dedol-hf/india-case-legal-rag huggingface dataset:
petitioner illegal, (ii) that the fact that the Constitution
came  into force only after the byelaws had come into  force
did  not  affect  the petitioners's right to  carry  on  his
business.
    Held also, that an appeal under section 318 of the U. P.
Municipalities Act was not in the circumstances an  adequate
legal  remedy  the existence of which would  disentitle  the
petitioner from maintaining this application.
JUDGMENT:
ORIGINAL JURISDICTION`: Petition No. X of 1950.
This  was  an application under article 32  (1)  of  the
Constitution  for the enforcement of the applicant's  funda-
mental  right to carry on his business which was  guaranteed
by  article  19 (1) of the Constitution.  The facts  of  the
case appear in the judgment.
Nur-ud-din, for the petitioner.
Radhelal Agarwala, for the opposite party.
    M.C. Setalvad, Attorney-General for India, (S. M. Sikri,
with him), for the Union of India.
    Pearylal  Banerji, Advocate-General of U.P.  (Shri  Ram,
with him), for the State of Uttar Pradesh.
    1950.  May 19.  The judgment of the Court was  delivered
by
DAS J.--I am reading the judgment of the Court.
    This is an application under article 32 of the Constitu-
tion  of India made by Rashid Ahmed for enforcement  of  his
fundamental right to carry on his business which is said  to
have been completely stopped by the respondent, the  Munici-
pal Board of Kairana. The facts shortly are as follows:
The petitioner is an Aratia (commission agent)  carrying
on wholesale business in vegetables and fruits at Kairana in
the District of Muzaffarnagar in the
568
State of Uttar Pradesh.  He has been carrying on this  busi-
ness  for the last two years at a rented shop in Bazar  Jama
Masjid in the town of Kairana.  Until recently there were no
bye-laws  of  the respondent Board regulating the  sale   of
vegetables and fruit within the limits of the  municipality.
In  March,  1949.  the respondent  Board  published  certain
proposed bye, laws made under section 298 of the U.P. Munic-
ipalities  Act,  1916.  These bye-laws were  passed  by  the
respondent  Board on the 19th April, 1949.  After  confirma-
tion by the  Commissioner these bye-laws came into operation
on and from 1st January, 1950. In anticipation of these  new
bye-laws coming into effect the respondent Board on the 21st
May, 1949, auctioned" the contract for wholesale of  vegeta-
bles,  presumably meaning thereby the monopoly right  to  do
wholesale business in vegetables.  The contract was given to
one Habib Ahmad, who was the highest bidder for three  years
at and for Rs, 72,750 payable in equal quarterly instalments
in  advance.  On the 31st December, 1949,  respondent  Board
notified  a  place near Police Post Imam as the  market  for
wholesale  purchase and sale of vegetables and fruits.   The
petitioner  applied for a license to carry on his  wholesale
Aratia business at his shop.  On or about the 22nd December,
1949,  the respondent Board by resolution No.  188  rejected
the petitioner's application. This decision was communicated
to  the petitioner on the 9th February, 1950. The  order  of
the  Chairman  of the respondent Board was in  these  terms:
"According to resolution No. 188 dated 22-12-49 the applica-
tion  of  Mr. Rashid Ahmed is rejected and  he  be  informed
accordingly."  No  reason  was assigned  by  the  respondent
Board's  resolution  for the rejection of  the  petitioner's
application.   We are now informed by the  learned  Advocate
for  the respondent Board that the application was  rejected
as  there. was no bye-law for entertaining such  application
or  granting such license as was prayed for. The  fact  that
the  respondent Board had already auctioned the contract  to
Habib Ahmad might conceivably have had some bearing on  this
refusal to grant a license. to the petitioner. In the  mean-
time on the 28th
569
January, 1950, a notice was served on the petitioner in  the
following terms:
    "You  are  hereby  informed that  the  Municipal  Board,
Kairana, have given the contract of wholesale   purchase and
sale  of the vegetables, which is in force from the 1st  day
of  January, 1950.  It has been repeatedly  promulgated,  in
the  city by the beat of drum, through a  Khakrob  (sweeper)
that  excepting the contractor of vegetables  the  Municipal
Board, Kairana, nobody shall deal in wholesale purchase  and
sale of vegetables at a place other than the one approved by
the  Municipal Board aforesaid (i.e. the place  near  Police
Post  Imam).  As against this, you in the first  place  kept
selling  vegetables  by wholesale, at the  house  near  Jama
Masjid  otherwise  known  as  Qaziwala,  despite  occasional
verbal  warnings  requiring you to desist  therefrom,  which
were  conveyed  through an employee of the Board.   On  your
failure  to comply, you were warned by a notice in  writing,
dated the 3rd January, 1950.  That notice was duly served on
you.   But still you paid no heed. Accordingly  a  complaint
was lodged against you, under the bye-laws, quoted above, in
the Court of Pargana Officer, Tahsil Kairana.  The complaint
is still pending.  Now you are selling wholesale by auction,
vegetable at another place in Jama Masjid Bazar, which is  a
thoroughfare.
