Fazal v. District Magistrate, Jalaun — 1985 DIGILAW 53 (ALL)

ORDER 1. The petitioner, a member of the community of Quareshis, carries on the business of slaughter and sale of old or unserviceable bullocks. He challenges the legality of an order dated 23rd April, 1984, passed by the District Magistrate, Jalaun in his capacity as the Administrator of the Nagar Palika Konch (hereinafter referred to as the Nagar Palika) prohibiting the slaughter of bullocks within the limits of the Nagar Palika. 2. In the purported exercise of powers under S. 298 of the U. P. Municipalities Act, 1916 (hereinafter referred to as the Act) the Municipal Board, Konch (now known as Nagar Palika) framed bye-laws for the regulation and inspection of slaughter houses. Bye-law No. I defined "animal" and in it "bullock" was mentioned. By a notification dated 18th Nov. 1949, Bye-law, No. 1 was duly amended and "bullock" was deleted from it. Sometime in the year 1975 "bullock" was again introduced in the said bye-law. According to the petitioner, since 1975 the petitioner was granted licence every year on payment of a prescribed fee to slaughter unserviceable bullocks at,a public slaughter house maintained by the Nagar Palika. The licence was last valid till 31st Mar. 1984. Despite the application being made before the expiry of the period of the said licence for the grant of a fresh license for the year 1984-85, no orders were passed by the Nagar Palika. The petitioner avers that after the expiry of the said licence the Pashudhan Vikash Adhikari at Konch declined to issue a certificate to the petitioner so as to enable him to slaughter the unserviceable bullocks. The petitioner was obliged to obtain such a certificate by the provisions contained in Gobadh Nivaran Adhiniyam and the Niyamawali framed thereunder. 3. The District Magistrate in the impugned order dated 23rd April 1984 has pointed out that the amendment introduced in the aforementioned bye-law No. 1 in the year 1975 whereby `bullock' was reintroduced in the definition clause was illegal and inoperative as the provisions contained in Sections 131 to 135 of the Act were not complied with. The District Magistrate has taken the view that unless the bye-laws of the Nagar Palika permit the slaughter of the bullocks at the public slaughter house, bullocks cannot be slaughtered at all within the limits of the Nagar Palika. 4. A counter-affidavit has been filed on behalf of the Nagar Palika by its Executive Officer. The District Magistrate has taken the view that unless the bye-laws of the Nagar Palika permit the slaughter of the bullocks at the public slaughter house, bullocks cannot be slaughtered at all within the limits of the Nagar Palika. 4. A counter-affidavit has been filed on behalf of the Nagar Palika by its Executive Officer. One Sri Radhey Shyam Datrey made an application in this Court for being impleaded as one of the respondents to the writ petition and this application has been allowed. He too has filed a counter-affidavit. An affidavit in rejoinder too has been filed answering the averments made in the two counter-affidavits. In the counter-affidavits the stand taken is that reference to the provisions contained in Sections 131 to 135 of the Act was due to an inadvertence and in fact the proper provisions to be referred to was S. 301 of the Act. It is averred that so far as the amendment of the bye-laws in 1975 is concerned, the same having not either been subjected to any previous publication or confirmed by the appropriate authority or published in the official gazette in conformity with the provisions of S. 301 has no legal standing and has to be ignored. Bye-law No. 1 may be extracted : "1. In these bye-laws `animal' includes - (i) male bufallo, cow buffalo or buffalo calf, (ii) ram, wether, ewe or lamb, and (iii) he-goat, she goat or kid". S. 237 of the Act authorises the Board to fix premises for the slaughter of animals or animals of any specified description for sale. Sub- sec. (3) of the said provisions provides that when such premises have been fixed, no person shall slaughter any such animal for sale at any other place within the municipality. Sub- sec. (4) makes the slaughter for sale of any such animal penal. S. 238 empowers the Board to fix the premises within the municipality in which the slaughter of animals of any particular kind, not for sale, shall be permitted and prohibits, except in case of necessity, such slaughter elsewhere within the Municipality. Sub-sec. (1) of S. 298 empowers a Board to make bye-laws consistent with the Act and with any rule, for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under the Act. 5. Sub-sec. (1) of S. 298 empowers a Board to make bye-laws consistent with the Act and with any rule, for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under the Act. 5. The question is : Whether "animal" as used in bye-law No. 1 bears its ordinary popular and natural meaning even though certain animals have been specified in the definition clause? In other words, has the word "include" been used to enlarge the meaning of the words occurring in the definition clause? In Dilworth v. Commr. of Stamps, 1899 AC 99, Lord Watson at page 106 observed : "The word "include" is susceptible to another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to "mean and include", and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions." This view of Lord Watson that the word "include" sometimes "means and includes" has been accepted by the Supreme Court in 'Municipal Council, Raipur v. State of Madhya Pradesh, AIR 1970 SC 1923 . 6. The word "animal" inits generic sense has undoubtedly a very wide meaning and bereft of its context and setting in bye-law- No. 1 and detached from the provisions of the Act referred to above, it will certainly take in its fold a bullock. However, if that was the intendment, there was no necessity at all of specifically mentioning different animals in, the bye-law No. 1. Further, this is made clear by the provisions of Sections 237 and 238 referred to above. In fact S. 237 provides the key for the interpretation of the bye-law in question. It is apparent that the bye-laws have been framed for the furtherance of the provisions contained in S. 237. It is the requirement of S. 237 that the bye-laws should relate to either animals or animals of any specified description for sale. In bye-law No. 1 the animals have been both described and specified. 