# STATE OF MAHARASHTRA v. MUMBAI UPNAGAR GRAMODYOG SANGH

- **Citation:** [1969] 2 S.C.R. 392
- **Court:** Supreme Court of India
- **Decided:** 1968-10-15
- **Case number:** Civil Appeal No. 1654 of 1966
- **Bench:** J. C. Shah, G. K. Mitter, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-v-mumbai-upnagar-gramodyog-sangh-4507
- **Pages:** 19

## Headnote

Bombay Municipal Corporation Act (3 of 1888), ai amended by
Act 14 of 1961, ss. 372(g) and 385-0wner of dead animal to deposit
carcass in specified place without selling-Corporation having riRht to
dispose of carcass-If fundamental rights of owners and skinners affected.
Constitution of India, 1950, Arts. 19(\)(f) and 31(1), (2)
and
(5)-Taking_ and destroying carcasses-If owner .entitled to compensation.
To ensure against the grave nuisance which may be caused to the
residents of a locality if carcasses of dead animals are allowed to remain
. on the premises within the city, ·a duty is imposed by ss. 367, 372 and
385 of the Bombay Municipal Corporation Act, 1888, as amended by
Act 14 of 1961, upon the owner of the animal or the person having
charge of the animal or tlie occupier of premises in which the, animal
.. dies, to remove the carcass at his own expense with the permission of the
Commissioner of the City of Bombay, or, to have. it removed through
the agency of the Corporation, for which he was required to pay a fee
. of Rs. 20. It was further enacted that. after it was removed it shall be
deposited· in a receptacle, depot or other place set apart for the purpose,
.. either by the owner or the Corporation. Thereupon, the owner lost his
property in the carcass and it became the property of the Corporation.
Under the. Act it was the duty of the Corporation to arrange for its
disposal causing the least practicable nuisance.
The second respondent was the owner of a stable of milch cattle in
·Born hay.
He was se11ing the carcasses of animals dying in his stable_
for a price1.
The first respondent was a purchaser of carcasses and
· carried on the business of skinning the dead animals and utilising the
products for industrial uses.
The Corporation prohibited the first respondent from removing carcasses and resolved to grant the contract for
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the disposal of carcasses deposited under the provisions of the Act to
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Harijan Workmen's Cooperative Labour Society.
The respondents challenged the provisions and the High Court dec-
· 1ared them ultra vires.
In appeal to this Court, on the questions : (1) Whether the obliga-
-tion not to sell the carcass but to dispose it of as per the provisions of
the Act infringe the fundamental rights of the respondents under Art.
19(1) (f); (2) Whether them was infringement of the fundamental right
hecause of the obligation on the second respondent to incur expenditure
for its removal; (3) Whether fee of Rs. 20 was excessive; (4) Whether
the second respondent's loss of ownership a·nd property in the carcass
-on depositing it as per the provisions of the Act violated the, respondents
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fundamental right under Art. 31; and (5) Whether the granting of tlie
contract to the Hariian Society destroyed the business of the first respondent and infringedi its fundamental right to carry on _business.
HELD : (1) The second respondent had a right of ownership in the
carcasses of his animals.
But he was only entitled to constitutional pro-
. tection. against unreasonable restriction on his right to sell the carcasses.
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MAHARASHTRA V, MUMBAI SANGH
393
Reasonableness of restrictions imposed by a Jaw has to be adjudged in
the light of the nature of the right, danger or injury which may be inherent in the unbridled exercise of the right and the necessity of protection against danger which may result to the public by the exercise
of the right. In each case the test is whether the restriction is commen·
snrate with the need for protection of public interest against the exercise of the right. [400 C; 402 A-BJ
A mere imposition of an injunction to remove a carcass only
abates the nuisance arising from a dead animal remaining on the premises : it does not eliminate the graver hazard caused by the adulteration of food of the people from its products. Meat and fat from carcasses are used by unscrupulous persons for adulterating the food of the
community. Even by imposing
st

## Text

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STATE OF MAHARASHTRA
v.
MUMBAI UPNAGAR GRAMODYOG SANGH
October 15, 1968
(J. C. SHAH, G. K. MITTER, K. S. HEGDE AND A. N. GROVER, JJ.]
Bombay Municipal Corporation Act (3 of 1888), ai amended by
Act 14 of 1961, ss. 372(g) and 385-0wner of dead animal to deposit
carcass in specified place without selling-Corporation having riRht to
dispose of carcass-If fundamental rights of owners and skinners affected.
Constitution of India, 1950, Arts. 19(\)(f) and 31(1), (2)
and
(5)-Taking_ and destroying carcasses-If owner .entitled to compensation.
