N. N. Mithal, J.- - (1.) THE petitioners M/s. Mohammad Ishaq Abdul Hamid have filed this petition praying for a writ of mandamus commanding the respondents not to interfere with their business of cattle fair and in parking the vehicles of the Transporters on their land on the basis of the bye-laws framed by the Zila Parishad and also to restrain them from charging any fee from them or from the Transporters for loading and unloading of cattle and other animals in the fair area. In substance, the challenge in the petition is to the validity of the bye-laws framed by the Zila Parishad, Meerut and published in the Official Gazette dated 4-3-1989 on the plea that the same were beyond its jurisdiction apart from being illegal, unjust and arbitrary.
(2.) TO undersand the controversy, a look at the background facts may help. The petitioners claimed to be the owners of the land on which, it is alleged, they have been holding a weekly cattle fair since 1938. The said land is about 4 kms. outside the Municipal limits of Nagar Palika. Sardhana and 18 kms. away from the Municipal Corporation, Meerut and is situtte by the side of the P. W. D. road linking Meerut and Sardhana. The allegation further is that cattle ere brought to the fair site by the owners of the cattle for sale which are transported in Trucks and other kind of Transport vehicles. The cattle are then unloaded in the fair area and are open for sale. After the transactions are over, the vehicles are again hred either by the purchasers to carry the cattle to their destination or some times by the sellers who carry their unsold cattle back to their destination. The entire business of sale and purchase of cattle takes place within the limits of the cattle fair area and the transport vehicles are also loaded and unloaded within its limits. The assertion is that the Zila Parishad. Meerut does not render any kind of service directly or indirectly in the running of the fair or for the facility of cattle owners or of the transporters in any way. On the other hand, the platforms for loading and unloading the cattle and facility for parking of the vehicles etc. are also provided by the petitioners themselves. The Zila Parishad has framed the bye-laws in exercise of powers under section 239 of the U. P. Kshetra Samiti and Zila Parishad Adhiniyam, 1961 known as Parking of Traffic and Public Safety and Facilities Bye-laws, the avowed object of which is to regulate traffic of vehicles in the rural area of district in respect of those vehicles which are transporting cattle or leather for sale or purchase in a cattle or leather market or fair any where within the rural area of the District. Bye-laws 5 empowers the authorities to stop any vehicle laden with leather or cattle or is likely to be used for the aforesaid purpose and if it is found that the vehicle was so being employed without payment of the requisite fee, the same may not be allowed to proceed without payment of the requisite fee. Bye-law 6 lays down that no transport vehicle can be used without payment of requisite fee if it is being used for transport of cattle or leather for sale in a cattle market or fair. By-law 8 provides that the Zila Parishad will make arrangements for establishing such parking spaces or stands for the Transport Vehicles. Bye- law 9 prohibits the use of any other place for parking of such vehicle except the specified stands or parking area and for this purpose the vehicle will have to pay the requisite fee. The validity of these bye-Jaws is challenged on several grounds. It is contended that : (1) The Zila Parishad has no jurisdiction to frame the bye-laws for this purpose; (2) There is no nexus between regulation of traffic for promoting or maintaining the health, safety and convenience of the Rural Area and the transportation of cattle and hides or leather by motor vehicles (3) The Zila Parishad can not force the transporters to park their vehicles only at the specified parking places and to force them to do so will infringe Article 19 (1) (g) of the Constitution of India; (4) The fee levied is not being used for rendering any service to the persons liable to pay the same; (5) The bye-laws as framed do not achieve the object for which the power has been exercised and the same are arbitrary; and lastly (6) The Zila Parishad cannot shift the responsibility of providing and maintaining the Parking space and the facilities necessary for loading and unloading of the cattle, sanitation, light and water, sheds, to the contractor after receiving a fixed amount from him.
(3.) SO far as the question of jurisdiction to frame bye-laws is concerned, the contention has no force. Section 239 of the U. P. Rsbetra Samiti and Zila Parishad Adhiniyam, 1961, hereinafter 'Zila Parishad Act' for short empowers the Parishad to make bye-laws for its own purpose in respect of matters required by this Act to be governed by the bye-laws and also for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the Rural area of the District. in addition sub-clause (2) of the section also empowers the Parishad to make any bye-laws in respect of items mentioned in the list given in the section. Although in the counter- affidavit the stand taken is that these bye-laws are within the jurisdiction of the Zila Parishad under section 239 (1) and 239 (2) (D), (F) (a) and (e) and (H) (a), but in our opinion the matter does not fall either under the head (D) or under head (H) (a) of section 239. The relevant provision may be under (H) (1) which provides as under : "Regulating fairs, cattle markets............ held under the authority of a Parishad ............ to which the public is allowed access." (F) (a) and (e) are also relevant for this purpose and may be quoted below : "(a) Providing for the regulation or prohibition of any description of traffic in the streets where such regulation or prohibition appears, to the Parishad to be necessary. (e) Prohibiting or regulating, with a view to promoting the public safety or convenience any act which occasions or is likely to occasion a public nuisance and for the prohibition or regulation of which no provision is made under this heading " The language of clause (e) is much wider and is residuary in nature The heading F deals with public safety and convenience. The question, therefore, is whether the bye-laws framed by the Zila Parishad can be said to have been framed under any of these provisions ? As we have seen earlier, the nature of business carried on by the petitioners involves visits by a large number of catt'e owners who bring in their cattle from different places in motor transport vehicles. The whole pattern of business has changed over the years. While earlier the cattle owners mostly used to walk down their cattle to the market place and the purchasers also used to walk them back to their respective destinations, with the increase in population, there has been an increase in the sale and purchase of cattle. While earlier the tride was localised, now a days the purchases are made for transporting cattle to far flung places in the country The speed with which the cattle can be transported is a relevant consideration and, therefore, over the years more and more cattle are being brought into these cattle markets in transport vehicles. Besides the main business of sale and purchase of cattle, there is a side industry or business of transporters. We are informed that in the District of Meerut alone there are 13 places where weekly markets are held and cattle are transported from one fair to another.;