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PETITIONER: MOHD.  FARUK

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH AND OTHERS

DATE OF JUDGMENT: 01/04/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. HIDAYATULLAH, M. (CJ) RAMASWAMI, V. MITTER, G.K. GROVER, A.N.

CITATION:  1970 AIR   93            1970 SCR  (1) 156  1969 SCC  (1) 853  CITATOR INFO :  RF         1977 SC1825  (51)  D          1979 SC 418  (1)  RF         1981 SC 873  (13)  R          1983 SC1155  (22,23,25)  RF         1986 SC1205  (12)

ACT: Constitution of India-Article 19(1)(8)-Notification by State having effect of banning slaughter of bulls and  bullocks-If violative  of  the fundamental right  under  Art.  19(1)(g)- Principles   for   considering  constitutionality   of   law restricting or prohibiting carrying on a business.

HEADNOTE: Certain bye-laws framed by the Jabalpur Municipality,  which permitted  the slaughter of various animals including  bulls -and  bullocks,  were  confirmed  by  the  respondent  State Government in 1948.  By a notification on January 12,  1967, in  exercise  of its powers under s. 430 of  Madhya  Pradesh Municipal  Corporation Act 23 of 1956, the State  Government cancelled  the confirmation of certain bye-laws "insofar  as the   bye--laws  relate  to  the  slaughter  of  bulls   and bullocks".  The petitioner challenged the  constitutionality of the notification by a writ petition under Art. 32 on the, ground  that it infringed his fundamental right  under  Art. 19(1) (g) of the Constitution. It was contended on behalf of the respondent State that  (1) its power to rescind confirmation of the bye-laws could  not 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 carried with it the power  to  rescind such confirmation; and (2) that since every person  desiring to  use  a slaughter house, had to apply for  and  obtain  a licence, which may be refused, and if given was liable to be withdrawn,  no  person may insist that he shall be  given  a licence to slaughter animals in a slaughter-house. HELD:     Allowing the petition, The,  impugned notification, though technically  within  the

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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  was  established that  it  sought to impose reasonable  restrictions  in  the interests  of  the  general  public   and  a  less   drastic restriction  would  not ensure the interest of  the  general public. [161 D] The  sentiments  of a section of the people may be  hurt  by permitting  slaughter  of  bulls and  bullocks  in  premises maintained by a local authority.  But a prohibition  imposed on  the  exercise  of a fundamental right  to  carry  on  an occupation,  trade  or  business will  not  be  regarded  as reasonable.  if  it is imposed not in the  interest  of  the general  public, but merely to respect the  susceptibilities and sentiments of a section of the people whose way of life, belief  or thought is not the same as that of the  claimant. [161 H] The power to issue bye-laws indisputably includes the  power to cancel or withdraw the bye-laws, but the validity of  the exercise of the power to Issue and to cancel or withdraw the bye-laws  must be adjudged in the light of its  impact  upon the  fundamental rights of persons affected  thereby.   When the validity of a law placing restriction upon the  exercise of fundamental rights 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.   A  law requiring that an act which is inherently dangerous, noxious or 157 injurious to public interest, health or safety or is  likely to prove a nuisance to the community, shall be done under  a permit  or licence of an executive authority, is not per  se unreasonable and no person may claim a licence or permit  to do that act as of right.  Where the law providing for  grant of  a  licence  or a permit confers  a  discretion  upon  an administrative  authority regulated by rules  or  principles expressed  or  implied, and excersiable in  consonance  with rules  of natural justice, it will be presumed to  impose  a reasonable, restriction.  Where, however, power is entrusted to an administrative agency to grant or withhold a permit or licence  in  its uncontrolled discretion, the law  ex  facie infringes the fundamental right under Art. 19(1) [16O F] Mohd.   Hanif  Quareshi and Others v. The  State  of  Bihar, [1959]  S.C.R. 629; Abdul Hakim Quraishi and Others  v.  The State of Bihar, [1961] 2 S.C.R. 610; and Narendra Kumar  and Others  v.  The Union of India and Others, [1960]  2  S.C.R. 375; referred to.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 60 of 1969. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. Frank Anthony, B. Datta and J. B. Dadachanji, for the  peti- tioner. I. N. Shroff, for the respondents. The, Judgment of the Court was delivered by Shakho  J.  The petitioner Mohd.  Faruk who carries  on  the vocation  of  slaughtering bulls and bullocks at  the  Madar Tekdi Slaughter-House at Jabalpur claims a declaration  that the  notification  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

