LexOM PRAKASH AND ORS. versus STATE OF U.P. AND ORS.
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A OM PRAKASH AND ORS. v. STA1'E OF U.P. AND ORS. MARCH 9, 2004 B [SHIVARAJ V. PATIL AND D.M. DHARMADHIKARl, JJ.] UP. Municipalities Act, 1916-Section 298(1) and (2) List I Heading F-Bye-Laws-Framings of-Power of Municipality-Municipal Board amended existing bye-law by including "eggs" thereby totally prohibiting C their sales within the municipal limits-The word "eggs" was not mentioned in List I Heading F-Validity of-Held: Despite non-mention of the word "eggs", the bye-law valid. Municipalities-Bye-laws-Validity of-Act prescribed a special D procedure for enactment of bye-laws by the Municipality-Following of- Onus of proof-Held: Is on the person challenging the bye-law that the Municipality had not followed the special procedure and not on the Municipality that it had followed it. Municipality-Bye-laws-Judicial review-Scope of-Held: Courts E should be slow to interfere with the bye-laws made by public representative bodies unless they are manifestly partial or unjust or ma/a fide. Constitution of India, 1950: Articles 19(l)(g) and (6) and 51-A. Restriction-Reasonableness of-Tests to determine-Municipal Board F enacted a bye-law prohibiting sale of "eggs" within the municipal limits- Constitutionality of-Held: Such a bye-law not invalid-Reasonableness of a restriction depended upon the nature of trade involved and the public interest intended to be served by such a total restriction-Such a restriction must be viewed from the cultural and religious background 'Of the concerned municipality-The prohibition in question was imposed in deference to religious G . and cultural demands of a large number of residents and pilgrims who visited the town regularly and periodically-Moreover, tourists and pilgrims were major sources of revenue for the municipality-Hence~ High Court rightly upheld the said prohibition as a reasonable restriction. H 900 , - -- OM PRAKASH v. STATE 901 Article SJ-A-Fundamental duties enjoined on citizens-Held: Should A also guide the legislature and executive actions of elected or non- elected institutions and organisations of the citizens including the municipal bodies. Words and Phrases : "Reasonable restriction"-Meaning of in the context of Article 19(6) of B the Corzstitution of India, 1950. The respondent-Municipal Board amended its bye- law and included the word "eggs" in it thereby prohibiting their sales within the municipal limits of the town. Prior to the amendment the sale of meat and fish only was prohibited. C The appellant filed a writ petition before the High Court challenging the amendment on the ground that total prohibition of sale of "eggs" imposed unreasonable restrictions affecting their rights under Article 19(l)(g) of the Constitution. The appellants also contended that the D amended bye-law was not valid as the word "eggs" was not covered by Section 298(2) List I Heading F of the U.P. Municipalities Act, 1916. The High Court dismissed the writ petition. Hence the appeal. On behalf of the appellant, it was contended that in order to frame bye-laws under Section 298(1) of the Act a special resolution had to be E passed by adopting a special procedure and it did not appear that any such procedure was adopted and, therefore, the amended bye-law could not be sustained. On behalf of the respondents, it was contended that the words "animals'', "meat" or "fish" occurring in Section 298(2) List I Heading F p of the Act were not followed with the word "only" which meant that for other similar articles also there might be a requirement for licence and that the general power of the Municipality under Section 298(2) of the Act extended even to those subjects, which had not been specifically enumerated under Section 298(2) List I Heading F of the Act. The following question arose before the Court: "Whether the Municipal Board could frame bye-laws prohibiting the sale of "eggs" within its municipal limits, when the word "eggs" is not covered by Section 298(2) List I Heading F of the U.P. Municipalities Act, G H 902 SUPREME COURT REPORTS [2004] 2 S.C.R. A 1916?" Dismissing the appeal, the Court HELD: Per Shivraj Patil, J: B 1. Assuming that "eggs" are not one of the items specified under Section 298(2) List I Heading F of the U.P. Municipalities Act, 1916, the respondent-Board has power under Section 298 (1) of the Act to make a bye-law unless such a bye-law framed by the Board is inconsistent with the provision
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