Gurupada Chanda And v. STATE OF WEST BENGAL — 1979 DIGILAW 134 (CAL)

JUDGMENT 1. THE petitioners in" this Rule "are employees of the Haringhata Farm under the department of Animal Husbandry and veterinary Services, Animal Husbandry and Milk Branch, Government of West bengal. The petitioners were allotted quarters at the Haringhata Farm by the Government at a rent calculated in accordance with rules of the Government. The petitioners reside in the said quarters with their families and they have been rearing up and maintaining therein livestock, namely, cow; goat and buffalo, for domestic purposes for providing milk to their respective families only All on a. sudden a memorandum was issued which is to the following effect :-- GOVERNMENT OF WEST BENGAL DEPARTMENT OF ANIMAL HUSBANDRY AND VETERINARY SERVICES A. H. BRANCH. No. 7583 (2) A. 6m-23/74 Dated Calcutta, the 30th Sept 1974. From : The Secretary to the Govt. of West Bengal To (1) The Director of Animal Husbandry, West Bengal. (2)The Milk Commissioner, West Bengal. MEMORANDUM The undersigned is directed by order of the Governor to state that with effect from the 1st november, 1974, no resident living within the campus of the Haringhata Kalyani Farms will be permitted td rear any kind of Livestock within the campus. All private livestock now being maintained inside the campus must be disposed of or removed there from by the 31st October, 1974 positively. 2. Private poultry keeping, how ever, is exempted from the purview of this order for the present. All residents of the Haimghata Kalyani farms may be informed of this order. Sd/- T.B. Singh: Secretary to the Government of West Bengal. No. 7583 (2)/1 (3)-A. Dated Calcutta the 30th Sept. 1974. Copy forwarded to the : - 1. Addl. Director of Animal Husbandry, West Bengal. 2. Dy. Milk Commissioner P.O. Mohanpur, Dist. Nadia: 3 Security Officer, Haringhata for information and necessary action. Sd /- K. Sen Gupta. Deputy secretary to the Government of West Bengal. No. G-22 GEN H/adah/460 (56) Dated the 9.10.1974. Copy forwarded for information and guidance to :- Supdt. of Livestock. (P. D ), Piggery Section. All employees should be kept informed of the above order. Sd/- Illegible 9.10.1974. Addl. Director of Animal Husbandry. West Bengal. 2. THE petitioners contend that. Deputy secretary to the Government of West Bengal. No. G-22 GEN H/adah/460 (56) Dated the 9.10.1974. Copy forwarded for information and guidance to :- Supdt. of Livestock. (P. D ), Piggery Section. All employees should be kept informed of the above order. Sd/- Illegible 9.10.1974. Addl. Director of Animal Husbandry. West Bengal. 2. THE petitioners contend that. the aforesaid memorandum was issued malafide arbitrarily and with colourable exercise of power taking away their fundamental rights enshrined in Article 19 (l)- (f) of the Constitution as it amounts to interference with their right to acquire and hold property. Further the order is ultra vires of Article 14 of the Constitution inasmuch as there is no legislative authority empowering the respondents to issue the said memorandum The memorandum in effect seeks to deprive the petitioners of their property without lawful authority and as such it is also violative of article 31 (1) of the Constitution. The petitioners should have been granted an opportunity to state their. case, before their fundamental right was sought to be interfered with. It is further stated that the word "livestock" is a vague word and it is not clear what the respondents specifically meant by it. The memorandum also does not disclose "any reason or grounds and there was no public policy or purpose behind the said memorandum. On these allegations and contentions the petitioners moved the application under article 226 of the Constitution on October 24, 1974 whereon the present rule was issued calling upon the respondents to show cause why the declaration should not be made that the said memorandum is ultra vires article 14, 19 (1) (f) and 31 (1) of the Constitution and why a Writ in the nature of mandamus should not issue forbearing the respondents from taking; any steps or further steps in pursuance of the aforesaid memorandum. There was; an interim order, for maintenance of status quo which by subsequent orders; have been continuing till the disposal of the Rule. The respondents contested the Rule by filing affidavit in-opposition affirmed by Hemendu Guha, director of Animal Husbandry, respondent No, 3. affirmed on the 2nd of july,1975 It was stated in the affidavit that while some of the petitioners were allotted residential quarters some other were forcibly occupying the quarters without permission of the authorities where they were remaining as unauthorised occupants. affirmed on the 2nd of july,1975 It was stated in the affidavit that while some of the petitioners were allotted residential quarters some other were forcibly occupying the quarters without permission of the authorities where they were remaining as unauthorised occupants. It is