To ensure against the grave nuisance which may be caused to the
residents of a locality if carcasses of dead animals are allowed to remain
. on the premises within the city, ·a duty is imposed by ss. 367, 372 and
385 of the Bombay Municipal Corporation Act, 1888, as amended by
Act 14 of 1961, upon the owner of the animal or the person having
charge of the animal or tlie occupier of premises in which the, animal
.. dies, to remove the carcass at his own expense with the permission of the
Commissioner of the City of Bombay, or, to have. it removed through
the agency of the Corporation, for which he was required to pay a fee
. of Rs. 20. It was further enacted that. after it was removed it shall be
deposited· in a receptacle, depot or other place set apart for the purpose,
.. either by the owner or the Corporation. Thereupon, the owner lost his
property in the carcass and it became the property of the Corporation.
Under the. Act it was the duty of the Corporation to arrange for its
disposal causing the least practicable nuisance.
The second respondent was the owner of a stable of milch cattle in
·Born hay.
He was se11ing the carcasses of animals dying in his stable_
for a price1.
The first respondent was a purchaser of carcasses and
· carried on the business of skinning the dead animals and utilising the
products for industrial uses.
The Corporation prohibited the first respondent from removing carcasses and resolved to grant the contract for
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the disposal of carcasses deposited under the provisions of the Act to
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Harijan Workmen's Cooperative Labour Society.
The respondents challenged the provisions and the High Court dec-
· 1ared them ultra vires.
In appeal to this Court, on the questions : (1) Whether the obliga-
-tion not to sell the carcass but to dispose it of as per the provisions of
the Act infringe the fundamental rights of the respondents under Art.
19(1) (f); (2) Whether them was infringement of the fundamental right
hecause of the obligation on the second respondent to incur expenditure
for its removal; (3) Whether fee of Rs. 20 was excessive; (4) Whether
the second respondent's loss of ownership a·nd property in the carcass
-on depositing it as per the provisions of the Act violated the, respondents
9
fundamental right under Art. 31; and (5) Whether the granting of tlie
contract to the Hariian Society destroyed the business of the first respondent and infringedi its fundamental right to carry on _business.
HELD : (1) The second respondent had a right of ownership in the
carcasses of his animals.
But he was only entitled to constitutional pro-
. tection. against unreasonable restriction on his right to sell the carcasses.
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MAHARASHTRA V, MUMBAI SANGH
393
Reasonableness of restrictions imposed by a Jaw has to be adjudged in
the light of the nature of the right, danger or injury which may be inherent in the unbridled exercise of the right and the necessity of protection against danger which may result to the public by the exercise
of the right. In each case the test is whether the restriction is commen·
snrate with the need for protection of public interest against the exercise of the right. [400 C; 402 A-BJ
A mere imposition of an injunction to remove a carcass only
abates the nuisance arising from a dead animal remaining on the premises : it does not eliminate the graver hazard caused by the adulteration of food of the people from its products. Meat and fat from carcasses are used by unscrupulous persons for adulterating the food of the
community. Even by imposing
stringent ~upervision upon
persons
carrying on the business of skinning carcasses, prorection of the community against food adulteration cannot be effectively secnred, because, a
purchaser who was not subject to the Corporation control could remove
it beyond the Corporation limits and bring back contaminated meat and
fat.
Therefore, the Legislature has devised a scheme by which reasonable restrictions are placed upon a citizen's right to dispose of the car•
cass. Under the Act, the Corporation has to set apart a plaee for de.
positing the carcass and it is implicit in the scheme of the Act that the
Corporation shall· provide a suitable place for skinning it. The Corporation has control over the contractors entrusted with the disposal of
carcasses and has supervision over' the disposal of the products. A law
which compels the removal of a carcass to an appointed place and its
disposal under the supervision of the Corporation which has the duty
to take steps for maintaining public health, cannot be regarded as arbitrary or excessive. The Corporation, has to arrange for effectively disposing of the carcass and it would be necessary for
effectuating that
purpose to provide that the title of the owner in the carcass shonld be
extinguished. Such a provision is not beyond the legitimate purpose for
which it was intended, and the fact that the owner is unable' to sell for
a price the carcass does not render a provision, which is essentially con·
ceived in the interest of the general public..
unreasonable. [401 B-H;
402 B-D; 403 E; 404 DJ
Restriction upon the right of the owner to sell the carcass doe§ not
directly infringe the fundamental right of the purcliaser, who, but for
the restriction may have been able to purchase it. Assuming however,
that the imposition by law of the restriction upon the owner of the
car~ass involves also a restriction upon the right of the first respondent
havmg reg~rd to the character of the legislation and its avowed object,
the restr1c1Ion upon the first respondent's right to carry on his occupation or business is a reasonable one within the meaning of Art
19(5)
and (6). [409 E-GJ
·
Chintaman Rao v. Stat.e of M.P. [1950J S.C.R.
759 and State of
Madra;s v. V. G. Row, [1952J S.C.R. 597, followed .
