IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 15769 of 2008 Dashrath Singh @ Dashrath Prasad Singh aged about 81 years, son of late Ram Prasad Singh, resident of village - Babhanbigha, P S - Barbigha, Dist - Sheikhpura - Petitioner Versus 1 The State of Bihar 2 The District Magistrate, Sheikhpura 3 The Deputy Commissioner, Bhagalpur Range, Bhagalpur 4 Barbigha Nagar Panchayat, Barbigha (Sheikhpura) through its Executive Officer 5 The Chairman, Barbigha Nagar Panchayat, Barbigha, Dist - Sheikhpura 6 The Block Development Officer -cum- Chief Executive Officer, Barbigha Nagar Panchayat, Dist - Sheikhpura 7 The Empowered Standing Committee of the Barbigha Nagar Panchayat, Barbigha, Dist - Sheikhpura - Respondents *** For the petitioner : M/s N K Agarwal, Sr Advocate & Arun Kumar, Advocate For respondents 5 & 7 : M/s Ram Balak Mahto, Sr Advocate & Ajay Kumar Singh, Advocate For respondents 8, 9 & 10 : M/s K D Chatarjee & Neeraj Singh, Advocates For the S t a t e : Mr Kumar Uday Bhanu Roy, G A IV *** 7 06.03.2009 The petitioner had initially filed the writ application challenging Annexure-5, the public notice dated 15.09.2008 issued under the signature of the Executive Officer, Nagar Panchayat, Barbigha and published in the newspapers on the said date whereby the Nagar Panchayat had invited applications for grant of licence for, inter alia, holding cattle fair within its jurisdiction. The challenge was on the ground that the conditions put therein were designed to eliminate the petitioner and had not been made in accordance with procedure established under the Bihar Municipal Act, 2007 and the rules framed thereunder. In substance, it was submitted that the conditions appended 2 to the licence or eligibility conditions were part of regulation which was required to be framed in terms of Section 421 of the Act and having not been so framed, procedure not having been followed, they were unenforceable and could not be acted upon. During pendency of the writ petition, the petitioner nevertheless made an application for grant of licence to hold cattle fair on his own raiyati land and that came to be rejected by order dated 27.10.2008 (Annexure-8) which has now been challenged by a separate interlocutory application while amending the writ petition. Nagar Panchayat has appeared and so have two interveners to whom licenses were granted. Pleadings, being complete, with consent of parties, the writ petition has been taken up for disposal at this stage itself. Petitioner asserts that he has his own large track of raiyati land within the Nagar Panchayat, Barbigha. For over last 50 years, he had been authorized to hold customary cattle fair thereon. Recently, he was noticed by the Executive Officer by notice dated 30.05.2008 (Annexure-1) to show cause that under what authority was the petitioner holding the cattle fair. Petitioner’s attention was drawn to, inter alia, Section 342 of the Municipal act aforesaid. Petitioner responded that he had holding the cattle fair for a considerable period under licence granted under the provisions of the Bihar Agriculture Produce Markets Act, 1960 and the Rules framed thereunder. He submitted that he is not a fully literate person and was not aware of licensing provisions under the Municipal Act. He, accordingly, was willing to obtain licence under 3 the Municipal Act in terms of Section 342 thereof. The matter rested. Then petitioner asserts that in the meeting of the members of the Nagar Panchayat dated 01.08.2008, it was noticed that the Nagar Panchayat had not earlier stipulated conditions or rules under which cattle fair could be licensed. As such, the Empowered Standing Committee of the Barbigha Nagar Panchayat proposed certain conditions for grant of licence. These conditions included certain distance restrictions from densely populated areas and other conditions. These were then approved and pursuant to the said approval, the public notice dated 15.09.2008 was issued. It is these laying down of conditions that are submitted to be framing of regulations and demanding that the regulations be made in accordance with the procedure established under the Act and not having been so made are unenforceable. The advertisement having been issued, petitioner made an application after depositing the requisite licence fee which, as stated above, came to be rejected by order dated 27.10.2008 (Annexure-8) on the ground that the site, as given by the petitioner though on his own raiyati land, was in the heart of the town and surrounded by densely populated area and contiguous to main road and, thus, in conflict with the conditions of the licence. It may be noticed here