Satish Chandra, J. - (1.) THE Muni cipal Board has come up in appeal against the decision of a learned Single Judge allow ing a writ petition and striking down a bye-law framed by the appellant imposing a total ban in regard to the slaugh ter of animals. This bye-law was quashed by the learned Single Judge in so far as it related to the she-buffaloes, buffalo bullocks and buffalo-calves. The bye-law was pri marily held invalid in view of the Supreme Court decisions in Mohammad Hanif Qua reshi v. State of Bihar, AIR 1958 SC 731 and Abdul Hakim Quareshi v. State of Bihar, AIR 1961 SC 448.
(2.) THE learned Single Judge held that this bye-law was framed hi 1955. In view of the decision of the Supreme Court, the total prohibition imposed by the impugn ed bye-law was violative of the fundamental right guaranteed by Article 19 (1) (g) of the Constitution. The appellant does not ques tion the correctness of the view taken by the learned Single Judge on the merits of the bye-law. It was, however, urged that when the writ petition was filed in 1962, there was in existence a proclamation of emergency. The proclamation was issued in October, 1962. Consequently, there was no bar to the Municipal Board taking an exe cutive action like enforcing the impugned bye-law. Even if the executive action vio lated Article 19 (1) (g) of the Constitution, in view of the existing proclamation of emergency, under Article 358 of the Consti tution, the executive action would none the be valid. Learned counsel urged that at the present time also, there is in existence a proclamation of emergency, which was issu ed on 3rd December, 1971 and which is till in operation; the same position obtains even today. We inquired from the learned counsel if any order had been passed under Article 359 of the Constitution. We adjourn ed the hearing to enable the learned counsel to satisfy himself upon this point. Today, the learned counsel for the appellant stated that no order has been passed under Arti cle 359 of the Constitution. Under Article 358, while a pro clamation of emergency is in operation, noth ing in Article 19 shall restrict the powers of the State to make any law or to take any executive action which the State would but for the provisions contained in part III be competent to make or to take. The argu ment is based upon a fallacy. It is true that Article 358 permits the State to make a law or to take an executive action which may be violative of Article 19 and such law or action cannot be challenged on the ground of violation of Article 19. But that is not the case here. The impugned bye-law was framed in 1955 when no proclamation of emergency was in existence. The bye-law being in violation of Article 19 (1) (g) was Void at its inception. The result would be as if no such bye-law had been enacted at all. In this background, if the Municipal Board takes any executive action subse quently while a proclamation of emergency is in existence, the executive action being without the authority of law, would be ille gal on that ground. For its illegality, the respondent does not have to rely upon Arti cle 19 (1)( g). For the appellant, it was not disputed that the Municipal Board had no power to take an executive action of the kind impugned in the present case without first framing a bye-law to sustain such exe cutive action. The position is that there was no valid bye-law. Consequently, the execu tive action was without the authority of law and void for that reason.
(3.) THE appeal has no merits and accordingly dismissed with costs. Appeal dismissal.;