ivil Appeal No 1654 of 1966
395 Appeal from the judgment and order dated March 8 1963 of the Bombay High Court in Appeal No 7 of 1963
and Civil Appeals Nos 1019 and 1020 of 1967
Appeals from the judgment and order dated August 20 1964 of the Bombay High Court in Appeals Nos
53 and55 of 1963
CK Daphtary Attorney General NS Bindra R Gopalakrishnan and SP Nayar for the appellant in CA No 1654
of 1966
Niren De Solicitor General GL Sanghi and 1
B Dadachanji for the appellants in CAs
1019 and 1020 of 1967 and respondents Nos 3 and 4 in CA No 1654 of 1966
Sen and 1
N Shroff for respondents Nos 1 and 2 in CA No 1654 of 1966 KK Singhvi SC Agarwala RK Garg DP Singh and K Gupta for the respondents in CA No 1020 of 1967
The Judgment of the Court was delivered by Shah J
The High Court of Bombay has declared section 372g and a part of section 385 of the Bombay Municipal Corporation Act 3 of 1888 as amended by Act 14 of 1961 ultra vires because in their view these provisions infringe the guarantee of articles 19 1  f  g of the Constitution
The State of Maharashtra and the Municipal Corporation of Greater Bombay have appealed to this Court
The first respondent in Appeal No 1654 of 1966 is a society registered under the  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 14 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 396 to be punished
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 Workmens 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
Respondents Nos 1  2 to this appeal moved a petition in the High Court of Bombay for an order canceling 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
367c 372g 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
Kantawalla J dismissed the petition
He held that sections 366 367c 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 article 315bii not inconsistent with or repugnant to the fundamental rights guaranteed under article 312 of the Constitution and since the impugned provisions were protected the second respondent could not claim that his fundamental right guaranteed by article 191f 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 191g of the Constitution
In appeal under the letters patent the High Court modified the order passed by Kantawalla J and declared section 372g 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 preferred this appeal with certificate granted by the High Court
Section 3 z defines nuisance  it includes any act omission place or thing which causes or is likely to cause injury danger annoyance or offence to the sense of sight
smelling or hearing or which is or may be dangerous to life or injurious to health or property  Section 61 sets out the obligatory and discretionary duties of the Corporation
It is thereby incumbent upon the Corporation to make adequate provision inter alia for scavenging removal and disposal of excrementitious and other filthy matters 397 and of all ashes refuse and rubbish reclamation of unhealthy localities removal of noxious vegetation and generally the abatement of all nuisances
By sections 365 366 367 368 372 and 385 it was provided that section 365 For the purposes of securing the efficient scavenging and cleansing of all streets and premises
the Commissioner shall take measures for securing a      b the removal of the contents of all receptacles and depots and of the accumulations at all places provided or appointed by him under section 367 or 368 for the temporary deposit of any of the matters specified in the said sections
 section 366 A11 matters collected by municipal servants or contractors in pursuance of the last preceding section and of section 369 and carcasses of dead animals deposited in any public receptacle depot or place under section 367 shall be the property of the Corporation
 section 367 The Commissioner shall provide or appoint in proper and convenient situations public receptacles depots and places for the temporary deposit or final disposal of a dust ashes refuse and rubbish b trade refuse c carcasses of dead animals and excrementitious and polluted matter Provided that i the said matters shall not be finally disposed of in any place or manner in which the same have not heretofore been so disposed of without the sanction of the corporation or in any place or manner which the State Government think fit to disallow ii any power conferred by this section shall be exercised in such manner as to create the least practicable nuisance section 368 1 It shall be incumbent on the owners and occupiers of all premises to cause all dust ashes refuse rubbish and trade refuse to be collected from their respective premises and to be deposited at such times as the Commissioner by public notice from time to time prescribes in the public receptacle depot or 398 place provided or appointed under the last preceding section or the temporary deposit or final disposal thereof 
 section 372 No person a who is bound under section 368 or section 370 to cause the removal of dust ashes refuse rubbish and trade refuse or of excrementitious or polluted matter shall allow the same to accumulate on his premises for more than twenty four hours or neglect to cause the same to be removed to the depot receptacle or place provided or appointed for that purpose 
 g shall deposit the skin or otherwise dispose of the carcass of any dead animal at a place not provided or appointed for this purpose under section 367
