T.S.Misra, J. - (1.) The petitioners are Chamhar by caste. According to them, they and their forefathers have been doing business in hides, horns and bones of dead animals in rural area of district Lucknow. They have alleged that when any animal in rural area dies, the owner thereof calls a Chamar and hands over the body to him. The Chamar in return delivers a pair of shoes or a parchi to the owner. The Zila Parishad Lucknow has, however, framed-certain bye-laws the effect of which is that only one person in the block can remove the body of a dead animal. It, thus, creates a monopoly and has adversely affected fundamental rights of the petitioners to any on business in hides, horns and bones of dead animals. The bye-laws in question are, said to be violative of Article 19 (b) of the Constitution and, therefore, ultra vires. The Zila Parishad has refused to grant licences to the petitioners who are thus being deprived of their legitimate business. The petitioners have, therefore, filed this writ petition under article 226 of the Constitution for quashing the bye laws creating a monopoly in the trade and collection of hides, bones and horns of the dead animals in the rural area of district Lucknow and to quash the impugned sale of Theka. The petition has been opposed. The matter was first listed before a Division Be rich which has referred the case to a Full Bench. This is how it has come up before us.
(2.) It would be appropriate to mention here certain provisions of law regarding the disposal of carcass of a dead animal in rural area. Under the U. P. District Boards Act, 1922 a District Board for each district was established under Section 4 thereof. Section 21 of the said Act required every District Board to make reasonable provision within the district, inter alia, for regulating offensive, dangerous or obnoxious trades, callings or practices. Under Section 174 (1) of the said Act a District Board was required to make bye-laws applicable to the whole or any part of the rural area of the district for the purposes of promoting or maintaining the health, safety and convenience of the inhabitants of such area. Then, the District Board could also make bye-laws under subsection (2) of Section 174 for the purpose of prohibiting the deposit or storage of manure, refuse, carcasses of animals, oi other offensive matter in a manner prejudicial to the public health, comfort or convenience, for regulating the removal of noxious vegetation and for regulating slaughter-houses and offensive, dangerous or obnoxious trades, callings or practices and prescribing fees to defray the expenditure incurred by a Board for this purpose and also for providing for the distraction of unclaimed, diseased or rabid dogs and noxious animals and also for prohibiting or regulating any act which occasions or is likely to occasion a public nuisance for the prohibition or regulation of which no provision is made elsewhere by or under the Act. By reason of the provisions of sub-section (2) of Section 174 the District Board, Lucknow, framed bye-laws vide Government notification no. 643/IX-113, dated 17th April, 1930. Paragraph 3 of the said bye-laws provides that do person shall deposit or throw any offensive matter, rubbish, night soil or carcass on any part of a public place or street or lane into any public drain or into any drain communicating with a public drain otherwise than in a place appointed under a bye-law. Paragraph 5 of the said bye-laws was in these terms : "Whenever any animal in charge of a person dies otherwise that by being slaughtered either for sale or for consumption or for some religious purposes, the person in charge thereof, shall within 24 hours convey the carcass to a place (if any) fixed for the disposal of dead bodies of animals or to a place beyond the abadi". A breach of the provisions of the said bye-laws was made punishable with a fine which may extend to Rs. 50 and the breach was continuing breach with a further fine which may extend to Rs. 5 for every day after the date of the first conviction during which the offender is proved to have persisted in the offence.
(3.) The United Provinces District Boards Act stood repealed in relation to a district from the date of the establishment of a Kshettra Samiti in pursuance of Kshettra Samitis and Zila Parishads Adhiniyam, 1961 (hereinafter called the Adhiniyam). Under the Adhiniyam the establishment of Kshettra Samiti was completed in the district of Lucknow and the United Provinces District Boards Act stood repealed in this district. Zila Parishad was also constituted under the Adhiniyam. Under Section 239 of the Adhiniyam the Parishad may, and where required by the State Government shall, make bye-laws for its own purposes and for the purposes of Kshettra Samitis, applicable to the whole or any part of the rural area of the district in respect of matters required by the Act to be governed by bye-laws and for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the rural area of the district. The Parishad may also in exercise of the said powers make bye-laws for prohibiting the use of any place, in default of a licence granted by the Parishad or otherwise than in accordance with the conditions of licence to be granted as a factory or other places or business for boiling and storing offal, blood, bones guts or rags and for the manufacture of leather or leather goods. It may also frame bye-laws providing for prohibiting or regulating, with a view to sanitation or the prevention of decease any act which occasions or which is likely to occasion a public nuisance and for providing for the destruction of unclaimed, diseased or rabid dogs and noxious animals.;