further stated in paragraph 7 of the said affidavit as follows : - "with reference to the above paragraphs I state further that the haringhata-Kalyani Complex is a public institution for breeding of various livestock like cattle, goat, sheep, poultry etc. Apart from the aforesaid objects and purpose there is also an Agronomy Section for growing fodder crops on about 200 acres of land. The breeding and' maintenance of the livestocks in this complex are being done in and very scientific manner and as such unauthorised intention of animals maintained by private persons posed danger of spreading infectious diseases amongst the Government owned livestock, and which may ultimately ruin the Government animals. The complex supplies milk an3 other farm products to the people of greater Calcutta and its neighbourhood and any infectious disease refused by these private animals to the Government owned cattle may ultimately stop (the said- supply. of the milk and other product which will cause immense hardship to the people of greater calcutta specially to the children and the patients. I state that the quarters have no boundary wall nor there is any shed for keeping cattle. In the recent past there has been a heavy" mortality of the government owned cattle, poultry and pigs due to break of, serious type of contagious disease. The loss of crops (including fodder) by way of unauthorised grazing has also become a routine matter inflic ting heavy loss in the Government revenues. The petitioners by main training cows, goats, buffaloes etc are carrying on business by way of selling milk to the outsiders and their cattle mainly live en the government owned crops and fodder and since the residential housing is scattered throughout the farm it is not possible to guard each and every house to stop pilferage of cultivated crops, the value of which is a few lakhs of rupees a year" It was further stated that the orders were executive instruction for administration of the Government owned properties and as such are not justifiable. To this affidavit-in-opposition there is no affidavit-in-reply. 3. MR. Mahitosh Majumdar appearing with Mr. To this affidavit-in-opposition there is no affidavit-in-reply. 3. MR. Mahitosh Majumdar appearing with Mr. Rupendra Nath Mitra, submitted, that the word "livestock" used it the impugned memorandum is too vague to be acted upon. He relied on the decision in the State of m. P. v. Baldeo Prosad, AIR 1961 S.C. 293 , in which the Court was considering C.P. and Berar Goondas Act, 1946 as amended. This Act made provisions to control of goondas and restricting their movements by executive orders. A goonda was defined in the Act as a hooligan, rough vagabond or a person who is dangerous to public peace and tranquility. It was observed in the judgment that the definition afforded no assistance to the authority in deciding as to when a citizen should be put in the category of a goonda. Further recourse" to dictionary would hardly be of any assistance in the matter of the concept of goonda as defined therein to be the basis of actions of the executive authority. The Court held that the entire act which was for restriction of movement of goondas was invalid. Strong reliance was placed on this decision on ' behalf of the petitioners in support of their contention that in the absence of a precise definition the memorandum is unworkable and as such should be struck down. 4. THE word "livestock" has been used as in common parlance and according to dictionaries means domestic animals generally animals of any kind kept or dealt for use or profit. Animal has been defined in the dictionaries as an organised being having life, sensation and voluntary motion which obviously include birds. In the above definition of livestock there appears to be no vagueness in the word as including of domestic animals generally kept or dealt for use or profit And the petitioners themselves have also understood livestock as such as will appear from paragraph 3 of their petition wherein they have said that they had been rearing up and maintaining livestock, namely, cow, goat, buffalo. The contention that there is vagueness in the weird livestosk is thus unacceptable. We shall now consider as to whether the executive order can be interfered with by the Court. The contention that there is vagueness in the weird livestosk is thus unacceptable. We shall now consider as to whether the executive order can be interfered with by the Court. It has been stated on behalf of the State that such orders are not justiciable, Normally that would be the position in matters of governmental actions when it does net touch or affect fundamental rights of even legal rights of any person. When, by an executive order the fundamental right or legal right of any citizen is interfered with, except by a process of jaw the Courts will interfered in such case to protect which rights of the aggrieved parties when there has been an interference in the enjoyment of such rights not warranted by law. It is therefore not correct to suggest as contended by the State that such orders are never justiciable. 