MOHD. FARUK versus STATE OF MADHYA PRADESH AND OTHERS

MOHD. FARUK

STATE OF MADHYA PRADESH AND OTHERS

April I, 1969 J. C. SHAH,

V. RAMASWAMI,

[M. HIDAYATULLAH, C.J.,

G, K. MITTER AND A. N. GROVER,JJ.J

Constitution of India-Article 19(1)(8)-Notification by Stale having eflect of banning 1/aughttr of bull, and bullDch-lf violativ• of the fu11-t/<1mentaJ right under Art. 19(1) (1)-Princip/u for consid•rin1 cons1itu-11c1nalily of law rutricting or prohibiting carrying on bus/nus.

Certain bye.laws framed by the Jabalpuf Municipality, which permitted the slaughter of various animals including bulls and bullocks, were confirmed by the respondent State Government in 1948. By DOtification on January 12, 1967, in exercise of its powers under s. 430 of Madhya Pradesh Muni-cipal Corporation Act 23 of 1956, the State Government cancelled tbc eonfirmalion of certain bye-laws "insofar as the bye-laws relate to the slaughter of bulls and bullocks". The petitioner challenged the constitu-tionality of the notification by writ petition under Art. 32 on the ground that it infringed his fundamental riaht under Art, 19(1)(g) of the Comti-tution.

It was contended on behalf of the respondent Stale that (I) its power to rescind confirmation of the bye-laws could not be challenged by reference to An. 14 or Art. 19 of the Constitution, because the power vested in the Government to conJlrm the bye-laws carried with it the power to reecind such confirmation; and (2) that since every person desiring to use slaughter house had to apply for and obtain liocnce, which may be re-fuaed, and if given was liable to be withdrawn, no person may insist that he shall be aivcn licence to slaughter animals in slauabter-house.

HELD : Allowing the petition,

The impugned notification, though technically within the competence of the State Government, directly infringed the fundamental right of the petitioner guaranteed by Art 19(1)(g). It could be upheld only if it wu established that it sought to impooe reasonable restrictions in the interests of the general public and less drastic re&triction would not ensure the interest of the general public. (161 DJ ·

The sentiments of oection of the people may be hun by permittini slaughter of bulls and bullocks in premises maintained by local authority. But prohibition imposed on the eaercise of fundamental right to cany on an occupation, trade or business will not be regarded as reuonablc, if it is imposed not in the interest of the general public. but merely tv respect· the maceplibilitie• and sentiments of oection of the people whose way of life, belief or thought is not the same as that of the claimant. [161 HJ

The power to i5'ue bye-laws indis!>u.tably in~ludcs t!'e power to cancel or withdraw the bye-Jaws, but the val1d1ty of tbe exerc11C pf the power to i.sue and to cancel or withdraw the bye-laws must be adjudged in. the light of its impact upon the fundamental rights of persons atl'ected thereby. When the validity of law placing restriction upon the exercise of funda-mental rights in Art. 19(1) i• challenged, the onus of proving to the satis-faction of the Court that the restriction is reaS\Jnable lies upon the State. lalh· requiring that an act which i5 inhcrcnlly d:in~rous, nox.iou!I or

injurious to. public interest; health or safety or is likely to pr9ve nuisaJ?CC to the community, shall be done under permit or licence of an executive authbrity, is not per se unreasonable and no person. may claim licence or permit to do that act as of right. Where the law providing for grant of licence or permit confers discretion upon an. administrative authority regulated by rules oi principles expressed or implied, and excersiable in consonance with rules of natural justice, it will be presumed to impose reasonable restriction. Where, however, power is entrusted to an adminis~ trative agency to grant or withhold permit or licence in its uncontrolled discretion, the law ex facie infringes the fundamental right under Art. 19(1). [160 FlMohd. Hanlf Quareshi and Others v. The St.ate of Bihar, [1959] S.C.R. 629; Abdul Hakim Quraishi and Others v. The State of Blhar, [1961] 2 S.C.R. 610; and Narendra Kumar and Others v. The Union vf India and Othtr!, [1960) 2 S.C.R. 375; referred to.

O!lIGINAL JUll1so1cTION: Writ Petition No. 60 of 1969.

