O.P. Garg, J.
1. This is defendant's Second Appeal against the judgment and decree dated 25.1.1991 passed by Sri Rakesh Dull, the then Special Judge (E. C. Act)/Additional District Judge. Agra in Civil Appeal No. 24 of 1986 arising out of Suit No. 239 of 1977 which was dismissed on 24.12.1985 by the trial court, i.I.e.. VIth Additional Civil Judge. Agra.
2. The facts of the present case lie in a very narrow compass. The Gaon Sabha, Pachokra. Tahsil Etmadpur, district Agra has been holding a cattle hat over its Plot Nos. 832, 835, 836 and 837 from much before the year 1956. Earlier the hat was organised by the Gaon Sabha Itself but subsequently, the right to hold the hat was auctioned on year to year basis. Laxmi Narain defendant-appellant No. 1 was a Clerk/Scribe engaged in the hat on behalf of the Gaon Sabha. He along with two other defendant-appellants purchased the Plot No. 834 in the year 1963 and with the help of other defendant-appellants, started holding hat on the aforesaid plot on every Friday. There arose a dispute about the rival claims to hold the hat on different plots and consequently. preventive measures by invoking Section 144 of the Code of Criminal Procedure were taken and it was ordered that the defendant-appellants may hold the hat on their plot on every Monday. The said order dated 18.1.1970 was quashed by this Court on 27.4.1972 in a writ petition filed by defendant-respondent No. 1 Laxml Naraln. Thereafter, the Gaon Sabha, Pachokra adopted a. resolution under Section 15 (h) of the U. P. Panchayat Raj Act (hereinafter referred to as 'the Act') to the effect that no person shall hold a hat on Friday and on the remaining days of the week, no hat shall be held within four Kins, of the plots of Gaon Sabha. The defendant-appellants were not deterred by the said resolution and Instead they purchased Plot Nos. 830A, 830B, 842 and 843 and expanded the area of holding the hat over all these plots, Including Plot No. 834 which was purchased in the year 1963. When the defendant-appellants did not see to reason and continued to flagrantly violate the resolution adopted by the Gaon Sabha, necessity to Institute Suit No. 239 of 1977 arose in which the relief for permanent Injunction was claimed to restrain the defendant-appellants from holding hat over their plots on Friday and within four Kms. of the plots of the Gaon Sabha on the remaining days of the week.
3. The defendant-appellants resisted the allegations of the plaintiff-respondent primarily on the ground that Gaon Sabha has no Jurisdiction or authority to adopt the resolution under Section 15 (h) of the Act and that as a matter of fact, no resolution dated 14.8.1977 was adopted by the Gaon Sabha. It was also alleged that the Plot Nos. 832, 835. 836 and 837 belonging to the Gaon Sabha are not suitable for holding the hat as they are occupied by Abadt and are in possession of the residents of the village : that there exists water tap and Pathshala over the said plots and on account of deep and wide pits, it was not possible to hold hat by the Gaon Sabha and, therefore, there is no justification for the Gaon Sabha to injunct the defendants from holding their hat over Plot No. 834. The plea that the suit for the relief of injunction is not maintainable (besides other ornamental pleas) was also taken.
4. The trial court framed necessary Issues in the case and after appraising the evidence of the parties and taking Into consideration their submissions, dismissed the suit. The plaintiff-respondent filed an appeal No. 24 of 1986 which was allowed on 25.1.1991. The defendant-appellants have been permanently restrained from holding their hat on their Plot Nos. 830A, 830B, 834, 842 and 843 within a distance of 4 Kms. from Gaon Sabha Plot Nos. 832. 835, 836 and 837 on each Friday. It is against this order that the present Second Appeal has been preferred.
5. While admitting the appeal, this Court framed the following substantial questions of law :
'(i) Whether the right of the tenure-holder holding a mela in his land can be regulated or curtailed at all not holding mela and such a curtailment by the Gaon Sabha could be Justified in the eye of law?,
(ii) Whether resolution passed by Gaon Sabha dated 14.8.1977 has statutory force and will have overriding effect on the right of the defendant to hold mela on his own land?
