Delivered by
R.C. LAHOTI, CJI

A.K. MATHUR, J

R.C. LAHOTI, CJI

Section 2 of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (Gujarat Act No. 4 of 1994) which introduced certain amendments in Section 5 of the Bombay Animal Preservation Act, 1954 (as applicable to the State of Gujarat) has been struck down as ultra vires the Constitution by the High Court of Gujarat. These three sets of appeals by special leave have been filed thereagainst.

A chain of events, legislative and judicial, lead to the impugned enactment. To appreciate the core issue arising for decision in these appeals and also the constitutional questions arising therein, it will be useful to set out the preceding events in their chronological order.

PART – I

Backdrop of Events

Legislative history leading to impugned enactment

With a view to conserve the cattle wealth of the State of Bombay, the State Government enacted the Bombay Animal Preservation Act, 1948 and prohibited slaughter of animals which were useful for milch, breeding or agricultural purposes. This Act was substituted by the Bombay Animal Preservation Act of
1954 (hereinafter referred to as ’the Bombay Act’). The provisions relevant for our purpose are contained in Sections 5 and 6. Sub-sections (1), (2) and (3) of Section 5 and Section 6 are extracted and reproduced hereunder :

“5. (1) Notwithstanding any law for the time being in force or any usage to the contrary, no person shall slaughter or cause to be slaughtered any animal unless, he has obtained in respect of such animal a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter.

(2) No certificate shall be granted under sub- section (1), if in the opinion of the Competent Authority\027

(a) the animal, whether male or female, is useful or likely to become useful for the purpose of draught or any kind of agricultural operations;
(b) the animal, if male, is useful or likely to become useful for the purpose of breeding;
(c) the animal, if female, is useful or likely to become useful for the purpose of giving milk or bearing offspring.

(3) Nothing in this section shall apply to the slaughter of any animal above the age of fifteen years for bona-fide religious purposes :

Provided that a certificate in writing for such slaughter has been obtained from the Competent Authority.
(4) xxx xxx xxx
(5) xxx xxx xxx
(6) xxx xxx xxx
6. No animal in respect of which a certificate has been issued under section 5 shall be slaughtered in any place other than a place specified by such authority or officer as the State Government may appoint in this behalf.”The Preamble to the Act stated \026 “WHEREAS it is expedient to provide for the preservation of animals suitable for milch, breeding or for agricultural purposes; It is hereby enacted \005as follows:-”

The Statement of Objects and Reasons stated inter alia \026 “It is now proposed to repeal the Bombay Animal Preservation Act, 1948 and to undertake fresh legislation, on the basis of a model bill recommended by the Government of India, in order to stamp out slaughter in unauthorized places and abetment of offences which were not covered by the Bombay Animal Preservation Act, 1948”.

The State of Gujarat was formed in the year 1960. Gujarat Legislature enacted The Bombay Animal Preservation (Gujarat Extension and Amendment) Act, 1961 whereby the Bombay Act was extended to the State of Gujarat in order to achieve uniformity in law in different parts of the State with regard to this subject. The Saurashtra Animal Preservation Act, 1956 which was applicable to that part of Gujarat which formed part of erstwhile State of Saurashtra was repealed. Apart from extending the Bombay Act, Section 5 of the Bombay Act, which was called ’the principal Act’ in the Gujarat Act of 1961, was also amended by Section 4 thereof which reads as under:

4. Amendment of Section 5 of Bombay LXXII of 1954.- In section 5 of the principal Act, –

(1) After sub-section (1), the following sub- section shall be inserted, namely :-

“(1A) No certificate under sub-section (1) shall be granted in respect of a cow.”;

(2) in sub-section (2), for the words “No certificate” the words, brackets, figure and letter “In respect of an animal to which sub-section (1A) does not apply, no certificate” shall be substituted;

(3) in sub-section (3), for the words “religious purposes” the words, “religious purposes, if such animal is not a cow” shall be substituted.

The above Act was assented to by the Governor on the 1st May, 1961 which was published in the Gujarat Government
Gazette, Extraordinary, Part IV, dated May 6, 1961. The objects of such extension were mainly two : (i) to achieve uniformity in law in different parts of the State; and (ii) to impose a ban on cow slaughter. The amendment introduced by Section 4 of the Bombay Animal Preservation (Gujarat Extension and
Amendment) Act, 1961 indicates that slaughter of cow was totally banned.

In 1979, the Gujarat Legislature enacted the Bombay Animal Preservation (Gujarat Amendment) Act, 1979 to further amend the Bombay Act. Section 2 of this Act is relevant which is extracted and reproduced hereunder:

2. Amendment of section 5 of Bom. LXXII of 1954. In the Bombay Animal Preservation Act, 1954, Bom. LXXII of 1954, (hereinafter referred to as “the principal Act”), in section 5,

(1) for sub-section (1A), the following shall be substituted, namely:

“(1A) No certificate under sub-section (1) shall be granted in respect of
(a) a cow;
(b) the calf of a cow, whether male or female and if male, whether castrated or not;
(c) a bull below the age of sixteen years;
(d) a bullock below the age of sixteen years”;

(2) for sub-section (3), the following sub-section shall be substituted, namely:

“(3) Nothing in this section shall apply to

(a) the slaughter of any of the following animals for such bonafide religious purposes, as may be prescribed, namely:

(i) any animal above the age of fifteen years other than a cow, bull or bullock;

(ii) a bull above the age of fifteen years;

(iii) a bullock above the age of fifteen years;

(b) the slaughter of any animal not being a cow or a calf of a cow, on such religious days as may be prescribed.

Provided that a certificate in writing for the slaughter referred to in clause (a) or (b) has been obtained from the Competent Authority.”

The Act was preceded by an Ordinance, a reference to which is not necessary. The Statement of Objects and Reasons of the Act are stated as under:
“Under the existing provisions of the Bombay Animal Preservation Act, 1954, although there is a total prohibition against the slaughter of a cow, the slaughter of progeny of a cow, that is to say bulls, bullocks and calves is prohibited, like that of other bovines only if they are useful or likely to become useful for the purposes of draught, agricultural operations, breeding, giving milk or bearing off spring. In order to give effect to the policy of the Government towards further securing the directive principle laid down in article 48 of the Constitution namely prohibiting the slaughter of cows and calves and other milch and draught cattle, it was considered necessary to impose a total prohibition against slaughter of the aforesaid progeny of a cow below the age of eighteen years as they are useful for the aforesaid purposes\005”

The above-said Act was assented to by the Governor on 16th October 1979. The Act was given retrospective effect by sub-section (2) of Section 1 thereof, which provided that the amendment shall be deemed to have come into force on 28th November, 1978.

Digressing a little from the narration of legislative development, here itself we may indicate that the constitutional validity of the above amendment introduced by the Gujarat Legislature into the Bombay Act was put in issue and came to be dealt with initially by the Gujarat High Court and then this Court by a Constitution Bench in Haji Usmanbhai Hasanbhai Qureshi and Others v. State of Gujarat, (1986) 3 SCC 12. The Gujarat High Court turned down the challenge and the decision of the Gujarat High Court was upheld by this Court. We will revert back to this decision a little later.

This was followed by the impugned legislation, the Bombay Animal Preservation (Gujarat Amendment) Act, 1994. The
Bombay Act of 1954 referred to as ’the principal Act’ was further amended by Section 2 of the amending Act which reads as
under:

2. In the Bombay Animal Preservation Act, 1954 (hereinafter referred to as “the principal Act”), in section 5, –

(1) in sub-section (1A), for clauses (c) and (d), the following clauses shall be substituted, namely :-

“(c) a bull;

(d) a bullock.”;

(2) in sub-section (3), –

(i) in clause (a), sub-clauses (ii) and (iii) shall be deleted;

(ii) in clause (b), after the words “calf of a cow”, the words “bull or bullock” shall be inserted.”

The Act was preceded by an Ordinance, a reference to the provisions whereof is unnecessary. The Preamble to the Act reads as under:
“WHEREAS it is established that cow and her progeny sustain the health of the nation by giving them the life giving milk which is so essential an item in a scientifically balanced diet;

AND WHEREAS the working bullocks are indispensable for our agriculture for they supply power more than any other animal;

AND WHEREAS the working bullocks are often useful in ploughing the fields, drawal of water from the wells and also very useful for drawing carts for transporting grains and fodders from the fields to the residences of farmers as well as to the Agricultural Market Yards;

AND WHEREAS the dung of the animal is cheaper than the artificial manures and extremely useful for production of bio-gas;

AND WHEREAS it is established that the back- bone of Indian agriculture is, in a manner of speaking the cow and her progeny and have, on their back, the whole structure of the Indian agriculture and its economic system;

AND WHEREAS it is expedient to give effect to the policy of the State towards securing the principles laid down in articles 47, 48 and in clauses (b) and (c) of articles 39 of the Constitution of India and to protect, preserve and sustain cow and its progeny;”

The Statement of Objects and Reasons and the facts set out therein are of relevance and significance and hence are reproduced hereunder: “The existing provisions of the Bombay Animal Preservation Act, 1954 provides for prohibition against the slaughter of cow, calf of a cow, and the bulls and bullocks below the age of sixteen years. It is an established fact that the cow and her progeny sustain the health of the nation by giving them the life giving milk which is so essential an item in a scientifically balanced diet.

The economy of the State of Gujarat is still predominantly agricultural. In the agricultural sector, use of animals for milch, draught, breeding or agricultural purposes has great importance. It has, therefore, become necessary to emphasise preservation and protection of agricultural animals like bulls and bullocks. With the growing adoption of non-conventional energy sources like bio- gas plants, even waste material have come to assume considerable value. After the cattle cease to breed or are too old to do work, they still continue to give dung for fuel, manure and bio-gas, and therefore, they cannot be said to be useless. It is well established that the backbone of Indian agriculture is, in a manner of speaking, the cow and her progeny and have on their back, the whole structure of the Indian agriculture and its economic system.

In order to give effect to the policy of the State towards securing the principles laid down in articles 47, 48 and clause (b) and (c) of article 39 of the Constitution of India, it was considered necessary also to impose total prohibition against slaughter of progeny of cow.

As the Gujarat Legislative Assembly was not in session the Bombay Animal Preservation (Gujarat Amendment) Ordinance, 1993 to amend the said Act was promulgated
to achieve the aforesaid object in the interest of general public. This Bill seeks to replace the said Ordinance by an Act of the State Legislature.”

The Challenge to the Constitutional Validity

The constitutional validity of the abovesaid legislation, that is, the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 was put in issue by four writ petitions filed in the High Court which were heard and disposed of by a common judgment dated April 16, 1998. Two of the writ petitions were filed by individuals who were butchers by profession, and are known as Kureshis. Two writ petitions were filed by the representative bodies of Kureshis. Akhil Bharat Krishi Goseva Sangh sought for intervention before the High Court and was allowed to be impleaded as a party-respondent in the writ petitions. Hinsa Virodhak Sangh, Jivan Jagruti Trust and Gujarat Prantiya Arya Pratinidhi Sabha also sought for intervention and they were also allowed to be impleaded by the High Court as party-respondents in the writ petitions. The High Court allowed the writ petitions and struck down the impugned legislation as ultra vires the Constitution. The High Court held that the Amendment Act imposed an unreasonable restriction on the fundamental rights and therefore, it was ultra vires the Constitution. The effect of the judgment of the High Court as summed up by the learned Judges would be that there would not be a total ban on the slaughter of bulls or bullocks above the age of 16 years; in other words animals could be slaughtered consistently with the provisions of the parent Act as it stood prior to the amendment brought in by Gujarat Act No. 4 of 1994. Feeling aggrieved by the said decision, the State of Gujarat and Akhil Bharat Krishi Goseva Sangh have filed these appeals. Shree Ahimsa Army Manav Kalyan Jeev Daya Charitable Trust, a Public Trust has filed an appeal by special leave, seeking leave of this Court to file the appeal, which has been granted.

On 17.2.2005, a three-Judge Bench of this Court, before which the appeals came up for hearing directed the matter to be placed for hearing before a Constitution Bench in the following terms of the order :
“Parties to these appeals agree that the issue involved in these appeals requires interpretation of the provisions of the Constitution of India especially in regard to the status of Directive Principles vis-‘-vis the Fundamental Rights as well as the effect of introduction of Articles 31C and 51A in the Constitution. Therefore, in view of Article 145(3) of the Constitution, we think it appropriate that this matter should be heard by a Bench of at least 5 Judges.”

On 19.7.2005, the Constitution Bench which heard the matter referred it to a Bench of seven Judges on an opinion that certain prior decisions of this Court by Constitution Benches might call for reconsideration. This is how the matter came to be heard by this Bench. We have heard Dr. L.M. Singhvi, Shri Soli J. Sorabjee and Shri S.K. Dholakia, Senior Advocates who led the submissions made on behalf of the appellants in the three sets of appeals. We have also heard Shri G.L. Sanghi, Senior Advocate and Shri Ramesh P. Bhatt, Senior Advocate, who led the arguments on behalf of the respondents (writ petitioners in High Court) in the several appeals. Before we notice and deal with the submissions made by the learned senior counsel for the appellants and the respondents, it will be useful to set out and deal with some of the decisions delivered by this Court which have been relied on by the High Court in its impugned judgment, and on which implicit and forceful reliance was placed by the learned senior counsel for the respondents in support of the judgment of the High Court. Relevant Decisions of this Court The most important and leading decision is Mohd. Hanif Quareshi and Ors. v. State of Bihar and Ors. 1959 SCR 629 (hereinafter referred to as ’Quareshi-I’). We propose to deal with this case somewhat in detail.

Three legislative enactments banning the slaughter of certain animals were passed respectively by the States of Bihar, Uttar Pradesh and Madhya Pradesh. In Bihar, the Bihar Preservation and Improvement of Animals Act, 1956 (Bihar Act II of 1956) was introduced which imposed a total ban on the slaughter of all categories of animals belonging to the species of bovine cattle. In Uttar Pradesh, the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (U.P. Act I of 1956) was enacted which also imposed a total ban on the slaughter of cows and her progeny which included bulls, bullocks, heifers and cows. In the State of Madhya Pradesh, it was the C.P. and Berar Animal Preservation Act (Act LII of 1949) which was amended and applied. It imposed a total ban on the slaughter of cows and female calf of a cow. The male calf of a cow, bull, bullock, buffalo (male or female, adult or calf) could be slaughtered only on obtaining a certificate. The bans, as imposed by the three legislations were the subject matter of controversy.

The challenge to the constitutional validity of the three legislations was founded on the following three grounds, as was dealt with in the judgment : (i) that the total ban offended the religion of the Muslims as the sacrifice of a cow on a particular day is enjoined or sanctioned by Islam; (ii) that such ban offended the fundamental right guaranteed to the Kasais (Butchers) under Article 19(1)(g) and was not a reasonable and valid restriction on their right; and (iii) that a total ban was not in the interest of the general public. On behalf of the States, heavy reliance was placed on Article 48 of the Constitution to which the writ petitioners responded that under Article 37 the Directive Principles were not enforceable by any court of law and, therefore, Article 48 had no relevance for the purpose of determining the constitutional validity of the impugned legislations which were alleged to be violative of the fundamental rights of the writ petitioners. Dealing with the challenge to the constitutional validity of the legislations, their Lordships reiterated the well accepted proposition based on several pronouncements of this Court that there is always a presumption in favour of the constitutionality of an enactment and that the burden lies upon him who attacks it to show that there has been a clear violation of the constitutional principles. The legislative wisdom as expressed in the impugned enactment can be pressed into service to support the presumption. Chief Justice S.R. Das spoke for the Constitution Bench and held :- (i) that a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male or female, was quite reasonable and valid and is in consonance with the Directive Principles laid down in Article 48; (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are capable of being used as milch or draught cattle was also reasonable and valid; and (iii) that a total ban on slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals could not be supported as reasonable in the interests of the general public and was invalid.

The first ground of challenge was simply turned down due to the meagre materials placed before their Lordships and the bald allegations and denials made by the parties. No one specially competent to expound the religious tenets of Islam filed any affidavit and no reference was made to any particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow. It was noticed that many Muslims do not sacrifice cow on the BakrI’d day. Their Lordships stated, inter alia :- “It is part of the known history of India that the Moghul Emperor Babar saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun to follow this example. Similarly Emperors Akbar, Jehangir, and Ahmad Shah, it is said, prohibited cow slaughter. Nawab Hyder Ali of Mysore made cow slaughter an offence punishable with the cutting of the hands of the offenders. Three of the members of the Gosamvardhan Enquiry Committee set up by the Uttar Pradesh Government in 1953 were Muslims and concurred in the unanimous recommendation for total ban on slaughter of cows. We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.” (p.651)

In State of West Bengal and Ors. v. Ashutosh Lahiri, (1995) 1 SCC 189, this Court has noted that sacrifice of any animal by muslims for the religious purpose on BakrI’d does not include slaughtering of cow as the only way of carrying out that sacrifice. Slaughtering of cow on BakrI’d is neither essential to nor necessarily required as part of the religious ceremony. An optional religious practice is not covered by Article 25(1). On the contrary, it is common knowledge that cow and its progeny, i.e., bull, bullocks and calves are worshipped by Hindus on specified days during Diwali and other festivals like Makr- Sankranti and Gopashtmi. A good number of temples are to be found where the statue of ’Nandi’ or ’Bull’ is regularly worshipped. However, we do not propose to delve further into the question as we must state, in all fairness to the learned counsel for the parties, that no one has tried to build any argument either in defence or in opposition to the judgment appealed against by placing reliance on religion or Article 25 of the Constitution. Dealing with the challenge founded on Article 14 of the Constitution, their Lordships reiterated the twin tests on the anvil of which the reasonability of classification for the purpose of legislation has to be tested, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that such differentia must have a rational relation to the object sought to be achieved by the statute in question (p.652). Applying the twin tests to the facts of the cases before them, their Lordships held that it was quite clear that the objects sought to be achieved by the impugned Acts were the preservation, protection and improvement of livestocks. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for the agricultural economy of this country. Female buffaloes yield a large quantity of milk and are, therefore, well looked after and do not need as much protection as cows yielding a small quantity of milk require. As draught cattle, male buffaloes are not half as useful as bullocks. Sheep and goat give very little milk compared to the cows and the female buffaloes and have practically no utility as draught animals. These different categories of animals being susceptible of classification into separate groups on the basis of their usefulness to society, the butchers who kill each category may also be placed in distinct classes according to the effect produced on society by the carrying on of their respective occupations (p. 653). Their Lordships added :-

“The attainment of these objectives may well necessitate that the slaughterers of cattle should be dealt with more stringently than the slaughterers of, say, goats and sheep. The impugned Acts, therefore, have adopted a classification on sound and intelligible basis and can quite clearly stand the test laid down in the decisions of this Court. Whatever objections there may be against the validity of the impugned Acts the denial of equal protection of the laws does not, prima facie, appear to us to be one of them. In any case, bearing in mind the presumption of constitutionality attaching to all enactments founded on the recognition by the court of the fact that the legislature correctly appreciates the needs of its own people there appears to be no escape from the conclusion that the petitioners have not discharged the onus that was on them and the challenge under Article 14 cannot, therefore, prevail.” (p. 653)

The challenge to the constitutional validity founded under Article 14 was clearly and in no unmistaken terms turned down.

