TMI Blog1968 (10) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Maharashtra amended, amongst others, Sections 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 1961 the Assistant Head Supervisor of the Municipal Corporation called upon the first respondent to stop removing carcasses from the K Ward of the Corporation. On November 27, 1961, the Corporation published a notification inviting the attention of the public concerned to the provisions of Section 385 and other provisions of the Act and warned the persons concerned that violation of the provisions was liable to be punished. On January 10, 1962, the Corporation resolved to grant a contract authorising removal and disposal of carcasses under Section 385 of the Act in respect of Wards, H, K, L, M, E, P, B, T to the Harijan Workmen s 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 Section 385 of the Act. 3. Respondents Nos. 1 2 to this appeal moved a petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excrementitious and other filthy matters, and of all ashes, refuse and rubbish, reclamation of unhealthy localities, removal of noxious vegetation and generally the abatement of all nuisances. By Sections 365, 366, 367, 368, ,372 and 385 it was provided that- Section 365-- For the purposes of securing the efficient scavenging and cleansing of all streets and premises, the Commissioner shall take measures for securing- (a) X X X X X (b) the removal of the contents of all receptacles and depots and of the accumulations at all places provided or appointed by him under Section 367 or 368 for the temporary deposit of any of the matters specified in the said sections. Section 366- All matters collected by municipal servants or contractors in pursuance of the last preceding section and of Section 369 and carcasses of dead animals deposited in any public receptacle, depot or place under Section 367 shall be the property of the Corporation. Section 367--The Commissioner shall provide or appoint in proper and convenient situations public receptacles, depots and places for the temporary dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 carcass of a dead animal is a noxious tiling, which in the hot and humid climate of Bombay putrefies within a short time after the death of the animal and defiles the place and atmosphere with foul smells and is likely 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rry on business, and on that account infringe the right guaranteed by Article 19(1)(g) of the Constitution. 7. Counsel for the Corporation conceded 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 carcasses. The judgment of the Supreme Court of the United States in Gerrit W. Clason v. State of Indiana, (1939) 83 Led 858 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 does not support the plea that a citizen carrying on the business in the disposal of the carcasses is not entitled to the constitutional protection against u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplications 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 . 12. 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 restriction imposed upon the exercise of the right. As observed by Patanjali Sastri, C. J., in State of Madras v. V. G. Row, 1952CriLJ966 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, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. As stated by Mahajan, J., in Chintamanrao v. State of Madhya Pradesh, [1950]1SCR759 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removal to the appointed place and 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. 13. It was faintly argued that the levy of ₹ 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 required to incur in performing the service relating to the removal of carcasses of all animals some of which may yield in disposal valuable by-products 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 inspecting staff, to make adequate arrangements for deposit of carcasses at certain places, and for their disposal under the supervision of the Municipal sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate. (2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by 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) x x x x x (4) x x x x x (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) x x x x x x (ii) for the promotions of public health or the prevention of danger to life or property; or (iii) x x x x x (6) x x x x x x Before the Constitution (Fourth Amendment) Act, 1955, the prevailing opinion in this Court was that Article 31(1) and (2) dealt with the same subject-matter and were not mutually exclusive in their scope and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on still remains whether the impugned law is void because it does not provide for payment of compensation for the loss occasioned to the owner of the carcass resulting from the extinction of his title thereto. Since the amendment by the Constitution (Fourth Amendment) Act, 1955, Clauses (2) and (2A) of Article 31 deal with the acquisition or requisitioning of property--moveable or immovable--for a public purpose. The protection of Clause (2) is attracted only if there is acquisition or requisitioning of the property for a public purpose i. e. for using the property for some purpose which would be beneficial to the public. The right guaranteed by Article 31(2) is that property shall not be compulsorily acquired or requisitioned for a public purpose save by authority of law which provides for compensation for the property so acquired or requisitioned. The expression acquired or requisitioned x x for a public purpose means acquired or requisitioned for being appropriated to or used for a public purpose. But the 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notices of acquisition of his land issued thereunder. Act 6 of 1955 was enacted before the Constitution (Fourth Amendment) Act, 1955, which came into force on April 29, 1955. The High Court held, inter alia, that Act 6 of 1955 was a law for acquisition of property and was not protected by Clause (5)(b)(ii) of Article 31. This Court confirmed the order passed by the High Court. It was observed by this Court (p. 402): It is to be noticed that Clause (5)(b)(ii) saved laws for the promotion of public health or the prevention of danger to life or property. It did not save laws for the acquisition of property. We are satisfied that Clause (5)(b)(ii) was not intended to except laws for the acquisition of property from the purview of Clause (2). x x x A law for promotion of public health or for prevention of danger to life or property sometimes has to provide for destruction and impairment of value of private property and the taking of temporary possession of the property by the State. It may be necessary to destroy contaminated food or to burn plague-infested buildings for the promotion of public health, to pull down a building to prevent a fire from sprea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no compensation was payable in respect thereof, Article 31(2) notwithstanding. We may observe that this Court, in Deputy Commr. Kamrup s case, [1968]1SCR561 proceeded to observe that even though since the amendment by the Constitution (Fourth Amendment) Act, Clauses (1) and (2) of Article 31 dealt with separate subject-matters, since Clause (5)(b)(ii) of Article 31 has not been amended, its connotation could not be deemed to have been altered: if originally it was intended to be a restriction on the right to property as delineated by Clauses (1) and (2) of Article 31, it continued to have the same operation. In Deputy Commr. Kamrup s case, [1968]1SCR561 , however, the Court was not directly called upon to declare the precise inter-relation between Clause (5)(b) (ii) and Clause (2) as amended, for the impugned Assam Act was enacted before the amendment of the Constitution by the (Constitution Fourth Amendment) Act. 21. It is sufficient for the purpose of this case to hold that a law declaring extinction of the right of the owner in movable property not with a view to use it for a public purpose but to destroy it for abating nuisance and preventing danger to public h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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