that two other persons separately applied for similar licences at different places who have been granted licences. In this connection, petitioner’s supplementary argument is that petitioner has been discriminated inasmuch as those persons have been granted licence ignoring the conditions whereas he has been denied licences in view of the 4 conditions aforesaid. Mr N K Agrawal, Senior Advocate appears in support of the writ petition. Mr Ram Balak Mahto, Senior Advocate appears for the Barbigha Nagar Panchayat and its Empowered Standing Committee. Shri K D Chatterjee, Advocate appears for the interveners who have been granted licences and Shri Kumar Uday Bhanu Roy appears for the State. It appears Shri Agrawal, learned Senior Counsel has made the submission with regard to regulations taking cue from the expression used in the resolutions of this Empowered Standing Committee and the advertisement “Niyam Avam Shart” (rules and terms) when various conditions were decided to be imposed for grant of licence. In order to appreciate the contention, one must first refer to the definitions of regulations, as contained in Section 2 (84) of the Act, which is quoted hereunder : (2) … … … (84) “Regulations” means the regulations made by a Municipality under this Act; Then we come to Chapter XLII of the Act. Section 419 provides for rules to be framed by notification subject to previous publication for carrying out the purposes of this Act. This rule making authority has been conferred on the State Government and it is probably because of that that Shri Agrawal presses his argument on basis of regulations, the power to make, which is contained in Section 421 of the Act and is quoted hereunder : 421. Power to make regulations.- The Municipality may, from time to time, make 5 regulations, not inconsistent with the provisions of this Act or the rules made thereunder for the purpose of giving effect to the provisions of this Act. Section 422 prescribes condition precedent to making of regulations and is quoted hereunder : 422. Conditions precedent to making of regulations.- The power to make regulations under this Act is subject to the condition of the regulations being made after previous publication and to the following further conditions, namely:- (a) such draft of regulations shall not be further proceeded with until a period of one month has expired from the date of such publication, (b) for not less than one month during such period, a printed copy of such draft shall be kept in the office of the Municipality for public inspection, and any person shall be permitted at any reasonable time to peruse such draft, free of charge, and (c) printed copies of such draft shall be obtainable by any person requiring such draft on payment of such fee as may be fixed by the Empowered Standing Committee. The regulations so proposed to be made are subject to approval of the State Government in terms of Section 423 and Section 424 reserves the right of the State Government to amend or modify or cancel the regulations as proposed to be made by the Municipality. It is no doubt clear that regulations are for giving effect to the provisions of this Act and have to be made by Municipality but that does not mean that anything made for the purposes of giving effect to the provisions of this Act would become regulation and would be required to be enacted accordingly especially in matters dealing with licences. In my view, though the authorities have used the expression rules and terms, what is 6 actually meant in the context was terms and conditions on which licence is to be granted. This distinction would be clear when we will come to the provisions of Section 344 of the Act. Chapter XXXVII of the Act deals with municipal licences. Section 342 prohibits a person from use of any premises for any non- residential purposes as mentioned in the schedule without or otherwise than in conformity with the terms of a licence granted in that regard. Premises has been defined by Section 275 and includes any land. If we refer to the schedule to the Act, item 200 thereof reads as follows : 200. Keeping of horses, cattle or other quadruped animals or birds for transportation, sale or hire or for sale of the produce thereof. In view of item 200, as quoted above, cattle fair would certainly fall therein and, therefore, there is a prohibition in holding a cattle fair without a municipal licence in that regard. A reference to Section 342 would show that the person holding, inter alia, a cattle fair would be obliged to take a licence and conduct the fair in conformity with the terms of the licence. Then we come to Section 344. Section 344, sub-section (1) reads as follows : 344. Municipal licence for private markets.