- (1.) BY this petition under Art. 226 of the Constitution, the petitioners Jagatdhari and Bisale, residents of rural areas lying within the jurisdiction of Zila Parishad Pratabgarh, seek to challenge the validity of certain bye-laws framed by the Zila Parishad, in purported exercise of its powers under Section 239 (2) E (a) (i), (ii) of the U. P. Kshetra Samiti and Zila Parishad Act and published in the U. P. Gazette dated 13- 11-1971.
(2.) THE two petitioners are Chamars by caste. They claim that since time immemorial they and their ancestors have been carrying on the business in bones which is the only source of their livelihood. According to them, if any animal died in a rural area, information was sent to one of the Chamars, like the two petitioners who took the dead body of the animal free of cost. The Chamar concerned disposed of the dead body after skinning it and taking out its bones and horns which they stored at places far away from the village habitation. In due course, the bones and hides so collected were sold to various dealers. Previously the Zila Parishad Pratabgarh granted licence to every one who carried on this type of work on payment of Rs. 5 as licence fee. However, by the notification published in the U. P. Gazette dated 13-11-1971, the Zila Parishad amended its bye-laws. The new bye-laws provide that the right to collect bones and hides etc. in rural areas shall be auctioned and the highest bidder alone, to the exclusion of all others, will have the right to collect bones, hides etc. Learned counsel seeks to challenge the validity of the aforesaid bye-laws inter alia on the following grounds : (1) Various activities mentioned in the bye-laws cannot be regulated by the Zila Parishad under Section 239 of the U. P. Kshetra Samiti and Zila Parishad Act. (2) These bye-laws are invalid as they have been framed without following the procedure for the purpose as laid down in U. P. Kshetra Samiti and Zila Parishad Act and (3) The impugned bye-laws enable the Zila Parishad to create monopoly in favour of the highest bidder which under the law it cannot do.
(3.) RELEVANT portion of Section 239 of the Kshetra Samiti and Zila Parishad Act runs thus :- "(1) Parishad may, and where required by the State Government shall, make bye-laws for its own purpose and for the purpose of the Kshetra Samiti applicable to the whole or any part of the rural area of the District consistent with this Act, and in respect of matters required by this Act to be governed by the 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 and for the furtherance of the administration of this Act in the Khand and the district. (2) In particular and without prejudice to the generality of the powers conferred by sub-section (1) the Parishad may, in the exercise of the said power, make any bye-laws described in the list below A .................. B .................. C .................. D .................. E - Of fensive trades- (a) Except where and so far as is inconsistent with anything contained in the Petroleum Act, 1934, or in rules made thereunder, 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 so granted, as a factory or other places of business- (i) for boiling and storing offal, blood, bones, guts or rags. (ii) for the manufacture of leather or leather goods ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... For any other purpose if such use is likely to cause a public nuisance or involve the risk of fire ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... " ;