Your  above conduct is unlawful and in contravention  of
the Municipal Board's Bye-law 2 pertaining     to  vegetable
contract.   Moreover,  highly prejudicial as it  is  to  the
interests  of  both the contractor and the  Board,  you  are
warned  that after this notice has been served on  you,  you
should  cease  to sell any more vegetable in breach  of  the
bye-laws above mentioned. Herein fail not."
   This notice is rather disingenuous in that while it  sug-
gests that everybody can deal in wholesale purchase and sale
of  vegetables at the place approved by the Board, i.e.,  at
the  place  near Police Post Imam, the fact, as we  are  now
told  by the learned Advocate for the respondent  Board,  is
entirely contrary, for it is
570
only  the contractor Habib Ahmad who can carry on  wholesale
business  at that place.  The position, therefore,  is  that
the  petitioner cannot do any wholesale business  either  at
the appointed market or at his own shop where he had  admit-
tedly been doing wholesale. business for two years prior  to
the bye-laws coming into force.  In short, the  petitioner's
business has been wholly stopped and he is being  prosecuted
for  alleged breach of the bye-laws.  The above  notice  was
headed as "Notice under bye-law 2 of the bye-laws pertaining
to contract of vegetables."  Bye-law 2 runs thus:
    "No  person shall establish any new market or place  for
wholesale   transaction without obtaining the previous  per-
mission of the Board and no person shall sell or expose  for
sale  any  vegetable, fruit, etc., at any place  other  than
that fixed by the Board for the purpose."
    The   second   part  of  this  bye-law  clearly  contem-
plates  that everybody will  be entitled to do  business  at
the place fixed by the respondent Board, but as a result  of
a  monopoly in favour of the contractor Habib  Ahmad  having
been  created, nobody else can do business at that place  as
conceded  by the learned Advocate for the respondent  Board.
Under the first part of this bye-law no person can establish
a  new  market or place for wholesale  transaction   without
obtaining   the  permission of the respondent  Board.   This
part of the bye-law clearly contemplates that the Board  may
permit  the  establishment  of a new  market  for  wholesale
dealings  in  vegetables.  The petitioner applied  for  this
permission but it was refused.  Bye-law 2 is still in force.
If it  requires a license then under section 241 (2)(a)  the
respondent  Board cannot refuse such license except  on  the
ground  that  the place where the market or shop  is  estab-
lished fails to comply with any condition prescribed by,  or
under, the Act. It' is conceded that the  rejection of   the
petitioner's  application was not based on any  such  ground
but that it was because there was no bye-law authorising the
issue  of  any license. The Constitution by article  19  (1)
guarantees
571
to  the Indian citizen the right to carry on trade or  busi-
ness  subject  to such reasonable restrictions as  are  men-
tioned in clause (6) of that article.  The position,  howev-
er, under bye-law 2 is that while it provided that no person
shall  establish  a  market for  wholesale  transactions  in
vegetables except with the permission of the Board, there is
no  bye-law  authorising the respondent Board to  issue  the
license.   The nett result is that the prohibition  of  this
bye-law,  in  the absence of any provision for  issuing  li-
cense, becomes absolute. Further: bye-law 4 contemplates the
grant  of  a monopoly to a contractor to deal  in  wholesale
transactions  at the place fixed as a market.   Acting  upon
that provision, the respondent Board has granted monopoly to
Habib  Ahmad  and  has put it out of its power  to  grant  a
license to the petitioner to carry on wholesale business  in
vegetables either at the fixed market place or at any  other
place within the municipal limits of Kairana. This certainly
is much more than reasonable restrictions on the  petitioner
as are contemplated by clause (6) of article 19.  This being
the  position, the bye-laws would be void under  article  13
(1)of  the Constitution. On the other hand, if there  is  no
bye-law  requiring the petitioner to take out license,  then
there  can be no justification for the respondent  Board  to
stop the petitioner's business or to prosecute him.
