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SUPREME COURT OF INDIA
M. HIDAYATULLAH, C.J.I., J.C. SHAH, V. RAMASWAMI, G.K. MITTER AND A.N. GROVER, JJ.
Mohd. Faruk, Petitioner
Versus
State of M.P. and others, Respondents.
Writ Petn. No. 60 of 1968, D/- 1-4-1969.
Advocates appeared
M/s. Frank Anthony and B. Datta, Advocates, and Mr. J. B. Dadachanji, Advocate of M/s. J. B. Dadachanji and Co., for Petitioner; Mr. I. N. Shroff, Advocates, for Respondents.
By a notification issued by the Jabalpur Municipality, bulls and bullocks were permitted to be slaughtered along with other animals. Later the State Government issued a notification canceling the confirmation of the bye-laws in so far as they related to slaughter of bulls and bullocks. The notification was challenged by the petitioner under Article 32 of the Constitution on the footing that it imposed a direct restriction upon his Fundamental Right under Article 19 (1) (g) of the Constitution.
Held: The impugned notification directly infringes the Fundamental Right of the petitioner guaranteed by Article 19 (1) (g). 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. Where power is entrusted to an administrative agency to grant or withhold a permit or licence in its uncontrolled discretion the law ex-facie infringed the Fundamental Right under Article 19 (1). 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 carryon 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. The notification issued must, therefore, be declared ultra vires as infringing Article 19 (1) (g) of the Constitution. [Paras 8 and 11
When the validity of a law placing restriction upon the exercise of Fundamental Right in Article 19 (1) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable is upon the State. Imposition of restriction on the exercise of a Fundamental Right may be in the form of control or prohibition, but when the exercise of a 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, 1959 SCR 629 relied on. (1961) 2 SCR 610 (1960) 2 SCR 375 referred to. [Para 8
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 thereby in the light of the object to be achieved, the necessity to restrict the citizens 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 - 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. [Para 10
Judgment
SHAH, 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-section (3) of Section 430 of the Madhya Pradesh Municipal Corporation Act 23 of the 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-laws relate to slaughter of bulls and bullocks" infringes the fundamental freedoms guaranteed under Article 14 and 19 of the Constitution.
2. Section 5 (37) of the Madhya Pradesh Municipal Corporation Act 23 of 1956 defines "municipal slaughter-house". By Section 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-section (1) of Section 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-section (3) it is enacted that when premises have been fixed under sub-section (1) no person shall slaughter any such animal for sale within the city at any other place. By sub-section (4) bringing into the city for sale, flesh of any animal intended for human consumption, which has been slaughtered at any slaughter-house 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 Section 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 Section 432 to modify or repeal either wholly or in part any bye-laws in consultation with the Corporation.
3. In exercise of the power conferred by Section 178 (3) of the C.P. and Berar Municipalities 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.
4. The question of permitting slaughter of cows, bulls and bullocks 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. Han
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