ऐसे माननीय सर्वोच्च न्यायालय के बहुत से निर्णय और निर्देश हैं जो विभिन्न विषयों पर समय समय पर गौरक्षा और गौसेवकों के सहायक बने है कुछ इस प्रकार है
Land mark Judgement on GOMALA given byMarkandey Kataju & Justice Gyan Sudha Mishra. This direction, if used, can provide grazing land to speech less animals
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1132 /2011 @ SLP(C) No.3109/2011
(Arising out of Special Leave Petition (Civil) CC No. 19869 of 2010)
Jagpal Singh & Ors. .. Appellant (s)
-versus-State of Punjab & Ors. Respondent (s)
Markandey Katju, J.
1. Leave granted.
2. Heard learned counsel for the appellants.
3. Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally reated as inalienable in order that their status as community land bepreserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.
4.The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed : "It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the landholder. Hence those rights cannot be said to have been abrogated by Section 3) of the Estates Abolition Act."
5.What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas.This appeal is a glaring example of this lamentable state of affairs.
6.This appeal has been filed against the impugned judgment of a Division Bench of the Punjab and Haryana High Court dated 21.5.2010. By that judgment the Division Bench upheld the judgment of the learned Single Judge of the High Court dated 10.2.2010.
7. It is undisputed that the appellants herein are neither the owner nor the tenants of the land in question which is recorded as a pond situated in village Rohar Jagir, Tehsil and District Patiala. They are in fact trespassers and unauthorized occupants of the land relating Khewat Khatuni No. 115/310, Khasra No. 369 (84-4) in the said village. They appear to have filled in the village pond and made constructions thereon.
8. The Gram Panchayat, Rohar Jagir filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 to evict the appellants herein who had unauthorizedly occupied the aforesaid land. In its petition the Gram Panchayat, Rohar Jagir alleged that the land in question belongs to the Gram Panchayat, Rohar as is clear from the revenue records. However, the respondents (appellants herein) forcibly occupied the said land and started making constructions thereon illegally. An application was consequently moved before the Deputy Commissioner informing him about the illegal acts of the respondents (appellants herein) and stating that theaforesaid land is recorded in the revenue records as Gair Mumkin Toba i.e. a village pond. The villagers have been using the same, since drain water of the village falls into the pond, and it is used by the cattle of the village for drinking and bathing. Since the respondents (appellants herein) illegally occupied the said land an FIR was filed against them but to no avail. It was alleged that the respondents (appellants herein) have illegally raised constructions on the said land, and the lower officials of the department and even the Gram Panchayat colluded with them.
9.Instead of ordering the eviction of these unauthorized occupants, the Collector, Patiala surprisingly held that it would not be in the public interest to dispossess them, and instead directed the Gram Panchayat, Rohar to recover the cost of the land as per the Collector's rates from the respondents (appellants herein). Thus, the Collector colluded in regularizing this illegality on the ground that the respondents (appellants herein) have spenthuge money on constructing houses on the said land.
10. Some persons then appealed to the learned Commissioner against thesaid order of the Collector dated 13.9.2005 and this appeal was allowed on12.12.2007. The Learned Commissioner held that it was clear that the Gram Panchayat was colluding with these respondents (appellants herein), and ithad not even opposed the order passed by the Collector in which directions were issued to the Gram Panchayat to transfer the property to these persons, nor filed an appeal against the Collector's order.
11. The learned Commissioner held that the village pond has been used for the common purpose of the villagers and cannot be allowed to be encroached upon by any private respondents, whether Jagirdars or anybody else. Photographs submitted before the learned Commissioner showed that recent attempts had been made to encroach into the village pond by filling it up with earth and making new constructions thereon. The matter had gone to the officials for removal of these illegal constructions, but no action was taken for reasons best known to the authorities at that time. The learned Commissioner was of the view that regularizing such kind of illegal encroachment is not in the interest of the Gram Panchayat. The learned Commissioner held that Khasra No. 369 (84-4) is a part of the village pond, and the respondents (appellants herein) illegally constructed their houses at the site without any jurisdiction and without even any resolution of the GramPanchayat.
