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SUPREME COURT OF INDIA
J.C. SHAH, G.K. MITTER, K.S. HEGDE AND A.N. GROVER, JJ.
The State of Maharashtra, Appellant
Versus
Himmatbhai Narbheram Rao and others, Respondents.
Civil Appeal No. 1654 of 1966, Civil Appeals Nos. 1019 and 1020 of 1967, D/- 15-10-1968.
Civil Appeal No. 1654 of 1966.
Civil Appeals Nos. 1019 and 1020 of 1967.
Municipal Corporation of Greater Bombay and another (in both appeals), Appellants v. Noor Mahomed Mahobatkhan and another (in C. A. No. 1019 of 1967), D. S. Kurlawala and another, (in C. A. No. 1020 of 1967), Respondents.
Advocates appeared
Mr. C. K. Daphtary, Attorney General for India and Mr. N. S. Bindra, Senior Advocate, (M/s. R. Gopalkrishnan and S. P. Nayar, Advocates with them), for Appellant, In Civil Appeal No. 1954 of 1966.
Mr. Niren De, Solicitor-General of India, (Mr. G. L. Sanghi, Advocate, and Mr. J. B. Dadachanji, Advocate of M/s. J. B. Dadachanji and Co; with him), for Appellants, In C. A. Nos. 1019 and 1020 of 1967 and Respondents Nos. 3 and 4 (In Civil Appeal No. 1654 of 1966).
Mr. B. Sen Senior Advocate (Mr. I. N. Shroff, Advocate with him), for Respondents Nos. 1 and 2, In Civil Appeal No. 1654 of 1966.
Mr. K. K. Singhvi, Senior Advocate, (M/s. S. C. Agarwala, R. K. Garg and D. P. Singh, Advocates of M/s. Ramamurthi and Co. and Mr. A. K. Gupta, Advocate with him), for Respondents, In Civil Appeal No. 1020 of 1967.
Constitution of India,1950 - Article 19 (1) (f) and (g) - Bombay Municipal Corporation Act - Secction 367, 372 and 385 - Societies Registration Act 1860 - Industrial uses - Business of skinning carcasses of dead animals - Contract - Remove and dispose of carcasses - First respondent in Appeal No. is a society registered under Societies Registration Act 1860, and carries on, within limits of Greater Bombay, business of skinning carcasses of dead animals and utilising products for industrial uses - Second respondent is an owner of a stable of milch-cattle at Andheri within limits of Greater Bombay - By Act 14 of 1961 Legislature of State of Maharashtra amended, amongst others, Sections 367, 372 and 385 of Act 3 of 1888 enacting that an owner of carcass of a dead animal shall deposit it at place appointed in that behalf by Corporation, and entrusted Corporation with power to arrange for disposal of carcasses - Corporation published a notification inviting attention of public concerned to provisions of Section 385 and other provisions of Act and warned persons concerned that violation of provisions was liable to be published – Held, Court are of view having regard to character of legislation and its avowed object that it imposes reasonable restrictions upon right to carry on occupation or business within meaning of Art. 19(6) of Constitution - First respondent cannot claim protection of Art. 31(2) of Constitution, because until it purchases carcasses from owner it has no right in property, and it cannot set up a grievance for loss of property which it does not own - It leaves it to Corporation to take adequate and effective steps for purpose of disposal - Whether by virtue of contracts given by Corporation to other persons who are claimed to be rivals in business of first respondent unreasonable restrictions may be deemed to be placed upon their fundamental right it a matter on which no argument was advanced at any stage before Trial Court or High Court, though it was strenuously urged before Court - Prima facie, argument has no substance in any case, it cannot affect validity of statute or provisions which have been declared to be invalid by High Court - Appeals allowed.
The issues in this case primarily revolve around the constitutional validity of certain provisions of the Bombay Municipal Corporation Act, as amended, which regulate the removal, disposal, and ownership of carcasses of dead animals within Greater Bombay. The key issues include:
Whether the restrictions imposed by the legislation on the right of property owners and businesses involved in the disposal of carcasses are reasonable and thus constitutionally valid under the provisions protecting the right to property and the right to carry on a lawful occupation or trade (!) (!) .
Whether the law's requirement that carcasses be deposited at designated places, resulting in the extinguishment of ownership rights in the carcass, constitutes an unreasonable restriction on the fundamental rights of property owners and traders (!) (!) .
Whether the provisions infringe upon the rights guaranteed under Articles 19 and 31 of the Constitution, particularly the rights to property, to carry on trade or business, and the right to acquire, hold, and dispose of property (!) (!) .