The third contention, that is, whether the “total prohibition” could be sustained as a reasonable restriction on the fundamental right of the butchers to slaughter animals of their liking or in which they were trading, was dealt with in great detail. This is the aspect of the decision of the Constitution Bench in Quareshi-I which, in the submission of the learned senior counsel for the appellants, was not correctly decided and, therefore, calls for reconsideration. The question was dealt with by their Lordships from very many angles. Whether the restrictions permissible under clause (6) of Article 19 may extend to “total prohibition” was treated by their Lordships as a vexed question and was left open without expressing any final opinion as their Lordships chose to concentrate on the issue as to whether the restriction was at all reasonable in the interests of the general public, de hors the fact whether it could be held to be partial or total.

Their Lordships referred to a lot of documentary evidence which was produced before them, such as (i) the figures of 1951 Animals’ Census; (ii) Report on the Marketing of Cattle in India issued by the Directorate of Marketing and Inspection, Ministry of Goods and Agriculture, Government of India, 1956; and (iii) the figures given in the First and Second Five Years Plans and so on. Their Lordships concluded that if the purpose of sustaining the health of the nation by the usefulness of the cow and her progeny was achieved by the impugned enactments the restriction imposed thereby could be held to be reasonable in the interest of the general public.

Their Lordships referred to other documents as well. The findings of fact arrived at, based on such evidence may briefly be summed up. In the opinion of their Lordships, cow progeny ceased to be useful as a draught cattle after a certain age and they, although useful otherwise, became a burden on the limited fodder available which, but for the so-called useless animals, would be available for consumption by milch and draught animals. The response of the States in setting up Gosadans (protection home for cow and cow progeny) was very poor. It was on appreciation of the documentary evidence and the deduction drawn therefrom which led their Lordships to conclude that in spite of there being a presumption in favour of the validity of the legislation and respect for the opinion of the legislatures as expressed by the three impugned enactments, they were inclined to hold that a total ban of the nature imposed could not be supported as reasonable in the interests of the general public.

While dealing with the submissions made by the learned senior counsel before us, we would once again revert to this judgment. It would suffice to observe here that, excepting for one limited ground, all other grounds of challenge to the constitutional validity of the impugned enactments had failed.

In Abdul Hakim Quraishi & Ors. v. State of Bihar, (1961) 2 SCR 610 (hereinafter referred to as Quraishi-II) once again certain amendments made by the Legislatures of the States of Bihar, Madhya Pradesh and Uttar Pradesh were put in issue. The ground of challenge was confined to Article 19(1)(g) read with Article 19(6). The ban as imposed by the impugned Act was once again held to be ’total’ and hence an unreasonable restriction. The Constitution Bench, by and large, chose to follow the dictum of this Court in Quareshi-I.

In Mohammed Faruk v. State of Madhya Pradesh & Ors., (1969) 1 SCC 853, the State Government issued a notification whereby the earlier notification issued by the Jabalpur Municipality which permitted the slaughter of bulls and bullocks along with other animals was recalled. Para 6 of the judgment notes the anguish of the Constitution Bench, as in the opinion of their Lordships, the case was apparently another attempt, though on a restricted scale, to circumvent the judgment of this Court in Quareshi-I. Vide para 9, their Lordships have noticed the decision of this Court in Narendra Kumar & Ors. v. The Union of India and Ors., (1960) 2 SCR 375, which upholds the view that the term “restriction” in Articles 19(5) and 19(6) of the Constitution includes cases of “prohibition” also. Their Lordships drew a distinction between cases of “control” and “prohibition” and held that when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone would ensure the maintenance of the general public interest lies heavily upon the State. As the State failed in discharging that burden, the notification was held liable to be struck down as imposing an unreasonable restriction on the fundamental right of the petitioners.

In Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State of Gujarat, (1986) 3 SCC 12 (hereinafter referred to as ’Qureshi-III’) the constitutional validity of the Bombay Act as amended by Gujarat Act 16 of 1961 was challenged. The ban prohibited slaughter of bulls and bullocks below the age of 16 years. The petitioners pleaded that such a restriction on their right to carry on the trade or business in beef and allied articles was unreasonable. Yet another plea was urged that the total ban offended their religion as qurbani (sacrifice) at the time of BakrI’d or Id festival as enjoined and sanctioned by Islam. The High Court rejected the challenge on both the grounds. The writ petitioners came in appeal to this Court. The appeal was dismissed. While doing so, this Court took note of the material made available in the form of an affidavit filed by the Under Secretary to the Government of Gujarat, Agriculture, Forest and Cooperation Department wherein it was deposed that because of improvement and more scientific methods of cattle breeding and advancement in the science of looking after the health of cattle in the State of Gujarat, today a situation has been reached wherein the cattle remain useful for breeding, draught and other agricultural purposes above the age of 16 years as well. As the bulls and bullocks upto the 16 years of age continued to be useful, the prescription of the age of 16 years up to which they could not be slaughtered was held to be a reasonable restriction, keeping in mind the balance which has to be struck between public interest which requires useful animals to be preserved, and permitting the appellants (writ petitioners) to carry on their trade and profession. The test of reasonableness of the restriction on the fundamental right guaranteed by Article 19(1)(g) was held to have been satisfied.

The challenge based on Article 14 of the Constitution alleging the impugned legislation to be discriminatory, as it was not uniform in respect of all cattle, was rejected.

The Court also held that buffaloes and their progeny, on the one hand and cows and their progeny, on the other hand constitute two different classes and their being treated differently does not amount to hostile discrimination.

In Hashmattullah v. State of M.P. and Others, (1996) 4 SCC 391, vires of M.P. Krishik Pashu Parirakshan (Sanshodhan) Adhiniyam, 1991 imposing a total ban on the slaughter of bulls and bullocks in the State of Madhya Pradesh was challenged. The validity of the amending Act was upheld by the High Court. The writ petitioners came up in appeal to this Court which was allowed and the amending Act was struck down as ultra vires the Constitution.

In State of West Bengal and others v. Ashutosh Lahiri and Others, (1995) 1 SCC 189, the legislation impugned therein permitted slaughter of cows on the occasion of BakrI’d subject to an exemption in that regard being allowed by the State Government. The power to grant such an exemption was challenged. The High Court allowed the writ petition and struck down the power of the State Government to grant such an exemption. There was a total ban imposed on the slaughter of healthy cows and other animals mentioned in the schedule under Section 2 of the Act. The State of West Bengal appealed. On a review of earlier decisions of this Court, the three-Judge Bench concluded that it was a settled legal position that there was no fundamental right of Muslims to insist on slaughter of healthy cows on the occasion of BakrI’d. The contention that not only an essential religious practice under Article 25(1) of Constitution, but even optional religious practice could be permitted, was discarded. The Court held \026 “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.”

Issues in Present Set of Appeals Though there is no explicit concession given but it became clear during the course of prolonged hearing before us that the decision of this case hinges much on the answer to the question whether the view of this Court in Quareshi-I is to be upheld or not. While the submission of the learned senior counsel for the appellants has been that, to the extent the Constitution Bench in Quareshi-I holds the total ban on slaughter of cow progeny to be unconstitutional, it does not lay down good law for various reasons, the learned senior counsel for the writ petitioners- respondents has submitted that Quareshi-I leads a chain of five decisions of this Court which in view of the principle of stare decisis, this Court should not upset. The learned senior counsel for the appellants find following faults with the view taken by this Court in Quareshi-I, to the extent to which it goes against the appellants:-

(1) Quareshi-I holds Directive Principles of State Policy to be unenforceable and subservient to the Fundamental Rights and, therefore, refuses to assign any weight to the Directive Principle contained in Article 48 of the Constitution and refuses to hold that its implementation can be a valid ground for proving reasonability of the restriction imposed on the Fundamental Right guaranteed by Article 19(1)(g) of the Constitution \026 a theory which stands discarded in a series of subsequent decisions of this Court.

(2) What has been noticed in Quareshi-I is Article 48 alone; Article 48A and Article 51A(g) were not noticed as they were not available then, as they were introduced in the Constitution by Forty-second Amendment with effect from 3.1.1977.

(3) The meaning assigned to “other milch and draught cattle” in Quareshi-I is not correct. Such a narrow view as has been taken in Quareshi-I does not fit
into the scheme of the Constitution and, in particular, the spirit of Article 48.

(4) Quareshi-I does not assign the requisite weight to the facts contained in the Preamble and Statement of Objects and Reasons of the enactments impugned therein.

(5) ’Restriction’ and ’Regulation’ include ’Prohibition’ and a partial restraint does not amount to total prohibition. Subsequent to the decision in Quareshi-I the trend of judicial decisions in this area indicates that regulation or restriction within the meaning of Articles 19(5) and 19(6) of the Constitution includes total prohibition – the question which was not answered and left open in Quareshi-I.

(6) In spite of having decided against the writ petitioners on all their principal pleas, the only ground on which the constitutional validity of the impugned enactments was struck down in Quareshi-I is founded on the finding of facts that cow progeny ceased to be useful after a particular age, that preservation of such ’useless cattle’ by establishment of gosadan was not a practical and viable proposition, that a large percentage of the animals, not fit for slaughter, are slaughtered surreptitiously outside the municipal limits, that the quantum of available fodder for cattle added with the dislodgment of butchers from their traditional profession renders the total prohibition on slaughter not in public interest. The factual situation has undergone a drastic change since then and hence the factual foundation, on which the legal finding has been constructed, ceases to exist depriving the later of all its force.

The learned senior counsel for the appellants further submitted that Quareshi-I forms the foundation for subsequent decisions and if the very basis of Quareshi-I crumbles, the edifice of subsequent decisions which have followed Quareshi-I would also collapse. We will examine the validity of each of the contentions so advanced and at the end also examine whether the principle of stare decisis prevents us from reopening the question answered in favour of writ petitioners in Quareshi-I.

PART \026 II
Question-1. Fundamental Rights and Directive Principles:- “It was the Sapru Committee (1945) which initially suggested two categories of rights: one justiciable and the other in the form of directives to the State which should be regarded as fundamental in the governance of the country \005 Those directives are not merely pious declarations. It was the intention of the framers of the Constitution that in future both the Legislature and the Executive should not merely pay lip service to these principles but they should be made the basis of all legislative and executive actions that the future Government may be taking in matter of governance of the country. (Constituent Assembly Debates, Vol.7, at page 41)” (See: The Constitution of India, D.J. De, Second Edition, 2005, p.1367). If we were to trace the history of conflict and irreconciliability between Fundamental Rights and Directive Principles, we will find that the development of law has passed through three distinct stages.

To begin with, Article 37 was given a literal meaning holding the provisions contained in Part IV of the Constitution to be unenforceable by any Court. In The State of Madras v. Srimathi Champakam Dorairajan, 1951 SCR 525, it was held that the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. The view was reiterated in Deep Chand and Anr. v. The State of Uttar Pradesh and Others, 1959 Supp. (2) SCR 8. The Court went on to hold that disobedience to Directive Principles cannot affect the legislative power of the State. So was the view taken in In Re : The Kerala Education Bill, 1957 , 1959 SCR 995. With L.C. Golak Nath and others v. State of Punjab and Another, (1967) 2 SCR 762, the Supreme Court departed from the rigid rule of subordinating Directive Principles and entered the era of harmonious construction. The need for avoiding a conflict between Fundamental Rights and Directive Principles was emphasized, appealing to the legislature and the courts to strike a balance between the two as far as possible. Having noticed Champakam (supra) even the Constitution Bench in Quareshi-I chose to make a headway and held that the Directive Principles nevertheless are fundamental in the governance of the country and it is the duty of the State to give effect to them. “A harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights, for otherwise the protecting provisions of Part III will be a ’mere rope of sand’.” Thus, Quareshi-I did take note of the status of Directive Principles having been elevated from ’sub-ordinate’ or ’sub-servient’ to ’partner’ of Fundamental Rights in guiding the nation. His Holiness Kesavananda Bharati Sripadagalvaru and Anr. v. State of Kerala and Anr., (1973) 4 SCC 225, a thirteen-Judge Bench decision of this Court is a turning point in the history of Directive Principles jurisprudence. This decision clearly mandated the need for bearing in mind the Directive Principles of State Policy while judging the reasonableness of the restriction imposed on Fundamental Rights. Several opinions were recorded in Kesavananda Bharati and quoting from them would significantly increase the length of this judgment. For our purpose, it would suffice to refer to the seven-Judge Bench decision in Pathumma and Others v. State of Kerala and Ors., (1978) 2 SCC 1, wherein the learned Judges neatly summed up the ratio of Kesavananda Bharati and other decisions which are relevant for our purpose. Pathumma (supra) holds :-

“(1) Courts interpret the constitutional provisions against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people, which the legislature, in its wisdom, through beneficial legislation, seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. This Court while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society so that when such a right clashes with a larger interest of the country it must yield to the latter.(Para 5)

(2) The Legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. The Court will interfere in this process only when the statute is clearly violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. The courts have recognised that there is always a presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies on the party which assails it. (Para 6)

(3) The right conferred by Article 19(1)(f) is conditioned by the various factors mentioned in clause (5). (Para 8)

(4) The following tests have been laid down as guidelines to indicate in what particular circumstances a restriction can be regarded as reasonable:

(a) In judging the reasonableness of the restriction the court has to bear in mind the Directive Principles of State Policy. (Para 8)

(b) The restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirements of the interests of the general public. The legislature must take intelligent care and deliberation in choosing the course which is dictated by reason and good conscience so as to strike a just balance between the freedom in the article and the social control permitted by the restrictions under the article. (Para 14)

(c) No abstract or general pattern or fixed principle can be laid down so as to be of universal application. It will have to vary from case to case and having regard to the changing conditions, the values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances all of which must enter into the judicial verdict. (Para 15)

(d) The Court is to examine the nature and extent, the purport and content of the right, the nature of the evil sought to be remedied by the statute, the ratio of harm caused to the citizen and the benefit conferred on the person or the community for whose benefit the legislation is passed. (Para 18)

(e) There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object which is sought to be achieved. (Para 20)

(f) The needs of the prevailing social values must be satisfied by the restrictions meant to protect social welfare. (Para 22)

(g) The restriction has to be viewed not only from the point of view of the citizen but the problem before the legislature and the object which is sought to be achieved by the statute. In other words, the Court must see whether the social control envisaged by Article 19 (1) is being effectuated by the restrictions imposed on the fundamental right. However important the right of a citizen or an individual may be it has to yield to the larger interests of the country or the community. (Para 24)

(h) The Court is entitled to take into consideration matters of common report history of the times and matters of common knowledge and the circumstances existing at the time of the legislation for this purpose. (Para 25)”
(underlining by us)

In State of Kerala and Anr. v. N.M. Thomas and Ors., (1976) 2 SCC 310, also a seven-Judge Bench of this Court culled out and summarized the ratio of this Court in Kesavananda Bharati. Fazal Ali, J extracted and set out the relevant extract from the opinion of several Judges in Kesavananda Bharati and then opined:
“In view of the principles adumbrated by this Court it is clear that the directive principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles. The directives thus provide the policy, the guidelines and the end of socio-economic freedom and Articles 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the directive principles. So far as the courts are concerned where there is no apparent inconsistency between the directive principles contained in Part IV and the fundamental rights mentioned in Part III, which in fact supplement each other, there is no difficulty in putting a harmonious construction which advances the object of the Constitution. Once this basic fact is kept in mind, the interpretation of Articles 14 and 16 and their scope and ambit become as clear as day.”

The message of Kesavananda Bharati is clear. The interest of a citizen or section of a community, howsoever important, is secondary to the interest of the country or community as a whole. For judging the reasonability of restrictions imposed on Fundamental Rights the relevant considerations are not only those as stated in Article 19 itself or in Part-III of the Constitution; the Directive Principles stated in Part-IV are also relevant. Changing factual conditions and State policy, including the one reflected in the impugned enactment, have to be considered and given weightage to by the courts while deciding the constitutional validity of legislative enactments. A restriction placed on any Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra vires subject to two limitations : first, that it does not run in clear conflict with the fundamental right, and secondly, that it has been enacted within the legislative competence of the enacting legislature under Part XI Chapter I of the Constitution.

