1. In both these petitions, identical questions of law and facts are involved and similar notices issued by the respective local authorities are challenged and therefore, both these petitions are dealt with by this common order.
2. Heard Mr. Girish Patel, learned Senior Advocate with Mr. Manoj Shrimali for Girish Patel Associates for the petitioners, Ms. Nisha M. Thakore, learned AGP for respondent Nos.1, 2, 4, 5 and 6 as well as Ms. Jirga Jhaveri, learned advocate for respondent No.3 in Special Civil Application No.12397 of 2012. Heard Mr. Sandip M. Patel, learned advocate for the petitioner, Ms. Nisha M. Thakore, learned AGP for respondent Nos.1 and 3 as well as Ms. Kalpana Brahmbhatt, learned advocate for respondent No.2 in Special Civil Application No.12407 of 2012.
3. The facts as emerging from the record of both the petitions are as under:-
3.1 The petitioners in Special Civil Application No.12397 of 2012 are engaged in the business of selling Chicken at Vapi town. It transpires from Annexure-A to the petition that petitioner No.1 has been granted licence under the provisions of the Bombay Shops and Establishment Act, 1948 by the local authority namely Vapi Municipality and the same has been renewed from time to time and the said licence is still subsisting. Similarly, licence is also granted by the local authority to petitioner No.2 and the same is subsisting as on date. The petitioners have challenged a public notice dated 6.9.2012 at Annexure-B to the petition, whereby the local authority namely Chief Officer, Vapi Nagarpalika on the basis of the circular/communication dated 3.9.2012 issued by the State of Gujarat has prohibited sale of Maas, Fish and Mutton on account of pious festival of Paryushan.
3.2 Similarly, in Special Civil Application No.12407 of 2012, the petitioner is proprietor of the firm and is dealing in the business of Fish at Gandhidham. The petitioners have challenged a similar notice dated 5.9.2012 issued by the Gandhidham Municipality. It is also based on the instructions from the Director of Municipalities dated 3.9.2012. The petitioner is also given licence under the Bombay Shops and Establishment Act, 1948 by the local authority namely Gandhidham Municipality which is subsisting as on date.
4. In response to the notice issued by this Court, the State Government has filed affidavit in reply in Special Civil Application No.12407 of 2012 and the Director of Municipalities has filed affidavit in reply in Special Civil Application No.12397 of 2012.
5. Mr.
Girish Patel, learned Senior Advocate for the petitioners has contended that the Municipality has acted on the instructions of the Government. Mr. Girish Patel has vehemently contended that the Government has no power to issue instructions under the provisions of the Gujarat Municipalities Act, 1963. Mr. Patel further contended that even if it is presumed that the Government has power to issue such instructions, the said Municipality has relied upon the same without any application of mind, only on the basis of the instructions dated 3.9.2012. It is contended that the Municipality cannot be permitted to exercise such powers at the dictates of any superior authority and that the Municipality has given public notice without any application of mind. Mr. Patel contended that the Municipality has no power to prohibit sale of particular item as it had already given licence to the petitioners and which is valid and subsisting as on date. It is submitted that unless in a situation where there is violation of any of the conditions of the licence, the licence can be suspended. It is further submitted that the Chief Officer of Municipality has no power to issue such directions and impose restrictions upon the petitioners.
6. Mr.
Patel contended that the words "Maas Machchhi" does not cover "Chicken" and hence, the impugned notices cannot include the word "Chicken" and therefore, the petitioners cannot be prohibited for selling Chicken on the basis of the impugned notices. It is submitted that the impugned notices are violative of Article 19(1)(g) of the Constitution of India as it restricts fundamental rights of the petitioners to trade. It is further submitted that the restrictions imposed upon the petitioners are not reasonable restrictions. It is also submitted that the instructions are issued without any basis of any law and hence, the impugned notices are ultra vires. It is also contended that the instructions are issued on the basis of the judgment of the Hon'ble Apex Court which does not apply in case of Chicken and no slaughter takes place and the Chicken is not cut in a slaughter house. It is also contended that the State Government cannot issue such directions upon feeling of one particular religion and stop business of the petitioners in a secular state which is one of the basic structure of the Constitution.