12. Against the order of the learned Commissioner a Writ Petition was filed before the learned Single Judge of the High Court which was dismissed by the judgment dated 10.2.2010, and the judgment of learned Single Judge has been affirmed in appeal by the Division Bench of the High Court. Hence this appeal.
13.We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.
14. In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999(6) SCC 464 the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs.100 crores. In Friends Colony Development Committee vs. State of Orissa, 2004 (8) SCC 733 this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.
15. In many states Government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored.
16.The present is a case of land recorded as a village pond. This Court inHinch Lal Tiwari vs. Kamala Devi,
AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005(4)CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.
17. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc.These were their traditional rain water harvesting methods, which served them for thousands of years.
18.Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character.This has contributed to the water shortages in the country.
19.Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayatofficials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certainindividuals. The time has come when these malpractices must stop.
20.In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices.
21. For the reasons given above there is no merit in this appeal and it is dismissed.
22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants ofGramSabha/Gram Panchayat/ Poramboke /Shamlat land and these must be restored to the GramSabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/ Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.
23. Let a copy of this order be sent to all Chief Secretaries of all States and Union Territories in India who will ensure strict and prompt compliance of this order and submit compliance reports to this Court from time to time.
24. Although we have dismissed this appeal, it shall be listed before this Court from time to time (on dates fixed by us), so that we can monitor implementation of our directions herein.List again before us on 3.5.2011 on which date all Chief Secretaries in India will submit their reports.
J.MarkandeyKatju J. GyanSudha Mishra
Question of interim Custody has been decided by hon’ble Supreme Court of India in the favor of Pinjrapol- goshala. The following orders are binding on Lowercourts & shall be mentioned at the time of Claiming Interim Custody
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.283-287/2002
(Arising out ofSLP(CRL)Nos.2790,2793,2795,2797,2800/1999
State of U.P……Appellant V/S Mustakeem & Ors….Respondents
Leave Granted The State of Utter Pradesh is in appeal against the direction of the court directing release of the animals in favor of the owner. It is alleged that while those animals were transported for the purpose of being slaughtered and FIR was registered for alleged violation of the provisions of Prevention of Cruelty to Animal Act, 1960 and the specific allegation in the FIR was that the animals were transported for being slaughtered and the animals were tied very tied very tightly to each other.
The Criminal case is still pending. On an appeal for getting the custody of the animals was filed.The impugned order has been passed. We are shocked as to how such an order could be passed by the learned Judge of the High Court in view of the very allegation and in view of the charges, which the accused may face in the criminal trial.
We therefore set aside the impugned order and direct that these animals be kept in the Gaushala and the State Government undertake the entire responsibility of preservation of those animals so long as the matter is under trial. The appeal stands disposed of accordingly Sd/- G.B. PATTANAIK
IN THE SUPREME COURT OF INDIA
CRIMIN AL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.555 of 1989
(Arising out of special Leave Petition (Crl.) No.755 of 1989)
Go Bachao Samithi , Malkheda………………….Appellant V/ s.
State of Madhya Pradesh and Anr………………..Respondents
O R D E R
Special leave granted.
Having considered the facts and the circumstances of the case and relevant provisions, the Judgement and order Dt.2nd November 1988, of the learned Additional Session Judge Shajapur (M.P.) are set aside and the order of the Judicial Magistrate First Class, Sunner Dist. Shajapur (M.P.) is restored. It is further directed that the trial pending before the Judicial Magistrate First Class Sunner, dist Shajapur (M.P.) be disposed of with in a period of three months from this date pereoptorily.
The appeal is disposed of with these directions.
Sd/- J. Sabyasachi Mukharji ………..J. B.C. Ray…………………..