In Municipal Corporation of the City of Ahmedabad & Ors. v. Jan Mohammed Usmanbhai & Anr., (1986) 3 SCC 20, what was impugned before the High Court was a standing order issued by the Municipal Commissioner of the State of Ahmedabad, increasing the number of days on which slaughter houses should be kept closed to seven, in supersession of the earlier standing order which directed the closure for only four days. The writ petitioner, a beef dealer, challenged the constitutional validity of the impugned standing orders (both, the earlier and the subsequent one) as violative of Articles 14 and 19(1)(g) of the Constitution. The challenge based on Articles 14 of the Constitution was turned down both by the High Court and the Supreme Court. However, the High Court had struck down the seven days closure as not “in the interests of the general public” and hence not protected by Clause (6) of Article 19 of the Constitution. In appeal preferred by the Municipal Corporation, the Constitution Bench reversed the Judgment of the High Court and held that the objects sought to be achieved by the impugned standing orders were the preservation, protection and improvement of live-stock, which is one of the Directive Principles. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for our agricultural economy. They form a separate class and are entitled to be treated differently from other animals such as goats and sheep, which are slaughtered. The Constitution Bench ruled that the expression “in the interests of general public” is of a wide import covering public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution.

In Workmen of Meenakshi Mills Ltd. and Others. v. Meenakshi Mills Ltd. and Anr. , (1992) 3 SCC 336, the Constitution Bench clearly ruled (vide para 27) \026 “Ordinarily any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be a reasonable restriction in public interest.” Similar view is taken in Papnasam Labour Union v. Madura Coats Ltd. and Anr. ,
(1995) 1 SCC 501.

Directive Principles

Long back in The State of Bombay and anr. v. F.N. Balsara, 1951 SCR 682, a Constitution Bench had ruled that in judging the reasonableness of the restrictions imposed on the Fundamental Rights, one has to bear in mind the Directive Principles of State Policy set-forth in Part IV of the Constitution, while examining the challenge to the constitutional validity of law by reference to Article 19(1)(g) of the Constitution.

In a comparatively recent decision of this Court in M.R.F. Ltd. v. Inspector, Kerala Govt. and Ors., (1998) 8 SCC 227, this Court, on a conspectus of its various prior decisions summed up principles as ’clearly discernible’, out of which three that are relevant for our purpose, are extracted and reproduced hereunder.

“13. On a conspectus of various decisions of this Court, the following principles are clearly discernible:

(1) While considering the reasonableness of the restrictions, the court has to keep in mind the Directive Principles of State Policy.

xxx xxx xxx xxx

(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.

xxx xxx xxx xxx

(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (See: Kavalappara Kottarathil Kochuni Vs. State of Madras and Kerala, (1960) 3 SCR 887; O.K. Ghosh Vs. E.X. Joseph, 1963 Supp. (1) SCR 789)”Very recently in Indian Handicrafts Emporium and Ors. v. Union of India and Ors., (2003) 7 SCC 589, this Court while dealing with the case of a total prohibition reiterated that ’regulation’ includes ’prohibition’ and in order to determine whether total prohibition would be reasonable, the Court has to balance the direct impact on the fundamental right of the citizens as against the greater public or social interest sought to be ensured. Implementation of the Directive Principles contained in Part IV is within the expression of ’restriction in the interests of the general public’.

Post Kesavananda Bharati so far as the determination of the position of Directive Principles, vis-a-vis Fundamental Rights are concerned, it has been an era of positivism and creativity. Article 37 of the Constitution which while declaring the Directive Principles to be unenforceable by any Court goes on to say \026 “that they are nevertheless fundamental in the governance of the country.” Several clauses of Article 37 themselves need to be harmoniously construed assigning equal weightage to all of them. The end part of Article 37 \026 “It shall be the duty of the State to apply these principles in making laws” is not a pariah but a constitutional mandate. The series of decisions which we have referred to hereinabove and the series of decisions which formulate the 3-stages of development of the relationship between Directive Principles and Fundamental Rights undoubtedly hold that, while interpreting the interplay of rights and restrictions, Part-III (Fundamental Rights) and Part-IV (Directive Principles) have to be read together. The restriction which can be placed on the rights listed in Article 19(1) are not subject only to Articles 19(2) to 19(6); the provisions contained in the chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the Fundamental Rights.

Question \026 2 Fundamental Rights and Articles 48, 48-A and 51-A (g) of Constitution

Articles 48, 48-A and 51-A(g) (relevant clause) of the Constitution read as under :-
“48. Organisation of agriculture and animal husbandry.\027The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

48-A. Protection and improvement of environment and safeguarding of forests and wild life.\027The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

51-A. Fundamental duties.\027It shall be the duty of every citizen of India\027

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;”

Articles 48-A and 51-A have been introduced into the body of the Constitution by the Constitution (Forty-second Amendment) Act, 1976 with effect from 3.1.1977. These Articles were not a part of the Constitution when Quareshi-I, Quraishi-II and Mohd. Faruk’s cases were decided by this Court. Further, Article 48 of the Constitution has also been assigned a higher weightage and wider expanse by the Supreme Court post Quareshi-I. Article 48 consists of two parts. The first part enjoins the State to “endeavour to organize agricultural and animal husbandry” and that too “on modern and scientific lines”. The emphasis is not only on ’organization’ but also on ’modern and scientific lines’. The subject is ’agricultural and animal husbandry’. India is an agriculture based economy. According to 2001 census, 72.2% of the population still lives in villages (See- India Vision 2020, p.99) and survives for its livelihood on agriculture, animal husbandry and related occupations. The second part of Article 48 enjoins the State, de hors the generality of the mandate contained in its first part, to take steps, in particular, “for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle”.

Article 48-A deals with “environment, forests and wild life”. These three subjects have been dealt with in one Article for the simple reason that the three are inter-related. Protection and improvement of environment is necessary for safeguarding forests and wild life, which in turn protects and improves the environment. Forests and wild life are clearly inter-related and inter-dependent. They protect each other.

Cow progeny excreta is scientifically recognized as a source of rich organic manure. It enables the farmers avoiding the use of chemicals and inorganic manure. This helps in improving the quality of earth and the environment. The impugned enactment enables the State in its endeavour to protect and improve the environment within the meaning of Article 48A of the Constitution.

By enacting clause (g) in Article 51-A and giving it the status of a fundamental duty, one of the objects sought to be achieved by the Parliament is to ensure that the spirit and message of Articles 48 and 48A is honoured as a fundamental duty of every citizen. The Parliament availed the opportunity provided by the Constitution (Forty-second Amendment) Act, 1976 to improve the manifestation of objects contained in Article 48 and 48-A. While Article 48-A speaks of “environment”, Article 51-A(g) employs the expression “the natural environment” and includes therein “forests, lakes, rivers and wild life”. While Article 48 provides for “cows and calves and other milch and draught cattle”, Article 51-A(g) enjoins it as a fundamental duty of every citizen “to have compassion for living creatures”, which in its wider fold embraces the category of cattle spoken of specifically in Article 48.

In AIIMS Students’ Union v. AIIMS and Ors., (2002) 1 SCC 428, a three-Judge Bench of this Court made it clear that fundamental duties, though not enforceable by writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In case of doubt, peoples’ wish as expressed through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. The fundamental duties must be given their full meaning as expected by the enactment of the Forty-second Amendment. The Court further held that the State is, in a sense, ’all the citizens placed together’ and, therefore, though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is, collectively speaking, the duty of the State.

In Mohan Kumar Singhania & Ors. v. Union of India & Ors., 1992 Supp (1) SCC 594, a governmental decision to give utmost importance to the training programme of the Indian Administrative Service selectees was upheld by deriving support from Article 51-A(j) of the Constitution, holding that the governmental decision was in consonance with one of the fundamental duties.

In State of U.P. v. Yamuna Shanker Misra & Ors., (1997) 4 SCC 7, this Court interpreted the object of writing the confidential reports and making entries in the character rolls by deriving support from Article 51-A(j) which enjoins upon every citizen the primary duty to constantly endeavour to strive towards excellence, individually and collectively.

In Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar Pradesh & Ors., 1986 (Supp) SCC 517, a complete ban and closing of mining operations carried on in the Mussoorie hills was held to be sustainable by deriving support from the fundamental duty as enshrined in Article 51-A(g) of the Constitution. The Court held that preservation of the environment and keeping the ecological balance unaffected is a task which not only Governments but also every citizen must undertake. It is a social obligation of the State as well as of the individuals.

In T.N. Godavarman Thirumalpad v. Union of India & Ors., (2002) 10 SCC 606, a three-Judge Bench of this Court read Article 48-A and Article 51-A together as laying down the foundation for a jurisprudence of environmental protection and held that “Today, the State and the citizens are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wild life and to have compassion for living creatures”.

In State of W.B. & Ors. v. Sujit Kumar Rana, (2004) 4 SCC 129, Articles 48 and 51-A(g) of the Constitution were read together and this Court expressed that these provisions have to be kept in mind while interpreting statutory provisions.

It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition, the Directive Principles of State Policy and Fundamental Duties as enshrined in Article 51-A of the Constitution play a significant role. The decision in Quareshi-I in which the relevant provisions of the three impugned legislations was struck down on the singular ground of lack of reasonability, would have decided otherwise if only Article 48 was assigned its full and correct meaning and due weightage was given thereto and Articles 48-A and 51-A(g) were available in the body of the Constitution. Question \026 3 : Milch and draught cattle, meaning of, in Article 48 Article 48 employs the expression ’cows and calves and other milch and draught cattle’. What meaning is to be assigned to the expression ’milch and draught cattle’?

The question is whether when Article 48 precludes slaughter of cows and calves by description, the words ’milch and draught cattle’ are described as a like species which should not be slaughtered or whether such species are protected only till they are ’milch or draught’ and the protection ceases whenever, they cease to be ’milch or draught’, either temporarily or permanently? According to their inherent genetic qualities, cattle breeds are broadly divided into 3 categories (i) Milch breed (ii) Draught breed, and (iii) Dual purpose breed. Milch breeds include all cattle breeds which have an inherent potential for milk production whereas draught breeds have an inherent potential for draught purposes like pulling, traction of loads etc. The dual purpose breeds have the potential to perform both the above functions.

The term draught cattle indicates “the act of moving loads by drawing or pulling i.e. pull and traction etc. Chambers 20th Century Dictionary defines ’draught animal’ as ’one used for drawing heavy loads’. Cows are milch cattle. Calves become draught or milch cattle on attaining a particular age. Having specifically spoken of cows and calves, the latter being a cow progeny, the framers of the Constitution chose not to catalogue the list of other milch and draught cattle and felt satisfied by employing a general expression “other milch and draught cattle” which in their opinion any reader of the Constitution would understand in the context of the previous words “cows and calves”.

“Milch and draught”, the two words have been used as adjectives describing and determining the quality of the noun ’cattle’. The function of a descriptive or qualitative adjective is to describe the shape, colour, size, nature or merits or demerits of the noun which they precede and qualify. In a document like the Constitution, such an adjective cannot be said to have been employed by the framers of the Constitution for the purpose of describing only a passing feature, characteristic or quality of the cattle. The object of using these two adjectives is to enable classification of the noun \026 ’cattle’ which follows. Had it been intended otherwise, the framers of the Constitution would have chosen a different expression or setting of words.

No doubt, cow ceases to be ’milch’ after attaining a particular age. Yet, cow has been held to be entitled to protection against slaughter without regard to the fact that it has ceased to be ’milch’. This constitutional position is well settled. So is the case with calves. Calves have been held entitled to protection against slaughter without regard to their age and though they are not yet fit to be employed as ’draught cattle’. Following the same construction of the expression, it can be said that the words “calves and other milch and draught cattle” have also been used as a matter of description of a species and not with regard to age. Thus, ’milch and draught’ used as adjectives simply enable the classification or description of cattle by their quality, whether they belong to that species. This classification is with respect to the inherent qualities of the cattle to perform a particular type of function and is not dependant on their remaining functional for those purposes by virtue of the age of the animal. “Milch and draught cattle” is an expression employed in Article 48 of the Constitution so as to distinguish such cattle from other cattle which are neither milch nor draught.

Any other meaning assigned to this expression is likely to result in absurdity. A milch cattle goes through a life cycle during which it is sometimes milch and sometimes it becomes dry. This does not mean that as soon as a milch cattle ceases to produce milk, for a short period as a part of its life cycle, it goes out of the purview of Article 48, and can be slaughtered. A draught cattle may lose its utility on account of injury or sickness and may be rendered useless as a draught cattle during that period. This would not mean that if a draught cattle ceases to be of utility for a short period on account of sickness or injury, it is excluded from the definition of ’draught cattle’ and deprived of the benefit of Article 48.

This reasoning is further strengthened by Article 51A(g) of the Constitution. The State and every citizen of India must have compassion for living creatures. Compassion, according to Oxford Advanced Learners’ Dictionary means “a strong feeling of sympathy for those who are suffering and a desire to help them”. According to Chambers 20th Century Dictionary, compassion is “fellow \026 feeling, or sorrow for the sufferings of another : pity”. Compassion is suggestive of sentiments, a soft feeling, emotions arising out of sympathy, pity and kindness. The concept of compassion for living creatures enshrined in Article 51A (g) is based on the background of the rich cultural heritage of India \026 the land of Mahatama Gandhi, Vinobha, Mahaveer, Budha, Nanak and others. No religion or holy book in any part of the world teaches or encourages cruelty. Indian society is a pluralistic society. It has unity in diversity. The religions, cultures and people may be diverse, yet all speak in one voice that cruelty to any living creature must be curbed and ceased. A cattle which has served human beings is entitled to compassion in its old age when it has ceased to be milch or draught and becomes so-called ’useless’. It will be an act of reprehensible ingratitude to condemn a cattle in its old age as useless and send it to a slaughter house taking away the little time from its natural life that it would have lived, forgetting its service for the major part of its life, for which it had remained milch or draught. We have to remember : the weak and meek need more of protection and compassion.

In our opinion, the expression ’milch or draught cattle’ as employed in Article 48 of the Constitution is a description of a classification or species of cattle as distinct from cattle which by their nature are not milch or draught and the said words do not include milch or draught cattle, which on account of age or disability, cease to be functional for those purposes either temporarily or permanently. The said words take colour from the preceding words “cows or calves”. A specie of cattle which is milch or draught for a number of years during its span of life is to be included within the said expression. On ceasing to be milch or draught it cannot be pulled out from the category of “other milch and draught cattle.”

Question – 4 : Statement of Objects and Reasons – Significance and Role thereof Reference to the Statement of Objects and Reasons is permissible for understanding the background, antecedent state of affairs in relation to the statute, and the evil which the statute was sought to remedy. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edition, 2004, at p.218). In State of West Bengal v. Subodh Gopal Bose and Ors., 1954 SCR 587, the Constitution Bench was testing the constitutional validity of the legislation impugned therein. The Statement of Objects and Reasons was used by S.R. Das, J. for ascertaining the conditions prevalent at that time which led to the introduction of the Bill and the extent and urgency of the evil which was sought to be remedied, in addition to testing the reasonableness of the restrictions imposed by the impugned provision. In his opinion, it was indeed very unfortunate that the Statement of Objects and Reasons was not placed before the High Court which would have assisted the High Court in arriving at the right conclusion as to the reasonableness of the restriction imposed. State of West Bengal v. Union of India, (1964) 1 SCR 371, 431-32 approved the use of Statement of Objects and Reasons for the purpose of understanding the background and the antecedent state of affairs leading upto the legislation.

In Quareshi-I itself, which has been very strongly relied upon by the learned counsel for the respondents before us, Chief Justice S.R. Das has held:- “Pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. (Para 15).

The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence….”. This should be the proper approach for the court but the ultimate responsibility for determining the validity of the law must rest with the court.” (Para 21, also see the several decisions referred to therein).
(underlining by us)

The facts stated in the Preamble and the Statement of Objects and Reasons appended to any legislation are evidence of legislative judgment. They indicate the thought process of the elected representatives of the people and their cognizance of the prevalent state of affairs, impelling them to enact the law.
These, therefore, constitute important factors which amongst others will be taken into consideration by the court in judging the reasonableness of any restriction imposed on the Fundamental Rights of the individuals. The Court would begin with a presumption of reasonability of the restriction, more so when the facts stated in the Statement of Objects and Reasons and the Preamble are taken to be correct and they justify the enactment of law for the purpose sought to be achieved.

In Sardar Inder Singh v. The State of Rajasthan, 1957 SCR 605, a Constitution Bench was testing the validity of certain provisions of the Ordinance impugned before and it found it to be repugnant to Article 14 of the Constitution and hence void. At page 620, Venkatarama Aiyar, J. speaking for the Constitution Bench referred to the recitals contained in the Preamble to the Ordinance and the object sought to be achieved by the Ordinance as flowing therefrom and held “that is a matter exclusively for the legislature to determine, and the propriety of that determination is not open to question in courts. We should add that the petitioners sought to dispute the correctness of the recitals in the Preamble. This they cannot clearly do”.

Question – 5 : Article 19(1)(g) :
’Regulation’ or ’Restriction’ includes Total Prohibition; Partial Restraint is not Total Prohibition Respondents rely on Article 19(1)(g) which deals with the fundamental right to ’practise any profession or to carry on any occupation, trade or business’. This right is subject to Article 19(6) which permits reasonable restrictions to be imposed on it in the interests of the general public. This raises the question of what is the meaning of the word ’restriction’.