    Learned  counsel for the respondent Board  faintly  con-
tended  that  the' bye-laws having come into  force  on  1st
January,  1950,  i.e.,  before the  Constitution  came  into
force,  the petitioner no longer had any right  to  continue
the  business  and, therefore, his case is not  governed  by
article 19 (1) (g).  There is no substance in this  argument
for, if it were sound, article 19 (1) (g) would only protect
persons  who were carrying on business before the  Constitu-
tion came into force.
     Learned  Advocate-General  of  Uttar  Pradesh appearing
for the intervener drew our attention to section 318 of  the
U.P.  Municipalties Act, 1916, and submitted that the  peti-
tioner  having adequate remedy by way of appeal, this  Court
should  not grant any writ in the nature of the  prerogative
writ of mandamus
572
or certiorari.  There can be no question that the  existence
of  an  adequate legal remedy is a thing to  be  taken  into
consideration  in  the matter of granting , writs,  but  the
powers  given to this Court under article 32 are much  wider
and are not confined to issuing prerogative writs only.  The
respondent  Board having admittedly put it out of its  power
to grant a license and having regard to the fact that  there
is  no specific bye-law authorising the issue of a  license,
we do not consider that the appeal under section 318 to  the
local  Government which sanctioned the bye-laws is,  in  the
circumstances of this case, an adequate legal remedy.
     We  are  satisfied that in this case  the  petitioner's
fundamental rights have been infringed and he is entitled to
have  his  grievance redressed.  The proper  order  in  such
circumstances would be to direct the respondent Board not to
prohibit the petitioner from carrying on the trade of whole-
sale  dealer and commission agent of vegetables  and  fruits
within the limits of the Municipal Board of Kairana,  except
in accordance with the bye-laws as and when framed in future
according to law and further to direct the respondent Munic-
ipal Board to withdraw the pending prosecution of the  peti-
tioner and we order accordingly.  The respondents to pay the
costs of the petitioner.
Petition allowed.
 Agent for the petitioner: Naunitlal.
 Agent for the opposite party : Tarachand Brijmohanlal.
 Agent for the Union of India: P.A. Mehta.
 Agent for Uttar Pradesh: Tarachand Brijmohanlal.
573
PETITIONER:
PRITAM SINGH
        Vs.
RESPONDENT:
THE STATE
DATE OF JUDGMENT:
05/05/1950
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION:
 1950 AIR  169            1950 SCR  453
 CITATOR INFO :
 D          1953 SC 415  (10)
 RF         1954 SC  20  (5)
 F          1954 SC  23  (13)
 R          1954 SC 271  (11)
 R          1956 SC 217  (31,35,44)
R          1958 SC  61  (8,9)
 R          1959 SC 633  (5)
 F          1961 SC 100  (2)
 RF         1961 SC1708  (9)
 R          1964 SC1645  (9)
 R          1970 SC 668  (2)
 RF         1976 SC 758  (8)
 F          1977 SC 472  (5)
 R          1986 SC 702  (12)
 R          1988 SC1883  (245)
 D          1992 SC1277  (39,101)
ACT:
     Constitution  of India, Art. 136 (1)--Special leave  to
appeal-Granting    of    leave--Guiding     Principles-Final
hearing--Nature of.
HEADNOTE:
The Supreme Court will not grant special leave to appeal
under  Art. 136 (1) of the Constitution unless it  is  shown
that  exceptional  and  special  circumstances  exist,  that
substantial  and grave injustice has boon done and the  case
in  question  presents  features of  sufficient  gravity  to
warrant a review of the decision appealed against.
The  view that once an appeal has been admitted  by  special
leave the entire case is at large and the appellant is  free
to  contest a11 the findings of fact and raise  every  point
which  could  be raised in the High Court  is  wrong.   Only
those points can be urged at the final hearing of the appeal
which  are  fit to be urged at the  preliminary  stage  when
leave to appeal is asked for.
Ibrahim v. Rex  ([1914] A.C. 615) referred to.
JUDGMENT:
    APPEAL from the High Court of Judicature at East Punjab:
Criminal Appeal No. II of 1950.
    This was an appeal by special leave from a judgment  and
order  of the High Court of Judicature for the  Province  of
East  Punjab at Simla (Falshaw and Soni JJ.) dated the  23rd
November, 1949, in Criminal Appeal No. 367 of 1949 upholding
the  conviction of the appellant on a charge of  murder  and
confirming a sentence of death passed on him by the Sessions
Judge of Ferozepore.
    Jai Gopal Sethi (H. J. Umrigar, with him) for the appel-
lant.
    Basant  Kishan Khanna, Advocate-General of  East  Punjab
(S. M. Sikri, with him) for the respondent.
