Hon'ble Jayant Banerji,J.
Sri Arun Pratap Singh, learned counsel appears on behalf of petitioners.
Sri Abhinava Krishna Srivastava, learned counsel appears on behalf of respondent nos.4, 5 and 8 and learned Standing Counsel appears on behalf of State-respondent.
Petitioners dairy owners having dairies within the limits of Municipal Corporation Kanpur Nagar calls in question the legality of Government Order No.2573/9 - vk-1-1990 dated 24.6.1998 and Circular DO No.3945/9-v&1&1998 dated 13.10.1998 whereas by communication dated 24.6.1990 addressed to Development Authorities of Lucknow, Agra, Kanpur, Allahabad, Varanasi, Meerut, Aligarh, Bareilly, Ghaziabad, Gorakhpur, Moradabad and Housing Commission, U.P. Housing and Development Parishad expressing concern for over growing dairies in the urban agglomeration posing threat to environment causing water and air pollution. And to take adequate measure to curb the same and to have Cattle Colonies outside on the peripheries of these Cities. That the D.O. Dated 13.10.1998 calls upon the Authorities to execute the action plan to shift dairies those within the urban area.
Contentions on behalf of the petitioners is that the Municipal Corporation Kanpur Nagar has not framed any bye-laws regulating the licensing or supervising the dairies situated within its limit. It is is urged that there having no backing of law the exercise of executive power by the State functionary to direct the regulation of dairies within Municipal limits is non est in the eyes of law. It is urged that unless an alternative arrangement is made to settle the dairies, the action of the State government and its functionaries cannot force, the diaries to be shifted outside the municipal limits. On these contentions petitioners seek quashment of communication dated 24.6.1998 and D.O. Dated 13.10.1998. Petitioners in this petition have relied on certain decision by the Supreme Court and of this High Court to bring home his submissions.
Considered the submissions and perused the record.
Evidently, the dairies owned by petitioners are located within the limits of Municipal Corporation, Kanpur Nagar. Section 440 of The Uttar Pradesh Municipal Corporation Act, 1959 mandates that "No person shall, without or otherwise than in conformity with the terms of a licence granted by the Municipal Commissioner in this behalf -
(a) carry on within the city the trade or business of a dairyman;
(b) use any place in the city as a dairy or for the sale of any dairy produce."
Thus there is complete prohibition to use any place in the city as a dairy. In the present case, the petitioners have categorically admitted that they do not possess any licence to use the place in the City as a dairy. The contention that to their best of knowledge they are not aware as to existence of any bye-laws concerning grant of licence, cannot itself be a licence to have dairy at any place in city, being prohibited vide Section 440 of 1959, Act.
At this juncture, it is noticed that a co-ordinate Bench of this High Court in Public Interest Litigation (PIL) No.20937 of 2016 and Public Interest Litigation (PIL) No.34525 of 2017 had an occasion to address the menace of uncontrolled movement of stray cattle in the municipal limits albeit in respect of Municipal Corporation, Varanasi and Meerut. In said PILs following directions were issued on 4.1.2019 :-
"(1) The Municipal Corporation, Varanasi as well as the Municipal Corporation, Meerut shall initiate a campaign for catching the stray cattles from 20th January, 2019 and shall make the entire city stray cattle free by 5th February, 2019. The stray cattles so caught shall be transported and rehabilitated outside the city and its peripheral area. The necessary fodder shall also be made available by the local administration to feed the cattles.
(2) If any, cattle is caught by the team of Municipal Corporation and anyone claims for its ownership then the same shall be returned only after imposing fine for turning out the cattle on road and that too after availing an undertaking that the cattle shall be kept outside the municipal limits of the town concerned.
(3) The Municipal Corporation, Varanasi as well as Municipal Corporation, Meerut shall identify all the dairies unauthorizedly operating in the towns concerned. Such list shall be forwarded to the District Magistrates of the town concerned and the District Magistrates shall initiate necessary penal proceedings against such dairies under relevant Rules/norms for their violation.
(4) Necessary steps shall also be taken by the Municipal Corporations concerned for removal of stray dogs from the roads and for their relocation to shelter.
(5) The District Magistrates shall also make a complete plan for shifting the dairies outside the municipal area within a period of two month from today and shall forward the same to the State Government. The State Government shall finalize the entire scheme at earliest as far as possible within a period of one month from the date of receipt of the proposals by the District Magistrates concerned.
(6) The cattles which are permitted to be kept in the town area shall have a tag number tied around their necks. The tag number should be indicative of the name and address of the person to whom the animal belong. The details of such animals shall also required to be registered by the corporation."
That while issuing above directions, the decision in Milkmen Colony Vikas Samiti Vs. State of Rajasthan and others, reported in (2007) 2 SCC 413 was taken note.
It is pertinent to note that the above twos PILs are pending wherein the compliance of the order of 4.1.2019 is being reported. There these directions are further extended in respect of Municipal Corporation, Aligarh vide order passed in Writ-C No.14257 of 2020 decided on 14.12.2020.
Be that as it may, it appears that the problem which are projected in the Public Interest Litigation (PIL) No.20937 of 2016 and Public Interest Litigation (PIL) No.34525 of 2017 wherein directions are issued were noticed by the State and in discharge of its executive function issued impugned order. The enforcement whereof, as noticed from order dated 9.5.2016 in Public Interest Litigation (PIL) No.20937 of 2016 was sought and directed on Public Interest Litigation (PIL) No.54273 of 2015 (Shravan Kumar Agarwal Vs. State of Uttar Pradesh).
In view whereof, the impugned order and the D.O. Letter cannot be faulted as would warrant any indulgence. Instead while invoking extra ordinary jurisdiction vested in this Court under Article 226 of the Constitution and to maintain policy with the directions issued in Public Interest Litigation (PIL) No.20937 of 2016 and Public Interest Litigation (PIL) No.34525 of 2017.
We dispose of the petition in the following terms :-
(1) The Municipal Corporation, Varanasi as well as the Municipal Corporation, Meerut shall initiate a campaign for catching the stray cattles from 20th January, 2019 and shall make the entire city stray cattle free by 5th February, 2019. The stray cattles so caught shall be transported and rehabilitated outside the city and its peripheral area. The necessary fodder shall also be made available by the local administration to feed the cattles.
(2) If any, cattle is caught by the team of Municipal Corporation and anyone claims for its ownership then the same shall be returned only after imposing fine for turning out the cattle on road and that too after availing an undertaking that the cattle shall be kept outside the municipal limits of the town concerned.
(3) The Municipal Corporation, Varanasi as well as Municipal Corporation, Meerut shall identify all the dairies unauthorizedly operating in the towns concerned. Such list shall be forwarded to the District Magistrates of the town concerned and the District Magistrates shall initiate necessary penal proceedings against such dairies under relevant Rules/norms for their violation.
(4) Necessary steps shall also be taken by the Municipal Corporations concerned for removal of stray dogs from the roads and for their relocation to shelter.
(5) The District Magistrates shall also make a complete plan for shifting the dairies outside the municipal area within a period of two month from today and shall forward the same to the State Government. The State Government shall finalize the entire scheme at earliest as far as possible within a period of one month from the date of receipt of the proposals by the District Magistrates concerned.
(6) The cattles which are permitted to be kept in the town area shall have a tag number tied around their necks. The tag number should be indicative of the name and address of the person to whom the animal belong. The details of such animals shall also required to be registered by the corporation.
For compliance of these directions, the matter is posted in the week commencing 1st March, 2021 in the Additional Cause list.