IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 30.06.2004 Coram The Honourable Mr. B. SUBHASHAN REDDY, Chief Justice and The Honourable Mr. Justice K. GNANAPRAKASAM W.P. No.2775 of 1999 and W.P.Nos., 2776 and 2894 of 1999 and 19307, 21077 to 21081, 21275, 21719, 22163 and 21516 of 2003 and W.P.M.P. No.3965, 4114 of 1999, 24116, 26190 to 26199, 26426, 26679, 26936 and 27442 of 2003 ----------------------------------------------------------------------- W.P. No.2775 of 1999 V. Vijaya Raghavalu ... Petitioner -Vs- 1. The State of Tamil Nadu, rep. by its Secretary to Government, MA & WS Department, Fort St. George, CHENNAI - 600 009. 2. The Commissioner, Corporation of Madras, CHENNAI - 600 003. ... Respondents Petition under Article 226 of Constitution of India praying for the issuance of Writ of Declaration for the reasons stated therein. W.P. No.2776 of 1999 V. Vijaya Raghavalu ... Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, MA & WS Department, Fort St. George, CHENNAI - 600 009. 2. The Commissioner, Corporation of Madras, CHENNAI - 600 003. ... Respondents Petition under Article 226 of Constitution of India praying for the issuance of Writ of Mandamus for the reasons stated therein. W.P. No.2894 of 1999 P.S.S. Dhanuskodi ... Petitioner Vs. 1. The Govt. of Tamil Nadu, rep. by its Secretary to Government, MA & WS Department, Fort St. George, CHENNAI - 600 009. 2. The Commissioner, Corporation of Madras, CHENNAI - 600 003. ... Respondents Petition under Article 226 of Constitution of India praying for the issuance of Writ of Mandamus for the reasons stated therein. W.P. No.19307 of 2003 V. Gopikrishnan ... Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, MA & WS Department, Fort St. George, CHENNAI - 600 009. 2. The Commissioner, Corporation of Madras, CHENNAI - 600 003. 3. The Asst. Health Officer, Zone III, Corporation of Chennai, CHENNAI. ... Respondents Petition under Article 226 of Constitution of India praying for the issuance of Writ of Mandamus for the reasons stated therein HeHeaHeH W.P. Nos.21077 to 21081 of 2003 South Madras Milk Producers Welfare Association, rep. by the Deputy Secretary K. Elumalai, Chennai - 600 017. ... Petitioner in W.P. No.21077/03 Chennai Dist. Milk Vendors ... Petitioner in W.P. Association No.21078/03 N. Mannar ... Petitioner in W.P. No.21079/03 P. Kumar ... Petitioner in W.P. No.21080/03 M. Madan Babu ... Petitioner in W.P. No.21081/03 Vs. 1. The Govt. of Tamil Nadu, rep. by its Secretary to Government, MA & WS Department, Fort St. George, CHENNAI - 600 009. 2. The Commissioner, Corporation of Madras, CHENNAI - 600 003. 3. The Health Officer, Corporation of Chennai, ... Respondents 1 to 3 Ripon Building, Chennai-3. in all petitions. 4. The Asst. Health Officer, Zone III, Corporation of Chennai, ... 4th Respondent in CHENNAI. WP 21077/03 The Asst. Health Officer, Zone , Corporation of Chennai, ... 4th Respondent in CHENNAI. WP 21078/03 The Asst. Health Officer, Zone (Triplicane), Corporation of Chennai,... 4th Respondent in CHENNAI. WP 21079 & 21081 of 2003. The Asst. Health Officer, Zone T.Nagar, Corporation of Chennai, ...4th Respondent in CHENNAI. WP 21080/03 Petitions under Article 226 of Constitution of India for the issuance of Writs of Mandamus for the reasons stated therein. W.P. No.21275 of 2003 P. Savithri Padmanabhan, Proprietrix, P.M. Enterprises ... Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, MA & WS Department, Fort St. George, CHENNAI - 600 009. 2. The Commissioner, Corporation of Madras, CHENNAI - 600 003. 3. The Asst. Health Officer, Zone X, Corporation of Chennai, CHENNAI. ... Respondents Petition under Article 226 of Constitution of India praying for the issuance of Writ of Declaration for the reasons stated therein. W.P. No.21719 of 2003 V. Somasundaram ... Petitioner Vs. 1. The Govt. of Tamil Nadu, rep. by its Secretary to Government, MA & WS Department, Fort St. George, CHENNAI - 600 009. 2. The Commissioner, Corporation of Madras, CHENNAI - 600 003. ... Respondents Petition under Article 226 of Constitution of India praying for the issuance of Writ of Certiorari for the reasons stated therein. W.P. No.22163 of 2003 K.S. Hemanth Kumar ... Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, MA & WS Department, Fort St. George, CHENNAI - 600 009. 2. The Commissioner, Corporation of Madras, CHENNAI - 600 003. 3. The Asst. Health Officer, Division 143, Zone 10, Mylapore, CHENNAI. ... Respondents Petition under Article 226 of Constitution of India praying for the issuance of Writ of Declaration for the reasons stated therein W.P. No.21516 of 2003 Chennai Mavatta Mattuvandi Thozhilalargal Sangam, Rep. by its Secretary ... Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, MA & WS Department, Fort St. George, CHENNAI - 600 009. 