Gulshan
& ANR Vs. Zila Parishad & Ors [1987] INSC 288 (16 October 1987)
SEN,
A.P. (J) SEN, A.P. (J) VENKATACHALLIAH, M.N. (J) CITATION: 1988 SCR (1) 538
1987 SCC Supl. 619 JT 1987 (4) 334 1987 SCALE (2)1466
ACT:
Uttar
Pradesh Kshetra Samiti and Zila Parishads Adhiniyam, 1961: Section
239(2)(E)(a)-Utilisation of carcass of dead animals in rural area-Bye-law
framed providing for public auction right to trade in-Zila Parishads,
Competency of-Whether Bye-law offends Art. 19(1)(g) of Constitution of India-State
Government Circular dated June 7, 1986 -Effect of.
HEADNOTE:
%
In exercise of the powers conferred by Section 239(2)(E)(a) of the Uttar
Pradesh Kshetra Samiti and Zila Parishads Adhiniyam, 1961, various Zila
Parishads framed a bye-law, providing that right to trade in carcass
utilisation in the rural area of the respective Zila Parishads shall be put to
public auction. Such activities comprised of taking of the carcass of dead
animals to a specified place, skinning of the carcass, storage of bones and
skins, curing and dyeing of such skins and preparation of leather goods.
In
a writ petition challenging the validity of the said bye-law, a Single Judge of
the High Court struck down the latter part of the bye-law framed by one of the
Zila Parishads, providing for farming out of the privilege of utilisation and
disposal of carcass of dead animals, on the ground that it created a monopoly
in favour of an individual or group of individuals.
A
Division Bench reiterated that view in two writ petitions filed before it, and
distinguished the decision of this Court in State of Maharashtra v. Mumbai
Upnagar Gramodyog Sangh, [1969] 2 SCR 392 taking a contrary view on the ground
that the restrictions were reason able within the meaning of Art. 19(6), in the
context of the thickly populated metropolitan city.
The
correctness of the said decision of the Division Bench was open to question.
Another Division Bench referred the matter to a Full Bench, which expressly
repelled the aforesaid view, and held that it was competent for the Zila
Parishads to frame such bye-laws in exercise of the powers conferred by s.
239(2)(E)(a) of the Act.
539
Against the various judgments and orders of the High Court, special leave
petitions and appeals by special leave challenging the constitutional validity
of the aforesaid bye-law, were filed in this Court.
In
SLP(C) No. 1900 of 1981, this Court, in order to protect the interests of
persons traditionally engaged in the work of skinning, tanning etc., directed
the State Government to frame a Model Scheme for carcass utilisation in the
Etawa district at the village panchayat level on an experimental basis, and
passed certain incidental directions as to the price payable for skins, bones
and horns. As nothing further was done, in partial modification of its earlier
orders, this Court directed the Zila Parishad, Etawa to issue licence to any
person who applied for the same.
In
the meantime, the Government of Uttar Pradesh issued a Circular dated June 7,
1986 stating that in future the licences for disposal of carcass of animals
should be granted only to registered industrial cooperative societies formed by
the persons engaged in this work.
Disposing
of the Special Leave Petitions and civil appeals, ^
HELD:
It is plain upon the reading of the Circular dated June 7, 1986 issued by the
State Government that the contract system envisaged by the impugned bye-law
framed by the different Zila Parishads in the State has been virtually
abandoned, and the State Government proposes to replace the system of auction
by a system of licensing, giving preferential right to cooperative societies
consisting of members of the traditional occupation, for the disposal of
carcass of dead animals. [544E-F] In view of the subsequent policy decision
taken by the State Government, the present controversy no longer survives. It
would be open to different Zila Parishads, in view of the directive of the
State Government, to frame the appropriate Bye-laws consistent with and for the
implementations of the policy declared by the State Government. The Zila
Parishads, while considering the question, shall keep in view the directions
issued by this Court on April 15, 1983, and also the order passed introducing
the licence-system in the Zila Parishad, Etawa on an experimental
basis.[544F-G] For a meaningful effectuation of the policy-decision of the
Government, which is taken in the larger interests of a sizeable segment of the
weaker sections of the society, it is of utmost importance that the 540 work of
formation of cooperative society of the members of the traditional occupation,
who lack the will and the ability to organise themselves, should be taken up by
the social welfare department of the State Government and every effort should
be made to bring the members of the traditional occupation within the fold of
these cooperative societies. The social welfare department shall take effective
steps to organise such cooperative societies.
[544H;
545A-B] Wherever it is not possible to implement the policy- decision and there
is likely to be a loss of revenue or other compelling reason, it would be open
to the Zila Parishads, as a purely transitory measure and with the prior
concurrence of the State Government, to arrange for carcass utilisation by
auction if the Bye-laws permit such auction.
It
is only where, for any compelling reason, the said policy decision cannot be
implemented effectively in any area, that the concerned Zila Parishad could,
with the prior sanction of the State Government, continue the present contract
system subject to such variation as may be necessary till the cooperative
societies are formed. [545C D1]
CIVIL
APPELLATE JURISDICTION: Special Leave Petition No. 1900 of 1981 etc.
From
the Judgment and order dated 3.2.1981 of the Allahabad High Court in C.M.W.P.
No. 1924 of 1981.
P.P.
Rao, Ambrish Kumar, Mrs. Rani Chhabra, M. Qamaruddin, Mrs. Qamaruddin, A.K.
Srivastava, B.B. Tawakley, Mrs. Subhadra, S.N. Singh, C.K. Ratnaparkhi, S.K.
Gupta, Uma Dutt, C.P. Lal, M.K. Garg, and Lokesh Kumar for the Petitioners.
Anil
Dev Singh, O.P.. Rana, B.P. Maheshwari, Mrs. S. Dikshit, P.K. Pillai, R.
Ramachandran, A.K. Srivastava, S.C. Birla, S. Wasim, A. Qadri, N.N. Sharma,
Shakeel Ahmad and K.K. Gupta for the Respondents. The following orer of the
Court was delivered:
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