Whether the law's scheme, which involves the transfer of ownership of carcasses to the municipal authority and imposes fees for removal, is justified as a reasonable restriction in the interest of public health and safety, or whether it oversteps the bounds of constitutional reasonableness (!) (!) .
Whether the law's provisions, which restrict the owner’s ability to sell carcasses and impose expenses for their removal, are necessary for public health and do not constitute arbitrary or excessive limitations (!) (!) .
Whether the restrictions on the business activities of traders involved in carcass disposal, including contracts given to rivals, are reasonable and do not unjustly impede lawful trade, considering the overarching goal of public health (!) (!) .
Whether the law adequately balances public health interests with individual property rights and trade freedoms, and whether the restrictions are proportionate and justified in the circumstances (!) (!) .
In summary, the core issues concern the legality and reasonableness of the restrictions imposed by the legislation on property rights and trade, in the context of safeguarding public health and preventing nuisances, and whether these restrictions are compatible with constitutional protections.
Judgment
SHAH, J. :- The High Court of Bombay has declared Section 372 (g) and a part of Section 385 of the Bombay Municipal Corporation Act 3 of 1888 as amended by Act of 14 of 1961 ultra vires because in their view these provisions infringe the guarantee of Art. 19 (1) (f) and (g) of the Constitution. The State of Maharashtra and the Municipal Corporation of Greater Bombay have appealed to this Court.
2. The first respondent in Appeal No. 1654 of 1966 is a society registered under the Societies Registration Act 1860, and carries on, within the limits of Greater Bombay, the business of skinning carcasses of dead animals and utilising the products for industrial uses. The second respondent is an owner of a stable of milch-cattle at Andheri within the limits of Greater Bombay. By Act 14 of 1961 the Legislature of the State of Maharashtra amended, amongst others, Sections 367, 372 and 385 of Act 3 of 1888 enacting that an owner of the carcass of a dead animal shall deposit it at the place appointed in that behalf by the Corporation, and entrusted the Corporation with power to arrange for disposal of the carcasses. On October 1961 the Assistant Head Supervisor of the Municipal Corporation called upon the first respondent to stop removing carcasses from the "K" Ward of the Corporation. On November 27, 1961, the Corporation published a notification inviting the attention of the public concerned to the provisions of Section 385 and other provisions of the Act and warned the persons concerned that violation of the provisions was liable to be published. On January 10, 1962, the Corporation resolved to grant a contract authorising removal and disposal of carcasses under Section 385 of the Act in respect of Wards, H, K, L, M, E, P, B, & T to the Harijan Workmen s Co-operative Labour Society Ltd., and declared that no other person or agency was authorised to remove and dispose of carcasses under the provisions of Section 385 of the Act.
3. Respondents No. 1 & 2 to this appeal moved a petition in the High Court of Bombay for an order cancelling or setting aside the notice dated October 14, 1961; and the notification dated November 27, 1961; for an order restraining the Corporation from demanding fee for removal of such carcasses, from taking any steps or proceedings against the respondents for enforcement of the provisions of Sections 366, 367 (c), 372 (g) and 385 of the Act and from claiming ownership in the carcasses of the dead animals of private owners. The State of Maharashtra was later impleaded as a party-respondent to the petition.
4. Kantawalla, J., dismissed the petition. He held that Sections 366, 367(c) and 385 of the Act were "enacted for the promotion of public health and for the prevention of danger to life of the community and in the larger interest of the public", and that the restrictions upon the rights of the owners of cattle and persons carrying on business in carcasses were because of the special protection granted by Art. 31 (5) (b) (ii) not inconsistent with or repugnant to the fundamental rights guaranteed under Art. 31(2) of Constitution, and since the impugned provisions were protected, the second respondent could not claim that his fundamental right guaranteed by Art. 19 (1) (f) of the Constitution was infringed. The learned Judge also held that the restrictions imposed by the impugned provisions were reasonable and in the interest of the general public and were on that account not within the protection of Article 19 (1) (g) of the Constitution.
5. In appeal under the letters patent the High Court modified the order passed by Kantawalla, J., and declard Section 372 (g) and a part of Section 385 of the Act invalid. The High Court did not pass any order consequential on the declaration. Against that order the State of Maharashtra has referred this appeal with certificate granted by the High Court.
6. Section 3 (z) defines nuisance ; it includes any act, omission place, or thing which causes or is likely to cause injur
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