No 132 of 1951
Peti tion under article 32 of the Constitution for a writ in the nature of mandamus
The material facts are set out in the judgment
Nuruddin Abroad for the petitioner
KN Aggarwal for the respondents
February 27
The Judgment of the Court was delivered by DAs J
This is an application under article 32 of the Constitution made by Mohammad Yasin for the protection of his fundamental right of carrying on his business which according to him is being infringed by the respondent
The case sought to be made out in the petition may be shortly stated as follows The petitioner is a wholesale dealer in fresh vegetables and fruits at Jalalabad in the district of Muzaffarnagar in the State of Uttar Pradesh and claims to have been carrying on such business for the last 7 years or so at his shop situated in the town of Jalalabad
The vegetable and fruit growers used to bring their goods to the town and get them auctioned through any of the vegetable dealers of their choice who used to charge one anna in the rupee as and by way of commission
The respondent Committee which is a Town Area Committee has framed certain bye laws under which all right and power to levy or collect commission on sale or purchase of vegetables and fruits within the limits of the town vest in the respondent Committee or any other agency appointed by the Committee and no one except the respondent Committee is authorised to deal in wholesale vegetables and fruits and collect the commission thereof in any place and in any event
The respondent Committee has by auction given the contract for sale of 575 vegetables and fruits and for collecting the commission for the current year to the respondent Bishamber who it is alleged has never dealt in vegetables and fruits The respondent Committee has not set up any market nor has it framed any bye laws for issue of licences to the vegetable and fruit merchants
The bye laws also provide for prosecu tion for the breach of any of the provisions of these bye laws
Although in terms there is no absolute prohibition against carrying on business as wholesale dealer in vegeta bles and fruits the result of the bye laws requiring the wholesale dealers to pay the prescribed fee of one anna in the rupee to the contractor who holds the monopoly is in effect to bring about a total prohibition of the business of the wholesale dealers in vegetables and fruits
The petitioner contends that by granting a monopoly of the right to do wholesale business in vegetables and fruits to the respondent Bishamber the respondent Committee has in effect totally prevented the petitioner from carrying on his busi ness and has thereby infringed his fundamental right under article 191g of the Constitution
In the alterna tive the petitioner contends that the respondent Committee has no legal authority to impose a tax of the kind it has sought to do that the imposition of a tax calculated at one anna in the rupee is in the nature of a sale tax and cannot be regarded as a licence fee and such unauthorised impost constitutes an illegal restraint on his fundamental right under article 19 1 g
The notice of motion has been served on the respondent Committee as well as on respondent Bishamber
The respond ents have entered appearance and filed an affidavit in opposition to the present application affirmed by their agent on record Paragraph 4 of that affidavit is as follows  4
Paragraphs 4 5 6 and 7 of the petition are wrong and misleading and do not convey the correct idea
If the bye laws are read from beginning to end the correct posi tion is that the Town Area Committee has lawfully imposed certain taxes on the purchase 576 and sale of fruits and vegetables within the ambit of the Town Area and instead of collecting the aforesaid taxes departmentally the Committee finds it more convenient and less expensive to auction the right to collect the taxes  and give the contract to the highest bidder or whomsoever it thinks fit and proper
There is absolutely no restriction on anybody who wants to purchase or anybody who wants to sell only he must pay the prescribed tax to the Town Area Commit tee through the Contractor
The market is open and writ large throughout the territory of the Town Area Committee and anybody can purchase from anybody and anybody can sell to anybody without any control or intervention by the Contractor whose position is simply that of a taxcollector on behalf of the Town Area Committee
Instead of getting the pay he gets the profits if any and runs the risk of incurring losses if his gross realisations are less than what he paid
This is clearly the position and it is submitted there is nothing wrong with it legally and no interference of the petitioner s rights
 The petitioner has to his petition annexed copies of a set of bye laws dated June 24 1942 and a copy of a resolu tion of the respondent Committee dated March 16 1950 recommending the addition of several bye laws to the previ ous bye laws
At the hearing of the petition before us it was agreed by and between counsel on both sides that the petition has to be disposed of on the basis of the bye laws of 1942 only and learned counsel for the respondent Commit tee has produced the original bye laws of 1942 before us
