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2008 DIGILAW 570 (JHR)

Md. Mustafa Quraishi v. State of Jharkhand

2008-06-10

R.R.PRASAD

body2008
Order This writ application has been filed under Article 226 of the Constitution of India wherein prayers have been made for issuance of an appropriate writ directing the respondents to issue licence to the petitioners for selling beef, to allow the petitioners to slaughter the animals either under Jharkhand Bovine Animals Prohibition of Slaughter Act or under the provisions of Bihar Preservation and Improvement of Animals Act; to allow the petitioners to deal in the sale and purchase of Animals in the Haat/Bazaar under the provision of Bihar Agricultural Produce Market Act and further for issuance of appropriate writ for quashing the notice dated 12.4.2006 issued by Special Officer, Gumla Municipality restraining the petitioners from doing business of beef. 2. Leaned counsel appearing for the petitioners submits that the petitioners and their ancestors either had been dealing in the trade of beef or have been selling and purchasing the animals from the Haat, for which they were being issued license by the Gumla Municipality under the provisions of Patna Municipal Act/Bihar and Orissa Municipal Act for slaughtering cow and selling beef or were being granted license by the Marketing Board, Gumla under the Bihar Agricultural Produce Market Act for dealing in sale and purchase of the cattle from the Haat, and their business either of selling of beef or selling and purchasing of the cattle from the Haat went off quite smoothly till. 1999, but thereafter Municipal Authority and Police Personnel started putting hindrance in the business of selling beef and also selling and purchasing of cattle which would be evident from notice dated 12.4.2006 (Annexure 4) whereby one of the petitioners was accused to stop selling beef immediately. Thereupon some of the petitioners made representation, vide Annexure 5, requesting therein to allow them to do their business which they were doing from time immemorial but the authority did not pay any heed. Not only that the authority of Gumla Municipality has not been renewing or issuing license under the relevant provision for allowing some of the petitioners for selling beef, as a result of which, petitioners' fundamental right as enshrined under Article 19(1 )(g) of the Constitution' of India is being infringed. 3. Not only that the authority of Gumla Municipality has not been renewing or issuing license under the relevant provision for allowing some of the petitioners for selling beef, as a result of which, petitioners' fundamental right as enshrined under Article 19(1 )(g) of the Constitution' of India is being infringed. 3. Learned counsel appearing for the petitioners in order to buttress his stand pointed it out that the Government of Bihar in the year 1956 enacted a legislation namely, Bihar Preservation and Improvement of Animals Act, 1956, whereby all kinds. of cow and its progeny were prevented from being slaughtered though by virtue of the said legislation right to profession trade as enshrined under Article 19(1 )(g) of the Constitution of India was infringed. Therefore, the said Act was challenged before the Hon'ble Supreme Court in a case of Md. Hanif Quraishi VS. State of Bihar ( AIR 1958 SC 731 ). Similar legislation passed by State of Uttar Pradesh and Madhya Pradesh were put under challenge in the said case and the Hon'ble Supreme Court on the ground of unreasonableness declared the Act ultra vireos so far it related to slaughtering of cattle which were not useful, though Hon' ble Supreme Court did find the total ban on the slaughter of cows of all ages and calves of cows (male and female) breeding bulls and working bullocks (cattle and buffalos) reasonable. 4. Learned counsel further pointed out that in course of time when the State of Gujarat came with an Act putting complete ban on all kinds of cattle, the said Act was challenged before the High Court of Gujarat and the Gujarat High Court held the .provision of the Act to be ultra verse to, the provision of the Constitution of India. The said decision was challenged before the Hon' ble Supreme Court by the State of Gujarat and the Hon' ble Supreme Court in the said case d State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others [ (2005)8 SCC 534 ] declared the provision of the said Act as intra vires to the Constitution of India but their Lordships while holding the provision of the said Act as intra vires took into consideration several aspects of the matter regarding utility of the cattle even of the old cattle and the prospective scheme of the Government and also the fact that economy of the State of Gujarat is still pre-dominantly agricultural in which cattle is being used in large scale but the said situations upon which the provision of the Gujarat Act was held intra vires are not prevailing in the State of Jharkhand and therefore, any legislation putting forth complete ban on the slaughter of the cattle would affect fundamental right to trade and business of the persons engaged in the State of Jharkhand and therefore, the petitioners are entitled to relief, as prayed for. 5. Learned counsel appearing for the respondents submits that some of the petitioners have challenged the vires of Jharkhand Bovine Animal and Slaughter Act in a writ bearing no. W.P.