Appeal No 372 of 1956
Appeal from the judgment and order dated January 18 1956 of the Allahabad High Court in Special Appeal No 43 of 1955
G C Mathur for the appellant
G P Singh and K P Gupta for the respondent
section P Sinha and P C Agarwala for Intervener No 1
Radheylal Agarwala and PC Agarwala for intervener No 2
Frank Anthony and M I Khowaja for Intervener No 3 1960
October 26
The Judgment of the Court was delivered by WANCHOO J
This is an appeal on a certificate granted by the Allahabad High Court
The respondent is carrying on the trade of hulling rice milling grains and extracting oil in village Nandganj within the area of Gaon Sabha Barapur
He obtained licences for the three trades under the United Provinces Rice and Dal Control Order 1948 as also under the Uttar Pradesh Pure Food Act 1950
Further the Gaon 83 of Rs 8 on each mill within its jurisdiction and the respondent had been paying that as well
In 1953 the District Board Ghazipur in which district the village is situate enforced bye laws for the regulation and control of flour rice and oil mills in the rural areas of the district under which a licence has to be obtained by such mills on payment of Rs 20 as licence fee per year per mill
When the respondent was served with a notice to take out a licence for each mill and to pay the licence fee he objected to the legality and validity of the levy and thereafter filed a writ petition in the High Court under article 226 of the Constitution
His contention in this connection was three fold namely i After the constitution of Gaon Sabha Barapur under the U P Panchayat Raj Act No XXVI of 1947 the District Board had been divested of its power and jurisdiction in the matter of regulation and control of trade under the relevant provisions of the U P District Boards Act No X of 1922 ii the respondent had paid the necessary licence fees under the UP Rice and Dal Control Order 1948 and the U P Pure Food Act 1950 and could not be asked to pay the licence fees over again under the District Boards Act and iii in any case the levy was too high and not in proportion to the actual and probable expenses which the District Board would have to incur in controlling or regulating trade and was meant to augment the general revenues of the District Board
The writ petition was heard by a learned Single Judge of the High Court who appears to have dismissed it in limine by a reasoned judgment negativing all the three contentions raised by the respondent
The respondent then went in appeal and the Appeal Court allowed the appeal holding that in view of section 111 of the Panchayat Raj Act the District Board had lost its power to make bye laws for the regulation and control of trade under section 174 of the District Boards Act
The Appeal Court was further of the view that the levy was not out of proportion to the expenses to be incurred by the District Board in the matter of regulation and control and was not a tax
It did not decide the third point raised on behalf of the 84 respondent
The District Board then applied for a certificate to appeal to this Court which was granted and that is how the matter has come up before us
The main question which falls for consideration in this appeal is whether the view of the Appeal Court that the District Board has lost its power to make bye laws under section 174 of the District Boards Act for regulation and control of trade in view of section 111 of the Panchayat Raj Act is correct
Learned counsel for the appellant puts his argument on this point in two ways
In the first place he urges that the Panchayat Raj Act does not contain any provision by which the Gaon Sabha or the Gaon Panchayat has been given the power to regulate or control trade and therefore even if the Panchayat Raj Act is to prevail over the District Boards Act where the two deal with the same matter this particular power remains in the District Board as it is not included within the powers exercisable by Panchayats under the Panchayat Raj Act
In the alternative he urges that the intention of the legislature was not that those provisions of the District Boards Act which are common in the two Acts should be repealed by necessary implication and therefore the District Board s power to control and regulate trade would remain whatever may be the provision of the Panchayat Raj Act
We shall therefore examine the first contention raised on behalf of the appellant under this head for if the Panchayat Raj Act has not provided for the control and regulation of trade by the Gaon Sabha or the Gaon Panchayst there will be no question of any inconsistency between the District Boards Act and the Panchayat Raj Act and therefore no question of the later Act i e the Panchayat Raj Act prevailing over the earlier Act i e the District Boards Act
Section 91 of the District Boards Act provides for what may be called compulsory duties of District Boards and cl
q of this section lays down that every board shall make reasonable provision within the district for regulating offensive dangerous or obnoxious trades callings or practices