- (1) The Chief Municipal Officer may, with the prior approval of the Municipality, grant to any person a licence to establish or keep open a private market on payment of such fees as may be determined by the Municipality by regulations, and may specify such conditions consistent with this Act as he may deem fit. A plain reading of sub-section (1), in my view, shows that it consists of 3 parts. It provides firstly that the Chief Municipal Officer may, with the approval of Municipality, grant a licence to run a private 7 market. The second part is with regard to payment of fee as may be determined by the Municipality by regulations and the third is subject to conditions consistent with the Act as he may deem fit, the licence may be granted. In my view, this provision cannot be read, as suggested by Shri Agrawal, that regulations may specify such conditions consistent with this Act as he may deem fit because after the word “regulation”, there is a “comma” and “and” which shows the sentence to be disjunctive. Regulation qualifies payment of fee and not conditions to be imposed. Further, conditions are as may be deemed fit by the Chief Municipal Officer. Further, if we read provisions of Sections 342 (1) and 344 (1) what comes out is that licence is to be granted subject to such terms and conditions as it may deed fit but they must be consistent with the Act. Nothing has been shown that any of the conditions that were imposed were inconsistent with the Act. If I may say so, the conditions, as imposed, were in furtherance of the Act that is to regulate fairs not to inconvenience urban population. Thus seen, these terms and conditions are not even contemplated to be part of any regulation and that being so, they are not enacted in the manner prescribed for regulation. In my view, Mr Mahto is correct when he submits that whenever a licence is to be granted, it inheres in the licensing authority to stipulate terms and conditions thereof subject to which the licence can be enjoyed. The terms and conditions of a licence is for regulating the use of licence and are not Regulations themselves. The power to impose terms and conditions are necessary ancillary power for proper 8 regulation of the use of licence. It is an essential attribute of licence. Thus seen, the petitioner, even though, has a common law right to hold cattle fair on his raiyati land but that right stands restricted by the licensing provisions, as contained in the Act, and the licensing provisions authorized laying out of terms and conditions. The petitioner was bound to comply with them. As noticed earlier, nothing has been shown that the terms and conditions were in conflict with any of the provisions of the Act nor anything unreasonable about them has been shown. Thus, they are binding on all parties. As to petitioner’s contention that he had been running the cattle fair for decades under licence granted under the Bihar Agriculture Produce Market Act and the Rules framed thereunder is of no avail. The said Act was for regulation of markets and fairs. It had nothing to do with ordinary municipal function and a planned urban growth. Its primary object was to regulate sale and purchase of agriculture products for the protection of agriculturist and save them from exploitation of the middleman and the traders. Here, under the Municipal Act, considerations are totally different and all within a larger perspective. Moreover, the said Bihar Agriculture Produce Markets Act has since been repealed and licence granted thereunder is of no avail to the petitioner. Thus, the petitioner, undisputedly being in conflict with the terms and conditions of the licence, cannot be granted licence. So far as challenge to the grant of licence to others are concerned, Nagar Panchayat has clearly noted that they are not in conflict with the conditions. Though they are near urbanized area, the town under the 9 Nagar Panchayat, they do not come within the prohibitive area as delineated in the terms and conditions. I have no reason to disbelieve their affidavit in this regard on facts. Their licences cannot be interfered with. Moreover, I may also note that even if the Nagar Panchayat had wrongly granted the interveners licences, that would not create a right in the petitioner to get the licence much less to this Court to issue a mandamus to grant licence or to issue certiorari to quash the refusal to grant licence as it is well settled that the Courts cannot aid a party in violating law. Thus, in my view, the writ petition lacks merit and is dismissed as such. M.E.H./ (Navaniti Prasad Singh)