New Delhi, September 6, 1989
IN THE SUPREME COURT OF INDIA CRIMINAL APPELATE JURISDICTION CRIMINAL APPEAL NO 68-78 OF 1991
Special Leave Petition (Crl.)No.1900-02of 1990
Sri Devi Prasad Mishra…Appellant
Versus State of U.P. & Anr…..Respondents
After hearing both counsel. We are of the opinion that the interests of Justice require that pending disposal of the Criminal matter pending before the lower Criminal Court II Allahabad, the custody of the cattle in question should remain with the organization known as GODHAM which is represented by the appellant in this case
The lower Court has already ordered that identification marks should be put on the cattle. This may be done and the Godham should look after and protect the cattle pending disposal of the matter in the Criminal Court. If the identification has not already been done respondent No.2 may be allowed to be present at the time when the identification marks are put on the cattle
Having regard to the interim direction given by us, we direct the criminal case to be disposed of as expeditiously as possible. With these observations the appeals are disposed of. There is no order as to costs.
(S.Ranganathan, S.C. Agarweal & N.D. Ojha) New DelhiDt.30-1-91
1. AndhraPradesh Highcourt at Hyderabad Crl.Rev P No. 604 of 1991 13.3.1992 on maintenance of custody
2. Gujarat High Court on 16.8.1984 Justice MB Shah on maintenance custody
3. MadhyaPradesh High Court at Indore Misc. Cr. Case No.1538 of 1989 Dt. 30.11.1989 on maintenance of Interim custody
4. Maharashtra Highcourt at Bombay WP 373 of 1987 on Interim Custody & maintenance Charges
5. Sec/154(1) Cr.PC on FIR recording mandatory for Police officer(1992) Sup(1) Supremecourt Cases 335 CA No.5412 of 1990 on 21.11.1990
6. Sec. 301 Cr.PC Local Standi of Volunteers upheld (Cr. Misc. Case 25 of 1996 Dt. 19.1.1996 of Allahabad Highcourt at Lacknow
7. Sec.301A IPC WP No.116 of 2001 of Allahabad Highcourt Civil Side Orig.Jur
8. Hon’ble Supreme Court Direction is WP 881 of 2014 & WP210 of 2015 on intl. smuggling to Bangladesh & Nepal
9. Hon’ble Supreme Court Directions on slaughter houses in WP 301 0f 2003 & WP 44 of 2001 LN Modi V/S.GOI ,Peta Vs GOI
Directions of Honorable High Court of Kolkata to West Bengal Govt time and again to act and stop Scarifice of Healthy Cow on Baqar Idd Day
THE SUPREME COURT OF INDIA CIVIL APPEAL NO.6790 of 1983 CITATION : 1995AIR 4641995 SCC (1) 189 JT 1994 (7)6971994 SCALE (4)979 DATE OF JUDGMENT16/11/1994PETITIONER: STATE OF W.B. Vs. RESPONDENT: ASHUTOSH LAHIRI
BENCH: Majumdar S.B. (J) Kuldip Singh (J) Hansaria B.L.(J)
The Judgment of the Court was delivered by MAJMUDAR, J.- All these appeals by special leave arise out of the judgment of the Division Bench of Calcutta High Court in Civil Rule No. 709 (W) of 1971 decided on 20-8-1982.The appellants in these appeals are the State of West Bengal and the other contesting respondents who were before the High Court.
27 respondents herein had filed the writ petition before the Calcutta High Court, challenging the validity of exemption of slaughter of scheduled animal, namely, cows, from the operation of the West Bengal Animal Slaughter Control Act, 1950 (hereinafter referred to as the 'Act') on BakrI'd day. The writ petitioners had obtained leave under Order 1, Rule 8 of the Code of Civil Procedure and joined Respondents 7 to21representing the Muslim community.