Section 106 of the District Boards Act gives power to the Board to charge a fee 85 to be fixed by bye law for any licence sanction or permission which it is entitled or required to grant by or under the District Boards Act
Section 174 gives power to the District Board to frame bye laws consistent with the Act and with any rules framed by the State Government for the purpose of promoting or maintaining the health safety and convenience of the inhabitants of the area and for the furtherance of the administration of the district under the Act
In particular power is given by section 174 2 k to the District Board to frame bye laws for regulating slaughter houses and offensive dangerous or obnoxious trades callings or practices and prescribing fees to defray the expenditure incurred by it for this purpose
It is not in dispute that the District Board has power under these provisions to frame bye laws for regulation of these trades namely hulling rice milling grains and extracting oil
Therefore unless this power is taken away expressly or by necessary implication by any provision of the Panchayat Raj Act the District Board would be entitled to frame the bye laws which it did in 1953 and charge licence fees thereunder
Turning now to the Panchayat Raj Act we find that section 15 of this Act provides for what may be called the compulsory duties of a Gaon Panchayat while section 16 provides for what may be called its optional dutiee
Section Ill gives power to the prescribed authority to 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 the administration of Gaon Panchayats under the Act
The prescribed authority in this case is the Executive Committee of the District Board see section 56 of the District Boards Act which may be assumed for present purposes to be different from the District Board as such
The contention on behalf of the appellant is that reading sections 15 and 16 together with section 111 it is obvious that regulation or control of trades callings and practices is not within the purview of the Panchayat Raj Act
There 86 is no doubt that neither section 15 nor section 16 contains any provision corresponding to section 91q of the District Boards Act
Therefore prima facie the Panchayat Raj Act has nothing to do with the regulation or control of offensive dangerous or obnoxious trades callings or practices and this power of the District Board is unaffected by anything in the Panchayat Raj Act
Learned counsel for the respondent however urges that though there is no specific provision relating to such regulation or control in the Panchayat Raj Act in sections 15 and 16 this matter of regulation and control is impliedly covered by el
c of section 15 of the Panchayat Raj Act which enjoins on a Panchayat the duty to make reasonable provision for sanitation and taking curative and preventive measures to remove and to stop the spread of an epidemic
It is urged that sanitation  must be given a very wide meaning and that meaning will include the regulation of offensive dangerous or obnoxious trades
It may be that on the widest meaning of the word  sanitation  such regula
tion may be included in it but looking to the scheme of the District Boards Act as well as the Panchayat Raj Act it is in our opinion not correct to give the widest possible connotation to the word  sanitation  in cl
c of section 15
Section 91m of the District Boards Act provides for  public vaccination sanitation and the prevention of disease  but in spite of this entry relating to sanitation there are other provisions in section 91 which deal with what would be covered by  sanitation  if it were to be given the widest possible meaning as for example cl
e relating to construction and repair of public wells etc
and drainage works and the supply of water from them  el
n relating to provision of a sufficient supply of pure and wholesome water where the health of the inhabitants is endangered by the insufficiency or unwholesomeness of the existing supply guarding from pollution water used for human consumption and preventing polluted water from being so used cl
r relating to dissemination of knowledge on such matters as disease hygiene sanitation etc
This will show that the word  sanitation  in cl
m of section 91 is not used in its widest sense
87 Similarly in section 92 which provides for optional duties of District Boards cl
c refers to reclaiming unhealthy localities and cl
i to conserving and preventing injury or contamination to or pollution of rivers and other sources of water supply which matters would be covered within the wide meaning of sanitation
It is obvious therefore that when the word  sanitation is used in the District Boards Act it is used in a restricted sense
Similarly in the Panchayat Raj Act cl
c of section 15 mentions  sanitation 
Clause g relates to regulation of places for the disposal of  carcases and of other offensive matters which would clearly be covered by  sanitation  in its widest sense and would have been unnecessary if sanitation was to be given its widest meaning in this section
Clause k of section 15 provides for regulation of sources of water supply for drinking purpose which would again be included within the widest meaning of the word  sanitation 