Three propositions are well settled:- (i) ’restriction’ includes cases of ’prohibition’; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right. Reference may be made to Madhya Bharat Cotton Association Ltd. v. Union of India (UOI) and Anr., AIR 1954 SC 634, Krishna Kumar v. Municipal Committee of Bhatapara, (Petition No.660 of 1954 decided on 21st February 1957 by Constitution Bench) (See Compilation of Supreme Court Judgments, 1957 Jan- May page 33, available in Supreme Court Judges Library), Narendra Kumar and Ors. v. Union of India (UOI) and Ors., (1960) 2 SCR 375, The State of Maharashtra v. Himmatbhai Narbheram Rao and Ors., (1969) 2 SCR 392, Sushila Saw Mill v. State of Orissa & Ors., (1995) 5 SCC 615, Pratap Pharma (Pvt.) Ltd. & Anr. v. Union of India & Ors., (1997) 5 SCC 87 and Dharam Dutt v. Union of India, (2004) 1 SCC 712.

In Madhya Bharat Cotton Association Ltd. (supra) a large section of traders were completely prohibited from carrying on their normal trade in forward contacts. The restriction was held to be reasonable as cotton, being a commodity essential to the life of the community, and therefore such a total prohibition was held to be permissible. In Himmatbhai Narbheram Rao and Ors. (supra) trade in hides was completely prohibited and the owners of dead animals were required to compulsorily deposit carcasses in an appointed place without selling it. The constitutionality of such prohibition, though depriving the owner of his property, was upheld. The court also held that while striking a balance between rights of individuals and rights of citizenry as a whole the financial loss caused to individuals becomes insignificant if it serves the larger public interest. In Sushila Saw Mill (supra), the impugned enactment imposed a total ban on saw mill business or sawing operations within reserved or protected forests. The ban was held to be justified as it was in public interest to which the individual interest must yield. Similar view is taken in the other cases referred to hereinabove.

In Krishna Kumar (supra), the Constitution Bench held that when the prohibition is only with respect to the exercise of the right referable only in a particular area of activity or relating to a particular matter, there was no total prohibition. In that case, the Constitution Bench was dealing with the case of Adatiyas operating in a market area. A certain field of activity was taken away from them, but they were yet allowed to function as Adatiyas. It was held that this amounts to a restriction on the exercise of writ petitioners’ occupation as an Adatiya or a seller of grain but does not amount to a total ban.

In the present case, we find the issue relates to a total prohibition imposed on the slaughter of cow and her progeny.

The ban is total with regard to the slaughter of one particular class of cattle. The ban is not on the total activity of butchers (kasais); they are left free to slaughter cattle other than those specified in the Act. It is not that the writ petitioner-respondents survive only by slaughtering cow progeny. They can slaughter animals other than cow progeny and carry on their business activity. In so far as trade in hides, skins and other allied things (which are derived from the body of dead animal) are concerned, it is not necessary that the animal must be slaughtered to avail these things. The animal, whose slaughter has been prohibited, would die a natural death even otherwise and in that case their hides, skins and other parts of body would be available for trade and industrial activity based thereon.

We hold that though it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of the general public, yet, in the present case banning slaughter of cow progeny is not a prohibition but only a restriction.

Question – 6 : Slaughter of cow progeny, if in public interest

As we have already indicated, the opinion formed by the Constitution Bench of this Court in Quareshi-I is that the restriction amounting to total prohibition on slaughter of bulls and bullocks was unreasonable and was not in public interest. We, therefore, proceed to examine the evidence available on record which would enable us to answer questions with regard to the ’reasonability’ of the imposed restriction qua ’public interest’.

The facts contained in the Preamble and the Statement of Objects and Reasons in the impugned enactment highlight the following facts:-

(i) it is established that cow and her progeny sustain the health of the nation;

(ii) the working bullocks are indispensable for our agriculture for they supply power more than any other animal (the activities for which the bullocks are usefully employed are also set out);

(iii) the dung of the animal is cheaper than the artificial manures and extremely useful of production of biogas;

(iv) it is established that the backbone of Indian agriculture is the cow and her progeny and they have on their back the whole structure of the Indian agriculture and its economic system;

(v) the economy of the State of Gujarat is still predominantly agricultural. In the agricultural sector use of animals for milch, draught, breeding or agricultural purposes has great importance. Preservation and protection of agricultural animals like bulls and bullocks needs emphasis. With the growing adoption of non-conventional energy sources like biogas plants, even waste material have come to assume considerable value. After the cattle cease to breed or are too old to work, they still continue to give dung for fuel, manure and biogas and, therefore, they cannot be said to be useless.

Apart from the fact that we have to assume the above-stated facts as to be correct, there is also voluminous evidence available on record to support the above said facts. We proceed to notice few such documents.

Affidavits

Shri J.S. Parikh, Deputy Secretary, Agriculture Cooperative and Rural Development, Department, State of Gujarat, filed three affidavits in the High Court of Gujarat in Special Civil Application No. 9991 of 1993. The first affidavit was filed on 20th October, 1993, wherein the following facts are discernible and mentioned as under:

(i) With the improved scientific animal husbandry services in the State, the average longivity of animals has considerably increased. In the year 1960, there were only 456 veterinary dispensaries and first aid veterinary centers etc, whereas in the year 1993, there are 946 veterinary dispensaries and first aid veterinary centers etc. There were no mobile veterinary dispensaries in 1960 while there are 31 mobile veterinary dispensaries in the State in 1993. In addition, there are around 467 centres for intensive cattle development where besides first aid veterinary treatment, other animal husbandry inputs of breeding, food or development etc. are also provided. In the year 1960, five lakh cattles were vaccinated whereas in the year 1992-93 around 200 lakh animals are vaccinated to provide life saving protection against various fatal diseases. There were no cattle food compounding units preparing cattle food in the year 1960, while in the year 1993 there are ten cattle food factory producing 1545 MT of cattle food per day. As a result of improved animal husbandry services, highly contagious and fatal disease of Rinder Pest is controlled in the state and that the deadly disease has not appeared in the last three years.

(ii) Because of various scientific technologies namely, proper cattle feeding, better medical and animal husbandry services, the longevity of the cattle in the State has considerably increased.

(iii) The population of bullock is 27.59 lakhs. Over and above agricultural work, bullocks are useful for other purposes also. They produce dung which is the best organic measure and is cheaper than chemical manure. It is also useful for production of bio-gas.

(iv) It is estimated that daily production of manure by bullocks is about 27,300 tonnes and bio-gas production daily is about 13.60 cubic metres. It is also estimated that the production of bio-gas from bullock dung fulfil the daily requirement of 54.78 lakh persons of the State if whole dung production is utilized. At present, 1,91,467 bio-gas plants are in function in the State and about 3-4 lakhs persons are using bio-gas in the State produced by these plants.

(v) The population of farmers in the State is 31.45 lakhs. Out of which 7.37 lakhs are small farmers, 8 lakhs are marginal farmers, 3.05 lakhs are agricultural labourers and 13.03 lakhs are other farmers. The total land of Gujarat State is 196 lakh hectares and land under cultivation is 104.5 lakh hectares. There are 47,800 tractors by which 19.12 lakh hectares land is cultivated and the remaining 85.38 lakh hectares land is cultivated by using bullocks. It may be mentioned here that all the agricultural operations are not done using tractors. The bullocks are required for some of agricultural operations along with tractors. There are about 7,28,300 bullock carts and there are about 18,35,000 ploughs run by bullocks in the State.

(vi) The figure of slaughter of animals done in 38 recognised slaughter houses are as under:

Year Bullock/Bull Buffalo Sheep Goat 1990-91 9,558 41,088 1,82,269 2,22,507 1991-92 9,751 41,882 2,11,245 2,20,518 1992-93 8,324 40,034 1,13,868 1,72,791

The above figures show that the slaughter of bullocks above the age of 16 years is done in the State in very small number. The animals other than bullocks are slaughtered in large number. Hence, the ban on the slaughter of cow and cow progeny will not affect the business of meat production significantly. Therefore, the persons engaged in this profession will not be affected adversely.

Thereafter two further affidavits were filed by Shri J.S. Parikh, abovesaid, on 17th March, 1998, wherein the following facts are mentioned :

(i) there are about 31.45 lakhs land holders in Gujarat. The detailed classifications of the land holders are as under:-

Sl. No. Details of land holders No. of land holders
1. 01 hectare 8.00 lakhs
2. 1-2 hectares 7.37 lakhs
3. 2 and above 16.08 lakhs

(ii) almost 50 per cent of the land holdings are less than 2 hectares; tractor keeping is not affordable to small farmers. For economic maintenance of tractors, one should have large holding of land. Such land holders are only around 10 per cent of the total land holders. Hence the farmers with small land holdings require bullocks as motive power for their agricultural operations and transport;

(iii) the total cultivable land area of Gujarat State is about 124 lakh hectares. Considering that a pair of bullocks is required for ploughing 10 acres of land the bullock requirement for ploughing purpose alone is 5.481 million and approximately equal number is required for carting. According to the livestock census 1988 of Gujarat State, the availability of indigenous bullocks is around 2.84 millions. Thus the availability of bullocks as a whole on percentage of requirement works out to be about 25 per cent. In this situation, the State has to preserve each single bull and bullock that is available to it;

(iv) it is estimated that bull or bullock at every stage of life supplies 3,500 kgs of dung and 2,000 litres of urine and whereas this quantity of dung can supply 5,000 cubic feet of biogas, 80 M.T. of organic fertilizer, the urine can supply 2,000 litres of pesticides and the use of these products in farming increases the yield very substantially. The value of above contribution can be placed at Rs.20,000/- per year to the owner;

(v) since production of various agricultural crops removes plant nutrients from the soil, they must be replenished with manures to maintain and improve fertility of soil. There are two types of manures which are (i) Organic manures, i.e. natural manures and (ii) Artificial or chemical fertilizer. Amongst the organic manures, farm yard manures is the most valuable organic manure applied to soil. It is the most commonly used organic manure in India. It consists of a mixture of cattle dung, the bedding used in the stable. Its crop increasing value has been recognized from time immemorial (Ref. Hand Book of Agriculture, 1987 by ICAR page 214);

(vi) the importance of organic manure as a source of humus and plant nutrients to increase the fertility level of soils has been well recognised. The organic matter content of cultivated soils of the tropics and sub-tropics is comparatively low due to high temperature and intense microbial activity. The crops remove annually large quantity of plant nutrients from soil. Moreover, Indian soils are poor in organic matter and in major plant nutrients. Therefore, soil humus has to be replenished through periodic addition of organic manure for maintaining soil productivity;

(vii) animals are the source of free availability of farmyard manure, which has all the three elements, i.e. Nitrogen, Phosphoric acid and Potash, needed in fertilizer and at the same time which preserve and enrich the fertility of the soil. In paucity of dung availability, the farmers have to depend upon chemical fertilizers. Investment in chemical fertilizers imposes heavy burden upon the economy. If there is availability of alternate source of organic manure from animals, it is required to be promoted;

(viii) the recent scenario of ultramodern technology of super ovulation, embryo transfer and cloning technique will be of very much use to propagate further even from the incapable or even old animals which are not capable of working or reproducing. These animals on a large scale can be used for research programmes as well as for production of non-conventional energy sources such as biogas and natural fertilizers. At present, there are 19,362 biogas plants installed in the State during 1995-97. On an average, each adult cattle produces 4.00 kg. of dung per day. Out of the total cattle strength of (1992 Census) 67,85,865, the estimated dung produced is 99,07,363 tonnes;

(ix) India has 74% of rural population, and in Gujarat out of 4.13 crores of human population, there are 1.40 crores of workers which comprises of 47,04,000 farmers and 32,31,000 workers are workers related to livestock and forestry. In Gujarat, there are 9.24 lakhs marginal farmers and 9.15 lakhs of small farmers, according to the 1991-92 census. Animals are reared in few numbers per family and the feed is obtained from the supplementary crop on fodder/agricultural by-products or from grazing in the gaucher land. In Gujarat 8.48 lakh hectares of land is available as permanent pasture and grazing land. An individual cattle-owner does not consider one or two bullocks as an extra burden for his family, even when it is incapable of work or production.

Sometimes the unproductive animals are sent to Panjarapoles and Gosadans. In Gujarat, there are 335 Gaushalas and 174 Panjarapoles which are run by non- governmental oranizations and trusts.

Formerly farmers mostly kept few animals and, in fact, they are treated as part of their family and maintained till death. It cannot be treated to be a liability upon them or burden on the economy;

(x) butchers are doing their business since generations, but they are not doing only the slaughter of cow class of animals. They slaughter and trade the meat of other animals like buffaloes, sheep, goats, pig and even poultry. In Gujarat there are only 38 registered slaughter houses functioning under various Municipalities/Nagar Panchayats. Beef (meat of cattle) contributes only 1.3% of the total meat groups. Proportion of demand for beef is less in the context of demand for pig, mutton and poultry meat. Slaughtering of bulls and bullocks for the period between 1990-91 and 1993-94 was on an average 9,000;

(xi) number of bullocks have decreased in a decade from 30,70,339 to 28,93,227 as in 1992. A statement showing the amount of dung production for the year 1983-84 to 1996-97 and a statement showing the nature of economy of the State of Gujarat is annexed. The number of bullocks slaughtered per day is negligible compared to other animals, and the business and/or trade of slaughtering bullocks would not affect the business of butchers. By prohibiting slaughter of bullocks the economy is likely to be benefited.

The three affidavits are supported by documents, statements or tables setting out statistics which we have no reason to disbelieve. Neither the High Court has expressed any doubt on the contents of the affidavit nor has the veracity of the affidavits and correctness of the facts stated therein been challenged by the learned counsel for the respondents before us.

In this Court Shri D.P. Amin, Joint Director of Animal Husbandry, Gujarat State, has filed an affidavit. The salient facts stated therein are set out hereunder:
(i) The details of various categories of animals slaughtered since 1997-1998 shows that slaughter of various categories of animals in regulated slaughter houses of Gujarat State has shown a tremendous decline. During the year way back in 1982-83 to 1996-97 the average number of animals slaughtered in regulated slaughter houses was 4,39,141. As against that (previous figure) average number of slaughter of animals in recent 8 years i.e. from 1997-98 to 2004-05 has come down to only 2,88,084. This clearly indicates that there has been a vast change in the meat eating style of people of Gujarat State. It is because of the awareness created among the public due to the threats of dangerous diseases like Bovine Spongiform Encephalopathy commonly known as “Mad Cow disease” B.S.E. which is a fatal disease of cattle meat origin not reported in India. Even at global level people have stopped eating the beef which is known as meat of cattle class animals. This has even affected the trade of meat particularly beef in the America & European countries since last 15 years. Therefore, there is international ban on export-import of beef from England, America & European countries;

(ii) there is reduction in slaughter of bulls & bullocks above the age of 16 years reported in the regulated slaughter houses of Gujarat State. As reported in the years from 1982-83 to 1996-97, the slaughter of bulls & bullocks above the age of 16 years was only 2.48% of the total animals of different categories slaughtered in the State. This percentage has gone down to the level of only 1.10% during last 8 years i.e. 1997-98 to 2004-05 which is very less significant to cause or affect the business of butcher communities;

(iii) India is predominantly agrarian society with nearly >th of her population living in seven lakh rural hamlets and villages, possesses small fragmentary holding (54.6% below 1 hectare 18% with 1-2 hectares). Draft/pack animal contributes more than 5 crores horse power (H.P.) or 33,000 megawatt electric power and shares for/in 68% of agricultural operations, transport & other draft operations. In addition to draft power, 100 million tonnes dung per year improves the soil health and also used as raw material for biogas plant;

(iv) the cattle population in Gujarat in relation to human population has declined from 315 per 1000 humans in 1961 to 146 per 1,000 humans in 2001 indicating decline in real terms;

(v) in Gujarat 3.28 million draft animal (bullocks 85%) have multifaceted utilities viz. agricultural operations like ploughing, sowing, hoeing, planking, carting, hauling, water lifting, grinding, etc.;

Gujarat State has a very rich cattle population of Kankrej & Gir breed, of which Kankrej bullocks are very well known for its draft power called “Savai Chal”;

(vi) considering the utility of aged bullocks above 16 years as draft power a detailed combined study was carried out by Department of Animal Husbandry and Gujarat Agricultural University (Veterinary Colleges S.K. Nagar & Anand). The experiments were carried out within the age group of 16 to 25 years. The study covered different age groups of 156 (78 pairs) bullocks above the age of 16 years. The aged bullocks i.e. above 16 years age generated 0.68 horse power draft output per bullock while the prime bullock generated 0.83 horse power per bullock during carting/hauling draft work in a summer with about more than 42?C temp. The study proves that 93% of aged bullock above 16 years of age are still useful to farmers to perform light & medium draft works. The detailed report is on record;

(vii) by the end of year 2004-05 under the Dept. of Animal Husbandry, there are 14 Veterinary Polyclinics, 515 Vety. Dispensaries, 552 First Aid Vety. Centres and 795 Intensive Cattle Development Project Sub Centers. In all, 1876 institutions were made functional to cater various health care activities to livestock population of State of Gujarat. About two crores of livestock and poultry were vaccinated against various diseases. As a result, the total reported out break of infectious diseases was brought down to around 106 as against 222 in 1992-1993. This shows that State has created a healthy livestock and specifically the longevity of animals has been increased. This has also resulted into the increased milk production of the state, draft power and source of non-conventional energy in terms of increased quantity of dung and urine;

(viii) the value of dung is much more than even the famous “Kohinoor” diamond. An old bullock gives 5 tonnes of dung and 343 pounds of urine in a year which can help in the manufacture of 20 carts load of composed manure. This would be sufficient for manure need of 4 acres of land for crop production. The right to life is a fundamental right and it can be basically protected only with proper food and feeding and cheap and nutritious food grains required for feeding can be grown with the help of dung. Thus the most fundamental thing to the fundamental right of living for the human being is bovine dung. (Ref. Report of National Commission on Cattle, Vol.III, Page 1063-1064);

(ix) the dung cake as well as meat of bullock are both commercial commodities. If one bullock is slaughtered for its meat (Slaughtering activity) can sustain the butchers trade for only a day. For the next day’s trade another bullock is to be slaughtered. But if the bullock is not slaughtered, about 5000-6000 dung cakes can be made out of its dung per year, and by the sale of such dung cake one person can be sustained for the whole year. If a bullock survives even for five years after becoming otherwise useless it can provide employment to a person for five years whereas to a butcher, bullock can provide employment only for a day or two.