    1950.  May 5. The judgment of the Court was delivered by
    FAZL  AL/J.--This  is  an appeal  by  one  Pritam  Singh
against  the decision of the High Court of Punjab at  Simla,
upholding his conviction on the charge of
454
murder  of  one Buta Singh and confirming  the  sentence  of
death  passed  on him by the Sessions Judge  of  Ferozepore.
The  prosecution case, which has been found to  be  substan-
tially  true by both the trial judge and the High Court  may
be shortly stated as follows.
    On the 28th December, 1948, Pritam Singh had made  inde-
cent overtures to one Punni, wife of Kakarra Chamar, who had
been  brought into the village by Buta Singh, the  deceased,
about  10 or 12 years ago. Buta Singh, on learning  of  this
incident, spoke to Pritam Singh, but finding that his  atti-
tude  was  uncompromising, he advised Kakarra to go  to  the
police  station  to report the matter.   On  the  next  day,
while  Kakarra was going to the police station,  Mal  Singh,
the first prosecution witness in the case, brought him  back
telling him that Pritam Singh had apologized and the  matter
should  not  be pursued.  On the 30th December, at  about  5
p.m.,  just  when Buta Singh came out of his  house,  Pritam
Singh  came up with a double barrelled 12-bore gun and  shot
him  in  the abdomen, and  Buta  Singh  died  a  short  time
thereafter.  Shortly   after   the    occurrence,     Punjab
Singh and Nal Singh, who had both witnessed the  occurrence,
went   to  the  police  station at  Abohar, which  is  at  a
distance  of  13  miles from the place  of  occurrence,  and
lodged  the first information report regarding  the  murder.
In  this report, Punjab Singh reported the facts as  already
stated,  but he also added that Pritam Singh was drunk  when
he  fired the gun and his younger brother, Hakim Singh,  who
was also drunk was standing at a short distance from him and
shouting  "Kill, don't care."  None of the  other  witnesses
however supported Punjab Singh as to the part attributed  by
him   to Hakim Singh or as to the drunken condition  of  the
appellant or Hakim Singh, and the police after due  investi-
gation of the case sent up a charge sheet against the appel-
lant  only.  The appellant was thereafter put on  his  trial
before  the Sessions Judge of Ferozepore.  The learned  Ses-
sions  Judge,  after hearing the prosecution  witnesses,  of
whom five were eye-witnesses, viz., Punjab Singh, his broth-
er Mitta Singh, Mal Singh, Nikka Singh (brother of
    455
Singh),  and Mst. Phoolan, mother of the deceased,  came  to
the  conclusion,  in  agreement with 4  assessors  who  were
present at the trial, that the version given by the prosecu-
tion  witnesses was substantially true.  In support  of  his
conclusion, he referred to the following facts among  others
:--(1)that  the first information report had been lodged  at
the  police station without any delay, (2)that the names  of
at  least 4 of the alleged eye-witnesses were  mentioned  in
the report, and (3) that no sufficient reason had been shown
as to why the prosecution witnesses should have conspired to
falsely  implicate the accused in a murder case, if  he  had
been  innocent.   The High Court on appeal agreed  with  the
Sessions  Judge,  and the learned Judge  who  delivered  the
judgment  of the High Court observed as follows in the  con-
cluding part of his judgment :--"I have given the case every
consideration  and  I have come to the conclusion  that  the
learned  Sessions Judge was right in holding that  the  case
against  the  appellant had been  proved  beyond  reasonable
doubt."
    The  appellant  thereafter  obtained  special  leave  to
appeal  to  this Court, and Mr. Sethi, the  learned  counsel
appearing for him, has  in support of the appeal,  addressed
to  us very elaborate arguments to show that the  conclusion
arrived  at  by  the Courts below is not  correct.   He  has
argued  that the alleged eye-witnesses were intimately  con-
nected with each other and with the deceased, that they  and
the accused belonged to two mutually hostile factions,  that
these  witnesses  had made discrepant statements as  to  the
respective  places from where they claimed to have seen  the
occurrence, some of them making discrepant statements  about
their own position before the police officer who drew up the
plan  of the scene of occurrence and before the trial  Court
and also making discrepant statements about the position  of
the other witnesses, and that they should not be held to  be
truthful  witnesses  inasmuch  as they  had  denied  certain
previous statements made by them either before the police or
before the Committing Magistrate. Mr. Sethi also put forward
the  theory, which has been discredited by both  the  Courts
below on grounds which prima facie do not appear to be
456
unreasonable, that the occurrence must have taken place late
at  night,  that  there were probably  no  eye-witnesses  to
identify the real assailant and that the appellant had  been
falsely implicated on account of enmity.