(2) If the carcass is likely to be deleterious to public health and its
removal from the place where it is lying being in the interests of the
public health, imposition of an obligation upon the owner to remove the
carcass at his own expense or to pay for its removal cannot be regarded
as unreasonable, even if the charge which falls upon the owner is m
addition to the loss which he suffers by reason of the extinction of his
title in the carcass. [404 B-DJ
.
(3) Whether .the fee of Rs. 20 levied on the owner of a carcass for
its removal was m excess of the expenditure which the Corporation may
13 Sup, CJ/69-8
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SUPREME COURT REPORTS
(1969] 2 s.c.R.
have to incur, was not investigated into by the High Court, and thocefore
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the question could not be raised for the first time in this Court. [404 A-BJ
(4) (a) In the present case, the restrictions imposed by the impugned law upon the right of the owner satisfy the test of reasonableness
under Art. 19(5) and (6). Therefore, though there is a deprivation
of property, it is by a valid law and hence there is no violation of Art.
31(1). [406 C-DJ
Smt. Sitabati Debi v. StGle of West Bengal, [1967) 2 S.C.R.
949,
followed.
Kavalappara Kottarathil Kochuni v: State of Madras, [1960] 3 S.C.R.
887, refocred to.
(b) A law which provides for
extinction of the ownership
and
creation of an interest in the Corporation for the purpose of disposal of
the carcass is not 'a law for acquisition of property for a public purpose :
its primary purpose is destruction of a carcass in the public interest, and
not its utilisation for a public purpose. The case does not, therefore, fall
within the terms of Art. 31(2). [406 F-G]
(c) In any case the statute is squarely protected by Art. 31 (5) (b)
(ii) and on that account the owner is not entitled to compensation for loss
of his property. Where the State acquires property and seeks to utilize
it for promotion of public health or prevention of danger to life or property the State is liable to pay compensation. But a law which directly
and immediately seeks to promote public health or to prevent danger to
life or property falls within the exemption of cl. (5)(b)(ii), even if
thereby, the owner's interest in the property is extinguished and is vested
in the State for purposes of clestruction. [406 G-H; 407 A-BJ
(d) Article 31(5) (b) (ii) is not confin.ed to 'temporary occupation
of proper!}'.'. In the case of acquisition of immovable property, to have
the protection of the clause the occupation of the property must be
temporary.
But in the case of movable property, even if its possession
is taken with a view to destroying it, if such destruction is in the interests
of general public, that is, for the preven.tion.of danger to life or property,
it need not be temporary. Even such taking of movable property will
be protected by cl. (5) (b) (ii) and the guarantee of Art. 31(2) would
not be attracted. [ 408 B-GJ
Deputy Commissioner and Collector, Kan1rup v. Durganath Sarma,
A.LR. 1968, S.C. 394, explained.
The first respondent cannot claim the protection of Art. 31 (2), because, until it purCjhases the carcasses from the owner it has no right
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in the property, and it cannot set up a grievance for loss of property
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which it does not own. [409 HJ
( 5) Whether by virtue of the contracts given by the Corporation to
other persons who are claimed to be rivals in business of the first respondent unreasonable restrictions may be deemed to be placed upon the
first respondent's fundamental right is a matter on. which no argument
was advanced before the High Court.
In any event, it cannot affect the
,·alidity of the statute or its provisions. [410 B-D]
H
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1654 of
1966.
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MAHARASHTRA v. MUMBAI SANGH (Shah, J.)
696
A
Appeal from the judgment and order,. dated March 8, 1963
~·
of the Bombay High Court in Appeal !l(o. 7_ of 1963.
B
and
Civil Appeals Nos. 1019 and 1020 of 1967.
Appeals from the judgment and order, dated August 20,
1964 of the Bombay High Court in Appeals Nos. 53 and ~5 of
1963.
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C. K. Daphtary, Attorney-General, N. S. Bindra, R. Gopala-
-
krishnan and S. P. Nayar, for the appellant (in C. A. No. 1654
of 1966).
Niren De, Solicitor-General, G. L. Sanghi, and /. B. DadaC
chanji, for the appellants (in C.As. Nos. 1019 and 1020
of
1967) and respondents Nos. 3 and 4 (in c.A. No. 1654 of
1966).
B. Sen and I. N. Shroff, for respondents Nos. 1 and 2 (in C.A.
No. 1654 of 1966 )-
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K. K. Singhvi, S. C. Agarwala, R. K. Garg, D. P. Singh and
A. K. Gupta, for the respondents (in C.A. No. 1020 of 1967).
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The Judgment of the Court was delivered by
Shah, J. The High Court of Bombay has declared s. 372(g)
and a part of s. 385 of the Bombay Municipal Corporation Act 3
of 1888 as amended by Act 14 of 1961 ultra vires because in
their view these provisions infringe the guarantee of Arts. 19 ( 1)
(f) & (g) of the Constitution. The State of Maharashtra and
the Municipal Corporation of Greater Bombay have appealed to
this Court.