 section 385 1 It shall be the duty of the Commissioner to provide for the removal of the carcasses of all animals dying within Greater Bombay 2 The occupier of any premises in or upon which the animals shall die or in or upon which the carcass of any animal shall be found and the person having the charge of any animal which dies in the street or in any open place shall within three hours after the death of such animal or if the death occurs at night within three hours after sunrise report the death of such animal at the municipal health department office of the division of the Greater Bombay in which the death occurred or in which the carcass is found and shall not unless authorised by the Commissioner in this behalf remove or permit to be removed the carcass of any animal dying in or upon any place within Greater Bombay 3 For every carcass so removed by municipal agency a fee for the removal of such amount as shall be fixed by the Commissioner shall be paid by the owner of the animal or if the owner is not known by the occupier of the premises in or upon which or by the person in whose charge the said animal died
 The provisions are manifestly enacted with the object of ensuring expeditious removal of carcasses of dead animals which if allowed to remain are likely to constitute a grave nuisance and are likely to endanger public health
The carcass of a dead animal is a noxious thing which in the hot and humid climate of Bombay petrifies within a short time after the death of the animal and defiles the place and atmosphere with foul smells and is likely 399 to spread disease if immediate and proper steps for removal and disposal are not taken
The Municipal Corporation is entrusted with authority to take steps to  protect the health of the residents within the municipal area
To ensure against a grave nuisance to the residents duty is imposed by the Act upon the owner of the animal or occupier of the premises in or upon which the animal dies or the person having charge of the animal to remove the carcass with the permission of the Commissioner in that behalf at his own expense or to have it removed through the agency of the Corporation
If it is removed by the Corporation the owner is required to pay the prescribed fee for such removal
After it is deposited by the owner or by the Corporation in a receptacle depot or place which is set apart for that purpose the carcass may be disposed of by the Corporation in a manner which is likely to cause the least public nuisance
For that purpose the carcass is at the disposal of the Corporation
The Act does not make any provision relating to the manner in which the Corporation is to dispose of the carcass but it is implicit in the scheme of the Act that the Corporation will provide a place removed from the inhabitated localities where the carcasses may be disposed of without involving any danger to public health
To facilitate this object it is enacted by the Legislature that the carcasses of dead animals deposited in any public receptacle depot or place shall be the property of the Corporation
Unquestionably it is in the interest the residents of the Municipal Corporation and for promotion of public health and for prevention of danger to the community that carcasses of the dead animals shall be removed expeditiously and shall be disposed of in a manner which is likely to cause the least nuisance
The carcass of a dead animal is private property and belongs to the owner of the animal and the carcass on sale by the owner when it
is of a bull cow or buffalo fetches a small price
Counsel for the second respondent urged that the provisions of the Act which place restrictions upon the right of the owner to dispose of the carcass and compel him to incur expenditure for removal or to pay a fee for that removal to the appointed place and extinguish his ownership in the carcass when it is deposited in the place appointed infringe the fundamental right to property guaranteed under article 191f and article 31 2 of the Constitution
Counsel for the first respondent urged that by the impugned provisions the first respondent is deprived of his right to carry
on business and on that account infringe the right guaranteed by article 191g of the Constitution
Counsel for the Corporation conceded that a carcass is property which is capable of being owned
Counsel however submitted that a carcass is not commercial property and the first respondent could not claim to carry on business in disposal of 400 carcasses
The judgment of the Supreme Court of the United States in Gerrit W Clason vs State of Indiana1 on which reliance was placed by counsel for the Corporation merely decided that a State statute requiring the owner of a dead animal not slaughtered for food to bury or burn such body on his premises or to deliver it W the representative of a disposal plant licensed to do business within the State and prohibiting transportation over the high ways of the State of the body of such animal except to a licensed disposal plant and with certain sanitary precautions did not unduly discriminate against and burden toter state commerce
The judgment does not support the plea that a citizen carrying on the business in the disposal of the carcasses is not entitled to the constitutional protection against unreasonable restrictions on the carrying on of any lawful business or occupation
The second respondent is not a dealer in carcasses
He has a right of ownership in the carcass
He claims that before the enactment of the impugned provisions he was accustomed to sell the carcass of an animal dying in hisstable for a price he is under the Act enjoined to deposit the carcass in an appointed place and for that purpose to incur expenditure for removal of the carcass or to pay a fee to the Corporation for arranging for its removal
On account of the impugned provisions he says that he cannot sell the carcass and when he deposits the carcass in the appointed place his ownership in the carcass ceases and he has to pay for removal of the carcass