Petition under Art. 32 of the Constitution of India for the enforcement of fund.amental rights.

Frank Anthony, B. Datta aind J. B. Dadachanji, for the peti-

· tioner.

I. N. Shroff, for the respondents.

The Judgment of the Court \Vas delivered by

Shah, J. The petitioner Mohd. Faruk who carries on the vocatioo of slaughtering bulls and bullocks at the Madar Tekdi Slaughter-House at Jabalpur claims declaration that the notifi-cation dated January 12, 1967, issued by the Governor of Madhya Pradesh in exercise of the powers conferred under sub-s. (3) of s. 430 of the Madhya Pradesh Municipal Corporation Act 23 of 1956 "cancelling confirmation of the bye-laws" made by the Jabalpur Municipal Committee for inspection and regulation of slaughter-houses "in so far as the bye-Jaws relate to slaughter of bulls and bullocks" infringes the fundamental freedoms guaran-teed under Arts. 14 and 19 of the Constitution.

Section 5(37) of the Madhya Pradesh M11nicipal Corporation Act 23 of 1956 defines ''municipal slaughter-house". Jly s. 66(m) it is made obligatory upon the Corporation to make adequate provision for the construetion, maintenance and regulation of slaughter-house. By sub-s. (1) of s. 257 of the Act the Corpo-ration may and when required by the Government shall fix places for the slaughter of animals for sale, and may with the like ap-proval grant and withdraw licences for. the use of such premises. By sub-s. (3) it is enacted that when premises have been fixed under sub-s. (1) no person shall slaughter any such animal for sale willlin the city at any other place. Bv sub-s. (4) bringing into the city for sale, flesh of any animal" intended for human consumption, which has been slaughterc<\ ::i.t any slaughtet-hoQ5t:

[1970] I s.c.R.

or p~cc·ndt tnairi~ ·ot~<under the Act: .without ·~e ·A written permission of the ComlniSSioner. is proJ;iibited. Section 427 authorises the· Corporation, witJi the sanction ?~ the Gov-ernment, to make bye-1.aws: co~ent with tD;e provtS~~ of lh;e Act and' the rules rifade·tbereunder,for.carrymg out the provi-sions and intentions" of the Act. The bye-laws may, inter a/ia, relate to the management of· municipal markets' and the supervi' sion of the manufacrure, storagi: -imd sale of food, and for that· purpose may regulilte the sanitary conditions in IJlUniciparsl!fugh-ter-HollSes. :Qy s. 430 it is provided that no bye-l:i~ ma~e . b.Y the Corporation under the Act . shall h\l.VQ anY validity until It IS confirmed by the Govenime~t. · ·Power is. coriferred up<;m the Government bys. 432 to.modify.o; repeal either wholly or m part any bye-laws in consultati!lll with. the: Corpqration.In ·exercise of the J?9Wer coix,ferred by s. 178(3) of the C.P. and Bcrar Municipalilties Act 2. of 1922, bye-l(lws ·were made by the Jabalpur Municipality iii. Januiiiy 1948. Those bye-laws continu¢ to remain in force . unlJCr the Madhya Pradesh Municipal Corporation Act 23. of 1956. . The The bye-laws controlled and regulated . the co¢itions under which animals may be slaughtered in the premises fixed for that pllrp9se and prov_id-ed .fen: ~ectiori and for ensuring- ade<1..uate precaution in respect in respect respect of sanitatton;and for. slavgliter .of animals certified by competent authorities. as fit for slaughtering. By the notification issued by the Jabalpur Municipality ·a sl\l.'ughter-ho-qse at a· place called "Madar Tekdi" was ·fixed as premises for slaughtering animals. Under that notification oull3 and bull0ckS were permitted to be slaughtered along with .Qther •animals like !,uffaloes, sheep, goats and ·pigs. But on. January 12, 1967, the State Government is-sued notification ucancelling the' c0nfirmation of the bye-laws" insofar as they 1-elated. to slaughter of bulls and bullocks at Madar Tekdi Slaughter0Hori5!'. That notification places restrictfons ,upon the right of the petitioner to carry on his hereditary vocation.

