Judgment

R. B. MISRA, J. — In the wake of Art. 48 of the Constitution the State of Bombay also passed an enactment, the Bombay Animal Preservation Act, 1954 for the preservation of animals suitable for milch, breeding or for agricultural purposes. Under sub-s. (1) of S. 2 the Act was to apply in the first instance to the animals specified in the schedule and the schedule mentioned bovines (bulls, bullocks, cows, calves, male and female buffaloes and buffalo-calves). Under sub-s. (2) of S. 2 the State Government may, by notification in the official gazette, apply the provisions of this Act to any other animal, which in its opinion, it is desirable to preserve. It does not appear that the provisions of the Act were ever made applicable to any other animals after the initial enactment of the Act and the schedule by the Bombay legislature. Section 5 of the Act, so far it is material, runs :

"5.(1) Notwithstanding any law for the time being in force or any usage to the contrary, no person shall slaughter any animal unless he has obtained in respect of such animal a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter."

2. In 1961 by the Gujarat Act 16 of 1961, sub-s. (1A) was in S. 5 of the Principal Act inserted which read :

"(1A) No certificate under sub-s. (1) shall be granted in respect of a cow"

3. Thereupon a consequential change was effected in sub-&. (2) of S. 5, after the insertion of sub-s. (1A). It read :

"(2) In respect of an animal to which sub-s. (1A) does not apply, no certificate shall be granted under sub-s. (1), if in the opinion of the competent authority :

(a) the animal, whether male or female, is useful or likely to become useful for the purpose of draught or any kind of agricultural operations;

(b) the animal, if male, is useful or likely to become useful for the purpose of breeding;

(c) the animal, if female, is useful or likely to become useful for the purpose of giving or bearing offspring."

Under sub-s. (3) of S. 5 it was provided :

"(3) Nothing in this section shall apply to the slaughter of any animal above the age of fifteen years for bona fide religious purposes, if such animal is not a cow.

Provided that a certificate in writing for such slaughter has been obtained from the competent authority."

4. In 1978 the Governor of Gujarat issued an Ordinance being Gujarat Ordinance No. 10 of 1978 to amend the Bombay Animal Preservation Act, 1954. During the period of operation of the ordinance the Bombay Animal Preservation Act 1954 was to have effect subject to the amendments specified in S. 3 of the ordinance and thus the Bombay Act was temporarily amended. By this Amending Ordinance of 1978 under S. 5 of the principal Act for sub-s. (1A) a new sub-s. (1A) was substituted, which read :

"(1A) No certificate under sub-s. (1) shall be granted in respect of :-

(a) a cow;

(b) the calf of a cow, whether male or female and if male, whether castrated or not;

(c) a bull below the age of eighteen years;

(d) a bullock below the age of eighteen years."

For sub-s. (3) of S. 5 of the principal Act, a new sub-s. was substituted, which read

"(3) Nothing in this section shall apply to the slaughter of any of the following animals for bona fide religious purposes, namely :-

(a) Any animal above the age of fifteen years other than a cow, bull or bullock.

(b) A bull above the age of eighteen years.

(c) A bullock above the age of eighteen years.

4A. After the above ordinance was promulgated the legislative assembly of the State met and in view of that session of the legislative assembly the provisions of the ordinance were required to be enacted by the legislature otherwise the ordinance was to lapse. As the legislature did not pass the requisite legislation in time the ordinance lapsed on March 5, 1979.

5. Thereafter Gujarat Act No. 23 viz., the Bombay Animal Preservation (Gujarat Amendment) Act, 1979, was enacted and by virtue of sub-s. (2) of S. 1 the provisions of the Act were deemed to hav