JUDGMENT

S.C. Manchanda, J. - This is a writ petition under Article 226 of the Constitution by Ghulam Hussain, wholesale vegetable and fruit commission dealer, carrying on business in the Town Area of Miranpur, challenging the demand of licence fee of Rs. 100/-for carrying on his business in the suit and vegetable market for 1960-61.

2. The petitioner carried of on business of commission agency in fruits and vegetable from the year 1958-59 in partnership with one Jagdish Prasad. A licence was duly taken by Sri Jagdish Prasad in his name. In the assessment year 1959-60, the petitioner started this commission agency in fruits and vegetable taking over the goodwill of the former business. By a notice dated the 25th May, 1959 the petitioner was required by the Town Area Committee (hereinafter referred to as the Committee) to obtain a licence under the bye-laws, and in the event of non-compliance was informed that he would be prosecuted under the Act. The petitioner did not comply and he was prosecuted. The Sub-Divisional Magistrate convicted him and sentenced him to Rs. 40/- as fine and Re. 1/- per day in default of obtaining a licence. The revision against his conviction is pending and the proceedings have been stayed by an order of this Court dated the 12th August 1960. The Town Area Committee served an other notice dated the 15th May 1960 requiring him to obtain a licence for 1960-61 for carrying on the business of commission agency in vegetables by the payment of Rs. 100/- as licence fee within three days. The petitioner replied that as a revision for the earlier year was pending no action should be taken against him. Prosecution, however, was launched and the 10th of August 1960 was fixed for appearance of the petitioner. The present writ petition was filed on the 12th of August 1960 and the aforesaid stay order obtained.

3. According to the opposite parties, the licence and the fee has been demanded by virtue of the bye-laws framed under Sec. 27 Cl. (h), (i) and (j) read with Sec. 298(1) of the U.P. Municipalities Act, 1916 as applied to the Town Area Miranpur, published on the 9th of April, 1956, and enforced from the 1st April, 1958. Sec. 27 gives the power to the Committee to frame bye-laws for sanitation etc. In particular sub-clause (h) provides for condemnation and destruction of food which is unfit for human consumption, sub-Clause (1) for the prohibition for reasons of public health of the use of any place for the sale of fish, fruit, vegetables or sweetmeats in default of a licence granted by the Committee or otherwise than in accordance with the conditions of the licence; sub-Cl (j) the fixing of the condition subject to which and the circumstances in which and the areas of localities in respect of which licence for the sale of fish, fruit, vegetables or sweetmeats may be granted, refused, suspended or withdrawn.

4. A bye-law can therefore validly be framed requiring that a licence be taken out by any person who uses any place within the town area for the sale of vegetables. The conditions on which that licence can be given can also be provided.

5. The only question is whether fixing of the condition includes the power to levy a licence fee. This is the only contention which has been argued by the learned counsel for the petitioner according to whom licence can be demanded but no fee can be levied as there is no provision in the Town Areas Act or the Municipalities Act as made applicable to the Town Areas for the levy of any such licence fee on persons carrying on the sale of vegetables and fruit in privately owned shops and not owned by the Town Area. Reliance was placed by Sri G. D. Srivastava, the learned counsel for the petitioner, on Mohammad Yasin v. Town Area Committee of Jalalabad, A.I.R. 1952 S.C. 115 and Asa Ram v. District Board, Muzaffarnagar, A.I.R. 1959 S.C. 480. The former case was no doubt one in which there was a virtual monopoly granted by the Town Area Committee to one person, the effect whereof w