R.A. Sharma, J. - (1.) PETITIONERS , who hold cattle fair on their plots of land in despite Muzaffarnagar, have filed this writ petition challenging the bye -laws dated 20 -2 -1987 framed by the Zila Parishad, Muzaffarnagar providing for parking place for loading and unloading of animals near the plots over which the Petitioners hold cattle fair, and for levying fee for the use of the parking place. The Zila Parishad has filed its counter affidavit and Petitioners have filed rejoinder affidavit in reply there to. We have heard the Learned Counsel for the parties.
(2.) AGAINST the same impugned bye -laws a writ petition No. 2 of 1990 was filed, which has been dismissed by a Division Bench on 1 -2 -1991. A copy of the judgment has been placed before us by the Learned Counsel for the Zila Parishad. Learned Counsel for the Petitioners has however, urged that the only question which was raised and decided in that case was the competence of the Zila Parishad to specify any parking place for loading and unloading of animals and in view of the Full Bench decision of this Court in the case of Dasrath Yadav v. Zila Parishad, 1984 ALJ 310, this contention was rejected and right of the Zila Parishad to provide place for loading and unloading of the animals was upheld. This submission of the Learned Counsel for the Petitioners appears to be correct inasmuch as the other contentions relating to the vagueness and uncertainty of the bye -laws were not decided in view of the statement of the Learned Counsel for the Petitioners to the effect that if the parking place is specified by the Zila Parishad and sufficient service is rendered by it or its contractors it can charge parking fee. In view of the said statement of the Learned Counsel this Court disposed of the writ petition with the observation that if no parking place is earmarked and provided by the Zila Parishad, it cannot lawfully levy and realise parking fee but if the parking place has been earmarked and facilities are provided, it will have the right to charge fee for the same. Learned Counsel for the Petitioners has challenged the impugned bye -laws on several grounds and in that connection has placed before us a judgment of Division Bench in another case of M/s. Mohd. lashaq Abdul Hamid and Brothers v. Zila Parishad Meerut (Writ Petition No. 15929 of 1989) in which similar bye -laws framed by the Zila Parishad, Meerut were challenged and this Court while upholding the bye laws declared bye -laws Nos. 7 and 8 only as invalid on account of vagueness and arbitrariness and also on the ground that they do not tend to achieve the object for which they have been framed. The Learned Counsel has accordingly contended that although all his submissions are covered by the decision of the Division Bench in the aforesaid case of M/s. Mohd. Ishaq Abdul Hamid and Brothers but as the bye laws 7 and 8 framed by the Zila Parishad, Meerut which were struck down by this Court in the aforesaid case are identical with the impugned bye -laws Nos. 7 and 8, the impugned bye -laws Nos. 7 and 8 be also declared as illegal and ultra vires. Learned Counsel for the Zila Parishad has however, argued that in the case of M/s. Mohd. Ishaq Abdul Hamid and Bothers the Zila Parishad, Meerut or its contractors were not providing any facility and on this basis this Court declared the aforesaid two bye -laws as invalid; but in the instant case the facilities are being provided by the Zila Parishad and its contractors and the ratio of the decision of this Court in the case of M/s. Mohd. Ishaq Abdul Hamid and Brothers cannot be applied.