The writ petitioner contended before the High Court tha the State of West Bengal Respondent 1 before the High Court had wrongly invoked Section 12 of the Act when it exempted from the operation of the Act, the slaughter of healthy cows on the occasion of BakrI'd on the ground that such exemption was required to be given for the religious purpose of Muslim community. The Division Bench of the Calcutta High Court after hearing the contesting parties took the view that such slaughter of cows by members of Muslim community on BakrI'd day was not a requirement of Muslim religion and, therefore, such exemption was outside the scope of Section 12 of the Act. Consequently, the impugned order was dehors the statute. In that view the Division Bench allowed the petition and issued a mandamus to the appellants, State of West Bengal Respondent 1 and its delegate officers Respondents 2 to 16 in the writ petitioncalling upon them to forbear from giving any exemption under Section 12 of the Act in respect of slaughter of cows on the occasion of BakrI'd day thereinafter. The writ petitioner's oral application for leave under Article 133 of the Constitution was refused as according to the Division Bench it had followed the Constitution Bench decision of this Court in Mohd. Hanif Quareshi v. State of Bihar1, in coming to the said conclusion.
2.As noted earlier the State of West Bengal as well as other contesting respondents of Muslim community have preferred these appeals by way of special leave to appeal from the aforesaid judgment of the Division Bench of the Calcutta High Court.
3.As all these appeals involve common questions of facts and law, learned counsel for contesting parties addressed common arguments in all these appeals.Consequently,we are disposing of these appeals by this common judgment.
4.Learned counsel for the appellants in these appeals vehemently contended that the view of the High Court is erroneous and does not correctly interpret Section 12 of the Act. It must be held that such exemption can be granted for fulfilling any religious purpose and such purpose may not be an obligatory purpose. That even if it is open to a Muslim to offer sacrifice of a goat or a camel or a cow and when such a sacrifice should be of a healthy animal then it was perfectly open to the State to grant exemption from the operation of the Act so far as slaughtering of a healthy cow on BakrI'd day was concerned. It was also contended that the High Court had misread the judgment in Quareshi case1 as this case had interpreted Article 25 of the Constitution of India and in that light it was held that slaughter of cows could not be considered to be a part of essential religious requirement. So far as Section 12 of the Act is concerned it does not talk of an essential religious purpose but talks of any religious purpose which may include even an
optional purpose. Mr Tarkunde, learned Senior Counsel, appearing for one of the appellants vehemently contended that for operation of Section 12 it is not necessary that the religious purpose must be a mandatory purpose but would cover even an optional purpose as contemplated by the Muslim religion, like slaughter of healthy cow on BakrI'd. Hence such a purpose would be covered by the sweep of Section 12 of the Act.
5.On the other hand learned counsel for the originalwrit petitioners, respondents in these appeals, contended that the Act is meant for controlling the slaughter of animals including the cows and buffaloes and this is with the object of increasing the supply of milk and avoiding the wastage of animal power necessary for improvement of agriculture. Under Section 4 of the Act only animals fit for slaughtering can be slaughtered. For that a certificate is
required to be issued by the authorities concerned. But so far as healthy animals like cows are concerned there is a complete ban on slaughtering them. Section 12 seeks to lift the ban in connection with such animals only on the fulfilment of the condition precedent, namely, such lifting of the ban being necessary for any religious, medicinal or research purpose. As this is an exception to the general protection against slaughtering of health animal as envisaged by the Act, such exemption or exception should be strictly construed and cannot be lightly granted or lightly resorted to for any optional religious purpose which may not be absolutely necessary. In this connection it was submitted by learned counsel for the respondents that as per the appellants, in order to earn religious merit a Muslim can offer sacrifice of a goat or alternatively of a healthy cow if 7 Muslims together decided to do so and spend for it or even a camel can be sacrificed by them on BakrI'd.
Therefore, it is not essential for Muslims to earn religious merit by insisting on sacrificing only healthy cows on BakrI'd. Consequently, the State will not have any Jurisdiction or power to invoke Section 12 for fulfilling such optional religious practice of Muslim community. It was further contended that the Constitution Bench judgment in Quareshi case1 has clearly ruled that slaughter of cow on BakrI'd day cannot be considered to be a part of essential
religious practice and that is the reason why protection of Article 25 is not available for enabling slaughtering of cows on BakrI'd day. If that is so, on that very basis the State's action under Section 12 of the Act has to be judged otherwise what is held to be non-essential religious requirement by the Constitution Bench of this Court, would be treated as essential religious requirement for the purpose of Section 12 of the Act. That would run counter to the very ratio of the decision of the Constitution Bench of this Court. Therefore, according to the learned counsel for the respondent writ petitioners, the Division Bench ofthe High Court was perfectly justified in following the decision of the Constitution Bench of this Court in Quareshi case1.