Article
191f of the Constitution confers upon all citizens the right to acquire hold and dispose of property
Carcass of an animal belonging to a person is his property and he has the right of disposal of the carcass
But that fundamental right like all other rights in article 19 1 
is not absolute it is subject to reasonable restrictions
By el
5 it is enacted that Nothing in sub clauses d e and f of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said subclauses either in the interests of the general public or for the protection of the general public or for the protection of the interests of any Scheduled Tribes
 401 the Municipal agency with the least practicable delay is conceived in the interests of the general public and no serious argument to the contrary was advanced before us
A law designed to abate a grave nuisance and for protection of public health is prima facie one enacted for the protection of the interests of the general public
But that alone is not sufficient the restriction imposed by the law must be reasonable ie the restriction must not be arbitrary or excessive and must not place upon the right of the citizen a limitation which is not calculated to ensure protection of the interests of the general public
In the view of the High Court the law which compels the owner to deposit the carcass in the appointed place and thereby prevents him from selling it and involves him in expenditure for removing it or in the payment of a fee for removal imposes an unreasonable restriction
The High Court also observed that a law which declares that as soon as the carcass which is a valuable property is deposited it becomes the property of the Corporation makes an unreasonable provision since it makes no difference whether the carcass is disposed of by a purchaser from the owner of the carcass or by a contractor who purchased it from the Corporation
But in so holding in our judgment the High Court ignored the hazard to the public health arising from adulteration of the food of the people
There is evidence on the record which is not controverted that meat and fat from the carcasses are used by unscrupulous persons for adulterating the food of the community
Mere imposition of an injunction to remove the carcass within the prescribed period abates the nuisance likely to result from the carcass remaining on the premises of the owner it does not eliminate grave hazard to public health by the adulteration of the food of the people by the products from carcasses
By merely enacting that the carcass will be removed expeditiously the second object cannot be served
The Corporation has control over the contractor to whom the carcasses are entrusted for disposal
It has set apart a place for skinning and has supervision over the disposal of the products
Even by imposing stringent supervision upon persons carrying on the business of skinning carcasses protection of the community against adulteration of its food cannot be effectively secured because it would not be difficult for a purchaser not subject to the control of the Corporation to remove the carcasses beyond the Corporation limits and then to bring contaminated meat and the fat back into the Corporation area
The Legislature has designed a scheme by which reasonable restrictions are placed upon the right of a citizen to dispose of his property possibility of an alternative scheme which might have been but has not been designed will not justifiably expose the first scheme to the attack that it imposes unreasonable restrictions
402 Reasonableness of restrictions imposed by a law has to be adjudged in the light of the nature of the right danger or injury which may be inherent in  the unbridled exercise of the right and the necessity of protection against danger which may result to the public by the exercise of the right
In each case the test is whether the restriction is commensurate with the need of protection of the interest of the public against the exercise of the right
But the fact that the owner is unable to sell for a price the carcass and required to pay a fee for removal of the carcass does
not in judgment render a provision which is essentially conceived in the interests of the general public as indicated earlier unreasonable
The Corporation has to arrange for effectively disposing of the carcass and it would be necessary for effectuating that purpose to provide that the title of the owner in the carcass should be extinguished
Unless the title of the owner in the carcass is extinguished various complications may arise in the way of disposal of the carcass
We are unable to agree with the High Court that forhe purpose of ensuring proper disposal transfer of ownership to the Municipal Corporation was not necessary or that the provisions went far beyond the legitimate purpose of making them In determining the extent of the right which a citizen may claim to exercise the Court is concerned to deal with the reasonableness of the restriction imposed upon the exercise of the right
As observed by Patanjali Sastri CJ in State of Madras vs If
G Row1 the test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases
The nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition the prevailing conditions at  the time should all enter into the judicial verdict
 As stated by Mahajan I in Chintamanrao vs State of Madhya Pradesh2 at p 763 The word reasonable  implies intelligent care and deliberation
that is the choice of a course which reason dictates
Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 191 g and the social control permitted by clause 6 of article 19 it must be held to be wanting in that quality