(3.) IN the case of M/s. Mohd. Ishaq Abdul Hamid and Brothers the argument of the Learned Counsel for the Petitioner was that the Zila Parishad and its contractors are not providing any facilities and the entire amount, which is being realised by way of fee is being utilised for adding it to the revenue. This Court on the basis of the material placed by the parties came to the conclusion that the Zila Parishad, and its contractors are not providing any facilities and the byelaws have been framed with the object of increasing revenue of the Zila Parishad. The relevant extract from the aforesaid judgment is reproduced below: In paragraph 17 of the petition it has been specifically mentioned that the Zila Parishad or its agent or contractor have neither specified any parking area nor they have made any platform for the purposes of loading and unloading the cattle and are only engaged in realising the fee and making money. In reply thereto the Zila Parishad has very vaguely mentioned that the Zila Parishad and its contractor are providing services but it has not been specified as to what kind of service was being rendered to the owners of the transport vehicles by either of them. In paragraph 6 of the supplementary counter affidavit on behalf of the Zila Parishad, an attempt has been made to elaborate this. It is averred that the vehicles used to come from different parts of the country carrying animals and leather which they used to park and load haphazardly at different places of their choice, without caring for public convenience, hygiene and safety. It is also averred that there was no facility for parking the transport vehicles and the cattle where mercilessly thrown in and out of the vehicles because of absence of proper loading and unloading facilities. It is further averred that after the cattle fair was over, no one used to care for the left over garbage, cattle dung etc, scattered at all places due to unregulated parking, loading and unloading from the vehicles and this affected the life, safety, health, hygiene, and convenience of local inhabitants and of the visitors to the cattle fair. It is asserted on behalf of the Zila Parishad that the bye -laws were framed for regulating the movement, parking, loading and unloading of vehicles involved in the transport of cattle and leather in and out of the cattle market. From these averments, it is obvious that the above object of framing the bye laws was to regulate the traffic of transport vehicles coming loaded with cattle or leather to the cattle fair by providing a proper parking place where facility for loading and unloading would be available and also that it will ensure sanitation of the place after the fair was over. It is a matter of common knowledge and experience that when such fairs are held, cattle require drinking water and place to eat their fodder and also will require a proper road and light arrangement as they cannot be left to the mercy of elements during the scorching heat of May and June or during the rainy season or when the winter is at its worst. Naturally, therefore, when the Zila Parishad intends to charge a fee for providing a parking place for vehicles, it is supposed to provide for the facilities and amenities also. In the instant case, in what manner this has been done? The Zila Parishad does not even own land of its own. As we find from the record of the third connection petition No. 13629 of 1989. Udaibir Singh v. Zila Parishad Meerut this it was the contractor, who had to arrange for the land for providing parking area for the vehicles just opposite to the land where the cattle fair is organised. It is his obligation to provide for the platforms and ramps for loading and unloading the cattle and leather from the vehicles. Copy of the contract executed between Udaibir Singh and Zila Parishad is also on the record and a reading of the same will go to show that the main stress therein is the realisation of the amount for which the contract has been settled with Udaibir Singh and the contractors' right to realise the fee from the vehicle owners. As far providing the facilities, it appears that it was only of a tertiary importance and there is only a small mention in paragraph 5 of the contract that the contractor will provide platform for the loading of the cattle and will also be responsible for making arrangement for proper looking after of the transport vehicles. The terms of this Dead, therefore, clearly go to show how the bye -laws are being put to actual use by the Zila Parishad. It has not taken any responsibility on itself to acquire site as owner or on a lease any land for the purpose of providing parking space. It has also not cared to collect any information as to how any trucks normally come to a particular cattle fair for which arrangements are to be made. There is no provision in the contract as to how many platforms or ramps will be provided by the contractor in the parking area and what will be their size. There is also nothing to indicate whether the contractor is also to provide any dinking water for the cattle and troughs for fodder for the cattle and if there will be any provision for shed and lighting of that area as also about the cleaning of parking space for the purpose of maintaining proper sanitary conditions. The contract executed between the Zila Parishad and the contractor is mute on the point and it appears that the Zila Parishad does not deem it to be its concern to make any such provision. In normal circumstances, the Zila Parishad should have acquired the land of its own for the purpose and provided with sufficient number of ramps and platform for the unloading of cattle and leather and also provide for drinking water and arrange for a shed with provision for fodder troughs and staff for maintaining sanitation in the area. After all these have been provided then the right to realise the fee may be given to some other agency or contractor and the Zila Parishad should have made some arrangement for supervision the arrangement. The only it may be said that proper service was being rendered in lieu of the fee charged by it. After having held as above, this Court observed that "it is in this light that we have to examine whether the bye -laws really achieve the object for which the same have been framed," and thereafter declared bye -laws 7 and 8 as ultra vires on the ground that they are vague and arbitrary and do not tend to achieve the object for which they have been framed.;