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Babu Vs. the Municipal Board, Kheri and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Constitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 769 of 1968
Judge
Reported inAIR1976All326
ActsConstitution of India - Articles 13, 19(1) and 226
AppellantBabu
RespondentThe Municipal Board, Kheri and anr.
DispositionPetition allowed
Excerpt:
.....of choice - articles 19(1)(g) and 226 of constitution of india - orders issued by notified area committee prohibiting slaughter of all animals - order based on pre-constitution resolution - general ban on slaughter offends article 19(1)(g) - delay in filing petition - pre-constitution resolution gives continuing and recurring cause of action - no delay in filling appeal - respondents directed not to deny petitioner right of slaughtering animals other than cows, bulls and their calves without imposing any condition with regard to their age and usefulness. - - he slaughters cattle like he and she-buffaloes and sells their flesh and hides in the town of mo-hammadi. the petitioner further stated that the notified area committee, mohammadi had on 12th of december, 1955, issued an..........sells their flesh and hides in the town of mo-hammadi. according to the petitioner, the notified area committee of moham-madi had constructed a slaughter-house for slaughtering cattle and had also provided for medical inspection of cattle before slaughter. the slaughter-house has been closed down and is in a dilapidated condition. no medical facilities for inspection of cattle were also provided by the notified area committee. he, therefore, began to carry on his trade of slaughtering the cattle at his own house. the petitioner's brother and certain otherbutchers were prosecuted in february, 1968, for an offence under section 34 of the police act on the allegation that they sold flesh in an unexposed condition. the petitioner thereupon moved an application an 5th march, 1968, before.....
Judgment:

R.L. Gulati, J.

1. The petitioner is a butcher by profession. He slaughters cattle like he and she-buffaloes and sells their flesh and hides in the town of Mo-hammadi. According to the petitioner, the notified area committee of Moham-madi had constructed a slaughter-house for slaughtering cattle and had also provided for medical inspection of cattle before slaughter. The slaughter-house has been closed down and is in a dilapidated condition. No medical facilities for inspection of cattle were also provided by the Notified Area Committee. He, therefore, began to carry on his trade of slaughtering the cattle at his own house. The petitioner's brother and certain otherbutchers were prosecuted in February, 1968, for an offence under Section 34 of the Police Act on the allegation that they sold flesh in an unexposed condition. The petitioner thereupon moved an application an 5th March, 1968, before the Town Area Committee, Mohammadi, which had since been succeeded by the first respondent, the Municipal Board, Mohammadi, requesting for the reconstruction of the slaughter-house, to enable him to carry on his profession. The petitioner sent several reminders, but he received no response. The petitioner further stated that the Notified Area Committee, Mohammadi had on 12th of December, 1955, issued an order that no cattle like she or he buffaloes, cows, bulls, calves etc., could be slaughtered in the town of Mohammadi and any one contravening the order would be prosecuted. The petitioner says that at present there is no slaughterhouse in the town of Mohammadi and the slaughter of the cattle has been banned in the town,

2. The respondents have relied on a resolution passed by the Town Area Committee on 29th of March, 1948. According to this resolution, no one in the town area of Mohammadi can slaughter any cattle like he or she buffalo, cow, bull or calf under any circumstances. On the basis of this resolution the petitioner is not being permitted to carry on the profession of a butcher. The petitioner being aggrieved has approached this Court under Article 226 of the Constitution.

3. His complaint is that his fundamental right to carry on a business or profession of his choice is being denied to him as guaranteed by Article 19(1)(g) of the Constitution. This contention of the learned counsel finds support from a decision of the Supreme Court in Mohd. Hanif Qureshi v. State of Bihar, (AIR 1958 SC 731). In that case among others the U. P. Prevention of Cow Slaughter Act, 1958, was challenged by certain persons, who were butchers by profession. The Supreme Court has held that Act constitutionally valid in so far as it prohibits the slaughter of cows of all ages and calves of cows, male and female, but in so far as it purports to totally prohibit the slaughter of breeding bulls and working bullocks without prescribing any test or requirement as to their age or usefulness, it offends against Article 19(1)(g) and is to that extent void. The ban imposed by the Notified Area Committee and the same being continued by the Municipal Board of Mohammadi is unconstitutional so far as it prohibits the slaughter of cattle in general without prescribing any condition as regards their age or usefulness. Of course, the prohibition of slaughter of cows, bulls and their calves in general is constitutionally valid, but a general ban on cattle other than cows etc., is unconstitutional. It would be open to the respondent Municipal Board to lay down condition with regard to slaughtering of cattle other than cows etc., having regard to their ages or usefulness, but a general ban is not authorised.

