There are only two sections of the
Act which are relevant for our purpose in the present appeal; they are sections 241 and 298. Section 241 ( 1) reads
thus :-
"The right of any person to use any place, within
the limits of a municipality, other than a municipal
market, as a market or shop for the sale of animals,
meat or fish intended for human food, or as a market
for the sale of fruit or vegetables, shall be subject to bye-laws (if any) made under heading F of
s. 298."
Section 298 confers power on the Board to make bye-laws.
Section 298(1) reads thus:-
"A board by special resolution may, and where required by the State Govt. shall, make bye-laws applicable to the whole or any part of the municipality,
consistent with this Act and with any rule, for the
purpose of promoting or maintaining the health, safety,
and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under this Act."
•
/'
.....
,._.-
4 S.C.R.
SUPREME COURT REPORTS
Section 298(2)-F which consists of six sub-clauses deals
with bye-laws which can be made in respect of markets,
slaughter-houses, sale of food, etc. The two sub-clauses of
s. 298(2)-F which are material read thus :-
" ( d) Providing for the establishment, and except
so far as provision may be made by bye-laws under
sub-head ( c) for the regulation and inspection of
markets and slaughter-houses, of livery stables, of encamping grounds of sarais, of flour-mills, of bakeries,
of places for the manufacture, preparation or sale of
specified articles of food or drink, or for keeping or exhibiting animals for sale or hire or animals of which
the produce is sold, and of places of public entertainment or resort, and for the proper and cleanly conduct
of business therein;
(dd) Prescribing the conditions subject to which,
and the circumstances in which, and the areas or
locality in respect of which, licences for the purposes
of sub-head ( d) may be granted, refused, suspended,
or withdrawn, and fixing the fees payable for such
licences, and prohibiting the establishment of business
places mentioned in sub-head ( d) in default of licence
granted by the board or otherwise than in accordance
with the conditions of a licence so granted."
Mr. Misra contends that bye-law 3(a) is invalid,
because it is inconsistent with s. 241(1). For the purpose
of this argument, he assumes that the said bye-law is not
justified by any -of the clauses of s. 298(2)-F. He argues
that s. 241 provides that the appellant's right to use his
own place for the purpose of running a market can be
regulated only by a bye-law which is framed under s.
298(2)-F and by no other bye-law. The form in which
the argument is thus presented at once discloses the fact
that Mr. Misra is adding the word "only" to the last part
of s. 241(1). When s. 241(1) provides that the right of
a person to run a market as therein indicated shall be
subject to bye-laws, if any, made under heading F of ~
298, Mr. Misra assumes that it means that the regulation
can be imposed only by bye-laws made under the said
heading. We see no justification for adding the word
"only" in that behalf. If the word "only" cannot be added
to the said section, then it must follow that in addition to
1963
Af•.J Ulloh
¥.
The Slllk of
U tt.r l'nlilesh
G•i•ntlr'1gadkor /.
AfKRI rJllt1h
. v.
T 4,,. Sir.tie of
fJnar Prail~sh
G•~~tlra-.
goif.k111' f.
998
SUPREME COURT REPORTS
[1964)
the bye-laws made under heading F to s. 298, the Board
may make other bye-laws in respect of the markets falling
within the purview of s. 241 ( 1), provided, of course, the
said bye-laws are otherwise valid under s. 298. That is
the first answer to Mr. Misra's argument.
The second answer is that s. 241(1) does not apply to
the market which is run on the appellant's plot, because it
is not a market for the sale of fruits or vegetables, or for
the sale of animals, meat or fish intended for human food;
it is a market for sale of grains and such a market does not
appear to be included under section 241 ( 1).
}3esides, as we will presently point out, the impugned
bye-law can be justified under s. 298(2)-F (d) & (dd)
and, therefore, even ifs. 241(1) was held to be applicable
to the market of the appellant, the requirement of the said
section is satisfied. Therefore, we do not think there is any
substance in the contention that the impugned bye-laws
are invalid because they are inconsistent with s. 241(1).
The next point to consider is whether these bye-laws
ate justified bys. 298. We have already read clauses (d) &
(dd) of s. 298(2)-F. Section 298(2)-F deals, inter alia,
with markets, and in the absence of any definition of the
word "market" prescribed by the Act, it would be
legitimate to take the word "market" occurring in s. 298
(2)-F (d) in its dictionary meaning. If four or more shops
arc selling grains on the plot belonging to the appellant,
they make a market in the ordinary sense of the word and
clause ( d) confers power on the Board tci make bye-laws
providing for the establishment, and for the regulation and
inspection of markets. There can be no doubt that the
pgwct to regulate the establishment of markets which is
specified in this clause would sustain the relevant byelaw framed by respondent No. 2. Mr. Misra attempted to
argue that the markets referred to in this clause must be
markets· run for the sale of specified articles of food or
drink, or keeping or exhibiting animals for sale, and he
suggested that this condition was not satisfied by the
market in question. In our opinion, this argument is
entirely misconceived. What the clause purports to do is to
authorise the making of bye-laws providing for the establishment:, regulation an<l inspectign of markets and several
other places. The latter clause on which Mr. Misra t¢lie~
.
. ' -
<-
-
'~;;;
r~
t
)< a
-
,,
I
4 S.C.R.
SUPREME COURT REPORTS
999
does not qualify the word "markets" which occurs in the
earlier part. Therefore, there can be no doubt that clause
(d) conferred power on respondent No. 2 to make a byelaw in regard to the establishment, regulation and inspection of the market such as is run on the plot belonging to
the appellant.