7. Mr.
Sandip M. Patel, learned advocate for the petitioner in Special Civil Application No.12407 of 2012 has adopted the arguments made by Mr. Girish Patel, learned Senior Advocate for the petitioners in Special Civil Application No.12397 of 2012. Mr. Patel further contended that the impugned notices are ex-facie, bad and illegal and are being implemented to the knowledge of the petitioners only in the town of Gandhidham, whereas in the other towns, the business of Fish is not prohibited even though as per the instructions dated 3.9.2012 all Municipalities have been directed by the Director of Municipalities on the basis of the instructions from the State Government. He, therefore, submitted that the impugned notices are bad in law, discriminatory and violative of Article 14 of the Constitution of India.
8. The learned counsel for the petitioners in both the matters submitted that the reliance put forward by the Government on the judgment of the Hon'ble Apex Court is totally erroneous as the said judgment deals with the slaughter of other animals which were prohibited during Paryushan period, whereas in both the petitions, Chicken and Fish are not slaughtered in slaughter house, but are sold in the open market.
9. As against this, Ms. Nisha M. Thakore, learned AGP has invited attention of this Court to the averments made in the affidavit in reply in both the matters. Ms. Nisha M. Thakore, learned AGP submitted that no fundamental rights or legal rights of the petitioners are violated which calls for interference by this Court in its writ jurisdiction. Ms. Nisha M. Thakore, learned AGP submitted that the instructions have been issued by the State Government and the same is communicated to all the local authorities by the Director of Municipality vide its instructions dated 3.9.2012 and various Municipalities and Nagarpalika as well as rural areas are informed to close the shops during pious festival of Paryushan observed by Jain community during 12.9.2012 to 19.9.2012. The learned AGP further submitted that such instructions are issued in terms of the order passed by the Hon'ble Apex Court in its judgment and order dated 30.8.2005 passed in SLP No.11810 - 11812 of 2005 as well as Civil Appeal No.5472 of 2005 dated 24.3.2008. The learned AGP submitted that the restrictions imposed are only for a particular period and therefore, there are no instructions resulting into violation of fundamental rights of the petitioners. The learned AGP further submitted that the instructions issued are in form of a request to the authorities to close the slaughter house as well as sell of Maas, Machchhi and Mutton during the pious festival of Paryushan. The learned AGP relied upon the ratio laid down by the Hon'ble Apex Court in the case of Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat & Ors, reported in (2008) 5 SCC 33 and has submitted that the Government had issued these directions which amount to reasonable restrictions.
10. Ms.
Jirga Jhaveri, learned advocate for respondent No.3 Municipality in Special Civil Application No.12397 of 2012 has submitted that as such the Chicken as well as Fish is a non-vegetarian item which is covered by the judgment of Hinsa Virodhak Sangh (supra). Ms. Jhaveri submitted that even the Chicken and Fish are also slaughtered and therefore, the impugned notices are legal and proper and the same amount to reasonable restrictions only for the limited period during the pious festival of Paryushan.
11. Ms.
Kalpana Brahmbhatt, learned advocate for the Municipality in Special Civil Application No.12407 of 2012 submitted that it is a boundant duty of the Municipality to carry out the instructions given by the State Government from time to time and if such instructions are not carried out, the Municipality may be subjected to proceedings under Section 263 of the Gujarat Municipalities Act, 1963.
12. Before reverting to the submissions made by the learned counsel appearing for the respective parties, it would be appropriate to state that the Meat is an animal flesh i.e. eatable food.