    The obvious reply to all these arguments advanced by the
learned counsel for the appellant, is that this Court is not
an ordinary Court of criminal appeal and will not, generally
speaking,  allow facts to be reopened, especially  when  two
Courts agree in their conclusions in regard to them and when
the  conclusions of fact which are challenged are  dependent
on  the credibility of witnesses who have been  believed  by
the  trial Court which had the advantage of seeing them  and
hearing their evidence.  In the present case. the story  for
the prosecution, which is neither incredible nor improbable,
is  supported  by  no less than 5  witnesses  including  the
mother of the deceased, and their evidence, in spite of  its
infirmities,  has impressed 4 assessors and the  two  Courts
below,  who, in appraising its reliability, have  given  due
weight to certain broad features of the case which,  accord-
ing  to them, negative the theory of conspiracy  or  concoc-
tion.   In these circumstances, it would be opposed  to  all
principles and precedents if we were to constitute ourselves
into  a third Court of fact and, after re-weighing the  evi-
dence,  come to a conclusion different from that arrived  at
by the trial Judge and the High Court.
    In  arguing the appeal, Mr. Sethi proceeded on  the  as-
sumption  that once an appeal had been admitted  by  special
leave,  the entire case was at large and the  appellant  was
free  to  contest all the findings of fact and  raise  every
point  which could be raised in the High Court or the  trial
Court.   This assumption is, in our opinion, entirely unwar-
ranted.  The misconception involved in the argument is not a
new  one  and had to be dispelled by the  Privy  Council  in
England in Ibrahim v. Rex (1)  in these  words:--"........
the   Board    has  repeatedly   treated   applications  for
leave  to  appeal and the hearing of  criminal  appeals  (i)
[1914] A.c. 615.
    457
as being upon the same footing: Riel's Case; Ex-parte  Deem-
ing.   The  Board  cannot give leave  to  appeal  where  the
grounds suggested could not sustain the appeal itself;  and,
conversely, it cannot allow an appeal on grounds that  would
not have sufficed for the grant of permission to bring it."
    The  rule  laid down by the Privy Council  is  based  on
sound principle, and, in our opinion, only those points  can
be urged at the final hearing of the appeal which are fit to
be  urged at the preliminary stage when leave to  appeal  is
asked  for,  and it would be illogical  to  adopt  different
standards at two different stages of the same case.
    It  seems also necessary to make a few general  observa-
tions relating to the powers of this Court to grant  special
leave to appeal in criminal cases.  The relevant articles of
the Constitution dealing with the appellate jurisdiction  of
the  Supreme  Court are articles 132 to  136.   Article  132
applies  both  to civil and criminal cases and under  it  an
appeal  shall  lie to the Supreme Court from  any  judgment,
decree......   or final order of a High Court, whether in  a
civil,  criminal  or  other proceeding, if  the  High  Court
certifies  that the case involves a substantial question  of
law  as to the interpretation of the Constitution.   Article
133  deals with the appellate jurisdiction of this Court  in
civil matters only, and it has been drafted on the lines  of
sections  109  and 110 of the Civil  Procedure  Code,  1908.
Article  134  constitutes the Supreme Court as  a  Court  of
criminal appeal in a limited class of cases only, and clear-
ly  implies that no appeal lies to it as a matter of  course
or  right  except in cases specified  therein.  Article  135
merely provides that the Supreme Court shall have  jurisdic-
tion  and  powers with respect to any matter  to  which  the
provisions  of article 133 or article 134 do not  apply,  if
jurisdiction  and  powers in relation to  that  matter  were
exercisable  by  the Federal Court  immediately  before  the
commencement  of  the Constitution under any  existing  law.
The last article, with which we are concerned is article 136
and it runs thus :--
    "136. (1) Notwithstanding anything in this Chapter,  the
Supreme Court may, in its discretion,
458
grant  special  leave to appeal from any  judgment,  decree,
determination,  sentence  or order in any  cause  or  matter
passed or made by any court or tribunal in the territory  of
India,
  (2)....................
The  points  to be noted in regard to this  article  are
firstly, that it is very general and is not confined  merely
to criminal cases, as is evident from the words "appeal from
any judgment, decree, sentence or order" which occur therein
and which obviously cover a wide range of matters; secondly,
that  the  words used in this article are "in any  cause  or
matter," while those used in articles 132 to 134 are "civil,
criminal  or other proceeding," and thirdly, that  while  in