The first respondent in Appeal No. 1654 of 1966 is a society
registered under the Societies Registration Act, 1860, and carries
on, within the limits of Greater Bombay, the business of skinning
carcasses of dead animals and utilising the products for industrial uses.
The second respondent is an owner of a stable of
milch-cattle at Andheri within the limits of Greater Bombay. By
Act 14 of 1961 the Legislature of the State of Maharashtra
amended, amongst others, ss. 367, 372 and 385 of Act 3 of 1888
enacting that an owner of the carcass of a dead animal shall
deposit it at the place appointed in that behalf by the Corporation,
and entrusted the Corporation with power to arrange for disposal
of the carcasses. On October 14, 1961
the Assistant Head
Supervisor of the Municipal Corporation called upon the first
respondent to stop removing carcasses from the "K" Ward of the
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Corporation. On November 27, 1961, the Corporation published
a notification inviting the attention of the public concerned to the
provisions of s. 385 and other provisions of the Act and warned
the persons concerned that violation of the provisions was liable
396
SUPREME COURT REPORTS
. (1969] 2 s.c.:R.
to be punished. On January 10, 1962, the Corporation resolved
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to grant a contract authorising removal and disposal of carcasses
under s. 385 of the Act in respect of ~ards, H, K, L, M, E, P,
B & T to the Harijan Workmens' Co-operative Labour Society
Ltd., and declared that no other person or agency was authorised
to remove and dispose of carcasses under the provisions of s. 385
of the Act·
B
Respondents Nos. 1 & 2 to this appeal moved a petition in
the High Court of Bombay for an order cancelling or setting aside
the notice dated October 14, 1961, and the notification dated
November 27, 1961, for an order restraining the Corporation
from demanding fee for removal of such carcasses, from taking
any steps or proceedings against the respondents for enforcement
of the provisions of ss. 366, 367(c), 372(g) and 385 of the
Act and from claiming ownership in the carcasses of the dead
animals of private owners.
The State of Maharashtra was later
impleaded as a .Party-respondent to the petition.
Kantawalla, J., dismissed the petition. He held that ss. 366,
367 ( c) and 385 of the Act were "enacted for the promotion of
public health and for the prevention of danger to life of the community and in the larger interest of the public", and that the
restrictions upon the rights of the owne.rs of cattle and persons
carrying on business in _carcasses were, because of the special protection granted by Art. 31 ( 5 )(b) (ii) not inconsistent with or
repugnant to the fundamental rights guaranteed under Art. 31 (2)
of the Constitution, and since the impugned provisions were protected, the second respondent could not claim that his fundamental
right guaranteed by Art. 19(1)(f) of the Constitution was infringed.
The learned Judge also held that the restrictions
imposed by the impugned provisions were reasonable and in the
interest of the general public and were on that account not within
the protection of Art. 19(1)(g) of the Constitution.
In appeal under the letters patent the High Court modified the
order passed by Kantawalla, J., and declared s. 372(g) and a part
of s. 385 of the Act invalid. The High Court did not pass any
order consequential on the declaration.
Against that order the
State of Maharashtra has preferred this appeal with certificate
granted by the High Court.
Section 3 (z) defines 'nuisance' : it includes any act, omission,
place, or thing which causes or is likely to cause injury, danger,
'annoyance or offence to the sense of sight, smelling or hearing,
or which is or may be dangerous to life or injurious to health or
property.
Section 61 sets out the obligatory and discretionary
duties of the Corporation. It is thereby incumbent upon the
Corporation to make adequate provision, inter alia, for scavenging,
removal and disposal of excrementitious and other filthy matters,
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MAHARASHTRA v. MUMBAI SANGH (Shah, J.)
397
and of all ashes, refuse and rubbish, reclamation of unhealthy
localities, removal of noxious vegetation and generally the abatement of all nuisances. By ss. 365, 366, 367, 368, 372 and 385
it was provided thats. 365-"For the purposes of securing the efficient
scavenging and cleansing of all streets and premises, the
Commissioner shall take measures for securing-
(a)
(b) the removal of the contents of all receptacles
and depots and of the accumulations at all places provided or appointed by him undl'!' section 367 or 368 for
the temporary deposit of any of the matters specified in
the said sections."
S. 366-"All matters collected by municipal servants
or contractors in pursuance of the last preceding section
and of section 3 69 and carcasses of dead animals deposited in any public receptacle, depot or place under section 367 shall be the property of the Corporation."