Clause r provides for allotment of places for storing manure which would again be embraced within the widest meaning of the word  sanitation  and need not have been separately provided for if sanitation in cl
c had the wide meaning urged for it on behalf of the respondent
Further section 16 which deals with discretionary functions of a Gaon Panchayat provides in cl
c for filling in of insanitary depressions and levelling of land a clause which would be unnecessary if  sanitation  has the widest possible meaning
Clause 1 of section 16 provides for regulating the collection removal and disposal of manure and sweepings and making arrangement for the disposal of carcases of animals which again would be covered by el
c if sanitation is to be given the widest possible meaning
Clause m provides for prohibiting or regulating the curing tanning and dyeing of skins within 220 yards of the abadi which again would be covered by the word  sanitation  if it had the wide meaning urged on behalf of the respondent
It would thus be clear that both in the District Boards Act as well as in the Panchayat Raj Act when the word  sanitation  has been used it has not been used in its widest sense it seems to have been used in its ordinary meaning i e the improvement of sanitary 88 conditions specially with regard to dirt and infection and would thus be confined to matters of conservancy and drainge and the like
In the context therefore of both the District Boards Act and the Panchayat Raj Act it seems to us that the word  sanitation  as used in section 91 of the District Boards Act and A 15 of the Panchayat Raj Act is confined to its ordinary meaning in relation to conservancy and drainage and the like with reference to the necessity of avoiding dirt and disease and cannot be given such a wide meaning as to include control or regulation of trades callings or practices
Section 18 of the Panchayat Raj Act gives a clear indication that it is the ordinary meaning that is intended by the word  sanitation  in cl
c of section 15
Section 18 deals with improvement of sanitation and provides that a Gaon Panchayat may by notice direct the owner or occupier of any land or building to close remove alter repair cleanse disinfect or put in good order any latrine urinal water closet drain cesspool or other receptacle for filth sullage water rubbish or refuse and so on to cleanse repair cover fill up drain off deepen or to remove water from a private well tank reservoir pool pit depression or excavation therein which may appear to be injurious to health or offensive to the neighbourhood to clear off any vegetation undergrowth prickly pear or scrub jungle and to remove any dirt dung nightson
manure or any noxious or offensive matter therefrom and to cleanse the land or building
It must therefore be held that the Panchayat Raj Act does not provide for control and regula tion of trades callings or practices like section 91 q of the District Boards Act
It is however urged that even though sections 15 and 16 do not specifically deal with control and regulation of trades callings or practices section Ill is in very general terms and gives powers to the prescribed authority to frame any bye laws relating to promotion or maintenance of health safety and convenience of persons residing within the jurisdiction of a Gaon Panchayat
It is true that these words in section III are of wide amplitude  but they cannot in our opinion be widened 89 beyond the duties imposed on a Gaon Panchayat or Gaon Sabha under as
15 and 16 or any other provi
sion of the Panchayat Raj Act
The bye laws framed under section 111 which are for the promotion or maintenance of health safety and convenience have also to be in furtherance of the administration of Gaon Panchayats under the Act
Therefore if Gaon Panchayats have administrative functions under as 15 and 16 or any other provision of the Act bye laws can be framed under a 111 for these purposes in order to further the administration of Gaon Panchayats
But if as we have held Gaon Panchayats are not invested with the duty to control and regulate trades callings and practices there can be no question of framing bye laws in that behalf under section 111 on the basis of the wide words used therein
The power to frame bye laws under section 111 is in our opinion conditioned by the duties and functions imposed on a Gaon Panchayat under sections 15 and 16 as well as other provisions of the Panchayat Raj Act
It is not in dispute that there is no other provision of the Panchayat Raj Act which imposes a duty on Gaon Panchayats to control or regulate trades callings or practices and therefore the power under section 111 does not extend to prescribing bye laws for that purpose
The only other section to which our attention is drawn is section 37d by which a Gaon Sabha has been given the power to impose a tax on trades callings and professions not exceeding such rate as may be prescribed
This in our opinion has nothing to do with the regulation of trades callings and practices and levying of licence fees in that behalf
What this provision refers to is what is provided in item 60 of List II of the Seventh Schedule and not fees properly so called