6.We have given our anxious consideration to the rival contentions. In our view the decision rendered by the Division Bench of Calcutta High Court under appeal is unexceptionable and calls for no interference.We must keep in view the scheme of the Act for deciding the question in controversy.
7.As the preamble of the Act shows it was enacted to control the slaughter of certain animals as it was expedient to doso with a view to increase the supply of milk and to avoid the wastage of animal power necessary for improvement of agriculture. Section 2 lays down that the Act applies to animals specified in the schedule. The schedule to the Act covers bullsbullocks ,cows, calves, male and female buffaloes, buffalo calves and castrated buffaloes. Section
4 of the Act deals with prohibition of slaughtering of animals without certificate from authorities concerned. Section 4(1) provides that notwithstanding anything in any other law for the time being in force or in any usage to the contrary, no person shall slaughter any animal unless he has obtained in respect thereof a certificate under subsection (2) or sub-section (3) that the animal is fit for slaughter.
As per sub- section (2) a certificate is required to be issued by the authorities concerned that the animal is over 14 years of age and is unfit for work or breeding or that the animal has become permanently incapacitated from work or breeding due to age, injury, deformity or any incurable disease. Sub- section (3) deals with a case where there is a difference of opinion between the authorities concerned from which initially a certificate is to be obtained. As per Section 5 even if there is a certificate enabling a person to get the animal concerned slaughtered he cannot slaughter it in any place other than the place prescribed in that behalf. As per Section 7 whoever contravenes the provision of the Act shall be punishable with imprisonment for a term which may extend to six months or with fine which may extendto one thousand rupees or with both. Section 8 makes the offences cognizable under the Act. Section 9 prescribes punishment for abetment of offences or even attempts to commit any such offence under the Act.
8.The aforesaid relevant provisions clearly indicate the legislative intention that healthy cows which are not fit to be slaughtered cannot be slaughtered at all. That is the thrust of Section 4 of the Act. In other words there is total ban against slaughtering of healthy cows and other Animals mentioned in the schedule under Section 2 of the Act. This is the very essence of the Actand it is necessary to subserve the purpose of the Act i.e. to increase the supply of milk and avoid the wastage of animal power necessary for improvement of agriculture. Keeping in view these essential features of the Act, we have to construe Section 12 which deals with power to grant exemption from the Act. As we have noted earlier the said section enables the State Government by general or special order and subject to such conditions as it may think fit to impose, to exempt from the operation of this Act slaughter of any animal for any religious, medicinal or research purpose. Now it becomes clear that when there is a total ban under the Act so far as slaughtering of healthy cows which are not fit to be slaughtered as per Section 4(1) is concerned, if that ban is to be lifted even for a day, it has to be shown that such lifting of ban is necessary for subserving any religious,medicinalorresearchpurpose
The Constitution Bench decision of this Court in Mohd. Hanif Quareshi case1 at (SCR) page 650 of the report speaking through Das, C.J. referred to the observations in Hamilton's translation of Hedaya, Book XLIII at page 592 that it is the duty of every free Mussalman arrived at the age of maturity, to offer a sacrifice on the I'd Kurban, or festival of the sacrifice, provided he be then possessed of Nisab and be not a traveller. The sacrifice established for one person is a goat and that for seven a cow or a camel.
