A.A.DAVE - (1.) This appeal is directed against the judgment and decree of the learned Judge City Civil Court 9 court Ahmedabad dismissing the plaintiffs suit with costs.
(2.) The facts giving rise to this appeal in a nut-shell are as under :- The plaintiffs are the permanent residents living in the municipal limits of the city of Ahmedabad and carrying on occupation of keeping milch cattle and Selling:- milk. They had kept their cattle sheds within the municipal limits of the city of Ahmedabad and were personally looking after them. However the defendant Municipal Corporation of the city of Ahmedabad issued notices dated 26-12-1963 7 and 26-3-1964 respectively asking them to remove their milch cattle within two months from the walled city of Ahmedabad falling which they were threatened with prosecution. The plaintiffs therefore filed a suit alleging that the notices issued by the defendant Municipal Corporation were illegal uaauthorised and beyond the powers under the Bombay Provincial Municipal Corporations Act 1949 or the by laws framed thereunder and that they were not bound to comply with the said notices. They stated that the cattle sheds were kept clean according to the terms of the licence and that their cattle did not cause any damage nuisance or annoyance to the health life or safety of the citizens of the round about area; that the defendant had no power to cause loss of the plaintiffs occupation trade and business; that the said notices were discriminatory in the sense that while they prohibited keeping of milch cattle for the purpose of selling milk they did not prohibit keeping of cattle as such or horses or other animals in the city area for private use. According to the plaintiffs there was no distinction between the premises where milch cattle for sale of milk were kept and where cattle and horses were kept for private use. Thus the by-laws framed under the said Act and the notices issued pursuant to the same were discriminatory and opposed to the guarantee contained in Article 14 of the Constitution of India; that they were also violative of the fundamental rights under Article 19(1)(g) of the Constitution to carry on occupation trade or business of their choice. It was therefore alleged that secs. 376A 376 and 458 and the by-laws and the rules made thereunder empowering the defendant and its officers and the notices issued thereunder were violative of the fundamental rights of the plaintiffs guaranteed under Articles 14 and 19(1)(g) of the Constitution of India. They therefore stated that the said by-laws were unconstitutional and void and were not binding on them. The defendant Municipal Corporation by its written statement ex. 9 contended that no cause of action had arisen to the plaintiffs as alleged by them as no notices under sec. 458 of the said Act were served on then. They denied that the relevant provisions of the Act by-laws and the rules made thereunder were discriminatory or prohibitory in nature as alleged by the plaintiffs. They denied that they were arbitrary capricious and colourable exercise of the power for collateral purpose. They stated that those provisions were not violative of the Article 14 or 19(1)(g) of the Constitution of India; that the by-laws were validly framed after following proper procedure prescribed in that behalf. Under the circumstances they prayed that the suit be dismissed with costs. From the pleadings of the parties the learned Judge framed issues at ex. 24. According to the learned Judge sec. 376-A read with sec. 376(1)(c)(d) of the Act was not violative of Articles 14 and 19 of the Constitution of India. The learned Judge also held that the by-laws framed under sec. 458 of the Act were not prohibitory in nature and were not ultra vires the Constitution of India as alleged. In view of his findings the learned Judge dismissed the plaintiffs suit. Against the said judgment and decree the plaintiffs have preferred the present appeal to this court.
(3.) Mr. H. B. Shah learned Advocate for the appellants raised the following contentions before me (1) that sec. 376A is unconstitutional as being violative of the fundamental rights under Article 14 of the Constitution; (2) that the notices exs. 13 14 and 15 are violative of Articles 14 and 19 of the Constitution; (3) that the by-laws framed under sec. 458 which prohibited keeping of milch cattle for sale of milk are unconstitutional as being arbitrary and discriminatory under Article 14 of the Constitution. (4) that the said by-laws are unconstitutional also under Article 19(1)(g) of the Constitution. In support of these contentions Mr. Shah urged that is the instant ease the effect of the by-laws was that the private persons who keep milch cattle within the walled city of Ahmedabad for their private use were exempted from the operations of the Act while the persons who keep milch cattle for the purpose of selling milk were penalised and were not permitted to keep the same within the four walled portion of the city. According to Mr. Shah the by-laws therefore framed under sec. 458 of the Act were clearly discriminatory and prohibitory in nature. He submitted that the effect of the by-laws would be that the present appellants would be prohibited from conducting the trade or business of their choice which was guaranteed to them under Article 19(1)(g) of the Constitution. He therefore urged that sec. 458 and the by-laws framed thereunder were violative of Articles 14 and 19(1)(g) of the Constitution and therefore they were ultra vires void and inoperative. ;