"Meat is animal flesh that is eaten as food. Generally, this means the skeletal muscle and associated fat and other tissues, but it may also describe other edible tissues such as offal. Often, meat is used in a more restrictive sense - the flesh of mammalian species (pigs, cattle, lambs, etc.) raised and prepared for human consumption, to the exclusion of fish and other seafood, poultry, and other animals. Usage varies worldwide, depending on cultural or religious preferences.
Lamb, mutton, and hogget (UK, New Zealand and Australia) are the meat of domestic sheet. The meat of a sheep in its first year is lamb;
that of a juvenile sheep older than one year is hogget; and the meat of an adult sheep is mutton.
Distinct from the meat, a lamb (singular with the indefinite article) or lambs (plural) also describes live juvenile sheep (species Ovis arise), which may or may not be used for meat. In Australia, the terms prime lamb is often used to refer to lambs raised for meat.
Poultry is a category of domesticated birds kept by humans for the purpose of collecting their eggs, or killing for their meat and/or feathers. These most typically are members of the superorder Galloanserae (fowl), especially the order Galliformes (which includes chickens, quails and turkeys) and the family Anatidae (in order Anseriformes), commonly known as "waterfowl" (e.g. domestic ducks, domestic geese and ecterim). Poultry also includes other birds which are killed for their meat, such as pigeons or doves or birds considered to be game, such as pheasants. Poultry comes from the French/ Norman would poule, itself derived from the Latin word pullus, which means small animal.
Poultry is the second most widely eaten meat in the world, accounting for about 30% of meat production worldwide, after port at 38%.
A fish is any member of a paraphyletic group of organisms that consist of all gill-bearing aquatic craniate animals that lack limbs with digits. Included in this definition are the living hagfish, lampreys, and cartilaginous and bony fish, as well as various extinct related groups. Most fish are ectothermic ("cold-blodded"), allowing their body temperatures to vary as ambient temperatures change, though some of the large active swimmers like white shark and tuna can hold a higher core temperature. Fish are abundant in most bodies of water. They can be found in nearly all aquatic environments, from high mountain streams (e.g., char and gudgeon) to the abyssal and even hadal depths of the deepest oceans (e.g., gulpers and anglerfish). At 32,000 species, fish exhibit greater species diversity than any other group of vertebrates.
Fish are an important resource worldwide, especially as food. Commercial and subsistence fishers hunt fish in wild fisheries (see fishing) or farm them in ponds or in cages in the ocean (see aquaculture). They are also caught by recreational fishers, kept as pets, raised by fishkeepers, and exhibited in public aquaria. Fish have had a role in culture through the ages, serving as deities, religious symbols, and as the subjects of art, books and movies.
Because the term "fish" is defined negatively, and excludes the tetrapods (i.e. the amhibians, reptiles, birds and mammals) which descend from within the same ancestry, it is paraphyletic, and is not considered a proper grouping in systematic biology. The traditional term pisces (also ichthyes) is considered a typological, but not a phylogenetic classification."
(source from Wikipedia)
13. It can be seen that the instructions dated 17.8.2012 issued by the State of Gujarat in Urban Development and Urban Housing Department is based on a representation made by the Trust and is entirely based on the ratio laid down by the Hon'ble Apex Court in the case of Hinsa Virodhak Sangh (supra). In the aforesaid case, the Hon'ble Apex Court has examined the similar restrictions which were imposed by way of resolutions passed by the Ahmedabad Municipal Corporation for closure of Municipal slaughter house in Ahmedabad during Paryushan festival. Such resolutions were passed under Sections 466(1)(D)(b) of the Bombay Provincial Municipal Corporations Act, 1949. The Hon'ble Apex Court, while considering the aforesaid resolutions, observed thus:-
"27.
