Shiam Ice and Cold Storage and Another vs Municipal Board and Others

K.C. Agarwal, J.—Petitioner No. 1 is a registered partnership of which Petitioner No. 2 is a Managing partner. Petitioner No. 2 has established a cold storage in Patti Sher Singh, district Aligarh. For running the cold storage, the Petitioner had been sanctioned 70 H.P. electric connection by the U.P. Electricity Board. In addition to the cold storage, the Petitioner also established a small ice plant with a 3 H.P. electric motor. This ice plant was being run and operated within the cold storage premises. In exercise of the power under the Cold Storage Order, 1964, a licence was issued to the Petitioner by and on behalf of the Government of India in April 1967. In 1975, the Government of Uttar Pradesh issued an Ordinance providing for various things amongst others for fixation of maximum rates at which the potatoes could be stored in the cold storages in Uttar Pradesh.

2 On 19th April, 1976, the Municipal Board, Atrauli, district Aligarh, where the cold storage and the ice plant are situated, framed bye-laws under Clauses (d)(dd) Sub-section (2) of Section 298F.

Section 298 confers powers on the Board to make bye-laws applicable to the whole or any part of the Municipality for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under this Act. Sub-section (2) of Section 298 provides:

(2) In particular, and without prejudice to the generality of the power conferred by Sub-section (1), the Board of a municipality, wherever situated, may, in the exercise of the said power, make any bye-law described in list I below and the board of a municipality, wholly, or in part situated in a hilly tract may further make, in the exercise of the said power, any bye-law described in list II below.

Under List I of Sub-section (2) of Section 298, the various heads or matters in respect of which bye-laws can be framed by the Municipal Board have been laid down. Challenge to the bye-laws in the instant case is confined to Clause (d) of F of Sub-Section (2) of Section 298. Under Clause (d), a Municipal Board is authorised to make bye-laws providing for the establishment and for the regulation of places for the manufacture, preparation or sale of specified articles of food or drink. Clause (dd) of F of Sub-section (2) of Section 298 empowers a Municipal Board to prescribe the conditions subject to which, and the circumstances in which, and the areas or locality in respect of which, licences for the purposes of sub-head (d) may be granted and for fixation of fees payable for such licences.

It was under the aforesaid clause that the impugned bye-law was framed by the Municipal Board, Atrauli. In Afzal Ullah Vs. The State of Uttar Pradesh, the Supreme Court had an occasion to consider the scope of Section 298(1) and (2). Dealing with Section 298(2) the Supreme Court observed that specific provisions such as or contained in several clauses of Section 298(2) are merely illustrative and they can be read as administrative without prejudice to the generality of the power prescribed by Section 298(1). The powers specified by Section 298(1) are very wide and even if the specific clause of Sub-section (2) does not apply under which a bye-law purports to have been made, it can be justified by reference to the requirement of Section 298(1).

The argument on behalf of the Petitioner was that the bye-law was invalid being beyond the provisions of Clauses (dd)(d) of F of Sub-section (2) of Section 298. Under that provision, counsel urged that the working of a cold storage could not be regulated inasmuch as the cold storage does not prepare any article of food or drink. The submission made does not appeal to us.

We have pointed out above that there was an ice plant aswell as a cold storage in the same premises belonging to the Petitioner It is indisputable that ice plant manufactures ice which is an item of drink and, as such, is specifically covered by Clause (d) of F of Sub-section (2) of Section 298. The places where manufacture, preparation or sale of specified articles of food or drinks are done, Clause (d) of F of Sub-section (2) of Section 298 would apply. That being so, under Clause (dd), the Municipal Board would further be empowered to provide for obtaining of licences and also for payment of fees. In the instant case, Rs. 10/- per Horse power baa been fixed as the amount for charging of licence fees. The impugned bye-law to the extent that it provides for obtaining of licence and for payment of fees in respect thereof is valid.

In the cold storage articles of food are kept for the purpose of sale and are directly sold from the cold storage. Moreover, the process of keeping the goods in the cold storage is a process for preparation of sale of articles stared therein.

The argument made on behalf of the Petitioner was that in the cold storage, potatoes are stored and as it is not article of food, Clause (d) of F of Sub-section (2) of Section 298 would not apply. We are unable to accept the submission. Potato is an article of food and since it is kept in the cold storage for preservation, Clause (d) would clearly be applicable. It is not a matter of doubt that potato is an article of food. In Shorter Oxford English Dictionary Vol. Two, the meaning of the word ''potato'' is:

The plant Solanum tuberosum, a native of the Pacific slopes of Section America, now widely cultivated for its farinaceous tubers 1597. The tuber of this plant, of roundish or oblong shape, now a well known article of food in most temperate climes, with distinctive words.

Under Clause H of Section 298(2) as well, the framing of bye-laws could be justified on the ground that the Municipal Board is required to regulate sanitation and prevention of disease and for that purpose, the sanitary conditions inside the cold storage and ice plant where article of food are stored and ice manufactured has to be scrupulously watched and care of.

The next argument of the Petitioner''s counsel was that as no service is being provided by the Municipal Board to the cold storages, the charging of fees is not justified and for this purpose, the counsel demanded the proof of the expenditure of the entire amount realised by way of fees from the cold storages situated in the town of Atrauli In paragraph 13 of the counter affidavit, the assertion of the Petitioner that the Municipal Board does not provide any facility has been denied. It has been asserted in this paragraph that apart from sanitation facilities including drainage, the Municipal Board is providing lighting arrangement upto the factory, on both side of the factory. The averment that the Board had made extensive repairs of the road in the years 1976-77 and 1977-78 has also been made.

In Amarnath Om Prakash v. State of Punjab AIR 1985 SC 218 it has been said that the power of any Legislature to levy a fee is conditioned by the fact that it must be "by and large", quid pro quo for the services rendered However co-relationship between the levy and the services rendered expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable relationship" between the levy of the fee and the services rendered.

For what we have said above, we find no merit in this writ petition and dismss the same. As no one has appeared on behaf of the Municipal Board, we decline to award costs.