Bye law 1 only provides that no person shall sell or pur chase any vegetable or fruit within the prescribed limits of the Town Area Committee Jalalabad by wholesale or auctionwithout paying the fee fixed under these bye laws to the licensee appointed by the Town Magistrate
Bye law 4 b expressly provides that any person can sell in wholesale at any place in the Town Area provided he pays the pre scribed fees to the licensee
It is therefore clear that these byelaws do not in terms prohibit anybody from dealing in vegetables and fruits as alleged by the petitioner 577 and in this respect they materially differ from the bye laws which this Court had to consider in the Kairana case1 which consequently does not govern this case
Learned counsel however contends and we think with considerable force and cogency that although in form there is no prohibition against carrying on any wholesale business by anybody in effect and in substance the bye laws have brought about a total stoppage of the wholesale deal ers  business in a commercial sense
The wholesale dealers who will have to pay the prescribed fee to the contractor appointed by auction will necessarily have to charge the growers of vegetables and fruits something over and above the prescribed lee so as to keep a margin of profit for themselves but in such circumstances no grower of vegetables and fruits will have his produce sold to or auctioned by the wholesale dealers at a higher rate of commission but all of them will flock to the contractor who will only charge them the prescribed commission
On the other hand if the wholesale dealers charge the growers of vegetables and fruits only the commission prescribed by the bye laws they will have to make over the whole of it to the contractor without keeping any profit themselves
In other words the wholesale dealers will be converted into mere tax col lectors for the contractor or the respondent Committee without any remuneration from either of them In effect therefore the bye laws it is said have brought about a total prohibition of the business of the wholesale dealers in a commercial sense and from a practical point of view
We are not of opinion that this contention is unsound or untenable
Learned counsel for the petitioner however does not leave the matter there
He goes further and urges that the respondent Committee has no legal authority to impose this fee of one anna in the rupee on the value of goods sold or auctioned and that such imposition is in the nature of a sale tax rather than a licence fee
1  578 Learned counsel for the respondent in reply takes a preliminary objection to this line of argument
He points out that as the levying of a tax without authority of law is specifically prohibited under article 265 of the Constitu tion article 811 must be construed as referring to depri vation of property otherwise than by levying of a tax and that levying of a tax in contravention of article 265 does not amount to a breach of a fundamental right
He contends on the authority of the decision of this Court in Ramjilal vs Income tax Officer Mohindargarh1 that while an ille gal imposition of tax may be challenged in a properly con stituted suit it cannot be questioned by an application under article 32
This argument overlooks the difference between a tax like the income tax and a licence fee for carrying on a business
A licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his right to carry on his business for without payment of such fee the business cannot be carried on at all
This aspect of the matter was not raised or considered in the case relied on by the learned counsel and that case therefore has no application to the facts of this case
Under article 191 g the citizen has the right to carry on any occupation trade or business which right under that clause is apparently to be unfettered
The only restriction to this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation trade or business as mentioned in clause 6 of that article as amended by the Constitution First Amend ment Act 1951
If therefore the licence fee cannot be justified on the basis of any valid law no question of its reasonableness can arise for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupa tion trade or business under article 19 1 g and such infringement can properly be made the subject matter of a challenge under article 32 of the Constitution
1 1951 SCR127
579 Learned counsel for the respondents then refers us to the UP Town Areas Act No 11 of 1914 which governs the respondent Committee
Section 14 of this Act requires the Committee to annually determine and report to the District Magistrate the amount required to be raised in any town area for the purposes of this Act and provides that the amount so determined shall be raised by the imposition of a tax to be assessed on the occupiers of houses or lands within the limits of the town area according either to their general circumstances or to the annual rental value of the houses or lands so occupied by them as the Committee may determine
There were at the time when the bye laws of the respond ent Committee were framed five provisos to this section none of which authorised the imposition of any tax on any business and therefore they have no bearing on the ques tion now under consideration