S. 367-"The Commissioner shall provide or appoint
in proper and convenient situations public receptacles,
depots and places for the temporary deposit or final
disposal of-
( a) dust, ashes, refuse and rubbish;
(b) trade refuse;
( c) carcasses of dead animals and excrementitious
and polluted matter;
Provided that-
(i) the said matters shall not be finally disposed of
in any place or manner in which the same have not heretofore been so disposed of, without the sanction of
the corporation or in any place or manner which the
State Government think fit to disallow;
(ii) any power conferred by this section shall be
exercised in such manner as to create the least practicable nuisance."
S. 368-"(1) It shall be incumbent on the owners
and occupiers of all premises to cause all dust ashes
refuse, rubbish and trade refuse to be collect~d fro~
their respective premises and to be deposited at such
times as the Commissioner, by public notice, from time
to time prescribes in the public receptacle, dep<>t
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SUPREME COURT REPORTS
[1969] 2 S.C.R.
place provided or appointed under the last precedinf.
section or the temporary deposit or final disposal thereo .
"
S. 372-"No person-
(a) who is bound, under section 368 or section 370,
to cause the removal of dust, ashes, refuse, rubbish and
trade refuse or of excrementitious or polluted matter,
shall allow the same to accumulate on his premises for
more than twenty-four hours or neglect to cause the
same to be removed to tlie depot, receptacle or place
provided or appointed for that purpose;
"
(g) shall deposit the skin or otherwise dispose of
the carcass of any dead animal at a place not provided
or appointed for this purpose under section 367·"
S. 3 85-" ( 1) It shall be the duty of the Commissioner to provide for the removal of the carcasses of all
animals dying within Greater Bon\bay;
(2) The occupier of any premises in or upon which
the animals shall die or in or upon which the carcass
of any animal shall be found, and the person having the
charge of any animal which dies in the street or in any
open place, shall within three hours after the death of
such animal, or if the death occurs at night, within three
hours after sunrise, report the death of such animal at
the municipal health department office of the division of
the Greater Bombay in which the death occurred or in
which the carcass is found and shall not unless authorised by the Commissioner in this behalf, remove or permit
to be removed the carcass of any animal dying in or
upon any place within Greater Bombay;
"(3) For every carcass so removed by municipal
agency, a fee for the removal of such amount as shall
be fixed by the Commissioner, shall be paid by the owner
of the animal or, if the owner is not known,
by the
occupier of the premises in or upon which, or by the
person in whose charge, the said animal died." ,
The provisions are manifestly enacted with the object of ensuring
expeditious removal of carcasses of dead animals which, if allowed to remain, are likely to constitute a grave nuisance and are
likely to endanger public health.
The carca~s of a dead animal
is a noxious thing, which in the hot and humid climate of Bombay
putrifies within a short time after the death of the animal and
defiles . the place and atmosphere with foul smells, and is likely
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MAHARASHTRA v. MUMBAI SANGH (Shah, J.)
399
to spread disease if immediate and proper steps for removal and
disposal are not taken. The Municipal Corporation is entrusted
with authority to take steps to protect the health of the residents
within the municipal area.
To ensure against a grave nuisance
to the residents, duty is imposed by the Act upon the owner of
the animal or occupier of the premises in or upon which the
animal dies or the person having charge of the animal to remove
the carcass with the permission of the Commissioner in that behalf
at his own expense, or to have it removed through the agency of
the Corporation. If it is removed by the Corporation, the owner
is required to pay the prescribed fee for such removal. After it is
deposited by the owner or by the Corporation in a receptacle,
depot or place which is set apart for that purpose, the carcass may
be disposed of by the Corporation in a manner which is likely
to cause the least public nuisance. For that purpose the carcass
is at the disposal of the Corporation. The Act does not make any
provision relating to the manner in which the Corporation is to
dispose of the carcass, but it is implicit in the scheme of the Act
that the Corporation will provide a place removed from the inhabitated localities where the carcasses may be disposed of without
involving any danger to public health. To facilitate this object it
is enacted by the Legislature that the carcasses of dead animals
deposited in any public receptacle, depot or place shall be the
property of the Corporation. Unquestionably it is in the interest
of the residents of the Municipal Corporation and for promotion
of public health and for prevention of danger to the community
that carcasses of the dead animals shall be removed expeditiously
and shall be disposed of in a manner which is likely to cause the
least nuisance.
The carcass of a dead animal is private property and belongs
to the owner of the animal, and the carcass on sale by the owner,
when it is of a bull, cow or buffalo, fetches a small price. Counsel
for the second-respondent urged that the provisions of the Act
which place restrictions upon the right of the owner to dispose of
the carcass and compel him to incur expenditure for removal or
to pay a fee for that removal to the appointed place, and extinguish his ownership in the carcass when it is deposited in the place
appointed, infringe the fundamental right to property guaranteed
under Art. 19(l)(f) and Art. 31(2) of the Constitution. Counsel
for the first respondent urged that bv the impu~ed provisions the
first respondent is deprived of his right to carrv on business and
on that acco?nt. infringe the right guaranteed by Art. t9o')(g)
of the Constitution.