(iii) Whether the resolution dated 17.8.1977 is within the frame work of Section 15H of the Panchayat Raj Act?,
(iv) Whether the view of the lower appellate court allowing the appeal Ignoring the Judgment of this Court can be sustained in the eye oflaw?,
(v) Whether the Judgment of the appellate court is in accordance with the Order XLI, Rule 31, C.P.C.?'
6. Heard Sri K. M. Dayal, learned counsel for the defendant-appellants and Sri G. N. Verma, learned counsel for the plaintiff-respondent at a considerable length.
7. To begin with. It may be pointed out that question Nos. 4 and 5 above need not be taken up for discussion in detail for one simple reason that they are ornamental in nature. As a matter of fact, these two questions are not germane to the controversy in hand. The Judgment of the lower appellate court is clearly in accordance with the provisions of Order XLI, Rule 31, Code of Civil Procedure. The appellate court has always the right to set aside the Judgment of the trial court if the decision of the trial court is wrong on factual and legal matrix. Therefore, without resorting to any further discussion on these two questions, which were not necessary to be framed. I at once come to the other three questions which are inter-linked and may conveniently be disposed of together.
8. Undoubtedly, every citizen or person has a right to choose his own employment or to take up any trade or calling, subject only to the limits as may be Imposed by the State in the Interests of the public welfare. This fundamental right has been guaranteed under Article 19(1)(g) of the Constitution of India. The defendant-appellants admittedly are holding cattle hafs on their own plots in the village and similarly, Gaon Sabha of the village is holding hat over its own plots. Both the parties, therefore, have an innate right to hold the hats on their own plots without any let or hindrance from any quarter. The fate of the present litigation would, however, turn one way or the other on the question as to whether the Gaon Sabha has a right to regulate the holding of the hat or to restrict the right of the defend ant-appellants in holding hat on their own plots. The defendant-appellants, therefore, would swim or sink on the validity or otherwise of the resolution dated 14.8.1977 alleged to have been adopted under Section 15 (h) of the Act. Chapter IV of the Act deals with the powers, duties, function and administration of Gaon Panchayat, Section 15, which is entitled as 'Duties and Function' runs as follows :
'It shall be the duty of every Gaon Panchayat so far as its funds may allow to make reasonable provisions within its jurisdiction for :
(a) .....to
(g) .....
(h) regulation of melas, markets and hats within its area, except those managed by the State Government or the Zila Parlshad and without prejudice to the provisions of the U. P. Melas Act, 1938.
.............'
9. Learned counsel for-the defendant-appellants has challenged the resolution dated 14.8.1977 passed by the Gaon Sabha as being against true spirit and Intention of the provisions of Section 15 (h) of the Act as well as on the ground that the provisions of Section 15 fh) are subject to the provisions of Section 110 of the Act and unless the State Government has notified the rules for carrying out the purpose of Sections 15, 16 and 17 of the Act, the resolution cannot be enforced. It was also urged that the resolution, in question, does not empower the Gaon Sabha to prohibit the holding of the hat or to put any restriction on the exercise of that right by the defend ant-appellants. All theabove submissions were repelled by the learned counsel for the plaintiff-respondent, who submitted that the resolution is regulatory in character and not. In any manner, restrictive or prohibitive in nature. It was also urged that in pursuance of the resolution passed by the Gaon Sabha, the defendant-appellants have not been totally debarred from holding the hat and that their right has been regulated, Inasmuch as that no hat shall be held by them on Friday of every week and within an area of four kilometers from the plots of the Gaon Sabha on the remaining days. A reference was also made by the learned counsel for the plaintiff-respondent to the decree passed by the first appellate court in which an order of injunction has been passed to prohibit the defendant-appellants from holding the hat on their own plots on Friday of every week and it was urged that even on Friday the defendant-appellants can hold the hat at a place four kilometers away from the plots of hat, which is organised and held by the Gaon Sabha.
