R.A. Mehta, J.
1. The members of the petitioner Association claim to be engaged in the business of purchasing and exporting to Bombay useless bullocks aged above 16 years. They are aggrieved by the prohibition of export of useless bullocks above the age of 16 years out of Gujarat. When the petition was filed the ban was for one year but during the pendency of the petition it has been extended by another two years.
2. According to the petitioners, really there is no ban whatsoever on export of useless bullocks above the age of 16 years. Under Section 4 of Bombay Essential Commodities and Cattle (Control) Act, 1958 if the State Government is of opinion that it is necessary or expedient so to do for maintaining or increasing the supply, or for securing the equitable distribution and availability at fair prices, of any essential commodity or cattle, it may, by order provide (b) for regulating the maintenance, movement, supply and distribution of, or trade and commerce in cattle. Under this provision, which was in force before its amendment in 1983 the State Government had made as statutory order called.
The Gujarat Milch and Draught Cattle (Control of Movement) Order 1983', which came into force on 6th August 1984. Clause 2(c) and (d) define 'draught cattle' and 'milch cattle' as under:
(c) 'draught cattle' means bullocks used for purpose of draught and includes male calves, whether castrated or not'.
(d) 'milch cattle' means cows which give milk or which have ceased to give milk but are lively to give milk and includes heifers.
and Clause 3 which is material for our purpose reads as under:
(1) Notwithstanding anything contained in the Gujarat Cattle (Export Control) Order 1961, no person shall move or attempt to move by rail, road, sea or any other means any milch or draught cattle from any place within the State to any place outside the State for a period of one year commencing from the date of this order.
By this clause, movement of milch and draught cattle from Gujarat to outside is prohibited for one year. By the amendment dt. 6th August 1984 in this statutory order the words 'one year' have been substituted by 'three years'. However, it is clear from the bare reading of Clause (3) that it applies to the movement and export of milk and draught cattle only and it does not apply to useless bullocks above the age of 16 years.
3. In the affidavit in reply, it has been stated as follows:
I further state that the Government of Gujarat has issued Gujarat Milch and Draught Cattle (Control of Movement) Order 1983 as per power conferred by Clause (b) of Sub-section 2 of Section 4 of the Bombay Essential Commodities and Cattle (Control) Act, 1958 and amendment made therein by Gujarat Act No. 18 of 1983 dated 6-10-1983 in the interest of general public of the State.
By this amendment Section 4(1)(b) has been substituted which reads as follows:
(b) for regulating or prohibiting movement, supply and distribution of, or trade and commerce in, or for regulating the maintenance of cattle.
This amendment is deemed to have come into force retrospectively with effect from 17th June, 1983 by virtue of Section 1(2) of the Gujarat Amendment Act No. 18 of 1983. By this amendment the Government is enabled to issue a statutory order for prohibiting movement or trade and commerce in cattle. However under this amended Clause (b) no statutory order has been passed. We, have asked the learned Government Pleader and he has clearly stated that no statutory order in this connection has been passed and the only order is the Gujarat Milch and Draught Cattle (Control of Movement) Order, 1983 dt. 9th August 1983. As seen earlier Clause (3) thereof controls and prohibits movement of milch and draught cattle only from any place in Gujarat to any place out of Gujarat. The useless bullocks above the age of 16 years cannot be said to be draught cattle or milch cattle.
4. The State Government has given facts and data as to why prohibition on export of useless bullocks is justified in the interest of general public. However, at present there is no question of justification for such prohibition. The Government might be justified in viewing such prohibition, but that question does not arise at present. At present the question is whether the government has prohibited export of all cattle including useless bullocks above the age of 16 years. The clause relating to prohibition is confined to milch and draught cattle only and nothing is pointed out to us to show that this prohibition has been extended by any other statutory order or legal provision. The minutes of meeting held in the chamber of the Chief Minister on 25th July 1983 have been produced along with the affidavit. It is observed that during the November 1982 cyclone more than two lac heads of cattle had perished. In the next year due to heavy rains and floods another loss of cattle heads of about 83789 had taken place and due to these two natural calamities in two consective years there has been huge loss of cattle.
5. Therefore it was considered necessary to impose a total ban on export of cows and progeny of cows including bullocks irrespective of age and it was decided that the ban should be at least for two years. It was further recorded in the minutes that the draft order viz. Gujarat Milch & Draught Animals (Control of Movement by Road or Sea) Order 1983 will require to be amended accordingly to incorporate the decision in these minutes. However, no such amendment has been made. There is, therefore, no prohibition by statutory order or any other provision of law against movement and export of cattle except those which are covered by the definition of 'milch cattle' and 'draught cattle'. Since useless bullocks above the age of 16 years cannot be considered to be milch and draught cattle, the action of the government in prohibiting their movement and export is clearly without any authority of law.
6. Under the circumstances, the petition succeeds and it is declared that useless bullocks above the age of 16 years are not covered by the definition of 'draught cattle' contained in Gujarat Milch and Draught Cattle (Control of Movement) Order, 1983 and the petitioners cannot be prohibited from exporting useless bullocks above the age of 16 years under the existing statutory order and the respondent and its officers are restrained from prohibiting the export of useless bullocks above the age of 16 yearn under the existing statutory order. Rule is made absolute with no order as to costs.