JUDGMENT Yatindra Singh, J.
1. Doctors' Jan Kalyan Society. (petitioner for short) is an association of the Allopathic, Homoeopathic, Ayurvedic and Unani doctors. It has filed the present writ petition challenging the bye-laws ('the bye-laws' for short) framed by Nagar Palika Parlshad. Mirzapur ('the Nagar Palika' for short) under Uttar Pradesh Municipalities Act, 1916 ('the Act' for convenience). It is covered by the Act. The Bye-laws provide for licence fee on the Nursing Home. Private Clinic, Pathology Centre, Dental Clinic, X-Ray Clinic and Maternity wards.
FACTS
2. The State Government, in order to augment the financial resources of the local bodies, had issued a direction on 27.9.1994 to increase the licence fee or to impose licence fee in case it is not so imposed on the matters mentioned therein. The present licence fee is also one of the items mentioned therein. Subsequently, another similar direction was again issued on 23.12.1994 and then a reminder was sent on 21.3.1995. The administrator of the Nagar Palika passed a special resolution on 28.8.1995 to frame the bye-laws. The proposed bye-laws were published in the Newspaper "Jai Prakash" on 25.9.1995 and objections were invited within fifteen days. No objections were received. The matter was then placed before the Nagar Palika. But the resolution to frame the bye-laws and impose licence fee was rejected in the meeting dated 27.2.1996. An agenda dated 9.8.1996 for approving the bye-laws was circulated, fixing the meeting on 16.8.1996. This meeting was within six months of the earlier meeting. In this meeting, the resolution to enforce the bye-laws from the date of publication was passed. These bye-laws were published in the Official Gazette on 18.2.1997 and were enforced from that date.
POINTS FOR DETERMINATION
3. We have heard the counsel for the parties.2 Following points arise for determination in this case :
(i) Section 34(1B) of the Act-empowers the State Government to prohibit the execution of the resolution. Should writ petition be dismissed on the ground of alternative remedy?
(ii) Section 298 empowers the Municipality to make bye-laws. Whether the impugned bye-laws are beyond the power of the Nagar Palika to frame the bye-laws under Section 298 of the Act?
(iii) Section 94 (6) of the Act prescribes condition when a resolution of a Municipality can be modified or cancelled within six months. Whether these conditions were satisfied? Whether Section 94 (6), applies even In case where the bye-laws have been framed in pursuance of the direction given by the State Government?
1st Point--ALTERNATIVE REMEDY
4. Section 34 (1B) of the Act.1 empowers the State Government to prohibit the execution of a resolution or of an order passed under the Act or any other enactment by the Municipality. The counsel for the Nagar Palika says that the writ petition should be dismissed and the petitioner may be permitted to approach the State Government under Section 34 (1B) of the Act. He has a Division Bench decision of this Court in his favour. According to him, this judgment was in respect of similar bye-laws framed by the Nagar Palika. This case is distinguishable.
5. The judgment shows that the writ petition was dismissed as a fresh case. In present case, the counter and rejoinder-affidavits have been exchanged. It will not be proper to dismiss the writ petition at this stage on the ground of alternative remedy, especially when the writ petition raises questions of law.
6. The bye-laws have been framed by the Nagar Palika on the direction of the State Government. Even if the bye-laws are illegal ; Will the State Government stay? Will it interfere? Relegating the petitioner to the State Government would be empty formality. Alternative remedy should neither be empty formality nor illusory. It should be equally efficacious. We entertain this writ petition and decide it on merits.
2nd Point--BYE-LAWS : IF WITHIN LAW
7. Section 294, of the Act permits the Municipality to charge fee to be fixed by the bye-laws for any licence. The Municipality may make bye-laws under Section 298 of the Act. But the bye-laws so framed have to be consistent with the Act and the Rules should be for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the Municipal area. The municipality may frame bye-laws in respect of item mentioned in the list under Section 298 (2) of the Act. This is without prejudice to the power conferred by Section 298 (1) of the Act. List I deals with the Municipal area whereas List II deals with Hill Municipal area. In the present case. List I is applicable.