It is, therefore, optional for a Muslim to sacrifice a goatfor one person or a cow or a camel for seven persons.It does not appear to be obligatory that a personmustsacrifice a cow. Once the religious purpose of Muslims consists of making sacrifice of any animal which should be a healthy animal, on BakrI'd, then slaughtering of cow is not the only way of carrying out that sacrifice. It is,therefore, obviously not an essential religious purpose but an optional one. In this connection Mr Tarkunde for the appellants submitted that even optional purpose would be covered by the term "any religious purpose" as employed by Section 12 and should not be an essential religious purpose. We cannot accept this view for the simple reason that Section 12 seeks to lift the ban in connection with slaughter of such animals on certain conditions. For lifting the ban it should be shown that it is essential or necessary for a Muslim to sacrifice a healthy cow on BakrI'd day and if such is the requirement of religious purpose then it may enable the State in its wisdom to lift the ban at least on BakrI'd day. But that is not the position. It is well settled that an exceptional provision which seeks to avoid the operation of main thrust of the Act has to be strictly construed. In this connection it is profitable to refer to the decisions of this Court in the cases Union of India v. Wood Paper Ltd.2 and Novopan India Ltd. v. C.C.E. & Customs3. If any optional religious purpose enabling the Muslim to sacrifice a healthy cow on BakrI'd is made the subject-matter of an exemption under Section 12 of the Act then such exemption would get granted for a purpose which is not an essential one and to that extent the exemption would be treated to have been lightly or cursorily granted. Such is not the scope and ambit of Section 12. We must, therefore, hold that before the State can exercise the exemption power under Section 12 in connection with slaughter of any healthy animal covered by the Act, it must be shown that such exemption is necessary to be granted for subserving an essential religious, medicinal or research purpose. If granting of such exemption is not essential or necessary for effectuating such a purpose no such exemption can be granted so as to bypass the thrust of the main
provisions of the Act. We, therefore, reject the contention of the learned counsel for the appellants that even for an optional religious purpose exemption can be validly granted under Section 12. In this connection it is also necessary to consider Quareshi case1 which was heavily relied upon by the High Court. The total ban on slaughter of cows even on BakrI'd day as imposed by Bihar Legislature under Bihar Preservation and Improvement of Animals Act, 1955 was attacked as violative of the fundamental right of the petitioners under Article 25 of the Constitution. Repelling this contention the Constitution Bench held that even though Article 25(1) granted to all persons the freedom to profess, practise and propagate religion, as slaughter of cows on BakrI'd was not an essential religious practice for Muslims,total ban on cow's slaughter on all days including BakrI'dday would not be violative of Article 25(1). As we havenoted earlier the Constitution Bench speaking through DasC.J., held that it was optional for the Muslims to sacrifice a cow on behalf of seven persons on BakrI'd but it does notappear to be obligatory that a person must sacrifice a cow. It was further observed by the Constitution Bench that the very fact of an option seemed to run counter to the notion of an obligatory duty. One submission was also noted that a person with six other members of his family may afford to sacrifice a cow but may not be able to afford to sacrifice seven goats, and it was observed that in such a case there may be an economic compulsion although there was noreligious compulsion. In this connection, Das C.J. referred to the historical background regarding cow slaughtering from the times of Mughal emperors. Mughal Emperor Babur saw the wisdom ofprohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun to follow this. Similarly, Emperors Akbar, Jehangir and Ahmad Shah, it is said, prohibited cow slaughter. In the light of this historical background it was held tha total ban on cow slaughter did not offend Article 25(1) of the Constitution.
9.In view of this settled legal position it becomes obvious that if there is no fundamental right of a Muslim to insist on slaughter of healthy cow on BakrI'd day, it cannot be a valid ground for exemption by the State underSection 12 which would in turn enable slaughtering of such cows on BakrI'd. The contention of learned counsel for the appellants that Article 25(1) of the Constitution deals with essential religious practices while Section 12 of the Act may cover even optional religious practices is not acceptable. No such meaning can be assignedto such an exemption clause which seeks to whittle down and dilute the main provision of the Act, namely, Section 4 which is the very heart of the Act. If the appellants' contention is accepted then the State can exempt from the operation of the Act, the slaughter of healthy cows even for non-essential religious, medicinal or research purpose, as we have to give the same meaning to the three purposes, namely, religious, medicinal or research purpose, as envisaged by Section 12. It becomes obvious that if for fructifying any medicinal or research purpose it is not necessary or essential to permit slaughter of healthy cow, then there would be no occasion for the State to invoke exemption power under Section 12 of the Act for such a purpose. Similarly it has to be held hat if it is not necessary or essential to permit slaughter of a healthy cow for any religious purpose it would be equally not open to the State to invoke its exemption power under Section12 for such a religious purpose. We, therefore, entirely concur with the view of the High Court that slaughtering of healthy cows on BakrI'd is not essential or required for religious purpose of Muslims or in other words it is not a part of religious requirement for a Muslim that a cow must be necessarily sacrificed for earning religious merit on BakrI'd.
