- (1.) The main issue involved in this batch of appeals by special leave and the connected special leave petitions, directed against various judgments and orders of the Allahabad High court, is as to the constitutional validity of a particular bye-law framed by different Zila Parishads in the State in exercise of the powers conferred by S. 239 (2) (E) (a) of the Uttar Pradesh Kshetra Samiti and Zila Parishads Adhiniyam, 1961, prohibiting the use of any place in default of a licence granted by the Zila Parishad or otherwise than in accordance with the conditions of licence so granted. The impugned bye-law provides that the right to trade in carcass utilisation in the rural area of the respective Zila Parishads shall be put to public auction. Such activities comprise of taking of the carcass of dead animals to a place specified, skinning of the carcass, storage of bones and skins, curing and dyeing of such skins and preparation of leather goods. In Jagat Dhari v. Zila Parishad, Pratapgarh a learned Single Judge struck down the latter part of bve-law 11 framed by the Zila Parishad, Pratapgarh which provided for farming out of the privilege of utilisation and disposal of carcass of dead animals, on the ground that while S. 239 (2) (E) (a) of the Act empowers a Zila Parishad to frame bye-laws to regulate or control the offensive trade for maintaining the health, safety and convenience of inhabitants of the rural areas lying within its jurisdiction, by prohibiting the user of any place in default of a licence granted bv the Zila Parishad or otherwise than in accordance with the conditions of a licence, it did not authorise the Zila Parishad to put the right or privilege to carry on such trade to public auction inasmuch as it created thereby a monopoly in favour of an individual or group of individuals. The view expressed in Jagat Dhari case was reiterated by a division bench in Mohammad Jahal v. Zila Parishads. Varanani and Mirzapur and in Suraj Pal v. Zila Parishad, Banda and it held that S. 239 (2) (E) (a) and the other provisions of the Act did not confer on the Zila Parishad the power to createa monopoly in the trade of carcass utilisation. In Sura) Pal case, the division bench distinguished the decision of this court in State of Maharashtra v. Mumhai Upnagar Gramodyog Sangh taking a view to the contrary, on the ground that the analogous bye-law framed by the Municipal Corporation of Bombay regulating the trade of carcass utilisation viz. the activity of removing carcass to the prescribed place for the purpose of skinning, dyeing and tanning and also the activity of storing skins, horns and bones were reasonable restrictions within the meaning of Article 19 (6) of the Constitution in the context of thickly populated metropolitan city of Greater Bombay where such restrictions was necessary in the interests of the general public for maintaining public health, sanitation and hygiene. It however held that the considerations which weighed with the court in State of Maharashtra v. Mumbai Upnagar Gramodyog Sangh, were of no relevance in determining the reasonableness of the restrictions on such trade in sparsely populated rural areas. The correctness of the decision of the division bench in the cases of Mohammad Iqbal and Suraj Pal following the view in Jagat Dhari case that the impugned bye-law offended against Article 19 (1) (g) was open to question. A division bench accordingly referred the matter to a full bench.
(2.) The full bench decision was rendered by the Lucknow bench of the High court in Jaggu v. Zila Parishad, Gonda. The full bench while disagreeing with the earlier decisions of the High Court held that the considerations of public health, safety and convenience were equally relevant to the rural areas and therefore the individual's right to trade in the putrefying carcass of a dead animal which was an obnoxious thing was necessarily subject to the State's police power and accordingly it was competent for the Zila Parishads to frame bye-laws in exercise of the powers conferred by S. 239 (2) (E) (a) of the Act to provide that no person shall store bones of dead animals or shall skin the carcass or shall cure and dye skins or shall prepare leather goods in the rural areas except unless he has obtained a licence for the same. It expressly repelled the view earlier taken that the effect of the impugned bye-law for farming out the right or privilege of carcass utilisation was to create a monopoly in favour of an individual or group of individuals i. e. the highest bidder at the auction. In substance, the full bench held that carcass of dead animals is nothing but a putrefying organic matter and a dangerous thing and is therefore subject to the State's police power to regulate the manner of their disposal in public interest for maintaining public health and hygiene.
(3.) There has been protracted hearing of these matters before different benches lasting over several days. In Gulshan v. Zila Parishad, Etawah the court passed an order dated 3/04/1981 directing the State government to frame a Model Scheme for Carcass Utilisation in the Etawah district at the village panchayat level on an experimental basis. In devising the proposed scheme, the court's concern was to ensure that persons like the petitioners traditionally engaged in the work of skinning, tanning and preparing articles of leather goods, are not deprived of their means of subsistence and do not become the victims of exploitation by contractors. It was directed that the State government may under the scheme set apart places in each block or other regions for the purpose of storing skins and arrange for government tanneries or other institutions or organisations to purchase skins from the petitioners and others at a reasonable price so that they may get a fair recompense for the work done by them, as also for the skins. An undertaking was given on behalf of the Zila Parishads that they would render full cooperation to the State in formulating such scheme and implementing it so as to eliminate any middlemen who might become an instrument of exploitation. On 27/04/1981 the court passed another order in that case directing the State government to furnish information to the court in full detail as to how many centre had been set up in Etawah district under the Model Scheme for Carcass Utilisation at village panchayat level, the places where such centre had been located, the activities carried on by these centre, as to how many persons were taking advantage of the scheme etc. On that day, learned counsel for the State government read out a government order showing that various cooperative societies had been formed for the purpose of charma shodhan. The court accordingly passed certain incidental directions as to the price payable for skins, bones and horns. Eventually, the court on 12/08/1981 appointed a Commission consisting of Dr Upendra Baxi and Shri Krishan Mahajan to make an in depth study of the socio-legal problem.;