(x) Even utility of urine has a great role in the field of pharmaceuticals as well as in the manufacturing of pesticides. The Goseva Ayog, Govt. of Gujarat had commissioned study for “Testing insecticides properties of cow urine against various insect pests”. The study was carried out by Dr. G.M. Patel, Principal Investigator, Department of Entomology, C.P. College of Agriculture, S.D. Agricultural University, Sardar Krishi Nagar, Gujarat. The study has established that insecticides formulations prepared using cow urine emerged as the most reliable treatment for their effectiveness against sucking pest of cotton. The conclusion of study is dung & urine of even aged bullocks are also useful and have proved major effect of role in the Indian economy;

(xi) it is stated that availability of fodder is not a problem in the State or anywhere. During drought period deficit is compensated by grass-bank, silo and purchase of fodder from other States as last resources. The sugarcane tops, leaves of banana, baggase, wheat bhoosa and industrial byproducts etc. are available in plenty. A copy of the letter dated 8.3.2004 indicting sufficient fodder for the year 2004, addressed to Deputy Commissioner, Animal Husbandry Government of India is annexed.

Report on draughtability of bullocks above 16 years of age On 20th June, 2001 the State of Gujarat filed I.A. No. 2/2001 in Civil Appeal Nos. 4937-4940 of 1998, duly supported by an affidavit sworn by Shri D.U. Parmar, Deputy Secretary (Animal Husbandry) Agriculture and Cooperation Department, Government of Gujarat, annexing therewith a report on draughtability of aged bullocks above 16 years of age under field conditions. The study was conducted by the Gujarat Agricultural University Veterinary College, Anand and the Department of Animal Husbandry, Gujarat State, Ahmedabad. The study was planned with two objectives:

(i) To study the draughtability and utility of aged bullocks above 16 years of age; and

(ii) To compare the draughtability of aged bullocks with bullocks of prime age.

Empirical research was carried out under field conditions in North Gujarat Region (described as Zone-I) and Saurashtra region (described as Zone-II). The average age of aged bullocks under the study was 18.75 years. The number of bullocks/pair used under the study were sufficient to draw sound conclusions from the study. The gist of the findings arrived at, is summed up as under:

1. Farmer’s persuasion The aged bullocks were utilized for different purposes like agricultural operations (ploughing, planking, harrowing, hoeing, threshing) and transport-hauling of agricultural produce, feeds and fodders of animals, drinking water, construction materials (bricks, stones, sand grits etc.) and for sugarcane crushing/ khandsari making. On an average the bullocks were yoked for 3 to 6 hours per working day and 100 to 150 working days per year. Under Indian conditions the reported values for working days per year ranges from 50 to 100 bullock paired days by small, medium and large farmers. Thus, the agricultural operations-draft output are still being taken up from the aged bullocks by the farmers. The farmers feed concentrates, green fodders and dry fodders to these aged bullocks and maintain the health of these animals considering them an important segment of their families. Farmers love their bullocks.

2. Age, body measurement and body weight The biometric and body weight of aged bullocks were within the normal range.

3. Horsepower generation/Work output The aged bullocks on an average generated 0.68 hp/bullock, i.e.18.1% less than the prime/young bullocks (0.83 hp/bullock). The aged bullocks walked comfortably with an average stride length of 1.43 meter and at the average speed of 4.49 km/hr. showing little less than young bullocks. However, these values were normal for the aged bullocks performing light/medium work of carting. These values were slightly lower than those observed in case of prime or young bullocks. This clearly indicates that the aged bullocks above 16 years of age proved their work efficiency for both light as well as medium work in spite of the age bar. In addition to this, the experiment was conducted during the months of May-June, 2000 \026 a stressful summer season. Therefore, these bullocks could definitely generate more work output during winter, being a comfortable season. The aged bullock above 16 years of age performed satisfactorily and disproved that they are unfit for any type of draft output i.e. either agricultural operations, carting or other works.

4. Physiological responses and haemoglobin concentration These aged bullocks are fit to work for 6 hours (morning 3 hours and afternoon 3 hrs.) per day. Average Hb content (g%) at the start of work was observed to be 10.72 g% and after 3 hours of work 11.14g%, indicating the healthy state of bullocks. The increment in the haemoglobin content after 3 to 4 hours of work was also within the normal range and in accordance with prime bullocks under study as well as the reported values for working bullocks.

5. Distress symptoms In the initial one hour of work, 6 bullocks (3.8%) showed panting, while 32.7% after one hour of work. After 2 hour of work, 28.2% of bullocks exhibited salivation. Only 6.4% of the bullocks sat down/lied down and were reluctant to work after completing 2 hours of the work. The results are indicative of the fact that majority of the aged bullocks (93%) worked normally. Summer being a stressful season, the aged bullocks exhibited distress symptoms earlier than the prime/young bullocks. However, they maintained their physiological responses within normal range and generated satisfactory draft power.

The study report submitted its conclusions as under:

“1. The aged bullocks above 16 years of age generated 0.68 horse power draft output per bullock while the prime bullocks generated 0.83 horsepower per bullock during carting-hauling draft work.

2. The aged bullocks worked satisfactorily for the light work for continuous 4 hours during morning session and total 6 hours per day (morning 3 hours and afternoon 3 hours) for medium work.

3. The physiological responses (Rectal temperature, Respiration rate and Pulse rate) and haemoglobin of aged bullocks were within the normal range and also maintained the incremental range during work. However, they exhibited the distress symptoms earlier as compared to prime bullocks.

4. Seven percent aged bullocks under study were reluctant to work and/or lied down after 2 hours of work.

5. The aged bullocks were utilized by the farmers to perform agricultural operations (ploughing, sowing, harrowing, planking, threshing), transport-hauling of agricultural product, feeds and fodders, construction materials and drinking water.

Finally, it proves that majority (93%) of the aged bullocks above 16 years of age are still useful to farmers to perform light and medium draft works.”

With the report, the study group annexed album/photographs and cassettes prepared while carrying out the study. Several tables and statements setting out relevant statistics formed part of the report. A list of 16 authentic references originating from eminent authors on the subject under study which were referred to by the study group was appended to the report.

This application (I.A. No. 2/2001) was allowed and the affidavit taken on record vide order dated 20.8.2001 passed by this Court. No response has been filed by any of the respondents controverting the facts stated in the affidavit and the accompanying report. We have no reason to doubt the correctness of the facts stated therein; more so, when it is supported by the affidavit of a responsible officer of the State Government. Tenth Five Year Plan (2002-2007) Documents

In the report of the Working Group on Animal Husbandry and Dairy Farming, the Tenth Five Year Plan (2002-2007) dealing with ’the draught breed relevance and improvement’, published by the Government of India, Planning Commission in January, 2001, facts are stated in great detail pointing out the relevance of draught breeds and setting out options for improvement from the point of view of the Indian Economy. We extract and reproduce a few of the facts therefrom:

“3.6.12 Relevance of draught breeds and options for improvement

3.6.12.1 In India 83.4 million holdings (78%) are less than 2 ha. where tractors and tillers are uneconomical and the use of animal power becomes inevitable since tractors and tillers are viable only for holdings above 5 ha.. In slushy and water logged fields tractor tiller is not suitable. In narrow terraced fields and hilly regions tractors cannot function. Animal drawn vehicle are suitable for rural areas under certain circumstances/conditions viz., uneven terrain, small loads (less than 3 tons), short distances and where time of loading and unloading is more than travel time or time is not a critical factor and number of collection points/distribution points are large as in case of milk, vegetable, water, oil, etc. In India the energy for ploughing two-thirds of the cultivated area comes from animal power and animal drawn vehicles haul two-thirds of rural transport.

3.6.12.2 The role of cattle as the main source of motive power for agriculture and certain allied operations would continue to remain as important as meeting the requirement of milk in the country. It has been estimated that about 80 million bullocks will be needed. There is, therefore, a need for improving the working efficiency of the bullocks through improved breeding and feeding practices.

3.6.13 Development of Draught Breeds Focused attention to draft breed will not be possible unless a new scheme is formulated for this purpose.

3.6.13.2 In tracts where there are specialized draught breeds of cattle like Nagori in Rajasthan, Amritmahal and Hallikar in Karnataka, Khillar in Maharashtra etc., selection for improvement in draughtability should be undertaken on a large scale as the cattle breeders in these areas derive a large income by sale of good quality bullocks.

Planned efforts should be made for improving the draught capacity and promoting greater uniformity in the type of the cattle population in the breeding tracts. There is need to intensify investigations to develop yardsticks for objective assessment of draught capacity of bullocks.

3.6.14 Supplementation of fund-flow for cattle and Buffalo development.

3.6.14.2 A number of organizations like NABARD, NDDB, NCDC etc. are also likely to be interested in funding activities relating to cattle and buffalo development in the form of term as loan provided timely return is ensured. Time has now come for exploring such avenues seriously at least on pilot basis in selected areas, where better prospects of recovery of cost of breeding inputs and services exists.”

Recognising the fact that the cow and its progeny has a significant role to play in the agricultural and rural economy of the country, the Government felt that it was necessary to formulate measures for their development in all possible ways.

In view of the persistent demands for action to be taken to prevent their slaughter, the Government also felt and expressed the need to review the relevant laws of the land relating to protection, preservation, development and well-being of cattle and to take measures to secure the cattle wealth of India.

Yet another document to which we are inclined to make a reference is Mid-Term Appraisal of 10th Five Year Plan (2002- 2007) released in June, 2005 by the Government of India (Planning Commission). Vide para 5.80 the report recommends that efforts should be made to increase the growth of bio- pesticides production from 2.5 to 5 per cent over the next five years.

According to the report, Organic farming is a way of farming which excludes the use of chemical fertilizers, insecticides, etc.
and is primarily based on the principles of use of natural organic inputs and biological plant protection measures.
Properly managed organic farming reduces or eliminates water pollution and helps conserve water and soil on the farm and thereby enhances sustainability and agro-biodiversity.

Organic farming has become popular in many western countries. There are two major driving forces behind this phenomenon; growing global market for organic agricultural produce due to increased health consciousness; and the premium price of organic produce fetched by the producers.

India has a comparative advantage over many other countries.

The Appraisal Report acknowledged the commencement of the biogas programme in India since 1981-82. Some 35,24,000 household plants have been installed against an assessed potential of 120,00,000 units. Biogas has traditionally been produced in India from cow dung (gobar gas). However, dung is not adequately and equitably available in villages. Technologies have now been developed for using tree-based organic substrates such as leaf litter, seed starch, seed cakes, vegetable wastes, kitchen wastes etc. for production of biogas. Besides cooking, biogas can also be used to produce electricity in dual fired diesel engines or in hundred per cent gas engines. Ministry of Non-conventional Energy Sources (MNES) is taking initiatives to integrate biogas programme in its Village Energy Security Program (VESP).

Production of pesticides and biogas depend on the availability of cow-dung.

National Commission on Cattle Vide its Resolution dated 2nd August, 2001, the Government of India established a National Commission on Cattle, comprising of 17 members.

The Commission was given the follow terms of reference:-

a. To review the relevant laws of the land(Centre as well as States) which relate to protection, preservation, development and well being of cow and its progeny and suggest measures for their effective implementation,

b. To study the existing provisions for the maintenance of Goshalas, Gosadans, Pinjarapoles and other organisations working for protection and development of cattle and suggest measures for making them economically viable,

c. To study the contribution of cattle towards the Indian economy and to suggest ways and means of organising scientific research for maximum utilisation of cattle products and draught animal power in the field of nutrition and health, agriculture and energy, and to submit a comprehensive scheme in this regard to the Central Government,

d. To review and suggest measures to improve the availability of feed and fodder to support the cattle population.

The Committee after extensive research has given a list of recommendations. A few of them relevant in the present case are:-
” 1.The Prohibition for slaughter of cow and its progeny, which would include bull, bullocks, etc., should be included in Fundamental Rights or as a Constitutional Mandate anywhere else, as an Article of Constitution. It should not be kept only in the Directive Principles or/Fundamental duties as neither of these are enforceable by the courts.

2. The amendment of the Constitution should also be made for empowering the Parliament to make a Central Law for the prohibition of slaughter of cow and its progeny and further for prohibition of their transport from one State to another.

3. The Parliament should then make a Central law, applicable to all States, prohibiting slaughter of cow and its progeny. Violation of the Law should be made a non-bailable and cognizable offence.

xxx xxx xxx

14. The use and production of chemical fertilizers and chemical pesticides should be discouraged, subsidies on these items should be reduced or abolished altogether. The use of organic manure should be subsidized and promoted.”

Thus the Commission is of the view that there should be a complete prohibition on slaughter of cow progeny.

Importance of Bovine Dung

The Report of the National Commission on Cattle, ibid, refers to an authority namely, Shri Vasu in several sub- paragraphs of para 12. Shri Vasu has highlighted the unique and essential role of bovine and bovine dung in our economy and has pleaded that slaughter of our precious animals should be stopped. He has in extenso dealt with several uses of dung and its significance from the point of view of Indian society. Dung is a cheap and harmless fertilizer in absence whereof the farmers are forced to use costly and harmful chemical fertilizers. Dung also has medicinal value in Ayurved, the Indian system of medicines.

Continuing Utility of Cattle : Even if the utility argument of the Quareshi’s judgment is accepted, it cannot be accepted that bulls and bullocks become useless after the age of 16. It has to be said that bulls and bullocks are not useless to the society because till the end of their lives they yield excreta in the form of urine and dung which are both extremely useful for production of bio-gas and manure. Even after their death, they supply hide and other accessories. Therefore, to call them ’useless’ is totally devoid of reality. If the expenditure on their maintenance is compared to the return which they give, at the most, it can be said that they become ’less useful’.(Report of the National Commission on Cattle, July 2002, Volume I, p. 279.)

The Report of the National Commission on Cattle has analyzed the economic viability of cows after they stopped yielding milk and it also came to the conclusion that it shall not be correct to call such cows ’useless cattle’ as they still continue to have a great deal of utility. Similar is the case with other cattle as well.

“37. Economic aspects:

37.1 The cows are slaughtered in India because the owner of the cow finds it difficult to maintain her after she stops yielding milk. This is because it is generally believed that milk is the only commodity obtained from cows, which is useful and can be sold in exchange of cash. This notion is totally wrong. Cow yields products other than milk, which are valuable and saleable. Thus the dung as well as the urine of cow can be put to use by owner himself or sold to persons or organizations to process them. The Commission noticed that there are a good number of organizations (goshalas) which keep the cows rescued while being carried to slaughter houses. Very few of such cows are milk yielding. Such organizations use the urine and dung produced by these cows to prepare Vermi-compost or any other form of bio manure and urine for preparing pest repellents. The money collected by the sale of such products is normally sufficient to allow maintenance of the cows. In some cases, the urine and dung is used to prepare the medical formulations also. The organizations, which are engaged in such activities, are making profits also.

37.2 Commission examined the balance sheet of some such organizations. The expenditure and income of one such organization is displayed here. In order to make accounts simple the amounts are calculated as average per cow per day.

It is obvious that expenditure per cow is Rs. 15-25 cow/day.

While the income from sale is Rs. 25-35 cow-day.

37.3 These averages make it clear that the belief that cows which do not yield milk are unprofitable and burden for the owner is totally false. In fact it can be said that products of cow are sufficient to maintain them even without milk. The milk in such cases is only a by\026product.

37.4 It is obvious that all cow owners do not engage in productions of fertilizers or insect repellents. It can also be understood that such activity may not be feasible for owners of a single or a few cows. In such cases, the cow’s urine and dung may be supplied to such organizations, which utilize these materials for producing finished products required for agricultural or medicinal purpose. Commission has noticed that some organizations which are engaged in production of agricultural and medical products from cow dung and urine do purchase raw materials from nearby cow owner at a price which is sufficient to maintain the cow.” (Report of National Commission on Cattle, July 2002, Vol. II, pp.68-69)

A host of other documents have been filed originating from different sources such as Governmental or Semi-governmental, NGOs, individuals or group of individuals, who have carried out researches and concluded that world-over there is an awareness in favour of organic farming for which cattle are indispensable. However, we do not propose to refer to these documents as it would only add to the length of the judgment. We have, apart from the affidavits, mainly referred to the reports published by the Government of India, whose veracity cannot be doubted.

We do not find any material brought on record on behalf of the respondents which could rebut, much less successfully, the correctness of the deductions flowing from the documented facts and statistics stated hereinabove.

