न्याय खंड
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
NewDelhi;Jan,28,2011
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
ORDER
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
ORDERS
Leave
Granted.
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
References Cases
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)
JUDGMENT:
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
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