10. The moot point for consideration, therefore, in the present appeal is whether the resolution dated 14.8.1977 passed by the Gaon Sabha is regulatory in character or restrictive or prohibitive in nature and whether the Gaon Sabha could pass the resolution in the absence of any rules notified by the State Government. The first appellate court has recorded a finding that a resolution dated 14.8.1977 was adopted by the Gaon Sabha in the meeting convened by It. It would be of no use to enter into the discussion about the fact whether the resolution had actually been adopted or not. I, therefore, proceed on the assumption that the Gaon Sabha did adopt a resolution on 14.8.1977 whereby the defendant-appellants were prohibited from holding the ha( on their plots on Friday of every week and to hold their hats on the remaining days at a place which is within 4 knis. of the plots of Gaon Sabha. There is no doubt about the fact that it is one of the duties and functions of the Gaon Sabha/Gaon Panchayat to make reasonable provisions subject to the availability of funds for regulation of markets, meias and hats within its area. This duty of the Gaon Panchayat, as said above, flows from the provision of Section 15 (h) of the Act, which is subject to the power of the State Government to make rules. In Clause (xvi-a) of sub-section (2) of Section 110, it has been provided that the State Government may, by notification in the gazette, make rules for carrying out function and duties of Gaon Panchayats as mentioned in Sections 15, 16 and 17 of the Act. The power of regulation of melas, markets and hats is contained under Section 15 (h) of the Act. Learned counsel for the plain tiff-respondent was not in a position to Indicate that any rules for the regulation of melas. market and hats have been framed and notified by the State Government. It was emphatically asserted by the learned counsel for the defendant-appellants that no rules have been framed by the State Government and unless the rules, as' contemplated under Section 110 (xvi.a) are notified by the State Government, the power of regulation of melas, markets and hats by the Gaon Panchayat cannot be exercised. This submission is not without force. The matter came to be considered in the decision dated 22.9.1972 of a Division Bench of this Court in Zila Parishad, Etawah v. Vlshambhar Strwjh and others, Special Appeal No. 447 of 1972, in which the power of the Zlla Parlshad to control and regulate the cattle market and fairs was held to be subject to the rules made by the State Government in that behalf. In that case. the. respondent-Bishambhar Singh and others were running a market independently on their Bhumidhari land. That market was not covered by the bye-laws framed by the Zila Parishad and it was held that the Zila Parlshad had no authority to control or regulate the cattle market held by Bishambhar Slngh and others. In the absence of any rules or bye-laws, the Gaon Panchayat cannot exercise power of regulating melas. markets and hats within Its area.
11. Even if H be taken that the Gaon Panchayat had the power to regulate melas, market and hats, as contemplated under Section 15 (h) Independent of the provisions of Section 110 of the Act, it has to be seen whether the resolution adopted to regulate the hat, which is organised by the defendant appellants on their own plots. Is restrictive in character or it was merely a regulatory measure. A bare reading of the provisions of Section 15 (h) of the Act would Indicate that the duty of the Gaon Panchayat for regulation of melas, market and hats rests on making of reasonable provision. Insofar as its funds may allow. The reasonable provision of regulation has to be read in conjunction with the words 'so far as its funds may allow' occurring in Section 15 of the Act. The reasonable provisions which the Gaon Panchayat could make for regulation of melas, markets and hats within its area, have a nexus with the funds of Gaon Panchayat which Implies that the Gaon Panchayat has to spend some money in making the reasonable provisions. The regulation, therefore, as of necessity, must result in some expenditure, such as making of pathways, for the free flow of cattle traffic, provision for drinking water for the catties and the cattle traders, stands for the catties and the place for shelter to the traders who come to the village to take part in the hat. These are the regulatory measures which are required to be adopted by the Gaon Panchayat under the provisions of Section 15 (h) of the Act. In the Instant case, what the Gaon Panchayat has done is that in order to promote its own hat on plot numbers, 832, 835, 836 and 837, it has restricted/prohibited the holding of hat by the defendant-appellants on their own plot numbers 830A, 830B, 834, 842 and 843. As said above, the defendant-appellants have a fundamental right to engage themselves in any business, trade or profession. This fundamental right can be curtailed or restricted only by putting reasonable restriction by a valid law. Total prohibition is permissible in cases where trade is Inherently dangerous, such as, trading in dangerous goods, explosives, tourism or trafficking in women or the like, but where there is a lawful business activity. It cannot. In any manner, be subjected to any fetters or restrictions in the absence of any law. A regulation, therefore, cannot disobey the constitutional pro visions/prohibitions by employing an Indirect method. In order to be reasonable, the restriction must have a reasonableness to the object which the regulation seeks to achieve and must not go in excess of that object. In short, a regulation cannot go to the extent of virtually eliminating the right guaranteed, by Introducing regulations which are not related to the Interest of the private persons holding a hat even though the regulation may be in the interest of general public. In order to be consonant with Section 15 (h) of the Act, a regulation imposed by the Gaon Sabha on the private persons holding the hat on their own land must also be (a) reasonable and (b) must also be regulative of the market character and conducive to the marketing activity, meaning thereby, the necessary facilities should be provided as would promote the purpose of holding the hat. This provision does not give absolute and unfettered right of regulation on the Gaon. Panchayat. If a resolution is uncanallsed or unreasonable, it will cease to be a regulation.