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of  the bye-laws" made by the Jabalpur  Municipal  Committee for inspection and regulation of slaughter-houses "in so far as  the bye-laws relate to slaughter of bulls and  bullocks" infringes the fundamental freedoms guaranteed under Arts. 14 and 19 of the Constitution. Section  5(37) of the Madhya Pradesh  Municipal  Corporation Act  23 of 1956 defines "municipal slaughterhouse".   By  s. 66(m)  it  is made obligatory upon the Corporation  to  make adequate  provision  for the construction,  maintenance  and regulation of a slaughter-house.  By sub-s. (1) of s. 257 of the  Act  the  Corporation  may and  when  required  by  the Government shall fix places for the slaughter of animals for sale,  and  may with the like approval  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  within the  city at any other place.  By sub-s. (4)  bringing  into the  city for sale, flesh of any animal intended  for  human consumption,    which   has   been   slaughtered   at    any slaughterhouse, 158 or  place not maintained or licensed under the Act,  without the  written permission of the Commissioner, is  prohibited. Section 427 authorises the Corporation, with the sanction of the  Government,  to  make  bye-laws  consistent  with   the provisions  of  the Act and the rules  made  thereunder  for carrying  out  "the provisions and intentions" of  the  Act. The  bye-laws may, inter alia, relate to the  management  of municipal  markets and the supervision of  the  manufacture, storage and sale of food, and for that purpose may  regulate the  sanitary conditions in municipal slaughter-Houses.   By S.  430  it  is  provided  that  no  bye-law  made  by   the Corporation  under the Act shall have any validity until  it is confirmed by the Government.  Power is conferred upon the Government by S. 432 to modify or repeal either wholly or in part any bye-laws in consultation with the Corporation. In exercise of the power conferred by s. 178(3) of the  C.P. and Berar Municipalilties Act 2 of 1922, bye-laws were  made by  the Jabalpur Municipality in January 1948.   Those  bye- laws  continued to remain in force under the Madhya  Pradesh Municipal  Corporation  Act  23  of  1956.   The   bye--laws controlled and regulated the conditions under which  animals may  be slaughtered in the premises fixed for  that  purpose and  provided  for  inspection  and  for  ensuring  adequate precaution  in  respect of sanitation and for  slaughter  of animals  certified  by  competent  authorities  as  fit  for slaughtering.   By the notification issued by  the  Jabalpur Municipality  a  slaughter-house at a  place  called  ’Madar Tekdi"  was  fixed  as premises  for  slaughtering  animals. Under that notification bulls and bullocks were permitted to be  slaughtered  along with other animals  like  buffaloes,- sheep,  goats and pigs.  But on January 12, 1967, the  State Government    issued   a   notification   "cancelling    the confirmation  of  the bye-laws" insofar as they  related  to slaughter  of bulls and bullocks at Madar  Tekdi  Slaughter- House.  That notification places restrictions upon the right of the petitioner to carry on his hereditary vocation. The question of permitting slaughter of cows, bulls and bul- locks  has, for a long time, generated  violent  sentimental differences  between sections of the people in our  country. After  the  enactment of the  Constitution  the  controversy relating  to  the limits within which  restrictions  may  be placed  upon the slaughter of cows, bulls and  bullocks  was agitated  before  this Court in Mohd.   Hanif  Quareshi  and Others v. The State of Bihar(1).  In that case the  validity

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of provisions made in three State Acts which imposed a total ban  upon  slaughter of all categories of  "animals  of  the species  of bovine cattle" was challenged.  These Acts  were the Bihar Preservation and Improvement of Animals Act, 1955, the U.P. Prevention of Cow Slaughter Act, 1955, and the C.P, (1)[1959]S.C.R.-629                             159 and  Berar Animals Preservation Act, 1949.  The  petitioners who  followed the occupation of butchers and of  dealing  in the  byproducts of slaughter-houses challenged the  validity of the three Acts on the plea that the Acts infringed  their fundamental rights under Arts. 14, 19 (1) (g) and 25 of  the Constitution.   This Court held-(i) that a 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  a  total  ban on the  slaughter  of  she-buffaloes  or breeding  bulls  or  working bullocks  (cattle  as  well  as buffaloes),  so long as they were capable of being  used  as milch  or draught cattle, was also reasonable-and valid  and (iii)  that a total ban on the slaughter  of  she-buffaloes, bulls and bullocks (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  case("). 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  a bull,  bullock or shebuffalo unless the animal was  over  25 years  of  age and had become useless.  Under the  U.P.  Act slaughter of a bull or bullock was permitted only if it  was over  20 years of age and was permanently unfit.  Under  the Madhya Pradesh Act slaughter of a bull, bullock or  buffalo, except upon a certificate issued 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 held in Abdul Hakim  Quraishi  and Others  v.  The  State  of Bihar(2)  that  the  ban  on  the slaughter of bulls, bullocks and she-buffaloes below the age of  20 or 25 years was not a reasonable restriction  in  the interests  of  the general public and was void.   The  Court observed  that  a 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  feeling  and  maintaining   unserviceable cattle.  This Court also held that the additional  condition that the animal must, apart from being above 20 or 25  years of age, be unfit was a further unreasonable restriction.  On that  ground the relevant provisions in the Bihar, U.P.  and Madhya Pradesh Acts were declared invalid. The present case is apparently another attempt, though on  a restricted  scale, to circumvent the judgment of this  Court in  Mohd.  Hanif Quareshi’s case(1)’.  The bye-laws  of  the Jabalpur  Municipality  permitted  slaughter  of  bulls   at bullocks.  Alicence (1)  [1959] S.C.R. 629.                       (2)  [1961]  2 S,C.F,. 61 0. 160 had to be- obtained for that purpose.  Slaughter of  animals in places outside the premises fixed by the Municipality was prohibited by S. 257(3) of the Act, and sale of meat  within the area of the Municipality of the animals not  slaughtered in   the  premises  fixed  by  the  Municipality  was   also prohibited.   Under the notification by which  the  bye-laws