Coun~el ~or the Co11?oration conce.ded that a carcass is property which is capable of being owned. Counsel, however submitted that a carcass is not commercial property and the' first
respondent could not claim to carry on business in disposal of
400
SUPREME COURT REPORTS
[1969) 2 S.C.R.
carcasses.
The judgment of the Supreme Court of the United
States in Gerrit W. Clason v. State of Indiana(') on which reliance
was. placed by counsel for the Corporation merely decided that a
State statute requiring the owner of a dead animal not slaughtered
for food to bury or burn such body on his premises or to deliver
it to the representative of a disposal plant licensed to do business within the State, and prohibiting transportation over the highways of the State of the body of such animal except to a licensed
disposal plant and with certain sanitary precautions, did not unduly discriminate against and burden inter-state commerce. The
judgment doe$ not support the plea that a citizen carrying on the
business in the disposal o_f the carcasses is not entitled to the constitutional protection against unreasonable restrictions on the
carrying on of any lawful business or occupation.
The second
respondent is not a dealer in carcasses. He has a right of ownership in the carcass. f!e claims that before the enactment of the
impugned provisions he was accustomed to sell the carcass of an
animal dying in his' stable for a price; he is under the Act enjoined
to deposit the carcass in an appointed place and for that purpose
to incur expenditure for removal of the carcass or to pay a fee
to the Corporation for arranging for its removal. On account of
the impugned provisions he says that he cannot sell the carcass,
and when he deposits the carcass in the appointed place his
ownership in the carcass ceases and he has to pay for removal of
ihe carcass.
Article 19 (1 )( f) of the Constitution confers upon all citizens
the right to acquire, hold and dispose of property. Carcass of an
animal belonging to a p<lrson is his property and he has the right
of disposal of the carcass. But that fundamental right, like all
other rights in Art. 19(1), is not absolute : it is subject to reasonable restrictions. By cl. (5) it is enacted that :
"Nothing in sub-clauses (d), (e) and (f) of the
said cla,use shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making
any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the
said
subclauses either in the interests of the ireneral public :>r .
for the protection of the general public or for the protection of the interests of any Scheduled Tribes."
A carcass being in its very nature a noxious thing, if allowed to
remain on the premises of the owner or occupier, is likely to
cause serious harm to the health and well-being of the residents
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and other persons in the neighbourhood. The law which imposes
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on the owner or the occupier of the place in which the carcass .
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is found, duty to remove the carcass or to get it removed through :
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\I) .83 L. Ed. 8~8.
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MAHARASHTRA v. MUMBAI SANGH (Shah, /.)
"401
the Municipal agency with the least practicable delay is conceived in the interests of the general public and no serious argument to the contrary was advanced before us.
A law designed to abate a grave nuisance and for protection
of public health is prima facie one enacted for the protection of
the interests of the general public.
But that alone is not sufficient: the restriction imposed by the law must be reasonable, i.e.,
the restriction must not be arbitrary or excessive, and must not
place upon the right of the citizen a limitation which is not
calculated to ensure protection of the interests of the general
public.
In the view of the High Court the law which compels the owner
to deposit the carcass in the appointed place and thereby prevents
him from selling it, and involves him in expenditure for removing it, or in the payment of a fee for removal, imposes an unreasonable restriction. The High Court also observed that a law
which declares that as soon as the carcass-which is a valuable
property-is deposited, it becomes the property of the Corporation, makes an unreasonable provision since "it makes no difference
whether the carcass is disposed of by a purchaser from tlie owner
of the carcass or by a contractor who purchased it from the
Corporation". But in so holding, in our judgment, the High Court
ignored the hazard to the public health arising from adulteration
of the food of the people. There is evidence on the record which
is not controverted that meat and fat from the carcasses are used
by unscrupulous persons for adulterating the food of the community. Mere imposition of an injunction to remove the carcass within the prescribed period abates the nuisance likely to result from
the carcass remaining on the premises of the owner: it does not
eliminate grave hazard to public health by the adulteration of the
food of the people by the products from carcasses. By merely
enacting that the carcass will be removi:d expeditiously, the second
object cannot be served. The Corporation has control over the
contractor to whom the carcasses are entrusted for disposal.
It
has set apart a place for skinning and has supervision over the
disposal of the products. Even by imposing stringent supervision
upon persons carrying on the business of skinning carcasses protectioll' of the community against adulteration of its food cannot
be effectively secured, because it would not be difficult for a purchaser not subject to the control of the Corporation to remove
the carcasses beyond the Corporation limits and then to bring
contaminated meat and the fat back into the Corporation area.
The Legislature has designed a scheme by which reasonable
restrictions are placed upon the right of a citizen to dispose of his
property: possibility of an alternative scheme which might have
been but has not been designed, will not justifiably expose the
first scheme to the attack that it imposes unreasonable restrictions.
