Judgement

K. N. WANCHOO, J. : This appeal on a certificate granted by the Allahabad High Court raises a question relating to the interpretation of certain provisions of the U. P. District Boards Act, (U. P. X of 1922) and the U. P. Town Areas Act, (U.P. II of 1914). It is necessary to state the facts on which the question has arisen. Asa Ram appellant runs certain machines with the aid of power in premises which are in a locality which is admittedly within the Jalalabad town area since the year 1953-54. He did not take out a licence for running these machines for 1953-54, as required by bye-law (7) of the Muzaffarnagar Factories Bye-laws, framed by the District Board of Muzaffarnagar, under S. 174 (1) (k) read with S. 106 of the District Boards Act. Consequently, he was prosecuted for contravening the byelaws in question. He admitted that he was running these machines with the aid of power; but his contention was that as the premises where the machines were running were in the town area of Jalalabad, the byelaws framed by the District Board did not apply to him and it was not necessary for him to take out a licence, and his prosecution at the instance of the District Board for contravening the bye-laws was bad. The decision of this point depended upon the construction of S. 93 (3) of the District Boards Act and S. 26 of the Town Areas Act.

2. The trial Magistrate was of the opinion, on a construction of the sections abovenamed, that the bye-laws framed by the District Board were not applicable to premises within the Jalalabad town area, and therefore, Asa Ram need not have taken out a licence. He consequently acquitted Asa Ram. There was a revision application by the District Board, which was dismissed by the Additional District Magistrate (Judicial), Muzaffarnagar, who agreed with the view of the Magistrate. The District Board then went up in revision to the High Court of Allahabad. The revision was heard by a learned Single Judge, who framed three questions which arose for determination, namely,

(1) Is running of a flour mill, etc., an offensive trade ?

(2) Does the word regulation used in S. 26 (a) U. P. Town Areas Act include the power of issuing a licence? and

(3) Does S 93(3) of the District Boards Act amount to a divestment of authority of the District Board in favour of the Town Area Committee ?

On the first question, the learned Judge was of the opinion that the machines run by Asa Ram would come within the provisions of S.26(a) of the Town Areas Act, though he also took the view that it was not necessary for him to decide the point. On the second question, he held that regulation did not include the power of granting a licence, though this was against a Division Bench authority of that High Court reported as Municipal Board, Hathras v. Bohrey Narain Dutt, A I R 1948 All 1. He relied on a decision of this Court in Mohammad Yasin v. The Town Area Committee Jalalabad 1952 S C R 572 : also in this connection. On the third question he was of the view that S. 93(3) barred the District Board from exercising any authority in a town area which is vested in the body mentioned in it. He was further of the view that the amendment of the Town Areas Act in 1934 by which the word Panchayat occurring in the Town Areas Act was substituted throughout by the word Committee made no difference even though S.93(3) of the District Boards Act was not simultaneously amended by substituting the words Town Area Committee for the words Town Panchayat therein in conformity with the change made in the Town Areas Act. But in view of his decision on the second question, viz., that regulation did not include the power of granting a licence, he held that bye-laws framed by the District Board for taking out licences applied to premises within the town areas. He, therefore, set aside the acquittal and ordered a retrial. He also gave leave to appeal to this Court.

3. The three points formulated by the High Court arise for decision before us also.