Case: State Of Maharashtra Vs. Mumbai Upnagar Gramodyog Sangh

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, and 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 Act3. Respondents No. 1 and 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 petition4. 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 Constitution5. 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.

Reasoning:
10. 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 carcasses - 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 purchaser from the owner of the carcasses 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 person 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 carcass 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 carcass 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 a designed, will not justifiably expose the first scheme to the attack that it imposes unreasonable restrictions11. Reasonableness of restriction 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 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 is required to pay a fee for removal of the carcass does not, in our 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 for the 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"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 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 or 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 19 (1) (f) and (g) and the interests of a citizen in the exercise of his right to acquire, or 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 pecumiary 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 avoided18. 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 Art. 19(5). 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) and (2A) of Art. 31 deal with the acquisition or requisitioning of property - moveable 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 i. e. for using the property for some purpose which would be beneficial to the public,The right guaranteed by Art. 31(2) is that property shall not be compulsorily acquired 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 x x 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 of 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 Art. 31(2). In any case the statute is squarely protected by Cl. (5) (b) (ii) of Art. 31 and on that account the owner is not entitled to compensation for loss of his property. The words of Art. 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 promotions 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 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 to promote public health or to prevent danger to life or property falls within the exemption under Cl. (5)(b)(ii) even if thereby the interest of the owner in property is extinguished and interest in that property is vested in the State for destruction of that property22. 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 carcass and claims protection of its fundamental right under art. 19 (1) (g) of the Constitution. Evidently it has no right in the carcass until it purposes 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 Art. 19(6) of the Constitution. The first respondent cannot claim the protection of Art. 31(2) 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 own23. 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 imposing reasonableness restrictions upon the right of the first respondents 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 it 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 Court24. The facts which give rise to the two other appeals are the same and for reasons already stated the claim made by the respondent must be rejected.