LexMOHAMMAD YASIN versus THE TOWN AREA COMMITTEE, JALALABAD AND ANOTHER
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1952 Amjad Khan v. The State. Boil /, 1952 Feb. 27. 572 SUPREME COURT REPORTS [1952] on the doors were not the isolated acts of a few scattered individuals. It was the mob that was doing it .and in the High Court's words, "The very fact that in the town of Katni two shots should have struck four Sindhis and none else shows that the rival community was on the move in that area." In our opinion, the appellant did not use than was necessary. Indeed, the firing, acting as a deterrent, spurred them on ransacked and looted the place. more force far from and they We have confined our attention to the right of pri- vate defence of the person though in this case the question about the defence of property happens to be bound up with it. The appeal is allowed. The convictions and sen- tences are set aside and the appellant will be released. Agent for the appellant: 0. P. Verma. Agent for the respondent: P. A. Mehta. MOHAMMAD YASIN v. THE TOWN AREA COMMITTEE, JALALABAD AND ANOTHER. [PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN, MUKHERJEE, DAs and CHANDRASEKHARA AIYAR JJ. ) Constitution of India. 1950, Arts. 19(l)(g), 32-U. P. Munici- palities Act, 1916, ss. 293(1), 298(2) (g)(d)-Municipal byc-laws- Bye-law imposing fee for carrying on wholesale trade in vegetables and fruits within municipal area-Validity-Restraint on funda- mental right to carry on trade-Licence and tqx, difference. There is a difference between a tax like the income-tax and a licence fee for carrying on an occupation, trade or business. A licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his fundamental . ' l - - • f ' ) - ... S.C.R .. SUPREME COURT REPORTS 573 right to carry on his business.· Therefore· if the imposition of a 19'2: licence fee is without authority of law it can be challenged by way of an application under Art., 32. Mohammal Yasin Under Art. 19(1)(g) of the Constitution a citizen has the right v. to carry on any occupation, trade or business and the only The Town Area restriction on this unfettered right is the authority of the State Committtl!, to make a law relating to the carrying on of such occupation, /alalabad trade or business as mentioned in cl. ( 6) of that article as ~mend- and An~tlJer, ed by the Constitution (First Amendment) Act, 1951. If there- fore a licence fee imposed for carrying on an occupation, trade or business 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 neces- sarily infringe the right of the citizen to carry on his occupation, trade or business under Art. 19( 1) (g), and such infringement can properly be made the subject matter of a challenge under Art. 32 of the Constitution. Bye-law No. 1 of the Bye-laws of the Town Area Committee of Jalalabad (in the United Provinces) provided that no person shall sell or purchase any vegetables or fruit within the prescrib- ed limits of the Town Area Committee by wholesale or auction, without paying the fees fixed by these bye-laws to the licensee appointed by the Town Magistrate. Bye-law No. 4(b) provided that any person can sell in wholesale at any place in the town area provided he pays the prescribed fees to the licensee. A person who had been carrying on the business of wholesale dealer in vegetables and fruits in his own shop at Jalalabad for a period e>f seven years applied for protection under Art. 32 contending tl\.at these bye-laws infringed his fundamental right to carry on his trade guaranteed by Art. 19( I) (g) and were therefore void. Held, thats. 293(1) and s. 298(2) (J) (d) of the U. P. Munici- palities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces did not empower the Town Area Committee to make any bye-law authorising it to charge any fees otherwise than. for the use and occupation of any property vested in or entrusted to the management of the Town Area Committee including any public street. The bye-laws in question which imposed a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Are;t Committee inch;ding any public street, are obviously ultra vires
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