Learned counsel for the respondents however draws our attention to section 38 of the Act which authorises the Provincial Government by noti fication in the Official Gazette to extend to all or any or any part of any town area any enactment for the time being in force in any municipality in the United Provinces and to declare its extension to be subject to such restrictions and modifications if any as it thinks fit
Then he proceeds to draw our attention to Notification No 397XI 871 E dated the 6th February 1929 whereby in supersession of all previous notifications the Provincial Government in exer cise of the powers conferred by section 381 of the United Provinces Town Areas Act 1914 extended the provisions of sections 2931 and 2982 J d of the United Provinces Municipalities Act 11 of 1916 to all the town area in the United Provinces in the modified form set forth therein
The original bye laws produced by learned counsel purport however to have been framed by the respondent Committee under sections 298 2Faand 294 of the United Provinces Municipalities Act 11 of 1916
We have not been referred to any notification whereby section 294 580 of the United Provinces Municipalities Act was extended to the respondent Committee
It appears however that the bye laws of the respondent Committee were revised in Septem ber 1942 and were then said to have been made under section 298 2 J d
It will have therefore to be seen wheth er these bye laws come within The purview of section 298 2 J d as modified in their application to the respondent Committee
It will be noticed that under section 298 2 J d as modified as aforesaid the respondent Committee is authorised only to make bye laws fixing any charges or fees or any scale of charges or fees to be paid under section 9931 and prescribing the times at which such charges or fees shall be payable and designating the persons authorised to receive payment thereof
Section 2931 as modified authorises the respondent Committee to charge fees to be fixed by bye laws or by public auction or by agreement for the use or occupation otherwise than under a lease of any immovable property vested in or entrusted to the management of the Town Area Committee including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise
Bye law 1 of the respondent Committee to which a reference has already been made forbids a person from using any land within the limits of the town area for the sale or purchase of fruits and vegetables without paying the prescribed fee
Bye law 4 b however allows any person to sell in wholesale at any place in the town area provided he pays the prescribed fees to the licensee
These bye laws do not purport to fix a fee for the use or occupation of any immovable property vested in or entrusted to the management of the Town Area Committee including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise
Sections 2931 and 2982 J d of the United Province Municipalities Act 1916 as amended at the time they were extended to the town areas in the United Provinces do not empower the Town Area Committee to make any bye law authorising it to 581 charge any fees otherwise than for the use or occupation of any property vested in or entrusted to the management of the Town Area Committee including any public street
Therefore the bye laws prima facie go much beyond the powers con ferred on the respondent Committee by the sections men tioned above and the petitioner complains against the en forcement of these bye laws against him as he carries on business in his own shop and not in or on any immoveable property vested in the Town Area Committee or entrusted to their management
Learned counsel for the respondent Commit tee however urges that the growers of vegetables and fruits come on foot or in carts or on horses along the public street and stand outside the petitioner s shop and for such use of the public street the respondent Committee is well within its powers to charge the fees
From the way the case was formulated by the learned counsel it is quite clear that if anybody uses the public street it is the growers of vegetables and fruits who come to the petition er s shop to get their produce auctioned by the petitioner and the petitioner cannot be charged with fees for use of the public street by those persons
In our opinion the bye laws which impose a charge on the wholesale dealer in the shape of the prescribed fee irrespective of any use or occupation by him of immoveable property vested in or en trusted to the management of the Town Area Committee includ ing any public street are obviously ultra vires the powers of the respondent Committee and therefore the bye laws cannot be said to constitute a valid law which alone may under article 1916 of the Constitutionofimpose a restric tion on the right conferred by article 191 g
In the absence of any valid law authorising it such illegal impo sition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation trade or business which is guaranteed to him by article 191 g of our Constitution 75 582 In this view of the matter the petitioner is entitled to a suitable order for protection of his fundamental right
The prayer in the petition however has been expressed in language much too wide and cannot be granted in that form
The proper order would be to direct the respondent Committee not to prohibit the petitioner from carrying on the busi ness of a wholesale dealer in vegetables and fruits within the limits of the Jalalabad Town Area Committee until proper and valid bye laws are framed and thereafter except in accordance with a licence to be obtained by the petitioner under the bye laws to be so framed