(C) No. 2373 of 2006 which is still pending and more or less same issue is being raised here though in this writ application vires of the provision of the aforesaid Act has not been challenged. 6. Learned counsel in this regard submits that under the provision as contained in section 3 of the Jharkhand Bovine Animal Prohibition of Slaughter Act, there has been complete ban on the slaughter of bovine animal and further under different legislation there is also prohibition on transport of bovine animal for the purpose of slaughter and that apart certain conditions have also been imposed in the transportation of animal under the Transport of Animals Rules, 1978 and therefore if the authorities including Municipal Authority or the District Administration and even the Police Authority have been acting as per the relevant provisions of the Act and Rules their actions can not be said to be arbitrary and as such, if any person has been found to be doing illegal act, action taken against him cannot be said to be illegal or arbitrary. 7. 7. Haying heard learned counsel appearing for the parties, it does appear that though the petitioners in this writ application have not challenged the vires of the Jharkhand Bovine Animal Prohibition of Slaughter Act but in course of argument, faint attempt has been made to indicate that the prohibition made in the Jharkhand Bovine Animal Prohibition of Slaughter Act on the slaughter of bovine animals would not be reasonable on the reasoning upon which Gujarat legislation relating to complete ban of bovine animal was found to be intra vires in a case of State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others (supra) and under this situation, the petitioners by virtue of the decision rendered in a case of Md. Hanif Ouraishi vs. State of Bihar (supra) wherein restrictions imposed on the slaughter of she-buffaloes, breeding bulls and working bullocks which are not useful was found to be unreasonable are entitled to slaughter those animals (she buffaloes, breeding bulls and working bullocks which are not useful) and to sell beef of those animals as right to do business is a fundamental right as enshrined under Article 19(1 )(g) of the Constitution of India. This leads me to examine the said decision (Md. Hanif Ouraishi vs. State of Bihar) in some details. It appears that State of Bihar put complete embargo over slaughtering of bovine animal under the Bihar Preservation and Improvement of Animals Act, 1956. At the same time, similar legislations putting ban on the slaughter of the bovine animals were enacted by the State of Uttar Pradesh and Madhya Pradesh. The constitutional validity of those three legislations was challenged in a case of Md. Hanif Ouraishi vs. State of Bihar (supra) on the following three grounds. (i) that the total ban offended the religion of the Muslims as the sacrifice of a cow on a particular day is enjoined or sanctioned by Islam; (ii) that such ban offended the fundamental right guaranteed to the Kasais (butchers) under Article 19(1 )(g) of the Constitution and was not reasonable and valid restrictions of their rights; (iii) that a total ban was not in the interest of general public; 8. The constitutional Bench after giving anxious consideration to the pros and cons of the issue and keeping in view the presumption in favour of the validity of the legislation reached to the following conclusion: (i) that a total ban on the slaughter of cattle of all ages and calves of cows and calves of she buffaloes, male of female, is quite reasonable and valid and is in consonance with the directive principles laid down under Article 48 of the Constitution of India; (ii) that a total ban on 'the slaughter of she-buffaloes, breeding bulls and working bullocks (cattle as well as buffalo) as long as they are capable of being used as milch or draught. cattle is also reasonable and valid; and (iii) that a total ban on slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals should not be supported as reasonable the interest of the general public" and was invalid. 9. However, in course of time, when State of Gujarat brought an amendment under Bombay Animal Preservation (Gujarat Amendment) Act, 1994 putting complete ban on the slaughter of bovine animal, the constitutional validity of the amended Act was challenged before the Gujarat High Court and the High Court allowed the writ petition and struck down the impugned legislation as ultra vires the constitution. However, the State of Gujarat challenged the decision of the Gujarat High Court before the Hon' ble Supreme Court in a case of State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others (supra) and the law laid down in the aforesaid Hanif Ouraishi's case holding total ban on slaughter of bovine animal to be unconstitutional was sought to be reconsidered as according to the petitioner the decision rendered in that case is not a good law on various grounds such as that the Constitutional Bench refused to assign any weight to the directive principle contained in Article 48 of the Constitution of India and also refused to hold that its implementation can be a valid ground for proving reasonability of the restrictions imposed on the fundamental right guaranteed by Article 19(1 )(g) of the Constitution of India, To be precise law laid .down in Ouraishi's case was sought to be reconsidered on the following grounds:- (i) only Article 48 was taken notice of but introduction of Articles 48-A and 51-A(g) to the Constitution by 42nd amendment will have bearing while deciding constitutionality of the