We are therefore of opinion that as the Panchayat Raj Act does not provide for control or regulation of the nature mentioned in section 91q of the District Boards Act there is no question of the power of the District Board under section 174 to frame bye laws and to prescribe fees in that behalf being taken away by section 111 of the Panchayat Raj Act
It seems that this aspect of the matter was not argued in the High Court at all and it 90 appears to have been assumed there that the Panchayat Raj Act also provided for the same matter as was covered by section 91q of the District Boards Act and it was probably on that basis that the High Court held that section Ill of the Panchayat Raj Act prevailed over section 174 of the District Boards Act
In the view we have taken it is not necessary to consider the alternative argument raised on behalf of the appellant in respect of this point
This brings us to the point which was not considered by the Appeal Court though the learned Single Judge had dealt with it and held against the respondent
That contention is that certain fees are being levied on the respondent in respect of these mills under the U P Rice and Dal Mills Control Order 1948 and the U P
Pure Food Act and therefore the District Board cannot levy any further licence fee under section 91q of the District Boards Act read with section 174
As pointed out by the learned Single Judge the fees levied under the Control Order of 1948 which depends for its existence on the Essential Supplies Act and under the U P
Pure Food Act are for different purposes of those Acts
The fee charged by the District Board is for regulation of obnoxious trades and the purpose of this regulation is different from the purpose for which fees are levied under the Essential Supplies Act and the Pure Food Act
Under these circumstances we see no reason for striking down the regulatory provisions made under the District Boards Act and the licence fee charged thereunder
The fact that there may be some overlapping between the regulatory provisions made under the U P
Pure Food Act and those made under the District Boards Act can have no relevance on the validity of the bye laws and the licence fee charged under them
In this view of the matter the appeal is allowed the order of the Appeal Court set aside and the writ petition dismissed
However as the point on which the appellant has succeeded in this Court was not specifically raised in the High Court we order the parties to bear their own costs throughout
Appeal allowed


Summary:
Section 116 of the Pepsu Ordinance X of 2005 1948 1949 is a transitory regulation providing for a change over of proceedings from one set of courts in the covenanting State to others of like status in the Union and for their continuance etc
in the latter courts
It does not mean that the proceedings must be treated as having freshly commenced
What is contemplated in the latter part of the section is a notional commencement and the section means that all rights which arose or are likely to arise in future shall remain intact not with standing the new set Lip and that they would be dealt with by the Union courts in place of the courts of the covenanting State
There is nothing in the section to justify the view that any taking away of a vested right of appeal retrospectively was intended
Under the Patiala States Judicature Farman of 1999 a certificate was necessary for an appeal to a Division Bench from an order of a single Judge of the Patiala High Court only in respect of judgments and orders made in the exercise of civil appellate jurisdiction
Under the Pepsu Ordinance X of 2005 1948 49 a certificate was necessary in all cases
In Appeal No 152 an application made on 2nd February 1950 for amendment of an order made by a Liquidation Judge in 1946 was dismissed and an appeal from the order of dismissal to a Division Bench was dismissed on 1st May 1950 for want of a certificate
In appeals Nos 167 and 167A the payment orders were made on the 18th January 1949 and appeals from those orders were dismissed on 3rd March 1949 for want of a certificate Held i that as a petition for amendment was not a continuation of the earlier proceedings but was in the nature of an 753 independent proceeding though connected with the order sought to be amended it was governed by the law prevailing on its date viz the Pepsu Ordinance of 2005 under which a certificate was necessary and in Appeal No 152 the dismissal of the appeal to the Division Bench for want of a certificate was right iithat with regard to Appeals Nos 167 and 167 A as the law in force on the relevant dates was the Patiala States Judicature Farman of 1999 the appellants had a right to appeal from the payment order without a certificate this vested right could not be taken away by a subsequent change in the law unless the later enactment expressly or by necessary implication was retrospective in operation and deprived them of such a right that there was nothing in section 116 of the Ordinance to show that it was intended to have retrospective effect and the order of the High Court dismissing the appeals as incompetent was therefore erroneous
Colonial Sugar Refining Company vs Irving referred to