4. Learned counsel for the respondent has raised some preliminary objections. The first objection is that a similar writ petition (No. 18 of 1956) filed by one Safi Ullah was dismissed by this Court on 12th February, 1960, and as such no second petition on the same point lies. I have gone through the judgment of this Court in the aforesaid writ petition, a copy whereof has been annexed to the counter-affidavit as Annexure 'C'. The Court dismissed that petition on the ground that the petitioner in that case had suppressed some material facts and as such was not entitled to the indulgence of this Court. This is clear from the following observation in the penultimate paragraph of the aforesaid judgment :

'The net result of the foregoing discussion, therefore, is that the petitioner was guilty of suppressing relevant and material facts. He was also guilty of making incorrect allegations. He has, therefore, disentitled himself to the indulgence of this Court under Article 226.'

It is clear that the decision was not rendered on merits and indeed after the decision of the Supreme Court cited above, there is no room left for any argument The general ban on the slaughter of animals other than cows and bulls etc., without any condition as regards their age and usefulness is wholly illegal inasmuch as it infringes the fundamental right guaranteed by Article 19(1)(g) of the Constitution.

5. It was then contended that the petitioner is guilty of laches and the writ petition should be dismissed on that ground. This argument also, in my opinion, is not valid because the resolution of the Notified Area Committee of the year 1948 gives a continuing and recurring cause of action and a person can challenge it at any time.

6. The next argument raised by the learned counsel was that the resolution was of the pre-constitutional time and as such could not be quashed under Article 226 of the Constitution which did not have retrospective effect. Now, any act or completed transaction which took place before the Constitution came into force cannot certainly be challenged under Article 226 of the Constitution. But in the instant case the challenge is not so much against the resolution as against the denial by the respondents of the fundamental right of the petitioner under Article 19(1)(g) of the Constitution. The petitioner is being restrained even today from exercising the profession of a butcher.

7. In Keshavan Madhava Menon v. State of Bombay : 1951CriLJ680 the Supreme Court held that Article 13(1) of the Constitution did not make existing laws which were inconsistent with fundamental rights void ab inito, but only rendered such laws ineffectual and void with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution, and further, if an act was done before the commencement of the new Constitution in contravention of the provisions of any law which was a valid law at the time of the commission of the act, a prosecution for such an act, which was commenced before the Constitution came into force, could be proceeded with and the accused punished according to that law even after the commencement of the new Constitution. In the instant case the petitioner is not complaining of any prosecution launched against him before the commencement of the Constitution. He is complaining of the continuous denial of the fundamental right under Article 19(1)(g) of the Constitution and this, in my opinion, can be done. To the same effect is the decision of the Supreme Court in Ranjit Singh v. Commr. of Income-tax, U. P. : [1961]42ITR761(SC) . There it has been held that where the proceedings against the petitioner in respect of his undisclosed income culminating in the service of the notice of demand against him under Section 29, Income-tax Act, were all complete before the coming into force of the Constitution, the petitioner could not challenge those proceedings under Article 14 of the Constitution for it was well settled that the Constitution was prospective and not retrospective. There also the Supreme Court was dealing with acompleted act or transaction and not with a continuing wrong.

8. A Full Bench of the Bombay High Court in Jeshingbhai Ishwarlal v. Emperor : AIR1950Bom363 has held that the saving of an order made prior to the commencement of the Constitution under Section 6, General Clauses Act, does not mean that the State is entitled, after 26th January, 1950, to deprive a citizen of a fundamental right which is guaranteed to him. Therefore, even though the order may have been saved by Section 6, if the order is in violation of the fundamental rights, which have come into existence after 26th January, 1950, the Court is entitled to interfere.

9. In Hiralal Chunnilal v. State of Madhya Pradesh, (AIR 1954 Nag 258) the Nagpur High Court held that though an order was passed prior to the commencement of the Constitution, if it interfered with a right in praesenti of the applicant and the order was in the eye of law no more than a piece of waste-paper, the High Court could exercise its power under Article 226 of the Constitution. In my opinion the Bombay and the Nagpur High Courts have laid down the correct law.

10. The petition succeeds and is allowed. The respondents are directed not to enforce the resolution of the Notified Area Committee dated 29th March, 1948 so far as it denied the petitioner the right of slaughtering cattle other than cows, bulls and their calves without imposing any condition with regard to their age and usefulness. In the circumstances, I make no order as to costs.


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