Mohammad Yaseen @ Chiddoo vs Zila Parishad,Gonda and Others

I. S. Mathur, J.—The petitioner, who is Qureshi by caste and who carries on the business of slaughtering the animal etc., is aggrieved by the failure of the opposite parties to renew his licence for slaughter of animals. The licence appears to have been not renewed in view of the provisions contained in Byelaws 1(b) and Byelaw No. 6 of the byelaws framed under Section 289 of the Zila Parishad and Kshetra Samiti Adhiniyam, 1961 (Annexure1 to the petition), hereinafter referred to as byelaws. The petitioner claims a writ in the nature of certiorari quashing the aforesaid byelaws. He also claims for a writ in the nature of mandamus directing the opposite parties to renew the petitioner''s licence.

The petitioner was granted licence for slaughtering animal. The licence was renewed from time to time. The last renewal was for the period ending on 3171987. He applied for renewal the licence thereafter but the same has not been done. According to the petitioner, the opposite parties have not renewed the licence in view of the byelaws l(%\\ and 6 of the aforesaid byelaws. During arguments, learned counsel for the petitioner submitted that the petitioner challenges clause (g) of Byelaw No. 6 and clause (g) of byelaws only and the challenge is only to the extent to the said byelaws prohibit slaughter of bulls and bullocks, baffaloes and she baffaloes. The said byelaws as amended by notification dated 2841989 read as under :

According to the petitioner, he has a fundamental right to carry on the business of slaughtering of bulls and bullocks, buffaloes and she buffaloes and this cannot be absolutely prohibited as has been done by Byelaws and 6(g). It is alleged that these provisions are violative of Article 19(l)(g) of the Constitution of India. It is further alleged that this byelaw is against the provisions of U. P. Prevention of Cow Slaughter Act also and that the discretion given under the said byelaws is arbitrary.

We have heard learned counsel for the petitioner and learned b landing counsel. Learned counsel for the petitioner has rightly contended that so far as buffaloes she buffaloes bulls and bullock are concerned, the petitioner has a fundamental right to carry on business in regard thereto and the only right that the concerned authority may have is to regulate that business in accordance with Article 19(6) and not prohibit the petitioner from carrying oh this business. It has been so laid down by the Hon''ble Supreme Court in Mohd. Hanif Qureshi and others v. State of Bihar and others, AIR 1958 SC 731. In this case, the vires of Section 3 of the U. P. Prevention of Cow Slaughter Act, 1955 (U.P. Act I of 1955) and challenged on the ground that the provision contained in Sec. 3 of the Act was violative of Article 19 of the Constitution. In Section 3 as it stood before the amendment made by U. P. Act 33 of 1958 i.e. bull, bullock) made included within the definition of ''cow'' and, accordingly, there stood absolute prohibition in respect of slaughter of bull and bullock also. The Supreme Court held that the provisions of the U. P. Prevention of Cow Slaughter Act, in so far as they relate to bulls and bullocks, are unconstitutional while the remaining provision relating to prohibition against the slaughter of cows was valid and constitutional. In Nisar Ahmad v. District Magistrate and others Writ Petition ''No. 13695 of 1993 decided on 2111993, a division bench of this Court has held that there can be no prohibition against slaughtering of buffaloes. I

As a consequence of the judgment of Hon''ble Supreme Court in M.H. Quareshi case (supra) the U. P. Prevention of Cow Slaughter Act, 1995 was amended by U. P. Act No. 33 of 1958. By this amendment, the word ''bulls, bullock'', contained in clause (b) of Section 2 were deleted and (Section 3 was substituted, which is now reads as follows i

"3. Prohibition of cow slaughter.(1) Except as hereinafter provided, no person shall slaughter or cause to be slaughtered, or offer or cause to be offered for slaughter

(a) a cow, or

(b) a bull or bullock, unless he has obtained in respect thereof a certificate in writing, from the competent authority of the area in which the bull or bullock is to be slaughtered, certifying that it is fit for slaughter, in any place in Uttar Pradesh ; anything contained in any other law for the time being in force or an usage or custom to the contrary notwithstanding.

(2) No bull or bullock in respect of which a certificate has been issued under subsection (l)(b) shall be slaughtered at any place other than the place indicated in the certificate.

(3) ��������

(4) ��������

(5) ��������

(6)��������.