Had the impugned resolutions ordered closure of municipal slaughter houses for a considerable period of time we may have held the impugned resolutions to be invalid being an excessive restriction on the rights of the butchers of Ahmedabad who practise their profession of meat selling. After all, butchers are practising a trade and it is their fundamental right under Article 19(1)(g) of the Constitution which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor of the butchery shop alone. There may be also several workmen therein who may become unemployed if the slaughter houses are closed for a considerable period of time, because one of the conditions of the licence given to the shop-owners is to supply meat regularly in the city of Ahmedabad and this supply comes from the municipal slaughter houses of Ahmedabad. Also, a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. What one eats is one's personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court. In R. Rajagopal vs. State of Tamilnadu, AIR 1995 SC 264 (vide para 28) this Court held that the right to privacy is implicit in the right to life and liberty guaranteed by Article 21. It is a 'right to be let alone'.
28. However, in the present case, the closure of the slaughter houses is only for 9 days and not for a considerable period of time. We have, therefore, to take a balanced view of the matter.
29. In this connection it may be mentioned that there is a large population of the Jain community in the States of Rajasthan and Gujarat. The Jains have a religious festival called Paryushan during which they do penance. Out of respect, for their sentiments surely the non-vegetarians can remain vegetarians for 9 days in a year.
30. Mr. Soli Sorabjee, learned senior counsel for one the appellants submitted that even non-vegetarians can get meat from other cities of Gujarat or from other States during these 9 days period of Paryushan and they will not be compelled to become vegetarians. Learned counsel submitted that it is only the municipal slaughter houses which are closed for 9 days, but there is no ban on eating meat during those 9 days which can easily be procured from outside. We do not agree.
31. We have to take a practical view of the matter. Most people do not have the money to purchase meat from other cities or other States and bring it to Ahmedabad. Almost all meat eaters get their meat from the local butcher shop in the city, usually from a shop which is close to their residence. Hence, closure of the slaughter house, in substance, means compelling the non-vegetarians to become vegetarians for 9 days.
32. However, we agree with Mr. Sorabjee that the restriction is only a partial restriction for a limited period, and it is not disproportionate. Hence it is not an unreasonable restriction.
33. While it is true that the fundamental right of the writ petitioners under Article 19(1)(g) is affected by the impugned resolutions of the Municipal Corporation, we have further to examine whether the resolutions are saved by Article 19(6) which states that reasonable restrictions can be put on the right to freedom of trade and occupation under Article 19(1)(g) of the Constitution.
34. In this connection, we may now refer to the well known Constitution Bench decision of this Court in State of Madras vs. V.G. Row, 1952 SCR 597, where this Court observed that while determining the reasonable restriction, the Court should consider not only the factors of the restriction such as the duration and the extent but also the circumstances and the manner in which the imposition has been authorized. The Court further observed : (AIR p.200, para 15) "15.
... It is important in this context to bear in mind that 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. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an Important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable."
The aforesaid observations have become locus classicus. In the present case we have noticed that the closure of the slaughter house is only for 9 days and not for a considerable period of time. This decision indicates that the restriction is reasonable. A period of 9 days is a very short time and surely the non-vegetarians can become vegetarians during those 9 days out of respect for the feeling of the Jain community. Also, the dealers in meat can do their business for 356 days in a year, and they have to abstain from it for only 9 days in a year. Surely this is not an excessive restriction, particularly since such closure has been observed for many years.
40. In the present case, we do not find any clear violation of any constitutional provision by the impugned resolutions. As already stated above, had the closure of the slaughter houses been ordered for a considerable period of time, we would have declared it to be unconstitutional on the ground of violation of Articles 14, 19(1)(g) as well as 21 of the Constitution. However, in the present case, the closure is only for a few days and has been done out of respect for the sentiments of the Jain community which has a large population in Gujarat. Moreover such closure during Paryushan has been consistently observed in Ahmedabad for a very long time, at least from 1993 and probably for a longer period."