The utility of cow cannot be doubted at all. A total ban on cow slaughter has been upheld even in Quareshi-I. The controversy in the present case is confined to cow progeny. The important role that cow and her progeny play in the Indian Economy was acknowledged in Quareshi-I in the following words:
“The discussion in the foregoing paragraphs clearly establishes the usefulness of the cow and her progeny. They sustain the health of the nation by giving them the life giving milk which is so essential an item in a scientifically balanced diet. The working bullocks are indispensable for our agriculture, for they supply power more than any other animal. Good breeding bulls are necessary to improve the breed so that the quality and stamina of the future cows and working bullocks may increase and the production of food and milk may improve and be in abundance. The dung of the animal is cheaper than the artificial manures and is extremely useful. In short, the back bone of Indian agriculture is in a manner of speaking the cow and her progeny. Indeed Lord Linlithgow has truly said \027 “The cow and the working bullock have on their patient back the whole structure of Indian agriculture.” (Report on the Marketing of Cattle in India, p. 20). If, therefore, we are to attain sufficiency in the production of food, if we are to maintain the nation’s health, the efficiency and breed of our cattle population must be considerably improved. To attain the above objectives, we must devote greater attention to the preservation, protection and improvement of the stock and organise our agriculture and animal husbandry on modern and scientific lines.”

On the basis of the available material, we are fully satisfied to hold that the ban on slaughter of cow progeny as imposed by the impugned enactment is in the interests of the general public within the meaning of clause (6) of Article 19 of the Constitution. Part – III Stare Decisis

We have dealt with all the submissions and counter submissions made on behalf of the parties. What remains to be dealt with is the plea, forcefully urged, on behalf of the respondents that this Court should have regard to the principle of stare decisis and should not upturn the view taken in Quareshi-I which has held field ever since 1958 and has been followed in subsequent decisions, which we have already dealt with hereinabove.

Stare decisis is a Latin phrase which means “to stand by decided cases; to uphold precedents; to maintain former adjudication”. This principle is expressed in the maxim “stare decisis et non quieta movere” which means to stand by decisions and not to disturb what is settled. This was aptly put by Lord Coke in his classic English version as “Those things which have been so often adjudged ought to rest in peace”. However, according to Justice Frankfurter, the doctrine of stare decisis is not “an imprisonment of reason” (Advanced Law Lexicon, P. Ramanatha Aiyer, 3rd Edition 2005, Volume 4, p. 4456). The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible.

The trend of judicial opinion, in our view, is that stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, State policy and judicial conscience.

According to Professor Lloyd concepts are good servants but bad masters. Rules, which are originally designed to fit social needs, develop into concepts, which then proceed to take on a life of their own to the detriment of legal development. The resulting “jurisprudence of concepts” produces a slot-machine approach to law whereby new points posing questions of social policy are decided, not by reference to the underlying social situation, but by reference to the meaning and definition of the legal concepts involved. This formalistic a priori approach confines the law in a strait-jacket instead of permitting it to expand to meet the new needs and requirements of changing society (Salmond on Jurisprudence, Twelfth Edition, at p.187). In such cases Courts should examine not only the existing laws and legal concepts, but also the broader underlying issues of policy. In fact presently, judges are seen to be paying increasing attention to the possible effects of their decision one way or the other. Such an approach is to be welcomed, but it also warrants two comments. First, judicial inquiry into the general effects of a proposed decision tends itself to be of a fairly speculative nature. Secondly, too much regard for policy and too little for legal consistency may result in a confusing and illogical complex of contrary decisions. In such a situation it would be difficult to identify and respond to generalized and determinable social needs. While it is true that “the life of the law has not been logic, it has been experience” and that we should not wish it otherwise, nevertheless we should remember that “no system of law can be workable if it has not got logic at the root of it” (Salmond, ibid, pp.187-188).

Consequently, cases involving novel points of law, have to be decided by reference to several factors. The judge must look at existing laws, the practical social results of any decision he makes, and the requirements of fairness and justice. Sometimes these will all point to the same conclusion. At other times each will pull in a different direction; and here the judge is required to weigh one factor against another and decide between them. The rationality of the judicial process in such cases consists of explicitly and consciously weighing the pros and cons in order to arrive at a conclusion. (Salmond, ibid, pp. 188).

In case of modern economic issues which are posed for resolution in advancing society or developing country, the court cannot afford to be static by simplistically taking shelter behind principles such as stare decisis, and refuse to examine the issues in the light of present facts and circumstances and thereby adopt the course of judicial “hands off”. Novelty unsettles existing attitudes and arrangements leading to conflict situations which require judicial resolution. If necessary adjustments in social controls are not put in place then it could result in the collapse of social systems. Such novelty and consequent conflict resolution and “patterning” is necessary for full human development. (See – The Province and Function of Law, Julius Stone, at pp.588, 761and 762)

Stare decisis is not an inexorable command of the Constitution or jurisprudence. A careful study of our legal system will discern that any deviation from the straight path of stare decisis in our past history has occurred for articulable reasons, and only when the Supreme Court has felt obliged to bring its opinions in line with new ascertained fact, circumstances and experiences. (Precedent in Indian Law, A. Laxminath, Second Edition 2005, p. 8).

Given the progressive orientation of the Supreme Court, its creative role under Article 141 and the creative elements implicit in the very process of determining ratio decidendi, it is not surprising that judicial process has not been crippled in the discharge of its duty to keep the law abreast of the times, by the traditionalist theory of stare decisis (ibid, p. 32). Times and conditions change with changing society, and, “every age should be mistress of its own law” \026 and era should not be hampered by outdated law. “It is revolting”, wrote Mr. Justice Holmes in characteristically forthright language, “to have no better reason for a rule of law than it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past”. It is the readiness of the judges to discard that which does not serve the public, which has contributed to the growth and development of law. (ibid, p. 68)

The doctrine of stare decisis is generally to be adhered to, because well settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet, the demands of the changed facts and circumstances dictated by forceful factors supported by logic, amply justify the need for a fresh look.

Sir John Salmond, while dealing with precedents and illustrating instances of departure by the House of Lords from its own previous decisions, states it to be desirable as ’it would permit the House (of Lords) to abrogate previous decisions which were arrived at in different social conditions and which are no longer adequate in present circumstances. (See \026 Salmond, ibid, at p.165). This view has been succinctly advocated by Dr. Goodhart who said: “There is an obvious antithesis between rigidity and growth, and if all the emphasis is placed on absolutely binding cases then the law looses the capacity to adapt itself to the changing spirit of the times which has been described as the life of the law”. (ibid, p.161) This very principle has been well stated by William O’ Douglas in the context of constitutional jurisprudence. He says: “So far as constitutional law is concerned, stare decisis must give way before the dynamic component of history. Once it does, the cycle starts again”. (See \026 Essays on Jurisprudence from the Columbia Law Review, 1964, at p.20)

We have already indicated that in Quareshi-I, the challenge to the constitutional validity of the legislation impugned therein, was turned down on several grounds though forcefully urged, excepting for one ground of ’reasonableness’; which is no longer the position in the case before us in the altered factual situation and circumstances. In Quareshi-I the reasonableness of the restriction pitted against the fundamental right to carry on any occupation, trade or business determined the final decision, having been influenced mainly by considerations of weighing the comparative inconvenience to the butchers and the advancement of public interest. As the detailed discussion contained in the judgment reveals, this determination is not purely one of law, rather, it is a mixed finding of fact and law. Once the strength of the factual component is shaken, the legal component of the finding in Quareshi-I loses much of its significance. Subsequent decisions have merely followed Quareshi-I. In the case before us, we have material in abundance justifying the need to alter the flow of judicial opinion.

Part – IV

Quareshi-I, re-visited :
Having dealt with each of the findings recorded in Quareshi-I, which formed the basis of the ultimate decision therein, we revert to examine whether the view taken by the Constitution Bench in Quareshi-I can be upheld.

We have already pointed out that having tested the various submissions made on behalf of the writ petitioners on the constitutional anvil, the Constitution Bench in Quareshi-I upheld the constitutional validity, as reasonable and valid, of a total ban on the slaughter of : (i) cows of all ages, (ii) calves of cows and she-buffaloes, male or female, and (iii) she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle. But the Constitution Bench found it difficult to uphold a total ban on the slaughter of she-buffaloes, bulls or bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals, on the material made available to them, the ban failed to satisfy the test of being reasonable and “in the interests of the general public”. It is clear that, in the opinion of the Constitution Bench, the test provided by clause (6) of Article 19 of the Constitution was not satisfied. The findings on which the above-said conclusion is based are to be found summarized on pp.684-687. Para-phrased, the findings are as follows:

(1) The country is in short supply of milch cattle, breeding bulls and working bullocks, essential to maintain the health and nourishment of the nation. The cattle population fit for breeding and work must be properly fed by making available to the useful cattle in presenti in futuro. The maintenance of useless cattle involves a wasteful drain on the nation’s cattle feed.

(2) Total ban on the slaughter of cattle would bring a serious dislocation, though not a complete stoppage, of the business of a considerable section of the people who are by occupation Butchers (Kasai), hide merchant and so on.

(3) Such a ban will deprive a large section of the people of what may be their staple food or protein diet.

(4) Preservation of useful cattle by establishment of gosadan is not a practical proposition, as they are like concentration camps where cattle are left to die a slow death.

(5) The breeding bulls and working bullocks (cattle and buffaloes) do not require as much protection as cows and calves do.

These findings were recorded in the judgment delivered on 23rd April, 1958. Independent India, having got rid of the shackles of foreign rule, was not even 11 years old then. Since then, the Indian economy has made much headway and gained a foothold internationally. Constitutional jurisprudence has indeed changed from what it was in 1958, as pointed out earlier. Our socio-economic scenario has progressed from being gloomy to a shining one, full of hopes and expectations and determinations for present and future. Our economy is steadily moving towards prosperity in a planned way through five year plans, nine of which have been accomplished and tenth is under way.
We deal with the findings in Quareshi-I seriatim. Finding 1 :
We do not dispute that the country is in short supply of milch cattle, breeding bulls and working bullocks and that they are essential to maintain the health and nourishment of the nation as held in Quareshi-I. Rather we rely on the said finding which stands reinforced by the several documents which we have referred to hereinbefore.

In the Quareshi-I era, there was a shortage of fodder in the country. Various plans were drawn up in the direction of exploring potential fodder areas for the future. Although, the planning was there; implementation was lacking. The Report of National Commission on Cattle, July 2002 (Vol. II) reveals that the existing fodder resources of the country can sustain and meet 51.92% of the total requirements to sustain its livestock population. But we have to take into consideration the fodder potential of the country. We have vast culturable waste land which with some efforts can be developed into good pasture land. Major part of the fallow land can be put under the plough for having fodder crops such as Jowar, Bajra and smaller millets. The combined area of several categories of land which can be developed as potential fodder area is 58.87 million hectares. If managed properly, there are areas in the country which can be developed into a “Grass Reservoir of India for use as pasture land”. One very big potential area lies in Jaisaelmer District of Rajasthan (spread over 22,16,527 hectares). The Commission has recommended 23 steps to be taken by the State Government and the Central Government for development and conservation of food and fodder (See paras 37-41 of the report at pages 130-135).

So far as the State of Gujarat is concerned, we have already noticed, while dealing with the documentary evidence available on record, that fodder shortage is not a problem so far as this state is concerned and cow progeny, the slaughtering whereof has already shown a downward trend during the recent years, can very well be fed and maintained without causing any wasteful drain on the feed requisite for active milch, breeding and draught cattle. Finding 2 : The finding suffers from two infirmities. First, Quareshi-I has not felt the necessity of finding whether a ’total prohibition’ is also included within ’restriction’ as employed in Article 19(6). It is now well-settled that ’restriction’ includes ’prohibition’. Second and the real fallacy in Quareshi-I is that the ban limited to slaughtering of cow progeny has been held at one place to be a ’total prohibition’, while in our opinion, is not so. At another place, the effect of ban has been described as causing ’a serious dislocation, though not a complete stoppage of the business of a considerable section of the people’. If that is so, it is not a ’total prohibition’. The documentary evidence available on record shows that beef contributes only 1.3% of the total meat consumption pattern of the Indian society. Butchers are not prohibited from slaughtering animals other than the cattle belonging to cow progeny. Consequently, only a part of their activity has been prohibited. They can continue with their activity of slaughtering other animals. Even if it results in slight inconvenience, it is liable to be ignored if the prohibition is found to be in the interest of economy and social needs of the country.

Finding 3 :
In the first and second Five Year Plans (Quareshi-I era), there was scarcity of food which reflected India’s panic. The concept of food security has since then undergone considerable change.

47 years since, it is futile to think that meat originating from cow progeny can be the only staple food or protein diet for the poor population of the country. ’India Vision 2020’ (ibid, Chapter 3) deals with ’Food Security and Nutrition : Vision 2020’. We cull out a few relevant findings and observations therefrom and set out in brief in the succeeding paragraphs. Food availability and stability were considered good measures of food security till the Seventies and the achievement of self-sufficiency was accorded high priority in the food policies. Though India was successful in achieving self-sufficiency by increasing its food production, it could not solve the problem of chronic household food insecurity. This necessitated a change in approach and as a result food energy intake at household level is now given prominence in assessing food security. India is one of the few countries which have experimented with a broad spectrum of programmes for improving food security. It has already made substantial progress in terms of overcoming transient food insecurity by giving priority to self-sufficiency in foodgrains, employment programmes, etc. The real problem, facing India, is not the availability of food, staple food and protein rich diet; the real problem is its unequal distribution. The real challenge comes from the slow growth of purchasing power of the people and lack of adequate employment opportunities. Another reason for lack of food and nutrient intake through cereal consumption is attributable to changes in consumer tastes and preferences towards superior food items as the incomes of the household increases. Empirical evidence tends to suggest a positive association between the calorie intake and nutritional status. The responsiveness is likely to be affected by the factors relating to health and environment. It is unclear as to how much of the malnutrition is due to an inadequate diet and how much due to the environment.

India achieved near self-sufficiency in the availability of foodgrains by the mid-Seventies. The trend rate of foodgrain production improved 2.3 per cent during the 1960s and 1970s to 2.9 per cent in the Eighties. The recent economic survey of 2005 has also pointed out that the per capita availability of the milk has doubled since independence from 124 gms/day in the year 1950-51 to 229 gms/day in the year 2001-02. (Report of National Commission on Cattle. Vol. II, p. 84.)

A complete reading of the research paper on Food Security and Nutrition (Chapter 3 in India Vision 2020) is a clear pointer to the fact that desirable diet and nutrition are not necessarily associated with non-vegetarian diet and that too originating from slaughtering cow progeny. Beef contributes only 1.3% of the total meat consumption pattern of the Indian society. Consequently a prohibition on the slaughter of cattle would not substantially affect the food consumption of the people. To quote (ibid. p.209) : “Even though the question of desirable diet from nutritional perspective is still controversial, we can make certain policy options to overcome the nutritional deficiencies. The most important problem to be attended is to increase the energy intake of the bottom 30 per cent of the expenditure class. The deficiency of energy intake of the bottom 30 per cent can be rectified by increasing agricultural productivity in rain fed areas, making available food at an affordable price through the Public distribution system (PDS), and other poverty alleviation programmes. The micro-nutrient deficiency can be cost- effectively rectified by supplementary nutritional programmes to the children and the expectant and lactating mothers.”

The main source of staple food which is consumed both by vegetarians and non-vegetarians is supplied by vegetables. Synthetic staple food has also been made available by scientific researches. It will, therefore, not be correct to say that poor will suffer in availing staple food and nutritional diet only because slaughter of cow progeny was prohibited.

Finding 4 :
Quareshi-I itself reveals a very general opinion formed by the Court as to the failure of gosadans and their inability to preserve cattle. The statistics made available before us are a positive indicator to the contrary that gosadans and goshalas are being maintained and encouraged so as to take up both useful and so-called useless cattle, if the owner is not willing to continue to maintain them. Quareshi-I relied on a Report of an Expert Committee, which has certainly become an outdated document by the lapse of 47 years since then. Moreover, independent of all the evidence, we have in this judgment already noticed that cattle belonging to the category of cow progeny would not be rendered without shelter and feed by the owner to whom it had served throughout its life. We find support from the affidavits and reports filed on behalf of the State of Gujarat which state inter alia “farmers love their cattle”. National Commission on Cattle in its Report (ibid) has incorporated as many as 17 recommendations for strengthening of goshalas (para 20 at pages 120-122) We have already noticed in the affidavits filed on behalf of the State of Gujarat that, in the State of Gujarat adequate provisions have been made for the maintenance of gosadans and goshalas. Adequate fodder is available for the entire cattle population. The interest exhibited by the NGOs seeking intervention in the High Court and filing appeals in this Court also indicates that the NGOs will be willing to take up the task of caring for aged bulls and bullocks.

Finding 5
In Quareshi-I, vide para 42, the Constitution Bench chose to draw a distinction between breeding bulls and working bullocks, on the one hand and cows and calves, on the other hand, by holding that the farmers would not easily part with the breeding bulls and working bullocks to the butchers as they are useful to the farmers. It would suffice to observe that the protection is needed by the bulls and bullocks at a point of time when their utility has been reduced or has become nil as they near the end of their life. That is what Article 48, in fact, protects, as interpreted in this judgment.

India, as a nation and its population, its economy and its prosperity as of today are not suffering the conditions as were prevalent in 50s and 60s. The country has achieved self- sufficiency in food production. Some of the states such as State of Gujarat have achieved self-sufficiency in cattle-feed and fodder as well. Amongst the people there is an increasing awareness of the need for protein rich food and nutrient diet. Plenty of such food is available from sources other than cow/cow progeny meat. Advancements in the field of Science, including Veterinary Science, have strengthened the health and longetivity of cattle (including cow progeny). But the country’s economy continues to be based on agriculture. The majority of the agricultural holdings are small units. The country needs bulls and bullocks.