2. The Commissioner, Corporation of Madras, CHENNAI - 600 003. ... Respondents Petition under Article 226 of Constitution of India praying for the issuance of Writ of Declaration for the reasons stated therein. For Petitioner in W.P. No.19307 : Mr. K.M. Vijayan, S.C. for of 2003 M/s.La Law. For Petitioner in W.P. No.2775 & : Mr. S. Sampath Kumar 2776 of 1999 For Petitioners in W.P. Nos.2894 of : Prof. S. Krishnaswamy 1999 and 21077 to 21081 of 2003 For Petitioner in W.P. No.21719 of : Mr. M. Vaidyanathan 2003 For Petitioner in W.P. No.21275 of : Mr. T. Doraiswamy 2003 For Petitioner in W.P. No.21516 of : Mr. S. Ayyathurai 2003 For Petitioner in W.P. No.22163 of : Mr. D. Saikumar 2003 For Petitioners in Impleading Petitions: Mr. T.V. Ramanujam, SC in W.P. No.21275 of 2003 for M/s.T.V. Krishnamachari For Respondents : Mr. R. Muthumumaraswamy, Addl. Advocate General, assisted by Mr. V. Raghupathy, Govt. Pleader, Mrs. P. Bhagyalakshmi, Standing Counsel for Corporation of Chennai, Mr. P.D. Audikesavalu and Mr. E. Manoharan :O R D E R THE HON'BLE THE CHIEF JUSTICE The constitutionality of Tamil Nadu Animals & Birds in Urban Areas (Control & Regulation) Act, 1997 (Act 46 of 1997), hereinafter referred to as the Act, and the consequential notifications issued thereunder are in challenge in this batch of writ petitions. 2. Before coming into force of the Act, the keeping of animals and birds was being regulated by issuance of licences under Sections 282 and 283 of the Chennai City Municipal Corporation Act, hereinafter referred to as the CCMC Act. In fact, no such strict regulation was being enforced and it can be taken that the Chennai Corporation has never bestowed any attention or deemed it serious about the requirement of licences for keeping the animals or birds, as the case may be. While the Municipal Corporations Act is a general enactment, the Act in question is a special one relating to animals and birds in urban areas and it prevails over the Acts under which the local authorities function. 3. Even though arguments have been advanced that the licences have to be issued only under the CCMC Act, there is no force in this contention, as, so long as the provisions of the Act operate, no conflicting provisions in the CCMC Act can prevail. 4. We shall now proceed to consider the contentions touching upon the constitutionality of the Act and the notifications issued thereunder. 5. So far as the legislative competence is concerned, no argument has been raised and there is no scope for raising the arguments. Arguments have been advanced touching upon the abdication of essential legislative functions and fundamental rights of equality and arbitrariness (Art.14), right to carry on trade or profession (Art.19 (1) (g) and right to life (Art.21). 6. Mr. K.M.Vijayan, learned Senior Counsel, led the arguments for the petitioners followed by Mr. S. Sampath Kumar, the learned senior counsel and Mr.Ayyathurai and Prof.S.Krishnaswamy, learned counsel and other learned counsel. The learned counsel for the petitioners submitted that the Act is hit by excessive delegation of legislative functions and violation of fundamental rights guaranteed under Articles 14 , 19(1)(g) and 21 as also of Article 48 of Indian Constitution. They also raised an argument that Section 8 of the Act is inconsistent with Section 4 of the Act and on that count, Section 8 of the Act is liable to be struck down. Alternative argument is that in the face of Section 4 of the Act, Section 8 is not necessary and in fact, it is superfluous. 7. The contentions raised on behalf of the learned counsel for the petitioners have been countered by Mr.R.Muthukumaraswamy, Additional Advocate General, appearing for the State. He submitted that the prohibition is imposed by issuance of notifications in the larger public interest, that there is nexus for the object to be achieved, that as the prohibited animals were the cause for the environmental degradation, the notification was issued prohibiting the keeping of the animals in specified Divisions of the Chennai Corporation, that even if a small section of owners of animals and birds are affected, as there is a larger public interest to keep the places covered by the Divisions in which prohibition has been imposed, pollution-free, the notification is valid, that fundamental rights of the petitioners to carry on their profession or trade, cannot outweigh the greater fundamental right of the citizens, who need pollution-free environment, which is also a fundamental right under Article 21 of the Indian Constitution. 8. Either side have relied upon some judicial precedents in support of their respective contentions. 