 The High Court was of the view that looking to the object intended to be achieved it was not necessary to impose such wholesale restriction on the owner of carcasses as also on those who carry 1  607
2  403 on the trade as has been imposed
 We do not think however that the provisions incorporated by Act 14 of 1961 were arbitrary or excessive
Reasonableness of the restriction imposed upon the right to acquire hold and dispose of property must be evaluated in the light of the nature of the commodity and its capacity to be detrimental to the public weal
The power of the State to impose reasonable restrictions may extend to prohibiting acquisition holding or disposal of a commodity if the commodity is likely to involve grave injury to the health or welfare of the people
In adjudging the reasonableness of restrictions imposed upon the holding or disposal of a carcass which is noxious maintenance of public health is the paramount consideration
Restriction imposed upon the right of an owner of a carcass to dispose it of in the manner indicated in the Act being enacted solely in the interest of the general public cannot be deemed arbitrary or excessive merely because they involve the owner into a small financial burden
Under the Constitution a proper balance is intended to be maintained between the exercise of the right conferred by article 191 f and g and the interests of a citizen in the exercise of his right to acquire hold or dispose of his property or to carry on occupation trade or business
In striking that balance the danger which may be inherent in permitting unfettered exercise of right in a commodity must of necessity influence the determination of the restrictions which may be placed upon the right of the citizen to the commodity
The law which compels the removal of the carcass expeditiously from the place where it is lying is not contended to be arbitrary or excessive
The law which compels removal to the appointed place and disposal of the carcass under the supervision of the Corporation to which is entrusted the power and duty to take steps to maintain the public health cannot also be regarded as arbitrary or excessive merely because the enforcement of the law involves some pecuniary loss to the citizen
We are unable to agree that by compelling disposal of carcasses by leaving to the owner of the carcass to dispose it in any manner he thinks fit danger to the public health could be effectively avoided
was faintly argued that the levy of Rs 20 as fee for removal of each carcass was excessive
But there is no evidence before the Court about the expenses which the Corporation is required to incur in performing the service relating to the removal of carcasses of all animals some of which may yield in the disposal valuable by products and others not
Evidently in a large and crowded metropolitan city it would be necessary to maintain covered wagons for removal of carcasses to maintain an inspecting staff
to make adequate arrangements for deposit of carcasses at certain places
and for their disposal under the supervision of the Municipal staff
Whether the fee levied from the owner of the 404 carcass of an animal in excess of the expenditure which the Corporation will have to incur for the maintenance of the service is not commensurate is a matter on which no investigation appears to have been made and this Court cannot enter upon that question for the first time
It was however urged that a provision which not only extinguishes the title of the owner in the carcass thereby involving him in the loss of the value which he would have obtained by sale of the carcass but  simultaneously imposes upon him a liability to remove the carcass at his own expense is per se unreasonable
We do not think so
If the carcass is likely to be deleterious to public health and its removal from the place where it is lying being in the interests of the public health imposition of an obligation upon the owner to remove the carcass at his own expense or to pay for its removal cannot be regarded as unreasonable even if the charge which falls upon the owner is in addition to the loss which he suffers by reason of the extinction of his title in the carcass
If the owner s right to dispose of his property is by the enactment of the impugned section subjected to reasonable restrictions it must follow that the right of the skinner assuming that he has a right in the carcass is also subjected to reasonable restrictions imposed in the interests of the general public
The impugned provisions do not infringe the guarantee of freedom under article 19f of the Constitution
But even if it be established that the law which imposes a reasonable restriction upon the right of a citizen to acquire hold and dispose of property is not on that account free from the challenge that it infringes the guaranteed freedom under article 31
Article 31 after it was amended by the Constitution Fourth Amendment Act 1955 provides 1 No person shall be deprived of his property save by authority of law
2 No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which and the manner in which the compensation is to be determined and given and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate
2A Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by 405 the State it shall not be deemed to provide for the com pulsory acquisition Or requisitioning of property not withstanding that it deprives any person of his property
  5 Nothing in clause 2 shall affect a the provisions of any existing law other than a law to which the provisions of clause 6 apply or b the provisions of any law which the State may hereafter make i 
