AYUB HASSAN Vs. ZILA PARISHAD MUZAFFARNAGAR

JUDGEMENT

(1.) PETITIONER claims that he carries on the profession of skinning the carcass of dead animals, also deals in their hides, bones, hoofs, horns and skins. His contention is that he has been engaged in the said business from a long time and that the said business is the means of his liveli hood. His grievance is that the Zila Parishad, Muzaffarnagar has framed a bye law No. 113/EKKIS. 1287 (78-80) published in the U. P. Govt. Gazette on 15th March 1980. He assails the validity of the said bye laws and prays that a writ of certiorari should be issued quashing the same. Learned Counsel appearing for the petitioner has urged two grounds in support of the relief claimed by the petitioner. In the first place he submitted that the offending bye law creates a monopoly in favour of particular individuals and as such the petitioner shall be deprived of the opportunity to carry on his trade, profession and calling. It short it is submitted that the bye law offends the guarantee furnished by Article 19 of the Constitution. The counsel next submitted that the power of regulating collection, removal and disposal of the carcass of dead animals is vested under the U. P. Panchayat Raj Act and the Rules framed thereunder the Gaon Sabha and the Zila Parishad has no power to frame bye laws on the subject. In so far as the first submission of the learned Counsel is concerned it may be stated that a Division Bench of this Court in Jagatdhari and others v. Zila Parishad, and a number of other cases had taken the view that bye laws framed by the various Zila Parishads which were before the Court in those cases created monopoly in favour of one person. They were also of the view that the Kshetra Samiti Zila Parishad Adhiniyam and the bye laws which were impugned before this Court did not furnish any guideline for controlling the activity of disposal of the carcass and as such they imposed unreasonable restriction on the rights of the petitioners before this Court. This Court there fore held the said bye laws to be invalid and inoperative. The matter was reconsidered by a Full Bench of this Court in the case of the Jaggu v. Zila Prishad Gonda(1981) A.C.L.J. 1. The Full Bench by an unanimous judgment reached a differ ent conclusion and overruled the decision in Jagatdhari (supra) and other cases. Even on merits we find that in the instant case no monopoly is created in favour of anybody by the Zila Parishad. Stating briefly the bye laws inter alia provide that every owner of carcass or any person who is in its possession shall remove the carcass without delay and in no case such time shall not exceed six hours. During this period the owner of the carcass shall remove it to a place specified either by the Zila Parishad or the Gaon Sabha for the purpose and if no such place has been specified to any other place which is at a distance of more than 500 meters from the residential area of the village and at a distance of not less than 200 meters of a public road, lane or any other public place. Certain other duties are also enjoined on the owner of the car cass to which we need not refer. The bye law further lays down that no person shall remove the carcass from anyplace within the rural area of the district or utilise it unless he has obtained a license provided by the bye law. The bye law also lays down that the license fee for the local area of each Gaon Sabha shall be Rs. 200/- per annum. We have not been shown anything in the impugned bye laws which has a tendency of creating a monopoly in favour of any particular individual. In the case of Jagatdhari (supra), and other cases decided by this Court the bye laws provided for grant of licence to the highest bidder. The bidding was to be made for the whole district or part thereof. The bye law in the instant case is substantially different from the bye laws considered in the case of Jagatdhari (supra) and other similar, cases. The second contention advanced on behalf of the petitioner is equally unsubstantial. Section 33 of the Zila Parishad Adhiniyam inter alia lays down that every Zila Parishad shall exercise and perform the powers and functions enumerated in its six clauses. Clause (v) of Section 33 provides that the Zila Parishad shall have all powers and functions which are specified in Part A of Schedule II. Under Clause (viii) of paragraph 3 of Schedule II Part A, one of the powers enumerated is: "Regulations of offensive, dangerous or obnoxi ous trades, calling or practices" Section 239 confers on the Zila Parishad power to make bye laws. Sub section (2) of Section 239 lays down that in particular and without prejudice to the generality of the power conferred by sub-section (1) a Parishad may in the exercise of the said power make any laws described in the list. After this sub- section various items in respect of which bye-laws may be made by the Zila Parishad are enumerated under heading A to H. Heading E is entitled "offen sive Trades" Sub-clause (x) under this heading confers on the Zila Parishad power to frame bye-laws for any other purpose if a particular trade or calling is likely to cause public nuisance. Under heading it is inter alia provided that bye laws may be framed prohibiting or regulating with a view to sanitation or the prevention of diseases any act which occasions or which is likely to occa sion a public nuisance and for prohibition or regulation of which no pro vision is made under the heading. Heading H of Section 239 deals with miscellaneous matters. Clause (O) thereof lays down that bye laws may be framed for the destruction of unclaimed diseased or rabid dogs and noxious animals. The preamble of the impugned notification shows that it has been issued by the Zila Parishad in the exercise of its powers under Section 33 and the different parts of Section 239 which have been referred to above. It can not, therefore, be doubted that the Zila Parishad had powers in ample measure under the Adhiniyam to frame the impugned bye laws. Learned Counsel however contended that Section 16 of the U. P. Panchayat Raj Act read with Rules 145- A and Rule 146-A of the Rules framed under that Act confer the power frame bye laws regarding disposal of dead animals on the Gaon Sabha alone. Now Section 16 of the Panchayat Raj Act enumerates the discretionary function of the Gaon Sabha. A Gaon Sabha may or may not exercise the functions enumerated therein. It is unnecessary to pursue the matter any further. Section 256 of the Zila Parishad Adhiniyam lays down that should a dispute arise between a Parishad and Kshetra Samiti and any other local authority on any matter in which they are generally interested, such matter shall be referred to State Government whose decision shall be final. In case the Gaon Sabha concerned in the instant case had been aggrieved by the bye laws framed by the Zila Parishad, it could ventilate its grievance before the State Government. PETITIONER has no locus standi to take up cudgels on behalf of the Zila Parishad before this Court. For the reasons discussed above we find no merit in this writ petition which is dismissed in limine.