9. The contentions and rival contentions raised by either parties give rise to the following contentious issues: (i) Whether the impugned Act suffers from delegation of essential legislative functions? (ii) whether the impugned Act is violative of Articles 14, 19(1) (g) and Article 21 of the Indian Constitution? and (iii) whether Section 8 of the Act is contradictory and comes into clash with Section 4 of the Act thereof requiring judicial intervention to set the said provision at naught? 10. The Act came into force on 11.8.1997 in so far as the city of Chennai is concerned. In other urban areas, it comes into effect as and when the notifications are issued, which can even be different for different urban areas. Section 2 of the Act contains definition clauses. 'Animal' means any animal specified in I Schedule and 'Bird' means any bird specified in II Schedule. 'Licence' means a licence granted under the Act and by the Officer appointed therefor. 'Prohibited Area' means areas declared and notified under Section 8. 'Urban Area' means the limits of the city of Chennai and any area within the limits of any other Municipal Corporation or any Municipality or Town Panchayat or Industrial Township constituted under any law for the time being in force, which is declared by the Government by notification to that effect. Section 3 bars keeping of any animal or bird in any urban area after three months of the notification issued under Section 3 except by obtaining licence therefor. Licence has to be applied to the Licensing Officer in the prescribed format and paying fees. The Licensing Officer under Section 4 is empowered either to grant, renew or refuse the licence. Guidelines are provided in the sub-Sections and sub-Clauses and they will be discussed later in the judgment. Section 5 deals with penal actions for violation of licences and such penal action can be suspension or cancellation of the licence. Section 6 provides appeal remedy for orders whether refusing to grant licence or renewing the same as also suspending or cancelling the same. Section 7 makes the order of the Appellate Authority final. Section 8 contains a non-obstante clause empowering the Government to declare at any time by notification the whole or part of an urban area to be a prohibited area if it deems fit so to do in public interest. On and after the date of such declaration, no fresh licence shall be granted to keep the prohibited animals/birds and any licence issued stands cancelled. A time of six months is prescribed from the date of issuance of such notification for enforcement thereof. Section 9 empowers the Authorities specified thereunder to inspect the place where the notified animal or bird is kept or intended to be kept so as to get satisfied about the compliance of the conditions of licence and to effectuate the same. Section 10 empowers the State authorities to seize any notified animal or bird found straying or tethered in any public place in an urban area or in a prohibited area or any notified animal or bird found to be kept without a valid licence or in violation of the terms and conditions of a licence in an urban area or any notified animal or bird found to be kept in a prohibited area. After seizure, the Authority can confine such animal or bird in any pound maintained by the local authority. The conditions are enumerated for redeeming the seized animal or bird. Section 11 speaks of cognizance of offences and Section 12 penalties and Section 13 offences by Companies. Section 14 gives overriding powers to the Act over other laws. Section 15 confers powers on Magistrates to try the offences summarily. Section 16 provides protection to the Authorities for actions taken in good faith. Section 17 contains an exemption clause in so far as the educational or research purposes are concerned. Section 18 is usual dealing with the power to remove defects arising while giving effect to the provisions of the Act. Section 19 confers rule-making power. Schedule I lists animals 9 in number viz., cattle, buffaloes, goats, sheeps, pigs, rabbits and hares, horses, donkeys, mules and poneys, dogs and cats other than pets and any domesticated wild animal. Schedule II lists birds viz., poultry, turkeys, pigeons, quails and any domesticated wild bird. 11. In exercise of the powers under Section 3 of the Act, G.O.Ms.No.1 57, dated 25.08.1998 was issued notifying the animals to be cattle, buffaloes and pigs and under Section 8 of the Act prohibiting the keeping of the above animals in 144 Divisions of Chennai Corporation, out of 155 Divisions, thus sparing only 11 Divisions i.e., 1, 2, 62, 63, 64, 65, 128, 129, 153, 154 and 155. In terms of Section 8, after the period of 6 months, the prohibition came into effect on 26.2.1999 but the same was not seriously implemented. Moreover, there had been an order of the Court because of the filing of the writ petitions. But, later on, a whip has been given to prosecute the keepers of the above animals in terms of Section 12 and because of the interim orders of this Court, the same were also kept in abeyance. 