10.We may also mention one submission of Mr Tarkunde that India is a secular democratic country and, therefore, the State has to respect the wishes of minority. In the appeals at hand we are concerned with the short question whether in the light of clear wording of Section 12, the State can exempt from the operation of the Act slaughtering of healthy cows on BakrI'd. For deciding this, ours being a secular country would not be relevant. Mr Tarkunde next submitted that as per Gujara Rules slaughtering of cows on BakrI'd is considered a bona fide religious purpose. Even this aspect is not relevant for deciding the parameters of Section 12 of the West Bengal Act, even if that be the position in Gujarat presently, which is not so according to the learned counsel for the respondents.
11.We may also deal with the effort made by the learned counsel for the appellants to distinguish Quareshi case1 on the ground that for interpreting the term 'religious' under Articles 25 and 26, a restricted meaning was given for balancing the secular nature of democracy on the one hand and the interest of the individual so far as right to practise any religion is concerned on the other. In this connection, our attention was invited to the decisions of this Court in Tilkayat Shri Govindlalji Maharaj
v. State of Rajasthan 4 and Durgah Committee v. Syed Hussain Ali5. These decisions are of no avail to the appellants as therein while dealing witthe question of validity of certain enactments, scope of Articles 25 and 26 of the Constitution was spelt out and nothing has been held in these decisions which is contrary to what was decided in Quareshi case1, which we have noted in detail. The effort made by teamed counsel for the appellants to get any and every religious practice covered by Section 12 also is of no avail for the simple reason that in the context of Section12 the religious practice must be such which requires the invocation of exemption provision under Section 12 so as to bypass the main thrust of Section 4. For such an exercise non-essential religious practices cannot be made the basis. Reliance placed on the decision of this Court in Hazarat Pirmahomed Shah Saheb Roza Committee v. C.LT6 also is of no assistance as the same refers to Section 11 of the Income Tax Act, the scheme of which is entirely different from that of the Act. Even if we agree with learned counsel for the appellants that slaughter of a healthy cow on BakrI'd is for a religious purpose, so long as it is not shown to be an essential religious purpose as discussed by us earlier, Section 12 of the Act cannot be pressed in service for buttressing such a non-essential religious purpose.
12.Before parting we may mention that one preliminary objection was raised before theHigh Court aboutthe petitioners' locus standi to move the writ petition. The High Court held that it was a public interest litigation and the writ petitioners have sufficient locus standi to move the petition.That finding of the High Court was not challenged by any of the appellants. In our view rightly so as the writ petitioners representing a Hindu segment of society had felt aggrieved by the impugned exemption granted by the State.They had no personal interest but a general cause to project.
On sequently, they had sufficient locus standi to move the petition. Rule 7 framed under the Act, provides that provisions of the West Bengal Animal Slaughter Control Act, 1950, shall not apply to the slaughter of any animal for religious, medicinal or research purpose subject to the condition that such slaughter does notaffect the religious sentiment of the neighbours of the person or persons performing such slaughter and that the previous permission of the State Government or any officer authorisedby it is obtained before the slaughter. The case of the original writ petitioners before the High Court was based onreligious sentiments and, therefore,they had moved this public interest litigation. In these circumstances, no fault could be found with the decision of the High Court recognizing locus standi of the original petitioners to move thispublic interest litigation which we have found to be well justified on merits.
13.In the result, we confirm the decision of the High Court and dismiss these appeals. Interim reliefs granted earlier during the pendency of the appeals shall stand vacated.In the facts and circumstances of the case, there will be no order as to costs…………… Sd/- J. Majumdar