5. WE shall new consider whether the petitioners had any fundamental or legal right which have been interfered with by the impugned order. As the petition discloses the petitioners are Government employees and they have been allotted Government quarters for their residence. These premises can be utilised for such purpose, as also far purposes' incidental thereto or as may be necessary for discharge of the duties. But it cannot certainly be stated that the petitioners thereby have acquired any fundamental right or legal right to use the premises in any manner they may think fit which is not connected with the residence of the premises for which it has been alloted or matters incidental thereto or connected with discharge of official duties. It may be, of interest to note that even in respect of one's own property the Government has thought it fit to impose conditions for keeping cattle in such premises in urban areas under the West Bengal cattle Licensing Act, 1959 (West Bengal act of,1959) which is a legislation for regulating the keeping of cattle in urban areas. Under the Act no person can keep cattle in any premises except by licence to be granted by the Government for the said purpose. The licence which imposes some conditions for sheds for cattle must be complied with before any cattle is allowed to be kept in urban areas. Under the Act no person can keep cattle in any premises except by licence to be granted by the Government for the said purpose. The licence which imposes some conditions for sheds for cattle must be complied with before any cattle is allowed to be kept in urban areas. It is thus obvious that the petitioners had no fundamental or for the matter of that, any legal right to rear or maintain the cattle for their personal purpose in Government quarters allotted to them, for residence. The memorandum accordingly cannot be said to interfere with the petitioners fundamental or legal rights in the premises which they never had in respect or their quarters and no occasion for hearing them before passing such order ever arises. 6. EVEN assuming that the petitioners had any legal right under Article 19 (1) of the Constitution such rights are subject to reasonable restrictions as provided in sub-clause (5) of Article 19 which says that nothing in sub-clause (f) of clause (1) of Article 19 would prevent the State from making any law imposing reasonable restrictions on the exercise of any rights conferred by the said sub-clauses interalia in the interest of general public. We have seen that in the affidavit-in-opposition the Director of Animal Husbandry has stated the reasons for imposing the restrictions in regard to the rearing and maintenance of cattle in the premises alloted to the petitioners for their residence the grounds given appear to be reasonable and the persons expert in the line in charge of such departments are the best judges to take decisions in such matters and it is not for the Court to impose its decision or opinion' in respect thereof. Further there is no affidavit-in-reply to these averments made in the affidavit-in-opposition and in the circumstances I do not find any reason for holding that the impugned memorandum is unreasonable or arbitrary. The petitioners further stated that their right to rear cattle is a right which is also protected by Article 31 of the Constitution and they cannot be deprived of there from except by the authority of law. The memorandum does not seek to deprive the petitioners of their properties like the cattle which they have in the premises. The petitioners further stated that their right to rear cattle is a right which is also protected by Article 31 of the Constitution and they cannot be deprived of there from except by the authority of law. The memorandum does not seek to deprive the petitioners of their properties like the cattle which they have in the premises. The memorandum only directs that the private livestock should be disposed of or removed within a certain - time It is not a case of acquisition of the moveable properties by the State and the question of payment of compensation therefore does not arise at all. 7. FURTHER it is not necessary that the impugned memorandum should have the sanction of appropriate legislation for preventing rearing cattle in Government premises. The Government is competent, as any owner of a property, to take such steps as it may deem fit for protection of its properties and assets and no legislative sanction therefore is necessary. 8. FOR all these reasons, the Rule fails and is accordingly discharged. All interim orders are vacated except, that the petitioners are given time till the end of May, 1979 to comply with the directions contained in the aforesaid memorandum. There will be no order as to costs. Mr. Rupendra Nath Mitra, Advocate prays for stay, of operation of this order. The prayer is refused. Rule discharged no costs.