ii for the promotions of public health or the prevention of danger to life or property or 6 
Before the Constitution Fourth Amendment Act 1955 the prevailing opinion in this Court was that articles 311  2 dealt with the same subject matter and were not mutually exclusive in their scope and content and should be read together and understood as dealing with the same subject namely the acquisition or taking possession of property referred to in cl
2 of article 31 and that article 31 before amendment is a self contained Article providing for a subject different from that dealt with in article 19
But since the enactment of the Constitution Fourth Amendment Act 1955 clauses 2  2A of article 31 and cl
1 of article 31 deal with different subjects Clauses 2  2A deal with acquisition and requisitioning of property and cl
1 with deprivation of property by authority of law Kavalappara Kottarathil Kochuni and Ors
vs The State of Madras and Orsx It was also held in that case that the word law  used in article 31 1  indicates its limitation and refers back to article 19 and any law made under article 31 1  can be sustained only if the restrictions it imposes are reasonable and in the interest of the general public and that the correct approach should be first to ascertain the fundamental right and then to see whether the law infringes that right
If ex facie it does so it has to stand the test of article 195
In certain circumstances however deprivation of fundamental right to property may also amount to a reasonable restriction under that Article
It was also observed that the word law  in article 31  1  must mean a valid law and such a law must satisfy two tests  1  that the legislature is competent to enact it and 2 that it 1 916
406 does not infringe any fundamental right
A law that deprives a citizen of his property may therefore be invalid if it infringes article 191 f of the Constitution unless it is protected by cl 5 of article 19
It was however ruled by a unanimous decision of this Court in Smt
Sitabati Debi and Anr
vs State of West Bengal and Anr1 that the decision in Kavalappara Kottarathil Kochuni s case2 was not concerned with a law of requisition or acquisition and a law relating to acquisition and requisition of property falling within the terms of article 312 of the Constitution need not stand the test of reasonableness under article 19 5
In the present case the restrictions imposed by the impugned law upon the right of the owner however satisfy for reasons already stated the test of reasonableness under article 195
The question still remains whether the impugned law is void because it does not provide for payment of compensation for the loss occasioned to the owner of the carcass resulting from the extinction of his title thereto
Since the amendment by the Constitution Fourth Amendment Act 1955 cls
2  2A of article 31 deal with the acquisition or requisitioning of property movable or immovable for a public purpose
The protection of cl
2 is attracted only if there is acquisition or requisitioning of the property for a public purpose ie for using the property for some purpose which would be beneficial to the public
The right guaranteed by article 312 is that property shall not be compulsorily acquired or requisitioned for a public purpose save by authority of law which provides
for compensation for the property so acquired or requisitioned
The expression acquired or requisitioned   for a public purpose means acquired or requisitioned for being appropriated to or used for a public purpose
But the law which provides for extinction of the ownership and creation of an interest in the Corporation for the purpose of disposal of the carcass is not a law for acquisition of property for a public purpose its primary purpose is destruction of the carcass in the public interest and not utilisation of the property for a public purpose
The case would not therefore fall within the terms of article 31 2
In any case the statute is squarely protected by cl
5bii of article 31 and on that account the owner is not entitled to compensation for loss of his property
The words of article 31 5 b ii are express and specific
Nothing in cl
2 shall affect the provisions of any law which the State may hereafter make for the promotion of public health or the prevention of danger to life or property
If a law is enacted directly for the promotion of public health or for the prevention of danger to life or property then notwithstanding that it may incidentally 1 2 407 fall within the terms of cl
2 no compensation is payable
Where the State acquires property and seeks to utilise it for promotion of public health or prevention of danger to life or property the State is liable to pay compensation
But a law which directly and immediately seeks W promote public health or to prevent danger to life or property falls within the exemption under cl
5bii even if thereby the interest of the owner in perry is extinguished and interest in that property is vested in the State for destruction of that property
Reliance was placed by counsel for the respondents upon a recent judgment of this Court in The Deputy Commissioner and Collector Kamrup and Ors
vs Durganath Sarma1
In this case the Government of Assam took possession of lands belonging to a citizen
Thereafter the Assam Acquisition of Land for Flood Control and Prevention of Erosion Ordinance 2 of 1955 was promulgated by the Governor which authorised the State Government to acquire lands for works or other development measures in connection with flood control or prevention of erosion
The Ordinance was with the assent of the President replaced by the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act 6 of 1955