402
SUPREME COURT REPORTS
[1969] 2 S.C.R.
Reasonableness of restrictions imposed by a law has to be
adjudged in the light of the nature of the right, danger or injury
which may be inherent in the unbridled exercise of the right and
the necessity of protection against danger which may r~sult to the
public by the exercise of the right. In each case the test is whether the restriction is commensurate with the need of protection
of the interest of the public against the exercise of the right. But
the fact that the owner is unab1e to sell for a price-the carcass and
is required to pay a fee for removal of the carcass does not, in our
judgment, render a provision which is essentially conceived in the
interests of the general public, as indicated earlier, unreasonable.
The Corporation has to arrange for effectively disposing of the
carcass, and it would be necessary for effectuating that purpose
to provide that the title of the owner in the carcass should he
extinguished. Unless the title of the owner in the carcass is extinguished, various complications may arise in the way of disposal
of the carcass. We are unable to agree with the High Court, that
for the purpose of ensuring proper disposal, transfer of ownership
to the Municipal Corporation was not. necessary or that the provisions went "far beyond the legitimate purpose of making
them".
·
In determining the extent of the right which a citizen may
claim to exercise. the Court is concerned to deal with the reasonableness of the resfriction imposed upon the exercise of the right.
As observed by Patanjali Sastri~ C.J., in State of Madras v. V. G.
Row(')-"the test of reasonableness, wherever prescribed, should
be applied to each individual statute impugned, and no abstract
standard, or general pattern of reasonableness can be laid down
as applicable to all cases. The nature of the right alleged to have
been infringed, the underlying purpose of the restrictions imposed,
the extent and urgency of the evil sought to be remedied thereby,
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the disproportion of the imposition, the prevailing conditions at F
the time, should all enter into the iudicial verdict." As stated by
Mahaian, J., in Chintamanrao v. State of Madhya Pradesh(') at
p. 763 :
"The word 'reasonable' implies intelligent care and
deliberation. that is the choice of a course which reason
dictates.
Legislation which arbitrarily or excessively
invades the right cannot be said to contain the quality
of reasonableness and unless it strikes a prooer balance
between the freedom guaranteed in Art. 19 (1 )( ~) and
the social control permitted by clause (6) of Art. 19 it
must be held to be wanting in that quality."
The High Court was of the view that looking to the object intended
to be achieved it was not necessary to impose "such wholesale
restriction on the owner of carcasses as also on those who carry
(I) {1952] S.C.R. 597, 607.
(2) (1950) s.c.R. 759.
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MAHARASHTRA v. MUMBAI SANGH (Shah, I.)
403
on the trade as has been imposed." We do not think, however,
that the provisions incorporated by Act 14 of 1961 were arbitrary
or excessive. Reasonableness of the restriction imposed upon the
right to acquire, hold and dispose of property must be evaluated
in the light of the nature of the commodity and its capacity to be
detrimental to the public weal. The power of the State to impose
reasonable restrictions may extend to ,prohibiting acquisition holding or disposal of a commodity if the commodity is likely to
involve grave injury to the health or welfare of the people. In
adjudging the reasonableness of restrictions imposed upon the
holding or disposal of a carcass which is noxious, maintenance of
public health is the paramount consideration. Restriction imposed
upon the right of an owner of a carcass to dispose it of in the
manner indicated in the Act, being enacted solely in the interest
of the general public, cannot be deemed arbitrary or excessive
merely because they involve the owner into a small financial
burden.
Under the ConstitutiQl1 a proper balance is intended to
be maintained between the exercise of the right conferred by Art.
19(1)(f) and (g) and the interests of a citizen in the exercise of
his right to acquire, hold or dispose of his property or to carry
on occupation, trade or business.
In striking that 'balance the
danger which may be inherent in permitting unfettered exercise of
right in a commodity must of necessity influence the determination
of the restrictions which may be placed upon the right of the
citizen to the commodity. The law which compels the removal
of the carcass expeditiously from the place where it is lying is not
contended to be arbitrary or excessive. The law which compels
removal to the appointed place anq disposal of the carcass under
the supervision of the Corporation to which is entrusted the power
and duty to take steps to maintain the public health cannot also be
regarded as arbitrary or excessive, merely because the enforcement of the law involves some pecuniary loss to the citizen. We
are unable to agree that by compelling disposal of carcasses by
leaving to the owner of the carcass to dispose it in any manner
he thinks fit, danger to the public health could be effectively
avoided.
It was faintly argued that the levy of Rs. 20 as fee for removal
of each carcass was excessive. But there is no evidence before
the Court about the expenses which the Corporation is reauired
to incur in performing the service relating to the removal of
carcasses of all animals some of which mav yield in the disoosal
valuable by-!Jroducts and others not.