14. Considering the definition of Meat as observed above, the word "Meat" and "Mutton" is animal flesh, whereas Fish is a sea food and Chicken is a poultry food. The learned counsel appearing for the respondents, in answer to the contention raised by Mr. Patel, learned Senior Advocate for the petitioners to the effect that there are no powers under the Gujarat Municipalities Act, have made an attempt to rely upon Section 271 of the Gujarat Municipalities Act and submitted that, Section 271 gives power to issue such instructions/notice. Section 271 of the Act relates to the power of Municipality to make Rules. In the instant case, the impugned notices are issued and the instructions issued by the State Government dated 17.8.2012 is solely based on the Hon'ble Apex Court judgment and it is not clear from the instructions as well as from the affidavit in reply filed by the State Government that such instructions are issued in exercise of powers under which Act. It can be seen from the judgment of the Hon'ble Apex Court in the case of Hinsa Virodhak Sangh (supra) that the resolutions were passed by the Ahmedabad Municipal Corporation under Section 466(1)(D)(b) of the Bombay Provincial Municipal Corporations Act, 1949, whereas in both these cases no such resolution is passed and straightaway, the Chief Officers of the respective Municipalities have issued public notices relying solely upon the instructions dated 17.8.2012.
15. In addition to this, the Chicken and Fish cannot be equated with Mutton and Meat and as rightly pointed by the learned Senior Advocate for the petitioners that Chicken and Fish are not slaughtered in the slaughter house. It is a food item for a particular class of persons.
16. It is also appropriate to refer to the case of the Hon'ble Apex Court in the case of Hinsa Virodhak Sangh (supra), wherein the Hon'ble Apex Court has observed thus:-
"43.
People migrate from uncomfortable areas to comfortable areas. Before the coming of modern industry there were agricultural societies and India was a paradise for these because agriculture requires level land, fertile soil, plenty of water for irrigation etc. which was in abundance in India. Why would anybody living in India migrate to Afganistan which has a harsh terrain, rocky and mountainous and covered with snow for several months in a year when one cannot grow any crop? Hence, almost all migrations and invasions came from outside into India (except in recent times when some people have gone to other countries for job opportunities). Most of the migrations/invasions came from the North-West, and to a much lesser extent from the North-East of India. Thus, people kept pouring into India, and it is for this reason that there is so much diversity in India.
44. As the great Urdu poet Firaq Gorakhpuri wrote :
...
... ... ...
Which means -
"In the land of Hind, the Caravans of the peoples of the world kept coming in and India kept getting formed."
45. Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and respect for all communities and sects. It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.
46. Thus it is the Constitution of India which is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc. in the country.
17. In view of the foregoing, it prima facie appears that the instructions issued do not amount reasonable restriction in relation to Chicken and Fish. It is, however, made clear that this order applies only in case of Chicken and Fish as this Court has examined both these matters only in relation to Chicken and Fish.
18. It may be noted that two numbers which are mentioned in the instructions of the State Government dated 17.8.2012 is only one judgment i.e. Hinsa Virodhak Sangh (supra). It may further be noted that the date of the judgment mentioned as 28.3.2008 is wrongly mentioned in the said instructions as the report of the said judgment indicates that the date of the judgment is March 14, 2008.
19. In view of the aforesaid, both these matters raise an important questions and therefore, the matter requires consideration. Hence, RULE returnable on 29.10.2012.
20. The impugned notices have been issued on 5.9.2012 and 6.9.2012 and the impugned notices impose restrictions of sale on Maas, Machchhi and Mutton and it has been applied even to the sale of Chicken only for the limited period during the pious festival of Paryushan i.e. between 12.9.2012 to 19.9.2012. These petitions were filed on 13.9.2012 and this Court issued notice vide orders dated 14.9.2012 and the matters were kept for hearing on 17.9.2012. The affidavits in reply were filed by the State Government on 17.9.2012. Taking into consideration the peculiar facts and circumstances, the impugned notices are hereby stayed only in relation to sale of Chicken and Fish. However, the petitioners shall not slaughter or cut Chicken or Fish and are permitted to sell only.
Direct service is permitted.
[R.M.CHHAYA, J.] mrpandya