Under the Act the owner of the land was not entitled to the market value of the land at the date of acquisition
The owner of the land moved a petition in the High Court Assam for a declaration that the Act 6 of 1955 was invalid and for an order directing the State Government to forbear from giving effect to the notices of acquisition of his land issued thereunder
Act 6 of 1955 was enacted before the Constitution Fourth Amendment Act 1955 which Came into force on April 29 1955
The High Court held inter alia that Act 6 of 1955 was a law for acquisition of property and was not protected by cl
5bii of article 31
This Court confirmed the order passed by the High Court
It was observed by this Court p 402 It is to be noticed that cl
5bii saved laws for the promotion of public health or the prevention of danger to life or property
It did not save laws for the acquisition of property
We are satisfied that cl
5 b ii was not intended to except laws for the acquition of property from the purview of el
2  A law for promotion of public health or for prevention of danger to life or property sometimes has to provide for destruction and impairment of value of private property and the taking of temporary possession of the property by the State
It may be necessary to destroy contaminated food or to burn plague infested buildings for the promotion of public health to pull down a building to prevent a fire from spreading and consuming other 1  408 buildings in the locality to demolish a building in a ruinous condition endangering the safety of its occupants and other persons in its vicinity
The destruction and the temporary talking of property for such purposes though necessary for promoting public health or preventing danger to life or property mounted to taking of property within cl
But for cl
5bii a law authorising such a taking of property would have been invalid unless it provided for compensation
Clause 5bii saved such laws from the operation of cl
2  and those laws were not invalid because they authorised such a taking without payment of compensation
A law authorising the abatement of a public menace by destroying or taking temporary possession of private properties if the peril cannot be abated in some other way can be regarded as a law for promotion of public health or prevention of danger to life or property within the purview of cl
5bii
 Counsel for the second respondent however invited our attention to the following passage in the judgment of the Court Clause 5bii will protect laws providing for requisitioning or temporary occupation of property strictly necessary for promotion of public health or prevention of danger to life or property
The law may authorise the State to requisition the property temporarily for abating the public menace without payment of compensation if the menace cannot be abated in some other recognised way and contended that el
5bii only applies where there is temporary occupation of property where there is deprivation of property with a view to destroy it el
5 b ii has no application
But evidently the expression is used in dealing with the claim to compensation for acquisition of immovable property
Where possession of movable property is under the authority of law taken with a view to destroy it in the interest of the general public ie for prevention of grave danger to life or property the guarantee of article 312 is not attracted
The law enacted by the Legislature extinguishing the interest of the owner in the carcass and creating an interest in the Corporation being a law directly enacted for _prevention of grave danger to the health of the community fell within the terms of cl
5 b ii and no compensation was _payable in respect thereof article 312 notwithstanding
We may observe that this Court in Deputy Commissioner Kamrup s case1 _proceeded to observe that even though since the amendment by the Constitution 1  409 Fourth Amendment Act cls
1  2 of article 31 dealt with separate
subject matters since el
5 b ii of article 31 has not been amended its connotation could not be deemed to have been altered
If originally it was intended to be a restriction on the right to property as delineated by cls
1 and 2 of article 31 it continued to have the same operation
In Deputy Commissioner Kamrup s case1 however the Court was not directly called upon to declare the precise inter relation between cl
5 b ii and el
2 as amended for the impugned Assam Act was enacted before the amendment of the Constitution by the Constitution Fourth Amendment Act
It is sufficient for the purpose of this case to hold that a law declaring extinction of the right of the owner in movable property not with a view to use it for a public purpose but to destroy it for abating nuisance and preventing danger to public health and vesting it in the Corporation entrusted with power to take steps to maintain public health is not a law for acquisition of property for a public purpose
In any event the law is not because of the exemption contained in el
5bii of article 31 of the Constitution invalid
even if It does not provide for payment of compensation for deprivation of the right to property
The owner of the carcass is therefore unable to sustain his plea that article 191f or article 312 were infringed by the impugned provisions
The claim of the first respondent who
would but for the law have been able to purchase carcasses from the second respondent does not require any elaborate discussion
The first respondent is carrying on business as a skinner of carcasses and claims protection of its fundamental right under article 191g of the Constitution
Evidently it has no right in the carcass until it purchases the carcass