For multiple reasons which we have stated in very many details while dealing with Question-6 in Part II of the judgment, we have found that bulls and bullocks do not become useless merely by crossing a particular age. The Statement of Objects and Reasons, apart from other evidence available, clearly conveys that cow and her progeny constitute the backbone of Indian agriculture and economy. The increasing adoption of non-conventional energy sources like Bio-gas plants justify the need for bulls and bullocks to live their full life in spite of their having ceased to be useful for the purpose of breeding and draught. This Statement of Objects and Reasons tilts the balance in favour of the constitutional validity of the impugned enactment. In Quareshi-I the Constitution Bench chose to bear it in mind, while upholding the constitutionality of the legislations impugned therein, insofar as the challenge by reference to Article 14 was concerned, that “the legislature correctly appreciates the needs of its own people”. Times have changed; so have changed the social and economic needs. The Legislature has correctly appreciated the needs of its own people and recorded the same in the Preamble of the impugned enactment and the Statement of Objects and Reasons appended to it.

In the light of the material available in abundance before us, there is no escape from the conclusion that the protection conferred by impugned enactment on cow progeny is needed in the interest of Nation’s economy. Merely because it may cause ’inconvenience’ or some ’dislocation’ to the butchers, restriction imposed by the impugned enactment does not cease to be in the interest of the general public. The former must yield to the latter.

According to Shri M.S. Swaminathan, the eminent Farm Scientist, neglect of the farm sector would hit our economy hard. According to him “Today, global agriculture is witnessing two opposite trends. In many South Asian countries, farm size is becoming smaller and smaller and farmers suffer serious
handicaps with reference to the cost-risk-return structure of agriculture. In contrast, the average farm size in most industrialized countries is over several hundred hectares and farmers are supported by heavy inputs of technology, capital and subsidy. The on-going Doha round of negotiations of the World Trade Organisation in the field of agriculture reflects the polarization that has taken place in the basic agrarian structure of industrialized and developing countries. Farming as a way of life is disappearing and is giving way to agribusiness.” (K.R. Narayanan Oration delivered by Dr. Swaminathan at the
Australian National University, Canberra, published in ’The Hindu’, October 17, 2005, p.10)

“In India, nearly 600 million individuals are engaged in farming and over 80 per cent of them belong to the small and marginal farmer categories. Due to imperfect adaptation to local environments, insufficient provision of nutrients and water, and incomplete control of pests, diseases and weeds, the present average yields of major farming systems in India is just 40 per cent of what can be achieved even with the technologies currently on the shelf. There is considerable scope for further investment in land improvement through drainage, terracing, and control of acidification, in areas where these have not already been introduced.” (ibid)

Thus, the eminent scientist is very clear that excepting the advanced countries which have resorted to large scale
mechanized farming, most of the countries (India included) have average farms of small size. Majority of the population is engaged in farming within which a substantial proportion belong to small and marginal farmers category. Protection of cow progeny will help them in carrying out their several agricultural operations and related activities smoothly and conveniently. Organic manure would help in controlling pests and acidification of land apart from resuscitating and stimulating the environment as a whole.

Having subjected the restrictions imposed by the impugned Gujarat enactment to the test laid down in the case of N.M. Thomas (supra) we are unhesitatingly of the opinion that there is no apparent inconsistency between the Directive Principles which persuaded the State to pass the law and the Fundamental Rights canvassed before the High Court by the writ petitioners.

Before we part, let it be placed on record that Dr. L.M. Singhvi, the learned senior counsel for one of the appellants, initially tried to build an argument by placing reliance on Article 31C of the Constitution. But at the end he did not press this submission. Similarly, on behalf of the respondents, the Judgment of the High Court has been supported only by placing reliance on Article 19(6) of the Constitution. The legislative competence of the State Legislature to enact the law was not disputed either in the High Court or before us.
Result

For the foregoing reasons, we cannot accept the view taken by the High Court. All the appeals are allowed. The impugned judgment of the High Court is set aside. The Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (Gujarat Act No. 4 of 1994) is held to be intra vires the Constitution. All the writ petitions filed in the High Court are directed to be dismissed.

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A.K. MATHUR, J.

I have gone through the erudite judgment by Hon’ble Chief Justice. But I regret I cannot support the view taken by Hon’ble Chief Justice.

Basic question that arises in these petitions are whether there is need to over-rule the earlier decisions which held the field right from 1958-1996, is the ground realities have materially changed so as to reverse the view held by successive Constitutional Benches of this Court or those decisions ceased to have any relevance.

It is true that life is ever changing and the concept which was useful in 18th century may not be useful in this millennium. We have gone from cartage to space age. New scientific temper is a guiding factor in this millennium. But despite the changing pattern of life it cannot be said that the decision delivered in the case of Mohd. Qureshi followed by subsequent decisions have outlived its ratio. In my respectful view the material which has been placed for taking a contrary view does not justify the reversal of earlier decisions.

The detailed history of the legislation and various decisions bearing on the subject has been dealt with by Hon’ble Chief Justice in most exhaustive and pains-taking manner. Therefore, there is no need to repeat those legislative as well as judicial history here. My endeavor in this opinion will be to show that the situation which existed right from 1958 till this date there is no material change warranting reversal of the judgments bearing on the subject from 1958-96.

The whole controversy arose in the writ petition filed in the Gujarat High Court challenging the validity of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (hereinafter referred to Gujarat Act No. 4 of 1994). By this amendment the age of bulls and bullocks which was existed at that time that is bull below the age of 16 years and bullocks below the age of 16 years can not be slaughtered was deleted. By this amendment the age restriction was totally taken away and that means that no bull and bullock irrespective of age shall be slaughtered. This amendment was challenged before the Gujarat High Court. The Gujarat High Court after dealing with all aspects in detail held that amendment is ultra vires. Hence, the present petition alongwith the other petitions came up before this Court by Special Leave Petition.

The matter was listed before the three Judges’ Bench. Thereafter, it was taken by the Constitution Bench and the Constitution Bench realizing difficulty that there are already Constitution Bench judgments holding the field, referred the matter to the seven Judges’ Bench for reconsideration of all the earlier decisions of the Constitution Benches. Hence these matters are before seven Judges’ Bench.

Hon’ble the Chief Justice has already reproduced the objects and reasons for amendment therefore same need not be reproduced here. This amendment brought about to effect directive principles of the State Policy under Articles 47, 48 of the Constitution and Clause (b) and (c) of Article 39 of the Constitution.

Thereafter, Hon’ble Chief Justice has also reviewed all the cases bearing on the subject which can be enumerated as under:
1. AIR 1958 SC 731 ( Mohd. Hanif Qureshi & Ors. Vs. State of Bihar)
2. AIR 1961 SC448 ( Abul Hakim Vs. State of Bihar)
3. 1969 (1) SCC 853 ( Mohd. Faruk Vs. State of M.P. & Ors.)
4. 1986 (3) SCC 12 ( Haji Usmanbhai Hasanbhai Qureshi Vs. State of Gujarat
5. 1996 (4) SCC 391 ( Hashmattullah Vs. State of M.P. & Ors.)

In these cases, this very question was agitated & by series of decisions it was answered in the negative.

In Mohd. Hanif Qureshi’s case this Court upheld a total prohibition of slaughter of the cows of all ages and calf of buffalows (male and female) & she-buffaloes, breeding bulls and working bullocks, without prescribing any test of requirement as to their age. But so far as bull & bullocks are concerned when they ceased to have draughtability prohibition of their slaughter was not upheld in public interest. Hon’ble S.R. Das, CJ speaking for the Court exhaustively dealt with all the aspects which practically covers all the arguments which have been raised before us, especially, the utility of the cow-dung for manure as well as the cow urine for its chemical qualities like Nitrogen Phosphates and Potash. His Lordship recognized that this enactment was made in discharge of State’s obligation under Art. 48 of the Constitution to preserve our livestock.

His Lordship has discussed the question of reasonable restriction under Article 19 (6) and after considering all material placed before the Court, and adverting to social, religious, utility point of view in most exhaustive manner finally concluded thus :

“After giving our most careful and anxious consideration to the pros and cons of the problem as indicated and discussed above and keeping in view the presumption in favour of the validity of the legislation and without any the least disrespect to the opinions of the legislatures concerned we feel that in discharging the ultimate responsibility cast on us by the Constitution we must approach and analyze the problem in an objective and realistic manner and then make our pronouncement on the reasonableness of the restrictions imposed by the impugned enactments. So approaching and analyzing the problem, we have reached the conclusion (i) that a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with the directive principles laid down in Art. 48; (ii) that a total ban on the slaughter of she-buffaloes, or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable and valid and (iii) that a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public.”

Therefore, their Lordships have summarized the whole concept of preservation of the cattle life in India with reservation that those cattle head which have lost their utility can be slaughtered specially with regard to draught cattle, bulls, bullocks & buffaloes so as to preserve the other milching cattle for their better breed and their better produce.

Subsequently in another decision, in the case of Abdul Hakim vs. State of Bihar reported in AIR 1961 SC 448 the ban was imposed by the States of Bihar, Madhya Pradesh and U.P. which came up for consideration before this Court and in this context it was observed as under:

“The test of reasonableness 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.”

Their Lordship also emphasized that the legislature is the best Judge of what is good for the community, by whose suffrage it comes into existence, the ultimate responsibility for determining the validity of the law must rest with the Court and the Court must not shirk that solemn duty cast on it by the Constitution.

It was observed that the unanimous opinion of the experts is that after the age of 15, bulls, bullocks and buffaloes are no longer useful for breeding, draught and other purpose and whatever little use they may have then is greatly off-set by the economic disadvantage of feeding and maintaining unserviceable cattle.

Section 3 of the Bihar Act in so far as it has increased the age limit to 25 in respect of bulls, bullocks and she-buffaloes, for the purpose of their slaughter imposes an unreasonable restriction on the fundamental right of the butchers to carry on their trade and profession. Moreover the restriction cannot be said to be in the interests of the general public, and to that extent it is void.

Then again in the case of Mohd. Faruk vs. State of Madhya Pradesh and Ors. reported in 1969 (1) SCC 853, Constitution Bench was called upon to decide the validity of the notification issued by the Madhya Pradesh Government under Municipal Corporation Act. Earlier, a notification was issued by the Jabalpur Municipality permitting the slaughter of bulls and bullocks alongwith the other animals. Later on State Government issued notification cancelling the notification permitting the slaughter of bulls and bullocks. This came up for a challenge directly under Art. 32 of the constitution before this Court, that this restriction amounts to breach of Art. 19(1)(g) of the constitution. In that context, their Lordship observed:

“That the sentiments of a section of the people may be hurt by permitting slaughter of bulls and bullocks in premises maintained by a local authority. But a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable if it is imposed not in the interest of the general public but merely to respect the susceptibilities and sentiments of a section of the people whose way of life belief or thought is not the same as that of the claimant. The notification issued must, therefore, be declared ultra virus as infringing Article 19(1)(g) of the Constitution.”

Then again in the case of Haji Usmanbhai Hasanbhai Qureshi & Ors. vs. State of Gujarat reported in (1986) 3 SCC 12, the insertion of Section 5 (1-A) (c) and (d) was made under the Bombay Animal Preservation (Gujarat amendment) act 1979) came up for consideration. By virtue of this insertion by the Gujarat State, it was laid down that there will be ban of slaughter of bulls, bullocks below the age of 16 years. It was contented that this prohibition is unreasonable and violative of Art. 19(1)(g). Their Lordships upheld the restriction under Art. 19(6) with reference to Art. 48 of the constitution. Their Lordships upheld the contention of the State of Gujarat that with the improvement of scientific methods cattle up to the age of 16 years are used for the purpose of breeding and other agricultural operation. But by this Act of 1994 this age restriction has now been totally taken away by the Act of 1994 (which is subject matter of challenge in these petitions).

Then again the matter came up before this Court in the case of Hashmattullah vs. State of M.P. and Ors. reported in 1996 (4) SCC 391. This time the provisions of the M.P. Agricultural Cattle Preservation Act, 1959 came up for consideration. This Act was amended by Amending Act of 1991 and a total ban on slaughter of bulls and bullocks came to be imposed. And this was challenged being violative of Art. 19 (1)(g) of the constitution.

Their Lordships after reviewing all earlier cases on the subject and taking into consideration the uselessness of these bulls and bullocks after they have attained a particular age for agriculture operation like manure as well as bio-gas and ecology, observed in para 18 as under:

“We are pained to notice the successive attempts made by the State of Madhya Pradesh to nullify the effect of this Court’s decisions beginning with Mohd. Hanif’s case and ending with Mohd. Faruk’s case, each time on flimsy grounds. In this last such attempt, the objects and reasons show how insignificant and unsupportable the ground for bringing the legislation was. The main thrust of the objects and reasons for the legislation seems to be that even animals which have ceased to be capable of yielding milk or breeding or working as draught animals can be useful as they would produce dung which could be used to generate non-conventional sources of energy like bio-gas without so much as being aware of the cost of maintaining such animals for the mere purpose of dung. Even the supportive articles relied upon do not bear on this point. It is obvious that successive attempts are being made in the hope that some day it will succeed as indeed it did with the High Court which got carried away by research papers published only two or three years before without realizing that they dealt with the aspect of utility of dung but had nothing to do with the question of the utility of animals which have ceased to be reproductive of capable of being used as draught animals. Besides, they do not even reflect on the economical aspect of; maintaining such animals for the sole purpose of dung. Prim facie it seems farfetched and yet the State Government thought it as sufficient to amend the law.”

And their Lordships declined to review the ratio laid down in Mohd. Hanif Qureshi’s case & reiterated the same.

This is a survey of the judicial determination on the subject. And in the last case their Lordships frowned on unsuccessful attempt by the State to somehow nullify the ratio laid down in Mohd. Hanif Qureshi’s case and subsequent decisions following Qureshi’s case. But this time, the State of Gujarat has come up to seek the review of earlier decisions. Now I shall examine the material which has been placed by the State of Gujarat to justify the total prohibition of slaughter of bulls and bullocks.

Learned counsel for the appellant has brought to our notice the affidavit filed by the State of Gujarat which has been reproduced by the Hon’ble Chief Justice on page 56 in his opinion onwards. Therefore, I need not reproduce the whole of the affidavit. Mr. J.S.Parikh, Deputy Secretary, Agricultural Cooperative and Rural Development Department of the State of Gujarat has in his affidavit stated that almost in 50% of the agricultural operation by tractor is not possible because of small holdings in the State of Gujarat. Therefore, for such small holdings the draught animals are best used for cultivation purposes. It was also stated that the total cultivated area of Gujarat State is about 124 lakh hectares and a pair of bullocks is required for ploughing 10 hectares of land. Therefore, 5.481million and approximately equal number is required for carting of whole land. In accordance with livestock census, the Gujarat State has availability of indigenous bullocks around 2.84 millions that means that a State has only 25% of their requirement and it is also stated that each bull is required for this purpose. He has also stated that bull or bullocks at every stage of life supplies 3500 kg. of dung and 2000 ltrs. of urine and this quantity of dung can supply 5000 cubic feet of biogas, 80 M.T. of organic fertilizer and the urine can supply 2000 ltrs of pesticides and the use of it in farming increases the yield very substantially. That in recent advancement of technology use of biogas has become very useful source of energy and the biogas can be prepared out of the cow dung and other inputs. It was pointed out that there are 19362 biogas plants installed in the State during 1995-97.

Similarly, an additional affidavit was filed by Mr. D.P. Amin, Joint Director of Animal Husbandry, Gujarat State. He has mentioned that the number of the slaughter houses have declined during the year 1982-83 to 1996-97. The average number of animals slaughtered in regulated slaughter houses was 4,39,141. It is also stated that there is a reduction in slaughter of the bull and bullocks above the age of 16 years. Almost 50 per cent of the land holdings are less than 2 hectares; tractor operation is not affordable to small farmers. For tractors operation one should have large holding of land. Such land holders are only around 10 per cent of the total land holders. Hence the farmers with small land holdings require bullocks for their agricultural operations and transport. There is reduction in slaughter of bulls and bullocks above the age of 16 years reported in the regulated slaughter houses of Gujarat State. As reported in the years from 1982-83 to 1996-97, the slaughter of bulls and bullocks above the age of 16 years was only 2.48% of the total animals of different categories slaughtered in the State. This percentage has gone down to the level of only 1.10% during last 8 years i.e. 1997-98 to 2004-05 which is very less significant to cause or affect the business of butcher communities. He has also stated that the bullock above the age of 16 years can generate 0.68 horse power draught output while the prime bullock generates 0.83 horse power per bullock during carting/hauling draught work. Considering the utility of bullocks above 16 years of age as draught power a detailed combined study was carried out by Department of Animal Husbandry and Gujarat Agricultural University (Veterinary Colleges S.K. Nagar & Anand). The study covered different age groups of 156 (78 pairs) bullocks above the age of 16 years age generated 0.68 horse power draught output per bullock while the prime bullock generated 0.83 horse power per bullock during carting/hauling draught work in a summer with about more than 42: F temp. The study proves that 93% of aged bullock above 16 years of age are still useful to farmers to perform light and medium draught works. The importance of organic manure as a source of humus and plant nutrients to increase the fertility level of soils has been well recognized. The organic matter content of cultivated soils of the tropics and sub-tropics is comparatively low due to high temperature and intense microbial activity. The crops remove annually large quantity of plant nutrients from soil. Moreover, Indian soils are poor in organic matter and in major plant nutrients. Therefore, soil humus has to be replenished through periodic addition of organic manure for maintaining soil productivity. It was mentioned that there is number of bio-gas plants operating in the State of Gujarat.

