TMI Blog2004 (3) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... is by and large a place where many temples exist. In the counter affidavit filed by the respondents before the High Court it is stated that several citizens, societies and organizations made representations to the Municipal Board, Rishikesh requesting it to impose restrictions on the sale of 'eggs' also in public places. Having regard to the said demand of citizens the municipality issued notification in question after getting the approval of the Government as per the provisions of the Act. It is also pointed out that the transportation of 'eggs' through municipal limits of Rishikesh is not prohibited in any way. A businessman, who wants to take 'eggs' through Rishikesh, is not prohibited and he may carry on his trade outside the municipal limits of Rishikesh. The relevant bye-laws prior to amendment was: - No person shall sell or expose for sale or cook or carry in a manner exposed to public gaze any kind of meat or fish in any public place, thorough fare, streets, lodging houses, hotels, dhabas, restaurants, dharamshalas, kshetras and shops situated within the limits of the Municipal Board. The amended bye-law reads: - No person shall sell or e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement for licence; none of the provisions of the Act including Sections 241 and 298 provide that municipality cannot make bye-laws for imposing a ban on the sale of eggs within municipal limits. The learned counsel further submitted that Section 298(1) of the Act has conferred general power on the Municipal Board to make bye-laws for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipal area and for the purpose of municipal administration under the Act; this general power of, the municipality extends to even to those subjects, which have not been specifically enumerated under Section 298(2) list I heading F of the Act. 7. The learned counsel for the appellants, when confronted with the position that under Section 298(1) the municipality has general power to frame bye-laws, made submission that in order to frame bye-laws under Section 298(1) a special resolution has to be passed by adopting a special procedure and it does not appear that any such procedure was adopted. Hence the amended bye-law cannot be sustained. 8. The High Court in the impugned order has dealt with the contentions advanced on behalf of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are to be noticed: - 241. Licensing of markets and shops for sale of certain articles. - (1) The right of any person to use any place, within the limits of a municipal area, other than a municipal market, as a market or shop for the sale of animals, meat or fish intended for human food, or as a market for the sale of fruit or vegetables, shall be subject to bye-laws (if any) made under heading F of Section 298. (2) ............... X X X 298. Power of municipality to make bye--laws. - (1) A municipality by special resolution may, and where required by the State Government shall, make bye-laws applicable to the whole or any part of the municipal area, consistent with this Act and with any rule, for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipal area and for the furtherance of municipal administration under this Act. (2) In particular, and without prejudice to the generality of the power conferred by Sub-section (1), the municipality, wherever situated, may in the exercise of the said power make any bye-law described in list I below and the municipality, wholly or in part situated in a hilly tract may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now well-settled that the specific provisions such as are contained in the several clauses of Section 298(2) are merely illustrative and they cannot be read as restrictive of the generality of powers prescribed by Section 298(1) vide Emperor v. Sibnath Banerji and Ors. If the powers specified by Section 298(1) are very wide and they take in within their scope bye-laws like the ones with which we are concerned in the present appeal, it cannot be said that the powers enumerated under Section 298(2) control the general words used by Section 298(1). These latter clauses merely illustrate and do not exhaust all the powers conferred on the Board, so that any cases not falling within the powers specified by Section 298(2) may well be protected by Section 298(1), provided, of course, the impugned bye-laws can be justified by reference to the requirements of Section 298(1). There can be no doubt that the impugned bye-laws in regard to the markets framed by respondent No. 2 are for the furtherance of municipal administration under the Act, and so, would attract, the provisions of Section 298(1). Therefore we are satisfied that the High Court was right in coming to the conclusion that the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to be slow to hold that a bye-law is void for unreasonableness. A bye-law so made ought to be supported unless it is manifestly partial and unequal in its operation between different classes or unjust, or made in bad faith, or clearly involving an unjustifiable interference with the liberty of those subject to it. In view of this legal position the Notification dated October 27, 1987 deserves to be upheld as, in our opinion, it does not fall within any of the exceptions referred to in the case of Kruse v. Johnson. 14. Mere omission, to mention 'eggs' either in Section 241 or Section 298(2) List I Heading F does not make the amended bye-law invalid. In my view, the High Court was right in holding that prohibition of sale of eggs within the municipal limits of Rishikesh was not an unreasonable restriction, the bye-law was in the larger interest of welfare of the people consistent with the provision of the Act and that the amended bye-law was not invalid having due regard to Sections 241 and 298 of the Act. 15. Thus, viewed from any angle I do not find any merit in the appeal so as to interfere with the impugned judgment. Hence the appeal is dismissed. The parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of imposition, the prevailing conditions at the, time, should all enter into the judicial verdict'. [emphasis added] 21. The observations In the aforesaid two decisions have been quoted with approval in the State of Maharashtra v. Himmat bhai Narbheram Rao In which challenge to Section 385 of Bombay Municipal corporation Act imposing restrictions on dealing with carcass or skin of animals within the municipal limits as affecting the trade of the people dealing in those obnoxious items was negatived holding such restrictions to be in general public interest. 22. Reasonable restriction on certain trades in articles which are hazardous to public health such as liquor, it is held, can go to the extent of imposing complete prohibition on such trade. See State of Andhra Pradesh v. Mcdowell and Co., [1996]3SCR721 . 23. Complete ban on slaughter of cow and its progeny has also been upheld to save cow as an animal species highly useful to human community. See Mohd. Hanif Quareshi and Ors. v. State of Bihar, [1959]1SCR629 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 23rd July, 1956 and in Muni Ki Reti by Notification dated 18.12.1976. These restrictions imposed in Haridwar and Muni Ki Reti have not been challenged by any section of people in the Court and have continued as fully acceptable to all. The towns of Haridwar. and Rishikesh have acquired religious importance as they are located on banks of river Ganges in the foot hills of Himalayas and are two main entry points for pilgrimage to Badrinath and Kedarnath located on the heights of Himalayas. 29. As a justification for extension of ban on trade of eggs with ban on trade of meat and fish in municipal area of Rishikesh which adjoins Haridwar and Muni Ki Reti, it has bean stated on behalf of Municipal Board and State that during the periodical Kumbh fairs, the areas which are notified for organizing Kumbh Mela comprise parts of municipal areas in Haridwar, Muni Ki Reti and Rishikesh. One such Notification earmarking the areas of Kumbh Mela held in the year 1992, issued under by clause (2) of United Province, Mela Act of 1938 (UP Act No. 16 of 1938) has been annexed with counter affidavit of the States. 30. The High Court in upholding completes restriction on dealing and tradin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal Thinker Stone, in his book Social dimensions of Law Justice 'reasonable restriction', if properly used, helps in 'adjustments of conflicting interests' such as in the present case where large number of people residing and visiting Rishikesh, believe in strict vegetarianism as a part of their religion and way of life. The appellants who are running hotels and restaurants and others like them constitute comparatively a very small section of the society engaged in carrying on trade of non-vegetarian food items in the town. 35. The reasonableness of complete restriction imposed on trade of non-vegetarian food items has, therefore, to be viewed from the cultural and religious background of the three municipal towns. 36. It is a matter of common knowledge that members of several communities in India are strictly vegetarians and shun meat, fish and eggs. Such people in great number regularly and periodically visit Haridwar, Rishikesh and Muni Ki Reti on pilgrimage. 37. In the three towns people mostly assemble for spiritual attainment and religious practices. All citizens are enjoined by Fundamental Duties prescribed in Article 51A to respect faith of each ..... X X X X Extracts X X X X X X X X Extracts X X X X
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