Restriction upon the right of the owner to sell the carcass does not directly infringe the fundamental right of the purchaser who but for the restriction may have been able to purchase it
Assuming however that the imposition by law of the restriction upon the owner of the carcass involves also a restriction upon the right of the first respondent we are of the view having regard to the character of the legislation and its avowed object that it imposes reasonable restrictions upon the right to carry on occupation or business within the meaning of article 19 6 of the Constitution
The first respondent cannot claim the protection of article 312 of the Constitution because until it purchases the carcasses from the owner it has no right in the property and it cannot set up a grievance for loss of property which it does not own
1 AIR 968 SC 394
CI69 9 410 It was urged that the Corporation instead of disposing of the carcasses under its own supervision had given contracts to the rivals in business of the first respondent and the law which authorised the Corporation by exercise of legislative authority to destroy the business of the first respondent must be regarded as imposiag unreasonable restrictions upon the right of the first respondent to carry on business
The Act however contains no provisions about the manner in which the Corporation shall dispose of the carcasses which may come into its possession it leaves it to the Corporation to take adequate and effective steps for the purpose of disposal
Whether by virtue of the contracts given by the Corporation to other persons who are claimed to be rivals in business of the first respondent unreasonable restrictions may be deemed to be placed upon their fundamental right is a matter on which no argument was advanced at any stage before the trial Court or the High Court though it was strenuously urged before us
Prima facie the argument has no substance in any case it cannot affect the validity of the statute or the provisions which have been declared to be invalid by the High Court
The facts which give rise to the two other appeals are the same and for reasons already stated the claim made by the respondents must be The appeals are allowed and the orders passed by the High Court set aside
The petitions shall stand dismissed
No order as to costs throughout
VPS Appeals allowed


Summary:
To ensure against the grave nuisance which may be caused to the residents of a locality if carcasses of dead animals are allowed to remain on the premises within the city a duty is imposed by sections 367 372 and 385 of the Bombay Municipal Corporation Act 1888 as amended by Act 14 of 1961 upon the owner of the animal or the person having charge of the animal or the occupier of premises in which the animal dies to remove the carcass at his own expense with the permission of the Commissioner of the City of Bombay
or to have
it removed through the agency of the Corporation for which he was required to pay a fee of Rs 20
It was further enacted that after it was removed it shall be deposited in a receptacle depot or other place set apart for the purpose either by the owner or the Corporation
Thereupon the owner lost his property in the carcass and  it became the property of the Corporation
Under the Act it was the duty of the Corporation to arrange for its disposal causing the least practicable nuisance
The second respondent was the owner of a stable of filch cattle in Bombay
He was selling the carcasses of animals dying in his stable for a price
The first respondent was a purchaser of carcasses and carried on the business of skinning the dead animals and utilising the products for industrial uses
The Corporation prohibited the first respondent from removing carcasses and resolved to grant the contract for the disposal of carcasses deposited under the provisions of the Act to Harijan Workmen s Cooperative Labour Society
The respondents challenged the provisions and the High Court declared them ultra vires
In appeal to this Court on the questions 1 Whether the obligation not to sell the carcass but to dispose it of as per the provisions of the Act infringe the fundamental rights of the respondents under article 191f 2 Whether there was infringement of the fundamental right because of the obligation on the second respondent to incur expenditure for its removal 3 Whether fee of Rs 20 was excessive 4 Whether the second respondent s loss of ownership and property in the carcass on depositing it as per the provisions of the Act violated the
respondents  fundamental right under article 31 and 5 Whether the granting of the contract to the Harijan Society destroyed the business of the first respondent and infringed its fundamental right to carry on business
HELD 1 The second respondent had a right of ownership in the carcasses of his animals
But he was only entitled to constitutional protection against unreasonable restriction on his right to sell the carcasses
393 Reasonableness of restrictions imposed by a law has to be
adjudged in the light of the nature of the right danger or injury which may be inherent in the unbridled exercise of the right and the necessity of protection against danger which may result to the public by the exercise of the right
In each case the test is whether the restriction is commensurate with the need for protection of public interest against the exercise of the right
400 C 402 A mere imposition of an injunction to remove a carcass only abates the nuisance arising from a dead animal remaining on the premises it does not eliminate the graver hazard caused by the adulteration of food of the people from its products