Evidently in a large and
crowded metropolitan city it would be necessary to maintain
covered wagons for removal of carcasses, to maintain an insoecting staff, to make adeauate arrangements for deoosit of carcasses
at certain Places, and for their disoosal under the supervision of
the Municipal staff. Whether the fee levied from the owner of the
404
SUPREME COURT REPORTS
[1969] 2 S.C.R.
carcass of an animal in excess of the expenditure which the Corporation will have to incur for the maintenance of the service is not
commensurate is a matter on which no investigation appears to
have been made and this Court cannot enter upon !hat question
for the first time.
It was, however, urged that a provision which not only extinguishes the title of the owner in the carcass thereby involving him
in the loss of the value which he would have obtained by sale of
the carcass, but simultaneously imposes upon him a liability to
remove the carcass at his own expense is per se unreasonable.
We do not think so. If the carcass is likely to be deleterious to .
public health and its removal from the place where it is lying
being in the interests of the public health, imposition of an obligation upon the owner to remove the carcass at his own expense
or to pay for its removal, cannot be regarded as unreasonable,
even if the charge which falls upon the owner is in addition to
the loss which he suffers by reason of the extinction of his title in
the carcass.
If the owner's right to dispose of his property is by the enactment of the impugned section subjected to reasonable restrictions,
it must follow that the right of the skinner, assuming that he has
a right in the carcass, is also subjected to reasonable restrictions,
imposed in the interests of the general public.
The impugned provisions do not infringe the guarantee of
freedom under Art. 19 ( f) of the Constitution. But even if it be
established ·that the law which imposes a reasonable restriction
upon the right of a citizen to acquire, hold and dispose of property, is not on that account free from the challenge that it
mtringes the guaranteed freedom under Art. 31. Article 31, after
it was amended by the Constitution (Fourth Amendment) Act,
1955, provides:
"(1) No person shall be deprived of liis property
save by authority of law.
(2) No property shall be compulsorily acquired or
requisitioned save for a public purnose and save by
authority of a law which provides for compensation for
the property so acquired or requisitioned and either fixes
the amount of the compensation or specifies the principles on which, and the manner in which the comnensation is to be determined and given; and no such law
shall be called in question in anv court on the ground
that the compensation provided by that law is
not
adequate.
(2A i Where a law does not provide for the transfer
of the ownershio or right to nossession of, anv nronerty
to the State or to. a corporation owned or controlled by
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MAltARASHTRA v. MUMBAI SANGH (Shah, J.)
405
the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.
(3)
(4)
( 5) Nothing in clause ( 2) shall affect-
(a) the provisions of any existing law other than a
law to which the provisions of clause
( 6)
apply, or
(b) the provisions of any law which the State may
hereafter make-
(i)
(ii) for the promotions of public health or the
prevention of danger_ to life or property,
or
(iii)
(6)
"
Before the Constitution (Fourth Amendment) Act, 1955, the prevailing opinion in this Court was that Arts. 31(1) & (2) dealt
with the same subject-matter and were not mutually exclusive in
their scope and content, and should be read together and understood as dealing with the same subject, namely, the acquisition or
taking possession of property referred to in cl. (2) of Art. 31,
and that Art. 31 (before amendment) is a self-contained Article
providing for a subject different from that dealt with in Art. 19.
But since the enactment of the Constitution (Fourth Amendment)
Act, 1955, clauses \2) & (2A) of Art. 31 and cl. (1) of Art. 31
deal with different subjects : Clauses (2) & (2A) deal with
acquisition and requisitioning of property; and cl.
( 1)
with
deprivation of property by authority of law : Kavalappara Kottarathil Kochuni and Ors. v. The State of Madras and Ors. (1)
It
was also held in that case that the word 'Jaw' used in Art. 31 ( 1)
indicates its limitation and refers back to Art. 19 and any Jaw
made under Art. 31 ( 1) can be sustained only if the restrictions it
imposes are reasonable and in the interest of the general public,
and that the correct approach should be first to ascertain the
fundamental right and then to see whether the Jaw infringes that
right. If ex facie it does so, it has to stand the test of Art. 19 ( 5).
In certain circumstances, however, deprivation of fundamental
right to property may also amount to a reasonable restriction under
that Article· It was also observed that the word 'law' in Art. 31 ( 1)
must mean a valid law, and such a law must satisfy two tests-
(1) that the legislature is competent to enact it; and (2) that it
(I) [1960! 3 S.C.R. 887, 916.
406
SUPREME COURT REPORTS
[i 969J 2 s.c.a.
does not infringe any fundamental right. A law that deprives a
citizen of his property may, therefore, be invalid if it infringes
Art. 19(1)(f) of the c.;onstitution, unless !tis protected by cl. (5)
of Art. 19.
It was however ruled by a unanimous decision of this Court
in Smt. Sitabati Debi and Anr. v.