provision; (II) narrow view was taken by the Court while giving meaning to "other milch and draught cattle"; (III) the Court did not assign requisite wait to the fact contained in the preamble and the statement of object and reason of the enactment impugned therein; (IV) restriction and regulation include prohibition of partial restraint does not amount to total prohibition; 10. While dealing with the said matter the Hon’ble Supreme Court found that subsequent to the decision in Md. Hanif Ouraishi's case the trend of judicial decisions in this area indicates that; regulation or restriction within the meaning of Article 19(5) and 19(6) of the constitution includes total prohibition, a question which was not answered and had been left open. The grounds on which the constitutional validity of the impugned enactment was struck down in Md. Hanifs Ouraishi's case is founded on the findings of fact that cow progeny ceased to be useful after a particular age, that preservation of such "useless cattle" by establishment of goading was not a practical and viable proposition, that a large percentage of the. animals, not fit for slaughter, are slaughtered surreptitiously outdid. Hanifs Ouraishi's case is founded on the findings of fact that cow progeny ceased to be useful after a particular age, that preservation of such "useless cattle" by establishment of goading was not a practical and viable proposition, that a large percentage of the. animals, not fit for slaughter, are slaughtered surreptitiously outdid. the municipal limits, that the quantum of available fodder for cattle added with the dislodgement of butchers from their traditional profession renders the total prohibition on slaughter not in public interest. 11. After considering several aspects of the matter particularly on the utility of the bovine animals in the context of agricultural base economy and other several aspects of the matter the Hon 'ble Supreme Court did hold in paragraph 137 as under:- "For multiple reasons which we have stated in very many details while dealing with Question 6 in Part II of the Judgment, we have found that bulls and bullocks do not become useless merely by crossing a particular age. The Statement of Object and Reasons, apart from other evidence available, clearly conveys that the cow and her progeny constitute the backbone of the Indian agriculture and economy. The increasing adoption of non-conventional energy sources like biogas plant justify the need for bulls and bullocks to live their full life in spite of their having ceased to be useful for the purpose of breeding and draught. This Statement of Object and Reasons tilts the balance in favour of the constitutional validity of the impugned enactment In Quareshi-I the Constitution Bench chose to bear it in mind, while upholding the constitutionality of the legislations impugned therein, insofar as the challenge by reference to Article 14 was concerned, that "the legislature correctly appreciates the needs of its own people". Times have changed; so have changed the social and economic needs. The legislature has correctly appreciated the needs of its own people and recorded the same in the preamble of the impugned enactment and the Statement of Object and the Reasons appended to it In the light of material available in abundance before us, there is no escape from the conclusion that the protection conferred by the impugned enactment on cow progeny is needed in the interest of nation's economy. Merely because it may cause "inconverience" or some "dislocation" to the butchers" restriction imposed by the impugned enactment does not cease to be in the interest of general public. The former must yield to the latter. 12. Having come to such conclusion. it was held that law has not been correctly laid down in Md. Hanf Ouraishi's case and thus, the court found the piece of legislation putting forth complete ban on the slaughter of bovine animals as intra vires to the Constitution. 13. In view of the observation 13. In view of the observation in paragraph 137 as has been quoted above, one can hardly say that decision rendered in the aforesaid case can never be relevant so far State of Jharkhand is concerned, as the factors which were taken into account including the utility of the bovine animals it can never be said that those factors are foreign to the State of affairs relating to utility of bovine animals in the State of Jharkhand. Under this situation, if the enactment made by the State of Jharkhand put some of the petitioners to inconvenience on account of imposition of restriction of selling beef, petitioners cannot be said to have denied his fundamental right as enshrined under Article 19(1)(g) of the Constitution of India and thus, any prayer made for directing the respondents to allow them to deal in the sale of beef is not tenable. So far other prayer regarding issuance of a writ directing the respondents particularly the authorities of the Bihar Agriculture Produce Market Act to allow the petitioners to deal in the sale and purchase of cattle is concerned that seems to be misconceived as according to statement made in the counter affidavit, petitioners were never prevented from the said activities and this would also be evident from the resolution (Annexure 31 C) taken by the Deputy Commissioner, Gumla in a meeting, pursuant to direct-on given by this Court in W.P(C) No. 198 of 2002. 14. In the result, I do not find any merit in this application. Hence, it is dismissed.