the Madhya Pradesh 1956. . The The bye-laws under which animals may pllrp9se and prov_id-precaution in respect in respect respect by competent by at a· place called

The question of permittil!g slaughter of cows, bulls and bul-loc~ has, for long time, generated violent sentimental differ-ences between sections of the· ve!iP!e in our country. After the ~a.ctmept . of ~e C0ns~t~~op the. ClJntroversy relalting to the limits withm which restrictio~,may be .Placed upon the slaughter of cows, bulls and bullocks was agitated Wore this Court Jn Mohd. Hanif Quareshi and .Others v. The StatC'of Blhar(') .. In that case the validity of provisions l!lade in three State Acts which imposed ·a total ban upon slaughter of all categories Ol "animals of the species of bovine' cattle'" was challen~. These Acts were the Bihar Preservation .and Improvement-of Anima)a Act 1955 the U.P. Prevention of Cow Slaughter ;,\ct, 1955, -and the C.P '. (1)![1959[S.C.~.:~o

and Berar Animals Preservation Act, 1949. The petitioners who followed the occupation .of butchers and of dealing in the by-products of slaughter-houses challenged the validity of the three Acts on the plea that the Acts infringed their fundamental r:ghts under Arts. 14, 19 (1 )(g) and 25 of the Constitution. This Court held-(i) that total ban on the slaughter of cows of all ages and calves of cows and of she-buffaloes, male and female, was reasonable and valid; (ii) that total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes), so Joni!; as theywere capable of being used as milch or draught cattle, was also reasonabfe-and valid and (ill) that total ban on the slaughter of she-buffaloes, bulls and bul-c locks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals was not in the interests of the general public and was invalid.Attempts were made from time to time to circumvent the judg-ment of this Court in Mohd. Hanif Quareshi's cas~(1 ). After that judgment, Legislatures of the State of Bihar, U.P. and Madhya Pradesh enacted the minimum age of animals to be slaughtered. The Bihar Act prohibited slaughter of bull, bullock or she-buffalo unless the animal was over 25 years of age and had become useless. Under the U.P. Act slaughter of bull or bul-lock was permitted only if it was over 20 years of age and was permanently unlit. Under the Madhya Pradesh Act slaughter of bull, bullock or buffalo, except upon certificate ~ed by the competent authority, was prohibited. The certificate could not be issued unless the animal was over 20 years of age and was unfit for work or breeding. This Court lield in Abdul Hakim Quraishi and Others v. The State of Bihar([1 ]) that the ban on the slaughter of bulls, bullocks and she-buffaloes below the age of 20 or 25 years was not reasonable restriction in the interests of the general public and was void. The Court observed that bull, bullock or buffalo did not remain useful after it was 15 years old, and whatever little use it may then have was greatly offset by the economic disadvantages of feel~ng and maintaining unservice-. able cattle. This Court also held that th~ additional condition that the animal must, apart from being above 20 or 25 years of age,_ be unlit was further unreasonable restriction. On that ground the relevant provisions in the Bihar, U.P. and Madhya Prade~h Acts w:ere declared invalid.

The present case is apparently another attempt, though on restricted scale, to circumvent the judgment of this COUrt in Mohd. Hanif Quitre~hi's case('). The bye-laws of the Jabalpnr Municipality permitted slaughter (lf 1't1!l~ 11nd bullocks. . licence (I) [19S9] S.C.R. 629. c2J [l96IJ i s.c.it. 610, 610,

[1970] I S.C a.

Slaughter ~f animals ~

had to be .. obtained for that .purpose.

places outside the premises fixed by the Municipality was prohi-bited by s. 257(3) of the Act, and'Sale. of meat with.in the area of the Municipalily of the animals not slaughtered m the pre-mises fixed by the Municipality was afso prohibited. Under the notification by which the bye-laws were issµed in 1948, bulls and hullocks could be slaughtered in premises fixed for that p~ose. But by the notification dated January 12, 1961, confirmation of the bye-laws insofar as they related to bulls and bullocks was can-celled. The effect of that notification was to prohibit the slaugh-ter of bulls and bullocks within the Municipalilty of Jabalpur. This cancellation of the confirmation of Bye-laws imposed direct restriction upon the fundamental right of the petitioner under Art. 19(1 )(&) pf the Constitution.