Clause ( dd) which flows as a consequence of clause
( d) empowers the Board to prescribe the conditions subject
to which and the circumstances in which licence may be
granted, and if clause ( d) is held to justify the making of
the impugned bye-law 3(a), the other clauses which prescribe the procedure for the application of licences, their
grant and other incidental matter would be valid under
clause (dd).
The scheme of the six clauses under heading F is clear.
Clauses (a) to (c) deal with places which are used as
slaughter houses or as markets or shops for the sale of
animals and other commodities mentioned in clause (a).
Clause (b) in particular deals with a bye-law which prescribes the conditions subject to which places mentioned in
clause (a) should be run; and clause ( c) deals with a byeIaw providing for the ins~ction of such places. Clause (d)
is wider in its sweep and it takes in places covered by
clause (a) and adds some other places, such as markets in
their generic sense. Therefore, there is no doubt that the
impugned bye-law 3 (a) and the other cognate bye-law are
justified by clauses (d) and (dd) of s. 298(2)-F.
Even if the said clauses did not justify the impugned
bye-law, there can be little doubt that the said bye-laws
would be justified by the general power conferred on the
Boards bys. 298(1). It is now well-settled tllat the specific
provisions such as are contained in the several clauses of
s. 298(2) are merely illustrative and they cannot be read as
restrictive of the generality of powers prescribed bys. 298(1)
vide Emperor v. Sibnath Banerji & Ors. (1). If the powers
specified by s. 298(1) are very wide and they take in within
their scope bye-laws like the ones with which we are concerned in the present appeal, it cannot be said that the
powers enumerated under s. 298(2) control the general
words used bys. 298(1). These latter clauses merely illustrate
and do not exhaust all the powers conferred on the Board,
(1) A.LR. 1945 P.C. 156.
1963
Afzal Ullah
v.
The State of
U ttar Pradesh
Gaiendragadkar /.
•
•
•
1963
Afzal Ullah
v.
The State of
U ttar Pradesh
Gajendragadk_ar f.
•
1000
SUPREME COURT REPORTS
[1%4]
so that any cases not falling within the powers specified by
section 298(2) may well be protected bys. 298(1), provided,
of course, the impugned bye-laws can be justified by reference to the requirements of s. 298(1). There can be no
doubt that the impugned bye-laws in regard to the markets
framed by respondent No. 2 are for the furtherance of
municipal administration under the Act, and so, would
attract the provisions of s. 298 ( 1). Therefore we are satisfied that the High Court was right in coming to the con,-
clusion that the impugned bye-laws are valid.
It is true that the preamble to the bye-laws refers to
clauses A (a), (d) & (c) and J (d) of s. 298 and these
clauses undoubtedly are inapplicable; but once it is shown
that the impugned bye-laws are within the competence of
respondent No. 2, the fact that preamble to the bye-laws
mentions clauses which are not relevant, would not affect
the validity of the bye-laws. The validity of the bye-laws
must be tested by reference to the question as to whether
the Board had the power to make those bye-laws. If the
power is otherwise established, the fact that the source of the
power has beeri incorrectly or inaccurately indicated in the
preamble to the bye-laws, would not make the bye-laws
invalid (vide P. Balakotaiah v. Union of India &
Other)(').
Mr. Misra then attempted to argue that the relevant
bye-laws have been passed mala fide out of spite and enmity
for the appellant. His contention was that the appellant's
shop is the only shop in the locality and bye-law 3( a) has
been passed maliciously in order to hit the appellant. We
do not think we can allow this point to be raised for the
first time in appeal. No doubt Mr. Misra referred to the
fact that Aftab Ahniad has admitted that there is no other
grain market in Sakrawal except the one run by the appellant, but that, in our opinion, can hardly afford a basis on
which the. plea of mala fides could be judged. Sakrawal
appears to be a locality in the town of Tanda, and so, a statement even if it is taken at its face value, cannot possibly
justify the assumption that there is only one grain market in
the whole of the town of Tanda. Besides, for proving mala
fides the appellant ought to have made appropriate allegatio_n~ ~t the stage of trial and led evidence to prove them .
(1) [1958] S.C.R. 1052.
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I-
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"I
4 S.C.R.
SUPREME COURT REPORTS
1001
Therefore, the plea of mala fides cannot be permitted to be
rai~ed.
Mr. Misra then suggested that bye-law 16 which prescribes fee up to Rs. 1,000/- is invalid, because it is unreasonable. Even this plea cannot be considered at this stage for
two reasons: it has not been raised in the courts below and
it~ patently premature, because no fee has yet been imposed
on the appellant; besides, the said bye-law merely authorises
the Board to levy a fee up to Rs. 1,000/-, but it specifically
adds that the amount levied by way of fee would depend
upon the services rendered by the Board. That is why it
would be impossible to deal with the attack against this
Lye-law in the abstract.
Mr. Misra also argued that the High Court should
have allowed his client to take two additional points before
it. These pleas are that the bye-laws had not been published
in the local paper as required by section 94(3) of the Act
and had not been ;:nade by a special resolution as required
by s. 29~(1). As the High Court has pointed out, these are
pleas of fact and should have been taken at the trial. In our
opinion, therefore, the High Court wa:i fully justified irr
not allowing the appellant to take these pleas for the first
time at the appellate stage.
The result is, the appeal fails and is dismissed.
Appeal dismissed
1963
Afzal Ullah
v.
The State of
U ttar Pradesh
Gajendragadkar /.