12. The expression 'to regulate' does not mean to shut an activity off altogether. A power to make a bye-law to 'regulate and govern' a trade does not authorise prohibition of such trades. There is a marked distinction between 'prohibition' and 'prevention' of a trade and regulation and governance of It. Learned counsel for the defendant-appellants placed reliance on State of Mysore v. S. Sanjeevia, ALR 1976 SC 1189, in which the two provisions to Rule 2 of the Rules framed under Section 37(2)(b) of Mysore Forest Act came to be considered. By Rule 2, a person Intending to transport forest produce must obtain a pass from an authorised officer. The rule so made. It was held, was clearly regulatory of the right to transport the forest produce. But a restriction was imposed on the right to transport forest produce by the two provisos Incorporated in the rule. By the first proviso, the holder of a pass is not authorised to transport forest produce between hours of sunset and sunrise in any area specified in Schedule 'A' and by the second proviso, it was provided that the restriction imposed by the first proviso may be relaxed between hours of sunset and 10 p.m. If the person wishing to avail of the concession makes cash deposit of Rs. 1,000 as security for due compliance with the Timber Transit Rules. It was held by the Supreme Court that by the terms of twoprovisos, there is an absolute prohibition against the transportation of various forest produces between hours 10 p.m. and sunrise and a qualified prohibition between hours of sunset and 10 p.m. On behalf of the State, it was urged that the two provisos were regulatory and not prohibitory. It was further urged that every Injunction in the form of a prohibition cannot be regarded as a restriction upon the right of transport. The above submission of the State did not find favour and approval of the Supreme Court. It was held that the power, which the State Government may exercise Is, however, power to regulate transport of forest produce and not the power to prohibit or restrict transport: A rule which totally prohibits the movement of forest produce during the period between sunset or sunrise is prohibitory or restrictive of the right to transport forest produce. Reliance was placed on an earlier decision reported in Automobile Transport Rajasthan Ltd. v. State of Rajasthan, AIR 1962 SC 1406, in which it was held that restrictions obstruct the freedom whereas regulations promote it. Regulations such as provision for lighting, speed, good condition of vehicles, timings, rule of the road and similar others really facilitate the freedom of movement rather than retard it. Regulations providing for necessary service to enable the free movement of traffic, whether charged or not, cannot be described as restriction impeding the freedom. In H. Sanjeevia (supra), it was argued on behalf of the State that the time restriction in transportation of forest produce has been imposed with a view to prevent unauthorised felling of trees and smuggling them from the State forest. This submission too was repelled by observing that howsoever good the grounds apparently may be for restricting the transport of forest produce, they cannot on that count transform power conferred by the provisos Into a power merely regulatory. The two provisos to Rule 2 of the Rules framed under Section 37 (2) (b) of the Mysore Forest Act were held to be not regulatory in character but restrictive in nature.