8. We have read the bye-laws. They are for providing and maintaining the safety and convenience of the inhabitants of the Nagar Palika. They can be framed under Section 298 (1) of the Act. They can also be framed under List I Section 1 item (h). This entry deals with prohibiting or regulating with view to sanitation or prevention of diseases. Nursing homes, clinics, etc. are places were diseases are cured. But unregulated or unchecked or un-cared may spread infection. The Nagar Palika has power to frame the impugned bye-laws.
3rd Point--THE PROCEDURE--IF CONTRAVENES SECTION 94 OF THE ACT--SHOULD THE BYE-LAWS BE QUASHED
9. Chapter 3 of the Act deals how Municipality will conduct its business. Chapter III of the Act contains Section 86 to Section 113. Section 86 of the Act provides about the meeting of a Municipality. Section 87 provides for transaction of business at meetings. Sections 88 to 91 provides for quorum, President of the meeting, publicity of the meeting and the power of the President of the meeting to maintain order. Section 92 of the Act provides that the decisions will be by the majority of votes of the member present and voting. Section 94 provides about the minute book and resolutions. Section 94 (6) of the Act, provides for two conditions to be satisfied before a resolution can be modified or cancelled within six months after it is passed.
1. There should be previous notice along with resolution which is to be modified or cancelled along with the modification or cancellation of such resolution.
2. It should be passed by not less than half members of total number of the members of the Municipality for the time being.
Section 94 (6) (b) is unlike the Section 92 of the Act. which requires majority of the members present and voting only. These numbers may be different unless all members are present and voting, which is seldom the case. Generally, the number required under Section 94 (6)(b) is more than the number required under Section 92 (1) of the Act.
10. It is admitted that the resolution to frame the bye-laws was defeated in the meeting held on 27.2.1996. The next meeting to consider the bye-laws was held on 16.8.1996. The agenda of this meeting is on record. We are concerned with item No. 5 of the agenda. Unfortunately, it does not set forth the resolution, which is required to be modified or cancelled. It does not satisfy the conditions mentioned in Section 94 (6) (a) of the Act.
11. It is admitted that total number of members of the Nagar Palika was 31. The minutes of the meeting dated 16.8.1996 are also on record. It indicates that 29 persons participated in the meeting. The minutes in regard to the Bye-laws have been recorded at serial No. 5. It is mentioned against Sl. No. 1 that as far as resolution No. 1 is concerned, six members raised objections, thereafter it was passed. The only words mentioned against resolution No. 5 is 'accepted'. It is not clear from the minutes if it was passed unanimously or by majority of more than half of members present and voting or was passed by majority of more than half of the total members of the Nagar Palika. If all 29 voted, then its majority would be fifteen and more than half of total members is sixteen. The minutes do not indicate as how many voted in favour and how many against it. Parties disagree on the numbers. We are not sure if condition mentioned in Section 94 (6) (b) of the Act were satisfied. It appears that no one in the meeting raised objections regarding Section 94 (6) of the Act. They may not be aware. But this is not the end by itself.
12. The Bye-laws were framed on the direction of the State Government, and not on its own accord. Section 298 (1) of the Act says that the Municipality by a special resolution may and where required by the State Government shall make bye-laws applicable to whole or any part of the Municipal area. It contemplates two situations. One it may frame bye-laws by special resolution and second it shall frame bye laws if required by the State Government. If a section of the Act uses 'may' at one place and 'shall' at other, then the use of the language indicates that the one situation is discretionary and the other obligatory/mandatory. Section 298 (1) of the Act at one place uses word 'may' and other place uses the word 'shall'. There is a change in the language. The change in language suggests the change of intention, This indicates that use of the word 'shall' in the second situation is mandatory while 'may' in first place is discretionary.
13. The State Government had issued a direction. The Nagar Paltka was duty bound to frame the bye-laws' if this is so, then the Nagar Palika in its meeting dated 27.2.1996 could not reject it. The Nagar Palika corrected its mistake in its next meeting within six months. Even if Section 94 (6) of the Act applicable in this situation, then it cannot be said that the Nagar Palika has committed an illegality. The Nagar Palika was not entitled to reject the bye-laws at the first place. It merely corrected a mistake. We cannot quash the resolution approving the bye-laws and restore the position which was illegal or contrary to law. Writ jurisdiction is discretionary. It cannot exercise to restore an illegal situation.
CONCLUSION
14. The writ petition is dismissed with costs to the Nagar Palika (respondent No. 2) as only it had filed the counter-affidavit to oppose the petition.