12. We now proceed to deal with the contentious issues. (i) Whether the impugned Act suffers from delegation of essential legislative functions? ------------------------------------------------------------------------------------ In our constitutional scheme, the Legislature is vested with enactment of laws, which have to be implemented by the Executive and the correctness or otherwise of the same has to be tested by the Judiciary. If the Executive is vested with unguided, uncontrolled and uncanalised power by any enactment, the same would be unconstitutional. For making out as to whether there is excessive delegation of legislative functions, one has to look into the enactment as a whole. If sufficient guidelines are stated in the statute, within whose parameters the Executive has to function, then the statute cannot be called unconstitutional by reason of abdication of essential legislative functions. In most of the cases, the Legislature lays down the broad guidelines, within which the Executive has to function, as while enacting a law, the Legislature may not be able to comprehend several situations cropping up in the working of the Act. Necessarily then, conferment of power of subordinate legislation, either by framing Rule or issuing a Notification by the Government, is necessary. The subject on hand falls within that category where the Legislature could not comprehend the possible situations arising out of the keeping of the cattle, buffaloes and pigs. Sufficient guidelines have been given under the Act even starting with Objects and Reasons which state that the Act was enacted to ensure maintenance of public health and sanitation and that the same was endangered due to keeping of a large number of milch cattle and other animals in urban areas and as such, it was felt expedient, in the public interest, to provide for licence and regulating or prohibiting keeping and movement of animals and birds in urban areas in the State of Tamil Nadu and for matters connected therewith or incidental thereof. Further, specific guidelines have been provided in Section 4 of the Act while examining the plea of the applicant and the factors to be considered while granting, refusing or renewing the licence. In view of these guidelines, it cannot be said that there is abdication of essential legislative functions. This finding of ours is supported by the authoritative pronouncements of the Supreme Court firstly starting with the decision in HARISHANKAR BAGLA v. STATE OF MADHYA PRADESH (AIR 1954 SC 465) in which Clause 3 of the Cotton Textiles (Control of Movement) Order, 1948 which require the purchaser of cotton textile to take permit from the Textile Commissioner to enable him to transport, was held not to be hit by arbitrary delegation of power of textile commissioner as the policy underlying the order is to regulate the transport of cotton textiles in a manner that will ensure an even distribution of the commodity in the Country and make it available at fair price to all and that the grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate the policy. The above judgment has been rendered by the Constitution Bench. The above stated legal principles were followed by a later Constitutional Bench judgment of the Supreme Court in INDER SINGH v. STATE OF RAJASTHAN (AIR 1957 SC 510), which dealt with the validity of Rajasthan (Protection of Tenants) Ordinance. To the same effect is the judgment of the Supreme Court in SRI RAM KRISHNA DALMIA v. SHRI JUSTICE S.R. TENDOLKAR (AIR 1958 SC 538), which related to the power of the Government to constitute a Commission by issuance of a notification under Commissions of Inquiry Act, 19 52. Latest are the judgments of the Supreme Court in CONSUMER ACTION GROUP v. STATE OF TAMIL NADU (AIR 2000 SC 3060) and ORISSA TEXTILE & STEEL LTD v. STATE OF ORISSA & OTHERS (2002 (2) SCC 578). In CONSUMER ACTION GROUP (supra) three judge Bench of the Supreme Court held that Section 113 of the Tamil Nadu Town and Country Planning Act did not suffer from any excessive delegation and that the preamble objects and reasons and various provisions of the Act give a clear cut policy and guidelines to the Government for exercising its power and hence it is neither unbridled nor without any guidelines. It was also held that the facts recorded in the statement of Objects and Reasons of the Amending Act indicates matter of serious concern, which requires earnest consideration to salvage in future such recurring situation affecting public right with resultant hazard of traffic, public health, security etc. In ORISSA TEXTILE & STEEL LTD (supra), a Constitution Bench of the Supreme Court held that Section 25-O as substituted by Act 46 of 1982 of Industrial Disputes Act has been enacted to give effect to the directive principles of the Constitution and must therefore be regarded in the interest of general public. While dealing with the delegation of essential legislative function, it was held that amended Section 25-O lays down restrictions and there is no vagueness or ambiguity in the said provision, and it was held that there are sufficient guidelines and as such the amendment is not hit by the delegation of essential legislative functions, and is thus not ultra vires the Constitution. Hence, we hold this point (i) against the petitioners. 13. (ii) Whether the impugned Act is violative of Articles 14, 19 (1) (g) and Article 21 of the Indian Constitution? and (iii) whether Section 8 of the Act is contradictory and comes into clash with Section 4 of the Act thereof requiring judicial intervention to set the said provision at naught? ------------------------------------------------------------------------------------ Citizen's fundamental right to carry on with his profession/trade or business can always be regulated by imposing such reasonable restrictions as are necessary as contemplated by sub-Article (6) of Article 19 of Indian Constitution. But such restrictions in sub-Article (6) can be only reasonable restrictions and if the Court finds it unreasonable, then they are liable to be struck down as being infractive of the fundamental right guaranteed under Article 19 (1) (g) of the Constitution. While imposing reasonable restrictions, Regulations can be made and in some cases, 'Regulation' may mean 'prohibition'. Pernicious trades like liquor trade and lottery business, of course, do not come within the protection of Article 19 (1) (g). But even other kinds of activities permitted under Article 19 (1) (g) can be prohibited if they can be brought within the limits of reasonableness. In STATE OF ORISSA AND ANOTHER VS. RADHESHYAM MEHER AND OTHERS (1995 (1) SCC 652) it was held that government policy in public interest over rides individual interests. In the said case 24 hours medical stores were to be opened in the campus of the hospitals having 30 beds and the same was questioned by some shop owners in front of the hospitals, and their plea was accepted by the High Court by giving certain directions, but was reversed by the Supreme Court on the ground that the facts and circumstances manifested overwhelming public interest and that 24 hours open medical stores within the hospital premises has direct nexus with the public interest of the patients and as such there is no scope for any judicial review of such a public policy, which was taken in public interest. In PRATAP PHARMA (PVT) LTD & ANOTHER v. UNION OF INDIA (1997) 5 SCC 87), it was held that the regulation of manufacture of drug and patenting rights are necessary and they are in the public interest to remedy the evil by legislative measures, and that power to regulate includes power to impose total prohibition if it is found necessary in the public interest. The question is whether, in the context of these cases, imposition of total prohibition of keeping of animals or birds can be said to be a reasonable restriction. Keeping of animals and birds either for business or otherwise is as old as human existence. By no stretch of imagination, can it be said to be pernicious. There are lakhs of families, who are dependant upon keeping of milch cows and she-buffaloes for the purpose of vending milk for eking out their livelihood. Lakhs of persons keep them for their domestic use. Having regard to our social background and economical situation, bullock-carts cannot be totally avoided. Necessity of keeping of animals and birds cannot be underestimated. On the other hand, traffic hazards have to be taken into consideration and the adverse effects on environment i.e. air, water and soil because of movement and keeping of the animals have also to be taken not of. Traffic safety and environmental safety are the prima factors and they weigh more in the context of greater public interest than the individual interest of the keepers of the animals. But, for that reason, there need not be total prohibition. That can be judged on case to case basis and individually whenever applications were filed for the grant of licence or at the most on Division basis and in terms of localities. Keeping in view the above factors, in some cases on individual basis or Division-wise, the licence can be refused and the licences already granted and renewal sought for can be refused. But it cannot be enbloc for 144 Divisions. Such sweeping provisions imposing blanket prohibition are quite disproportionate to the