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Municipal Board, Mathura Vs. Abdul Hameed and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 194 of 1967
Judge
Reported inAIR1973All200
ActsConstitution of India - Articles 19, 19(1) and 358
AppellantMunicipal Board, Mathura
RespondentAbdul Hameed and anr.
Appellant AdvocateS.C. Khare, Adv.
Respondent AdvocateN.A. Kazmi, Adv.
DispositionAppeal dismissed
Excerpt:
constitution - executive action during emergency - article 358 of constitution of india - article permits state to make law or take action adverse to article 19 - bye law in question was framed without proclamation of emergency - void since start - executive action based on such law during emergency is illegal. - - the proclamation was issued in october, 1962. consequently, there was no bar to the municipal board taking an executive action like enforcing the impugned bye-law......was issued in october, 1962. consequently, there was no bar to the municipal board taking an executive action like enforcing the impugned bye-law. even if the executive action violated article 19(1)(g) of the constitution, in view of the existing proclamation of emergency, under article 358 of the constitution, the executive action would nonetheless be valid. learned counsel urged that at the present time also, there is in existence a proclamation of emergency, which was issued on 3rd december, 1971, and which is still in operation; the same position obtains even today. we inquired from the learned counsel if any order had been passed under article 359 of the constitution. we adjourned the hearing to enable the learned counsel to satisfy himself upon this point. today, the learned.....
Judgment:

Satish Chandra, J.

1. The Municipal Board has come up In appeal against the decision of a learned Single Judge allowing a writ petition and striking down a bye-law framed by the appellant imposing a total ban in regard to the slaughter of animals. This bye-law was quashed by the learned Single Judge in so far as it related to the she-buffaloes, buffalo bullocks and buffalo-calves. The bye-law was primarily held invalid in view of the Supreme Court decisions in Mohammad Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 and Abdul Hakim Quareshi v. State of Bihar, AIR 1961 SC 448.

2. The learned Single Judge held that this bye-law was framed in 1955. In view of the decision of the Supreme Court, the total prohibition imposed by the impugned bye-law was violative of the fundamental right guaranteed by Article 19(1)(g) of the Constitution. The appellant does not question the correctness of the view taken by the learned Single Judge on the merits of the bye-law. It was, however, urged that when the writ petition was filed in 1962, there was in existence a proclamation ofemergency. The proclamation was issued in October, 1962. Consequently, there was no bar to the Municipal Board taking an executive action like enforcing the impugned bye-law. Even if the executive action violated Article 19(1)(g) of the Constitution, in view of the existing proclamation of emergency, under Article 358 of the Constitution, the executive action would nonetheless be valid. Learned counsel urged that at the present time also, there is in existence a proclamation of emergency, which was issued on 3rd December, 1971, and which is still in operation; the same position obtains even today. We inquired from the learned counsel if any order had been passed under Article 359 of the Constitution. We adjourned the hearing to enable the learned counsel to satisfy himself upon this point. Today, the learned counsel for the appellant stated that no order has been passed under Article 359 of the Constitution.

3. Under Article 358, while a proclamation of emergency is in operation, nothing in Article 19 shall restrict the powers of the State to make any law or to take any executive action which the State would but for the provisions contained in part III be competent to make or to take. The argument is based upon a fallacy. It is true that Article 358 permits the State to make a law or to take an executive action which may be violative of Article 19 and such law or action cannot be challenged on the ground of violation of Article 19. But that is not the case here. The impugned bye-law was framed in 1955 when no proclamation of emergency was in existence. The bye-law being in violation of Article 19(1)(g) was Void at its inception. The result would be as if no such bye-law had been enacted at all. In this background, if the Municipal Board takes any executive action subsequently while a proclamation of emergency it in existence, the executive action being without the authority of law, would be illegal on that ground. For its illegality, the respondent does not have to rely upon Article 19(1)(g). For the appellant, it was not disputed that the Municipal Board had no power to take an executive action of the kind impugned in the present case without first framing a bye-law to sustain such executive action. The position is that there wat no valid bye-law. Consequently, the executive action was without the authority of law and void for that reason.

4. The appeal has no merits and is accordingly dismissed with costs.


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