P L D 1954 Lahore 599 (PLP)

AKHLAQUE HUSAIN, J.‑In the exercise of the powers conferred by sections 188 (e) (ii) and 197 (a) of the Punjab Municipal Act, 1911, the Municipal Committee of Gujarkhan made certain bye‑laws which were duly confirmed by the Governor of the Punjab as required by section. 201 of the said Act. Two of these bye‑laws are as follows:‑ "(1) No person shall sell, wholesale or by auction, any fruit, vegetable or sugarcane within the Municipal limits at any place other than the Fruit and Vegetable Market of the Committee for the use of which the seller and purchaser must pay brokerage or 'arhat' at 6 pies per rupee on the sale and 6 pies per rupee on the purchase price of fruit, vegetable and sugarcane, respectively, to the committee or a contractor of the Fruit and Vegetable Market, appointed by the Finance Sub‑Committee of the Committee. (2) Any person wishing to obtain a licence for the sale of fruit, vegetable or sugarcane or for all of them as retail may apply to the Secretary of the Committee, and if the application is sanctioned by him, a licence shall be issued by him on payment of a fee of Rs. 5 per annum". There is a place in Gujarkhan belonging to the Municipal Committee, which is known as Vegetable Market. This market has been leased by the Committee to the defendant respondent No. 2 who charges two pice per rupee of the goods sold as rent for the use of that market. As it is apparent from the first bye‑law reproduced above, no one in Gujarkhan is allowed by the Municipal Committee to sell fruit or vegetable in anyplace other than the said market. Aggrieved by that bye‑law the plaintiff‑respondent No. 1 brought the present suit against the Municipal Committee and the respondent No. 2, for a declaration that the bye‑laws framed by the Municipal Committee under sections 188 (e) (ii) and 197 are ultra vices of the Municipal Committee and for perpetual injunction against the Municipal Committee and the respondent No. 2 restraining them from preventing the plaintiff‑respondent No. 1 from selling fruit and vegetable in places other than the said market. The Court of first instance decreed the suit and the lower appellate Court confirmed that decree. The Municipal Committee has now come up to this Court in second appeal. The first contention of the learned counsel for the appellant was that the present suit is not maintainable for want of a notice to the Committee as required by section 49 of the Punjab Municipal Act. Section 49 requires a month's notice to a committee of a suit "in respect of any act purporting to be done in its official capacity". In cases decided with reference to the corresponding provisions of other Municipal Acts in different provinces in India and Pakistan it has been held that the section applies only where something has already been done and not where there is an apprehension of injury in future (vide 14 S L R 46 ; 25 Bom. 142). This also appears to have been held in two Single Bench rulings of this Court reported in Municipal Committee, Dinga v. Fateh Muhammad (A I R 1939 Lah. 254,) and Municipal Committee, Hansi v. Mehtab Singh (A I R 1931 Lah. 124.), I have no doubt that on a proper construction the language of section 49' does not bar a suit against a municipal committee without notice if it relates not to an act already done but to an injury apprehended in future. In any case the proviso to section 49 is a complete answer to the appellants' contention which says: "Provided that nothing in this section shall apply to any suit instituted under section 54 of the Specific Relief Act, 1877". The present suit is in substance a suit for an injunction under section 54 of the Specific Relief Act. The declaration asked for, if at all necessary, relates only to a future state of affairs and, in my opinion, cannot bring the suit within the ambit of section

49. The two rulings of this Court cited above are very clear authorities on the subject. It was next contended by the appellant's learned counsel that the prohibition on the part of the Municipal Committee to sell fruit and vegetable in any place other than the market of the Committee is based upon the two bye‑laws reproduced above and that the Committee had the authority to make these bye‑laws under sections 197 (a) and 188 (e) (ii). So far as the bye‑law No. 7 is concerned, I do not see how it is relevant to the subject at all, as it only provides for issue of licences by the Committee for the sale of fruit on payment of a fee of Rs. 5 per annum and does not authorise the Committee to prohibit the sale of fruit in any particular place in the town within its jurisdiction. As regards the first bye‑law, I have no doubt that it exceeds the powers conferred upon the Committee by section 197 (a) which is as follows :‑ "

49. The committee may, and shall if so required by the Local Government, by bye‑law (a) prohibit the manu facture, sale, or preparation or exposure for sale, of any specified articles of food or drink, in any place or premises not licensed by the committee ;" This section only prohibits the sale "in any place or places not licensed by the committee"; but does not authorise a committee to acquire a sort of monopoly by confining the sale to a particular place, regardless of the fact that the places where sale has been prohibited are licensed and the place where it permits it, is not licensed. It is significant that in 1923 the old clause (d) of section 197 was repealed and it ran thus: "No person shall sell wholesale or by auction any fruit or vegetable except at the Vegetable Market appointed by the Municipal Committee in this behalf". The language of this repealed clause clearly justifies the first bye‑law made by the appellant, but the fact that this clause was repealed equally clearly demonstrates the intention of the Legislature to take away the right from municipal committees to make such a bye‑law as the one in dispute. The case of Mula Mal v. Emperor (A I R 1929 Lah. 607.) decided by a Division Bench of this Court is authority for the proposition that the language of the present clause (a) of section 197 of the Punjab Municipal Act does not authorise a municipal committee to frame a bye‑law restraining the public from selling fruit and vegetable at any place except at its own vegetable market or any particular place (See also A I R 1928 Lah. 540). For the foregoing reasons I uphold the judgment and decree of the lower appellate Court and dismiss this appeal with costs. A. H. Appeal dismissed.