The respondent Commit tee will pay the costs of this application to the petition er
Agent for the petitioner Naunit Lal


Summary:
The petitioner In his Writ Petition Under Article 32 of the Constitution of India challenged the constitutional validity of the Representation of the People Amendment Ordinance 1992 Ordinance No 1 of 1992 and the Representation of the People Second Amendment Ordinance 1992 Ordinance No2 of 1992 on the grounds of violation of Articles 14 19 and 21 of the Constitution of India
The provisions of Section 52 of the Representation of the People Act 1951 as they stood before amendment provided for countermanding the election In either of two contingencies 1 If a candidate whose nomination was found valid on scrutiny under section 36 or who has not withdrawn his candidature under section 37 died and a report of his death was received before the publication of the list of contesting candidates under section 38 II If a contesting candidate died and a report of his death was received before the commencement of the poll
By Ordinance No 1 of 1992 the area attracting the provisions of countermanding in section 52 had been narrowed down by confining the provisions only to such cases where a candidate of a recognized political party dies
787 Section 30 of the Representation of People Act 1951 dealt with appointment of dates for nomination scrutiny and the holding of poll and in clause d it was provided that the date of poll shall not be earlier than the twentieth day after the last date for the withdrawal of candidatures
With a view of expedite the whole process the words twentieth day  have been substituted by the words fourteenth day  in clause d of Section 30 by the Second Ordinary viz Ordinance No 2 of 1992
On behalf of the petitioner it was contended that the distinction made by the impugned amendment between a candidate set up by a recognised political party and any other candidate is artificial inconsistent with the spirit of the election law and discriminatory that the Con stitution does not confer on a candidate set up by a registered political party any special right and treats all candidates similarly and does not any categorisation that the difference being introduced by the impugned amendment was contrary to the scheme of the Constitution and violative of the equality clause in Article 14 and that it also infringed the guarantee under Article 191 a
In respect of the Second Ordinance the objection was that the period of 14 days substituted by the amendment was too short and the reduction from the period of 20 days was arbitrary and prejudicial to the larger interest for which elections are held
The Petition was contested on behalf of Union of India by stating that on account of increase in terrorism and physical violence in several parts of the Country combined with the phenomenal increase in the number of independent candidates the danger of disruption of the election process had been fast growing and the problem was therefore taken up examined and it was considered that the amendments were essential to curb the danger of disruption of the election process
Dismissing the Writ Petition this Court HELD  1
The right to vote or to stand as a candidate for election is neither a fundamental right nor a civil right In England also it has never been recognised as a common law right 791D Jyoti Basu  Ors
vs Debi Ghosal  Ors  and 986 referred to 2
The Cabinet system of Government has been envisaged by our 788 Constitution and the same is on the British pattern
In England where democracy has prevailed for longer than in any other country in recent times the Cabinet system of Government has been found to be most effective
In other democratic countries also the party system has been adopted with success
792C D Shamser Singh vs State of Punjab  at 827 referred to
3For a strong vibrant democratic Government it is necessary to have a parliamentary majority as well as a parliamentary minority so that the different points of view on controversial issues are brought out and debated on he floor of the Parliament
This can be best achieved by the party system so that the problems of the nation may be discussed considered and resolved in a constructive spirit
To abolish or ignore the party system would be to permit a chorus of discordant notes to replace an organised discussion
792E Sir Ivor Jennings Cabinet Government 2nd Edn
p16 referred to
4Our Constitution has dearly recognised the importance of the party system which was further emphasized by the addition of the 10th Schedule to it The Election Symbols Reservation and Allotment Order is also a step in that very direction
792F 5That candidates set up by political parties constitute a class separate from other candidates has been recognised in numerous cases by this Court which has also emphasized the vital role of political parties in a parliamentary form of democracy and expressed anxiety about the growing number of independent candidates
792H 793C Dr PN Thampy Terah vs Union of India  and DML Agarwal vs Rajiv Gandhi   referred to
6The Representation of the People Amendment Ordinance 1992 and theRepresentation of the People Second Amendment Ordinance 1992 are constitutionally valid
789C