The plain reading of Section 3 of U. P. Act 1956 leaves no manner of doubt that, according to the said provision, there could be complete prohibition against slaughtering of cow only and there could be no such prohibition against the slaughtering of buffaloe, she buffaloe, bull and bullock. The only Obligation that the concerned person will have, in respect of bull and bullock is to obtain, in respect thereof, a certificate in writing from the competent authority of the area in which the bull or bullock is to be slaughtered, certifying that it is fit for slaughter; it has been so provided in clause (b) of subsection (1) of Section 3 of the Act 1 of 1956. It has been further provided in the said Section 3 that ''anything contained in any other law for the time being in force or an usage or custom to the contrary notwithstanding'' the provisions of this section will apply. No byelaw which is inconsistent with these provisions can survive or be held to be valid.

It is also evident from the decision of Hon''ble Supreme Court in M. H. Quareshi case that the trade or business of slaughtering of bulls, bullocks, buffaloes and she buffaloes is a fundamental right. Accordingly, any law or byelaw made by any authority completing prohibiting this right will be violative of Article 19 of the Constitution of India.

The matter relating to such a provision came for consideration in a number of cases before this Court. In Fazal v. District Magistrate, Jalaun in capacity of Administrator Nagar Palika, Konch, District Jalaun and others, 1985 UPLBEC 146, Byelaw No. 1 defined animal and in this definition, ''bullock'' was included. However, by notification dated 18111949, this byelaw was amended and the word ''bullock'' was deleted from it. In spite of such deletion, the opposite parties did not renew the licence of the petitioner. The petition was allowed. The order of the District Magistrate passed in his capacity as Administrator of Nagar Palika in regard to the slaughter of unserviceable bullocks by the petitioner was quashed and it was directed that 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. It was further directed that 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.

In Mohd. Nairn v. Upper Mukhya Adhikari, Zila Parishad, Sitapur and others, 1992 LLJ 354, the petitioner challenged the orders dated 971991, 1971991 and 2971991 completely banning the slaughter of bulls and bullocks. The concerned authorities refused to give certificate in regard to the slaughter of bull and bullocks also on the ground they belong to the species of cow. A division bench of this Court held that such a direction or refusal to give licence, merely on the ground of the animal being bull or bullock. It is violative of Article 19(l)(g) of the Constitution and was also against the provisions of Section 3 of the U. P. prevention of Cow Slaughter Act. The Division Bench, accordingly, quashed the orders and the concerned opposite party was directed not to refuse certificate only on the ground that animal produced by him is bull or bullock if the animal satisfies the condition of said subsection and the byelaws.

In the present case, byelaw l(b) completely prohibits the slaughter of animals which include bulls, bullocks, buffaloes and she buffaloes also. This is clearly violative of Article 19 of the Constitution and also of Section 3 of the U. P. Act 1 of 1956. Accordingly, the Byelaw l(b) will have to be struck down.

Byelaw 6(d) referred above, by itself, may, not be violative of any of the provision as it is, in effect, regulatory. However, since reference in this byelaw 6(d) is to byelaw l(b) and the entire provision is with reference to byelaw 1(?) him which has been found to be illegal, this provision will also have to be struck down.

The petitioner has challenged the order dated 181992 also refusing issuance of licence to the petitioner on the ground that licence for slaughtering buffaloe and she buffaloe could not be granted in view of the provisions of the byelaws as amended by Notification, dated May 13, 1989. The order is patently illegal for the simple reason that the concerned byelaw itself has been found to be illegal and is liable to be struck down.

The petition is accordingly allowed. The byelaws l(b) and 6(d) of the byelaws framed by the Zila Parishad, Gonda under Section 239, Zila Parishad and Kshetra Samiti Adhiniyam, 1961 notified vide No. 1045/2169 (7273)2, dated July 17, 1973, as amended by notification No. 560/213 (88S9)4'', dated 28th March, 1989, are held to be illegal and are, accordingly, struck down. The order dated 181992, refusing issuance of licence to the petitioner for slaughter of buffaloes and she buffaloes etc., is quashed. The opposite parties are directed to renew the licence of the petitioner, within a period of two weeks from the date a certified copy of the order is produced before them, in accordance with law, if the petitioner complies with other requirements, and shall not be refused such renewal merely on the ground that the licence is required for slaughter of bulls and bullocks or buffaloes and shebuffaloes.

In the circumstances of the case, the parties shall bear their own costs.