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were issued in 1948, bulls and bullocks could be slaughtered in premises fixed for that purpose.  But by the notification dated January 12, 1967, confirmation of the bye-laws insofar as  they related to bulls and bullocks was  cancelled.   The effect of that notification was to prohibit the slaughter of bulls  and  bullocks within the  Municipality  of  Jabalpur. This cancellation of the confirmation of Bye-laws imposed  a direct  restriction  upon  the  fundamental  right  of   the petitioner under Art. 19(1)(g) of the Constitution. In the’affidavit filed on behalf of the State of 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 a  slaughter-house  had to apply for and obtain  a  licence, which  may  be  refused,  and if  given  was  liable  to  be withdrawn,  no  person may insist that he shall be  given  a licence to slaughter animals in a slaughter-house. The power to issue bye-laws indisputably includes the  power to cancel or withdraw the bye-laws, but the validity of  the exercise of the power to issue and to cancel or withdraw the bye--laws  must be adjudged in the light of its impact  upon the  fundamental rights of persons affected  thereby.   When the validity of a law placing restriction upon the  exercise of fundamental rights 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.   A  law requiring that an act which is inherently dangerous, noxious or  injurious  to public interest, health or  safety  or  is likely  to prove a nuisance to the community, shall be  done under  a permit or licence of an executive authority, it  is not per se unreasonable and no person may claim a licence or permit to do that act as of right.  Where the law  providing for grant of a-licence or a permit confers a discretion upon an administrative authority regulated by rules or principles expressed  or  implied, and exercisable in  consonance  with rules  of natural justice. it will be presumed to  impose  a reasonable restriction.  Where, however, power is  entrusted to an administrative agency to grant or withold a permit  or licence  in its uncontrolled discretion, the law ex facie  , infringes   the   fundamental  right   under   Art.   19(1). Imposition of restric-on the exercise of a fundamental right may be in the form 161 of  control  or  prohibition, but when  the  exercise  of  a fundamental right is prohibited, the burden of proving  that a  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(1) held that the  word  "restriction"  in Arts. 19(5) and 19(6) of the Constitution includes cases  of "prohibition"  also; that where -a restriction  reaches  the stage  of total restraint of rights special care has  to  be taken by the Court to see that the test 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 the nature of the evil that was  sought to  be remedied by such law, the harm caused  to  individual 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 necessary in the interests of the general public.

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The  impugned notification-, though technically  within  the competence  of the State Government, directly infringes  the fundamental  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 a less drastic  restriction  will not  ensure the interest of the general public.   The  Court must  in  considering  the  validity  of  the  impugned  law imposing  a prohibition on the carrying on of a business  or profession,   attempt  an  evaluation  of  its  direct   and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured  in the light of the object sought to  be  achieved, the  necessity  to  restrict  the  citizen’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  such as the prevalence of a state of  emergency- national  or local--or the necessity to  maintain  essential supplies,  or  the necessity to stop  activities  inherently dangerous,  the  existence  of a machinery  to  satisfy  the administrative  authority  that  no case  for  imposing  the restriction  is made out or that a less drastic  restriction may ensure the object intended to be achieved. The  sentiments  of a section of the people may be  hurt  by permiting  slaughter  of  bulls  and  bullocks  in  premises maintained by a local authority.  But a prohibition  imposed on  the  exercise  of a fundamental right  to  carry  on  an occupation,  trade  or  business will  not  be  regarded  as reasonable, if if is imposed not in (1)  [1960]2 S.C.R. 375, 162 the  interest of the general public, but merely  to  respect the  susceptibilities  and sentiments of a  section  of  the people whose way of life, belief or thought is not the  same as that of the claimant. The notification issued by the State Government must, there- fore, he declared ultra vires as infringing Art. 19 (1)  (g) of the Constitution. It is unnecessary to consider the validity of s. 430 of  the Act which was sought to be challenged in the petition or  to consider  whether  there has been any  infringement  of  the guarantee of the equality clause of the Constitution. The petitioner will be entitled to his costs in this Court. R.K.P.S. Petition allowed. 163