In the affidavit filed on behalf of the State ot Madhya Pra-desh two principal contentions were raised :-{1) the power to rescind confirmation of the bye-laws cannot be challenged by reference to Art 14 or Art .. 19 of the Constitution, because the power vested in the Government to confirm the bye-laws carries with it the power to rescind such confirmation and (2) that since every person desiring to use slaughter-house had to apply for and obtain licence, which may be refiised, and if given was liable to lie withdrawn, no person may insist that he shall be giftll licence to slaughter animals in slaughter-house.The power to issue bye-laws indisputably includes the power to cancel or withdraw the bye-laws, but the validity of the exer-cile of the power to issue and to cancel or withdraw the bye-laws must be ad judged in the light of its impact upon the fundamental rights of persons affected thereby. When the validity of law placing r.:strictior. upon the exercise of fundamental ri~hts in Art. 19{1) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State. law rC<!uiring that an act which is inherently dangerous, noxious or injurious to public interest, health or safety or is likely to prove nuisance to the community. shall be done under permit or licence of an executive authority, it is not per se unreasonable and no person may claim licence or permit to do that act as of right. Where the law providing for grant gf licence or permit confers discretion upon an administrative authority regu-lated by rules or principles expressed or implied, and eirercisable in consonance with rules of natural justice, it will bo jlltilwned to impose rusonable restrit;tion. Where, howevv. power is entrusted to an administrative agencv to 1ITant or willklld. =·t or licence in its uncontrolled diacretion, the law ex f.:V · the fundamental right under Art. 19(1 ). Imposition of -.··lion on the exerci9e of fund~ental right may be in the ton.

MOHD. PUUl'. V. M. P. STAT!! (Shah, /.)

of control or prohibition, but when the exercise of fundamental right is erohibited, the burden of proving that total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the State.

This Court in Narendra Kumar and Others v. The Union of India and Others(') held that the word "restriction" in Arts. 19(5) and 19(6) of the Constitution includes cases 61' "prohibition" also; that where restriction reaches the stage of total restraint of rights special care has to be taken by the Court. to see that the (est of reasonableness is satisfied by considering the question in the background of the facts and circumstances under which the order was made, taking into account tlie nature of the evil that was sought to be remedied by such law, the harm caused to in· dividual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law· was more than what was neces-sary in the interests of the general public.

The impugned notification, though technically within the competence of the State Government, directly infringes the funda-mental right of the petitioner guaranteed by Art. 19(1)(g), and may be upheld only if it be established that it seeks to impose reasonable restrictions in the interests of the general public and less drastic restriction will not ensure the interest of the_ gen.eral public. The Court must in considering the validity of the im-E pugned law imposing prohibition on the carrying on of business or profession, attempt aµ evaluation of its direct and immediate impact upon the fundamental rights of the citizens itffected thet"&-by and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citjzen's freedom, the inherent pernicious nature of the act . prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing _a less drastic restraint, and in the absence of exceptional situations sucih as the prevalence of state of emergency-national or local--or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous, the existence of machinery to satisfy -the administrative authority that no case for -imposing the restriction is made out or that less drastic restriction may ensure the object intended to be aclileved.The sentiments of section of the people may be hurt by oermititng slaughter of bulls and bullocks in premises mahltained by local authority. But prohibition imposed on the exercise of fundamental right to carry on an occupation,, trade u busi~ n• will not be regarded as rea90llable, if if is imp<lled not in

(I) (I HOJ 2 !,C,R, 37S.

the interest of the ger,eral public, but merely to respeci the sus-~eptibilities and sentiments of section of the peopl~ whose way of liie, belief or thought is not the same as that of the cl&imant.

'fhe notification issued by the State Government must, there-fore, he dr.cl~red 1tltra vires as infringing Art. 19(l)(g) of th~ Constitution.

It is unnece<sary to co.1sider the validity of s. 430 of the Act which was sought to be :hallcngcd in the petition or to consider wt.et'ler there has been any Infring,ment of the guarantee of tht equality clause of tht Constitution.

The petitioner will he entitled to I.is costs in this Court.

R.K.P.S.

Petition a/lowed.