7. This conclusion can be reached by another process. It is the requirement of S. 237 that the bye-laws should relate to either animals or animals of any specified description for sale. In bye-law No. 1 the animals have been both described and specified. 7. This conclusion can be reached by another process. We have already seen that in the bye-law No. 1 "bullock" was initially mentioned. It was deleted sometime in the year 1949 and was reintroduced in 1975. This shows that the framers of the bye-laws themselves too did not subscribe to the view that the word "animals" ipso facto included 'a bullock. We, therefore, come to the conclusion that the petitioner cannot derive any advantage from the definition of the word "animal" used in the bye-law No. 1. 8. Article 19(1)(g) of the Constitution guarantees the fundamental right to a citizen of this country to practise any profession or to carry on any occupation, trade or business. This right is couched in general terms on the face of it. If there had been no qualifying provision like Cl. (6), the right so conferred would have been an absolute one. In the instant case it is nobody's case that the bye-laws framed by the Nagar Palika completely prohibit the slaughter of even unserviceable bullocks. Had there been such a bye-law, it could not stand the test of reasonableness as provided for in Cl. (6) of Article 19. As far back as in 1958, the Supreme Court in the case of Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 held that the total prohibition of the slaughter of breeding bulls and working bupocks without prescribing any test or requirement as to their age of usefulness would be violative of Article 19(1)(g) and void. It follows that if Article 19(1)(g) prohibits the Nagar Palika to frame any bye-law imposing a complete ban on the slaughter of unserviceable bullocks and if such a bye-law is framed it will be a void one, the impugned order passed by the District Magistrate too is liable to be struck down and declared void. The impugned order is a mere executive fiat. 9. Learned counsel for the Nagar Palika and Sri Radhey,Shaym have contended that keeping in view the scheme of S. 237 of the Act and particularly sub-sec. The impugned order is a mere executive fiat. 9. Learned counsel for the Nagar Palika and Sri Radhey,Shaym have contended that keeping in view the scheme of S. 237 of the Act and particularly sub-sec. (3) thereof, if the Nagar Palika has not fixed any place for the slaughter of bullocks, no slaughter of such animal can take place at all within the limits of the Nagar Palika. In our opinion, this is not a correct reading of the provisions of S.,237. We have already referred to S. 237. Sub- secs. (1) and (3) may be re-read. Sub-sec. (1) provides that the Board may, with the approval of the District Magistrate, fix premises either within or without the limits of the municipality for the slaughter of animals, or animals of any specified description for sale, and may with the like approval, grant and withdraw licences for the use of such premises. Sub-sec. (3) provides that when such premises have been fixed, no person shall slaughter any such animal for sale at any other place within the municipality. The use of the word "such" at two places in sub-sec. (3) is significant. It refers to the premises or premises fixed by the Board in sub-sec. (1) and it also refers to the animals or animals of specified description for sale which may be slaughtered in the premises fixed. The plain meaning of the two sub- sections, in our opinion, is that if a premises has been fixed for the slaughter of animals or animals of any specified description, then those animals cannot be slaughtered at any other place except at the premises fixed. To our mind a combined reading of the two provisions means that a person is not prohibited, from slaughtering such animals for the slaughter of which the Nagar Palika has not fixed premises anywhere within its limits. To repeat ourselves this position is clarified by the provisions contained in sub-sec. (3) which do not place a restriction on the right of any person to slaughter cattle within the limits of Nagar Palika, but confines his activity to slaughter such cattle at a place if fixed by the Nagar Palika. If no premises has been fixed, he is free to slaughter the animal anywhere within the limits of Nagar Palika. 10. Reliance has also been placed by the learned counsel on S. 239 of the Act. If no premises has been fixed, he is free to slaughter the animal anywhere within the limits of Nagar Palika. 10. Reliance has also been placed by the learned counsel on S. 239 of the Act. We are deliberately refraining from expressing any opinion on the scope and ambit of the said provision because it is nobody's case that the District Magistrate has so far exercised his powers under that provision. We make it clear that it will always be open to the District Magistrate, keeping in view the exigencies of the situation, to invoke the provisions of S. 239 if and when required. 11. It appears that the Pashudhan Vikas Adhikari has declined to issue a certificate to the petitioner wholly on account of the impugned order dated 23rd April, 1984, passed by the District Magistrate. We direct the said officer not to give effect to the said order in the case of the petitioner. We, however, make it clear that it will be open to the said officer to apply his mind to the application, if and when made, by the petitioner, for the grant of a certificate. He shall it is expected, act strictly in accordance with the provisions of the U. P. Gobadh Nivaran Adhiniyam and the Niyamawali framed thereunder. His discretion will not be fettered in any manner by any observation made by us in the present order. 12. The petition succeeds and is allowed.. The impugned order dated 23rd April, 1984, passed by the District Magistrate in his capacity as the Administrator of the Nagar Palika Konch in so far as- it relates to the slaughter of unserviceable bullocks by the petitioner is quashed. The respondents shall not interfere with the right of the petitioner to slaughter and sell unserviceable bullocks within the limits of the Nagar Palika Konch on the basis of the impugned order dated 23rd April, 1984, passed by the Administrator, Nagar Palika. The Pashudhan Vikas Adhikari shall consider and dispose of the. application, if and when made by the petitioner, for the grant of the certificate' in accordance with law and in the light of the observations made above. 13. The parties are directed to bear their own costs.