13. In the Instant case, as said above, by the Impugned resolution dated 14.8.1977, the Gaon Panchayat has not adopted any regulatory measure by providing any service or facilities in connection with holding of hats, bazars and melas. The resolution is clearly against the spirit of the provisions of Section 15 (h) of the Act. This provision does not contemplate that the Gaon Sabha is entitled to impose certain restrictions on the rights of the defendant-appellants to hold hats on their own land. The resolution has been adopted and designed with a view to restrict the right of the defendant-appellants to organise and hold cattle fair on their own land. It is true that the defendant-appellants cannot claim complete Immunity from any regulatory or supervisory measures, which may be adopted by the State as their right to organise a cattle fair is not absolute one and like any right, is subject to reasonable regulations and restrictions. This can be done only by a valid law and not by a resolution adopted by the Gaon Panchayat, which too is beyond the scope and in excess of the power conferred by Section 15 (h) of the Act.
14. A short and swift reference may also be made to the submission of the learned counsel for the plaintiff-respondent that under the provisions of Section 117 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Z. A. Act'), the Gaon Sabha may regulate the hats, bazars and melas. A plain reading of Section 117 of the Z. A. Act would indicate that this provision is not at all attracted to the facts of the present case and a reference to the said provision is not only wide off the mark but otiose. This section deals with the vesting of certain lands, including, hats, bazars and melas in Gaon Sabhas and other local authorities by a notification made by the State Government. This provision deals with the vesting of hats, bazars and melas which existed prior to the abolition of Zamlndarl and in respect of which, notification under Section 4 of the Z. A. Act has been made. Clause (v) of subsection (1) of Section 117 makes an exception with regard to the hats, bazars and melas held on lands to which the provisions of clause (a) to (c) of subsection (1) of Section 18 apply, or on sites and areas referred to in Section 9. Therefore, there is nothing in the Z. A. and L. R. Act which empowers the GaonSabha to regulate the hats, bazars and melas over the private land which were not in existence on the date of vesting. The submission made by the learned counsel for the plaintiff-respondent with reference to Section 117 of the Z. A. and L. R. Act has, therefore, to be Ignored as being misplaced.
15. Sri G. N. Verma, learned counsel for the plaintiff-respondent further placed reliance on Panch Gopal Varma and others v. Umesh Chand Goswami and others, AIR 1997 SC 1041 and Kshitish Chandra Purkatt v. Santosh Kumar Purkatt and others, AIR 1997 SC 2517. Both these rulings deal with the scope of exercise of jurisdiction by this Court in Second Appeal under Section 100, C.P.C., as amended in the year 1976. It has been laid down that existence of substantial questions of law is sine qua non to the exercise of jurisdiction in Second Appeal and that no new plea should be permitted to be raised in the Second Appeal on the ground that it was a legal plea. Again, it is not understandable as to why these two rulings have been cited by learned counsel for the plaintiff-respondent. As a matter of fact, no new plea has been raised in the present Second Appeal and that this Court has already admitted the appeal finding existence of substantial questions of law with regard to the effect of the alleged resolution under Section 15 (h) of the Act. The various provisions and rulings referred to and relied upon are of no assistance and help and do not. In any manner. Improve the case of the plaint Iff-respondent.
16. In conclusion, it is found that the resolution dated 14.8.1977 adopted by the Gaon Sabha purporting to be under Section 15 (h) of the Act is invalid, Ineffective and Inoperative in the absence of rules framed by the State Government in exercise of power conferred under Section 110 or the bye-laws as contemplated under Section 112 of the Act. The Gram Sabha has no authority, power or competence to restrict the right of the defendant-appellants in holding the cattle market on their own land. The restriction put by the Gram Sabha on the right of the defendant-appellants by resolution dated 14.8.1977 is wholly illegal arid of no consequence.
17. In the result, this appeal succeeds. It is allowed and the Judgment and decree dated 23.1.1991 passed by Special Judge (E. C. Act)/Additional District Judge, Agra in Civil Appeal No. 24 of 1986 are set aside. The resultant effect would be that the Suit No. 239 of 1977 filed by the Gaon Sabha-Pachokhra plaintiff-respondent shall stand dismissed with costs throughout.