Meat and fat from carcasses are used by unscrupulous persons for adulterating the food of the community
Even by imposing stringent supervision upon persons carrying on the business of skinning carcasses protection of the community against food adulteration cannot be effectively secured because a purchaser who was not subject to the Corporation control could remove it beyond the Corporation limits and bring back contaminated meat and fat
Therefore the Legislature has devised a scheme by which reasonable restrictions are placed upon a citizen s right to dispose of the carcass
Under the Act the Corporation has to set apart a place for depositing the carcass and it is implicit in the scheme of the Act that the Corporation shall provide a suitable place for skinning it
The Corporation has control over the contractors entrusted with the disposal of carcasses and has supervision over the disposal of the products
A law which compels the removal of a carcass to an appointed place and its disposal under the supervision of the Corporation which has the duty to take steps for maintaining public health cannot be regarded as arbitrary or excessive
The Corporation has to arrange for effectively disposing of the carcass and it would be necessary for effectuating that purpose to provide that the tatle of the owner in the carcass should be extinguished
Such a provision is not beyond  the legitimate purpose for which it was intended and the fact that the owner is unable to sell for a price the carcass does not render a provision which is essentially conceived in the interest of the general publicunreasonable401 E H402 B D 403 E 404 D Restriction upon the right of the owner to sell the carcass does not directly infringe the fundamental right of the purchaser
who but for the restriction may have been able to purchase it
Assuming however that the imposition by law of the restriction upon the owner of the carcass involves also a restriction upon the right of the first respondent having regard to the character of t_he legislation and its avowed objectthe restriction upon the first respondents right to carry on his occupation or business is a reasonable one within the meaning of Art 195 and 6
409 E G 
Chintaman Rao vs State of MP 5950 SCR 759 and State Row   followed
2 If the carcass is likely to be deleterious to public health and its removal from the place where it is lying being in the interests of the public health imposition of an obligation upon the owner to remove the carcass at his own expense or to Pay for its removal cannot be regarded as unreasonable even if the charge which falls upon the owner is in addition to the loss which he suffers by reason of the extinction of his tetle in the carcass
404 B D 3 Whether the fee of Rs 20 levied on the owner of a carcass for its removal was in excess of the expenditure which the Corporation may go
Cll69 s 394 have to incur
was not investigated into by the High Court
and therefore the question could not be raised for the first time in this Court
404 A B 4 a In the present case the restrictions imposed by the impugned law upon the right of the owner satisfy the test of reasonableness under article 195 and 6
Therefore though there is a deprivation of property it is by a valid law and hence there is no violation of article 311
406 C D Smt
Sitabati Debi vs Stale of West Bengal  followed
Kavalappara Kottarathil Kochuni vs State of Madras referred to
b A law which provides for extinction of the ownership and creation of an interest in the Corporation for the purpose of disposal of the carcass is not a law for acquisition of property for a public purpose its primary purpose is destruction of a carcass in the public interest and not its utilisation for a public purpose
The case does not therefore fall within the terms of article 312
406 F G c In any case the statute is squarely protected by article 31 5 b ii and on that account the owner is not entitled to compensation for loss of his property
Where the State acquires property and seeks to utilize it for promotion of public health or prevention of danger to life or property the State is liable to pay compensation
But a law which directive and immediately seeks to promote public health or to prevent danger to life or property falls within the exemption of cl
5bii even if thereby the owner s interest in the property is extinguished and is vested in the State for purposes of destruction
406 G H 407 A B d Article 315bii is not confined to temporary occupation of property
In the case of acquisition of immovable property to have the protection of the clause the occupation of the property must be temporary
But in the case of movable property even if its possession is taken with a view to destroying it if such destruction is in the interests of general public that is
for the prevention of danger to life or property it need not be temporary
Even such taking of movable property will be protected by cl
5 b ii and the guarantee of article 312 would not be attracted
408 E G Deputy Commissioner and Collector Kamrup vs Durganath Sarma   explained
The first respondent cannot claim the protection of article 312 because until it purchases the carcasses from the owner it has no right in the property and it cannot set up a grievance for loss of property which it does not own
409 H 5 Whether by virtue of the contracts given by the Corporation to other persons who are claimed to be rivals in business of the first respondent unreasonable restrictions may be deemed to be placed upon the first respondent s fundamental right is a matter on which no argument Was advanced before the High Court
In any event it cannot affect the validity of the statute or its provisions
410 B D