Apart from these affidavits many more published documents have been placed on record which has been reproduced by the Hon’ble Chief Justice of India in his opinion. But all these are general datas which only provide the usefulness of cow dung for the purposes of manure as well as for biogas and likewise the urine of the cows for pesticides and ayurvedic purposes. But all those datas cannot change the reality that such an aged bull and bullocks produce huge quantity of the cow dung manure and urine which can alter a situation materially so as to reverse the earlier decisions of this court. Utility of the cow dung and urine was realized and appreciated in the earlier decision of this Court in Mohd. Hanif Qureshi’s and Ors. vs State of Bihar and Ors. (AIR 1958 SC 731) The then Chief Justice has quoted from various scriptures emphasizing the importance of the cattle life. Therefore it cannot be said that the earlier decisions rendered by the Constitution Bench was oblivious of these facts.

However, so far as the affidavits filed on behalf of State of Gujarat about the use of biogas and the usefulness of the draught animals has to be taken with pinch of salt, in both the affidavits it has been admitted that urine and the cow dung of the aged bull and bullocks beyond 16 years is reduced considerably and likewise their draughtability. Therefore, it is admitted that the bullocks which have crossed the age of 16 years their output for the urine, cow dung and draughtability is substantially reduced. Therefore it is explicit from their affidavits that the age of 16 years prescribed earlier was on a very reasonable basis after proper scientific study but de hors those scientific study the State Government brought this amendment removing the age limit for slaughtering of the bulls and bullocks and totally prohibited slaughtering of the same. This decision of the State Government does not advance the public interest.

Another significant disclosure in both these affidavits is that slaughtering of these bulls and bullocks has considerably reduced in the year 1997-98 to 2004-2005. The slaughtering of bulls and bullocks beyond the age of 16 years was only 2.48 % of the total animals of different categories slain in the State prior to this period. This percentage has gone down to the level of only 1.10 % during the last 8 years i.e. 1997-98 to 2004-2005. These details reveal that in fact the slaughtering of these bulls and bullocks beyond the age of 16 years constituted only 1.10% of the total slaughtering takes place in the State. If this is the ratio of the slaughtering, I fail to understand how this legislation can advance the cause of the public at the expense of the denial of Fundamental Right of this class of persons (butchers). In view of facts disclosed in the affidavit filed by the two senior officer of the State of Gujarat speaks volume that for small percentage of 1.10% can the fundamental right of this class of persons should be sacrificed and earlier decisions be reversed. I fail to understand how it would advance the cause of the public at large so as to deprive the handful of persons of their rights to profession. On the basis of this material, I am of the opinion that the earlier decisions of this Court have not become irrelevant in the present context. The tall claim made by State looks attractive in a print but in reality it is not so. I fail to understand that how can an animal whose average age is said to be 12-16 years can at the age of 16 years reproduce the cow-dung or urine which can off set the requirement of the chemical fertilizer. In this connection reference be made to text book where average age is 12 years. It is a common experience that the use of the chemical fertilizer has increased all over the country and the first priority of the farmer is the chemical fertilizer, as a result of which the production in food grain in the country has gone up and today the country has become surplus. This is because of the use of the chemical fertilizer only and not the organic manure. It was observed in Mohd. Hanif’s case that India has a largest cattle head but a lower in the production of milk. It is only because of the scientific methods employed by veterinarian which has increased the milk production in the country not because of the poor breed of the bulls. It is common experience that aged bulls are not used for purposes of covering the cows for better quality of the breed. Only well-built young bulls are used for the purpose of improving the breeding and not the aged bulls. If the aged and weak bulls are allowed for mating purposes, the off- spring will be of poor health and that will not be in the interest of the country. So far as the use of biogas is concerned, that has also been substantially reduced after the advent of L.P.G. Therefore in my opinion, in the background of this scenario, I do not think that it will be proper to reverse the view which has been held good for a long spell of time from 1958 to 1996. There is no material change in ground realities warranting reversal of earlier decisions.

One of the other reasons which has been advanced for reversal of earlier judgments was that at the time when these earlier judgments were delivered Article 48(A) and 51(A) were not there and impact of both these Articles were not considered. It is true that Article 48(A) which was introduced by the 42nd Constitutional Amendment in 1976 with effect from 3.1.1977 and Article 51(A) i.e. fundamental duties were also brought about by the same amendment. Though, these Articles were not in existence at that time but the effect of those Articles were indirectly considered in the Mohd. Hanif Qureshi’s case in 1958. It was mentioned that cow dung can be used for the purposes of manure as well as for the purpose of fuel that will be more echo-friendly. Similarly, in Mohd. Hanif Qureshi’s case their Lordships have quoted from the scriptures to show that we should have a proper consideration for our cattle wealth and in that context their Lordships quoted in para 22 which reads as under:

“22. The avowed object of each of the impugned Acts is to ensure the preservation, protection, and improvement of the cow and her progeny. This solicitude arises out of the appreciation of the usefulness of cattle in a predominantly agricultural society. Early Aryans recognized its importance as one of the most indispensable adjuncts of agriculture. It would appear that in Vedic times animal flesh formed the staple food of the people. This is attributable to the fact that the climate in that distant past was extremely cold and the Vedic Aryans had been a pastoral people before they settled down as agriculturists. In Rg. Vedic times goats, sheep, cows, buffaloes and even horses were slaughtered for food and for religious sacrifice and their flesh used to be offered to the Gods. Agni is called the “eater of ox or cow” in Rg.Veda (VIII,43,11). The slaying of a great ox (Mahoksa) or a “great Goat” (Mahaja) for the entertainment of a distinguished guest has been enjoined in the Satapatha Brahmana (III.4. 1-2). Yagnavalkya also expresses a similar view (Vaj.1. 109). An interesting account of those early days will be found in Rg.Vedic Culture by Dr. A.C. Das, Chapter 5, pages 203-5 and in the History of Dharamasastras (Vol.II, Part II) by P.V. Kane at pages 772-773. Though the custom of slaughtering of cows and bulls prevailed during the vedic period, nevertheless, even in the Rg. Vedic times there seems to have grown up a revulsion of feeling against the custom. The cow gradually came to acquire a special sanctity and was called “Aghnya” (not to be slain). There was a school of thinkers amongst the Risis, who set their face against the custom of killing such useful animals as the cow and the bull. High praise was bestowed on the cow as will appear from the following verses from Rg.Veda, Book VI, Hymn XXVIII (Cows) attributed to the authorship of Sage Bhardavaja:

“1 . The kine have come and brought good fortune; let them rest in the cow-pen and be happy near us.

Here let them stay prolific, many coloured, and yield through many morns their milk for Indra.

6. O Cows, ye fatten e’n the worn and wasted, and make the unlovely beautiful to look on.

Prosper my house, ye with auspicious voices, your power is glorified in our assemblies.

7. Crop goodly pasturages and be prolific; drink pure sweet water at good drinking places.

Never be thief or sinful man your master, and may the dart of Rudra still avoid you.”

(Translation by Ralph Griffith). Verse 29 of hymn 1 in Book X of Atharva Veda forbids cow slaughter in the following words:

“29. The slaughter of an innocent, O Kritya, is an awful deed, Slay not cow, horse, or man of ours.”

Hyman 10 in the same book is a rapturous glorification of the cow:

“30. The cow is Heaven, the cow is Eath, the cow is Vishnu, Lord of life.

The Sadhyas and the Vasus have drunk the outpourings of the cow.

34. Both Gods and mortal men depend for life and being on the cow.
She hath become this universe; all that the sun surveys is she.”

P.V. Kane argues that in the times of the Rg.Veda only barren cows, if at all, were killed for sacrifice or meat and cows yielding milk were held to be not fit for being killed. It is only in this way, according to him that one can explain and reconcile the apparent conflict between the custom of killing cows for food and the high praise bestowed on the cow in Rg.Vedic times. It would appear that the protest raised against the slaughter of cows greatly increased in volume till the custom was totally abolished in a later age. The change of climate perhaps also make the use of beef as food unnecessary and even injurious to health. Gradually cows became indicative of the wealth of the owner. The Neolithic Aryans not having been acquainted with metals, there were no coins in current use in the earlier stages of their civilization, but as they were eminently a pastoral people almost every family possessed a sufficient number of cattle and some of them exchanged them for the necessaries of their life. The value of cattle (Pasu) was, therefore, very great with the early Rg.Vedic Aryans. The ancient Romans also used the word pecus or pecu (pasu) in the sense of wealth or money. The English words, “pecuniary” and “impecunious”, are derived from the Latin root pecus or pecu, originally meaning cattle. The possession of cattle in those days denoted wealth and a man was considered rich or poor according to the large or small number of cattle that he owned.

In the Ramayana king Janaka’s wealth was described by reference to the large number of herds that he owned. It appears that the cow was gradually raised to the status of divinity. Kautilya’s Arthasastra has a special chapter (Ch.XXIX) dealing with the “superintendent of cows” and the duties of the owner of cows are also referred to in Ch.XI of Hindu Law in its sources by Ganga Nath Jha. There can be no gainsaying the fact that the Hindus in general hold the cow in great reverence and the idea of the slaughter of cows for food is repugnant to their notions and this sentiment has in the past even led to communal riots. It is also a fact that after the recent partition of the country this agitation against the slaughter of cows has been further intensified. While we agree that the constitutional question before us cannot be decided on grounds of mere sentiment, however passionate it may be, we, nevertheless, think that it has to be taken into consideration, though only as one of many elements, in arriving at a judicial verdict as to the reasonableness of the restrictions.”

Therefore it cannot be said that the Judges were not conscious about the usefulness and the sanctity with which the entire cow and its progeny has been held in our country. Though Article 48(A) and 51(A) were not there, but their Lordships were indirectly conscious of the implication. Articles 48(A) and 51(A) do not substantially change the ground realities which can persuade to change the views which have been held from 1958 to 1996. Reference was also made that for protection of top soil, the cow dung will be useful. No doubt the utility of the cow dung for protection of the top soil is necessary but one has to be pragmatic in its approach that whether the small yield of the cow dung and urine from aged bulls and bullocks can substantially change the top soil. In my opinion this argument was advanced only for the sake of argument but does not advance the case of the petitioners/appellants to reverse the decision of the earlier Benches which had stood the test of time.

In this connection, it will be relevant to refer the principle of stare decisis. The expression of ’stare decisis’ is a Latin phrase which means “to stand by decided cases; to uphold precedents; to maintain former adjudications”. It is true that law is a dynamic concept and it should change with the time. But at the same time it shall not be so fickle that it changes with change of guard. If the ground realities have not changed and it has not become irrelevant with the time then it should not be reviewed lightly. I have discussed above the reasons which have been given by the State of
Gujarat for reconsideration of the earlier decisions on the subject, in my humble opinion the justification so pleaded is not sufficient to change or review the decision of the Constitution Bench by the present Bench of seven Judges.

The principle of stare decisis is based on a public policy. This policy is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e. that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law. If the courts start changing their views frequently then there will be a lack of certainty in the law and it is not good for the health of the nation.

Craies on Statue Law, 7th Edition, it was observed that: “The rule is also founded more logically on the axiom statre decisis, which was the ground of the decision in Hanau vs Ehrlich. The case turned on the ambiguous words in the Statute of Frauds as to agreements not to be performed within a year from the making thereof. The House of Lords in 12912 decided that though it may be well doubted whether an agreement for more than one year determinable by notice within the year is within the statute, a long course of decisions going back to 1829 in the affirmative ought not to be disturbed. And in 1945 Scott L.J. refused to decide against a decision of Malins Vs. C. in 1870 on the ground that the construction placed by the Vice- Chancellor on certain sections of the Companies Act 1862 had been accepted for a long time. In 1958 Lord Evershed M.R. said: “There is well-established authority for the view that a decision of long standing, on the basis of which many persons will in the course of time have arranged their affairs, should not lightly be disturbed by a superior court not strictly bound itself by the decision.”

In 1919 Lord Buckmaster enunciated the principles on which the rule of stare decisis is based. “Firstly, the construction of a statute of doubtful meaning once laid down and accepted for a long period of time ought not to be altered unless your Lordships could say positively that it was wrong and productive of inconvenience. Secondly, that the decisions upon which title to property depends or which by establishing principles of construction otherwise form the basis of contracts ought to receive the same protection. Thirdly, decisions affecting the general conduct of affairs, so that their alteration would mean that taxes had been unlawfully imposed or exemption unlawfully obtained, payments needlessly made or the position of the public materially affected, ought in the same way to continue.”

Earlier, Lord Westbury had thus stated the rule, “We must bow to the uniform interpretation which has been put upon the statute of Elizabeth and must not attempt to disturb the exposition it has received \005. If we find a uniform interpretation of a statue upon a question materially affecting property, and perpetually recurring, and which has been adhered to without interruption, it would be impossible for us to introduce the precedent of disregarding that interpretation. Disagreeing with it would thereby be shaking rights and titles which have been founded through so many years upon the conviction that that interpretation is the legal and proper one and is one which will not be departed from.”

The rule of stare decisis was followed in Associated Newspapers Ltd. vs City of London Corporation, where the House of Lords declined to overrule two old cases which established the non-ratability of certain property in the City of London on the construction of an Act of 1767, and in Morgan vs Fear, where the House of Lords refused to disturb a construction of the Prescription Act 1832, which had been settled and acted on for forty-six years. In Cohen vs Bayley- Worthington which turned on the construction of the Fines and Recoveries Act, 1833, the House of Lords refused to put on that Act a new construction, as property had been settled or otherwise dealt with for a long period of time on the faith of the older cases, and in Close vs Steel Co. of Wales Ltd. Lord Morton of Henryton said: “I have always understood that when this House clearly expresses a view upon the construction of an Act of Parliament and bases its decision on that view, the Act must bear that construction unless and until Parliament alters the Act.”

Therefore one of the hallmarks of the law is certainty predictability and stability unless the ground realty has completely changed. In the present case, as discussed above, in my opinion the ground reality has not changed and the law laid down by this court holds good and relevant. Some advancement in technology and more and more use of the cow dung and urine is not such a substantial factor to change the ground realities so as to totally done away with the slaughtering of the aged bulls and bullocks. It is true my Lord the Chief Justice has rightly observed that principle of stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, State policy and judicial conscience. There is no quarrel to this proposition, but the only question is whether the earlier decisions are not logical or they have become unreasonable with the passage of time. In my humble opinion, those decisions still hold good in the present context also. Therefore, I do not think that there are compelling reasons for reversal of the earlier decisions either on the basis of advancement of technology or reason, or logic, or economic consideration. Therefore, in my humble opinion, there is no need to reverse the earlier decisions.

An argument was raised with regard to role of objects and reasons preceding the enactment. There is no two opinion that they are useful and for purposes of interpretation of the provisions whenever its validity is challenged. This aspect has been dealt with by the Hon’ble Chief Justice and I do not wish to add anything more to it.

Likewise, the Hon’ble Chief Justice has dealt in detail the relation of Fundamental Rights with Directive Principles. His Lordship has very exhaustively dealt with all the cases bearing on the subject prior and after decision in Keshwanand Bharti’s case. The court should guard zealously Fundamental Rights guaranteed to the citizens of the society, but at the same time strike a balance between the Fundamental Rights and the larger
interests of the society. But when such right clashes with the larger interest of the country it must yield to the latter. Therefore, wherever any enactment is made for advancement of Directive Principles and it runs counter to the Fundamental Rights an attempt should be made to harmonise the same if it promotes larger public interest.

Therefore, as a result of above discussion, I am of the view that the view taken by the Division Bench of the Gujarat High Court is correct and there is no justification for reversing the view taken by the earlier Constitution Bench decision of this Court.

All appeals are dismissed. No order as to costs.

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This special appeal has been filed against the judgment and order dated 2.11.2004 of the learned Judge disposing of the Writ Petition No. 46040 of 2004 filed by the petitioner against the order of transfer dated 11.10.2004 by directing that the petitioner will be permitted to remain in Varanasi up to 31st May, 2005 considering the interest of children who are of the school going age in view of the undertaking given by the learned counsel for the petitioner on behalf of his client..

Shri M.D. Mishra, learned counsel for the appellant has submitted that petitioner-appellant is a Class IV employee and he could not be transferred in view of the transfer policy unless he has prayed in writing for transfer or he is being promoted; petitioner-appellant belongs to the Scheduled Tribes and, therefore, as per the Government Order contained in Annex. 2 A, it was not permissible to transfer him; petitioner-appellant had been transferred in the mid academic session which had adversely affected the education of his children; transfer is because of mala fide of the higher authorities because of the fact that petitioner is a Scheduled Tribe candidate and other persons are having malice against him. He, therefore, submits that the impugned order of transfer is liable to be quashed and the judgment and order of the learned Single Judge deserves to be set aside.

On the contrary, Shri Ramendra Pratap Singh, learned counsel appearing for the respondents has submitted that petitioner is an employee of the Corporation and the Corporation has not been impleaded as a party. Reliance placed by the petitioner-appellant on transfer policies is misconceived as these do not create any legal or justiciable right in Court; the certificate shows that his daughter is a student of Class X in Intermediate College Babusarai, Sant Ravi Dass Nagar, Bhadohi and, therefore, his daughter is not studying in Varanasi, though his son is studying in Varanasi. More so, the said transfer policy merely provides that low paid employee should not normally be transferred, and similarly, the Government Orders in respect of the Scheduled Tribes employees provides that as far as possible they may not be transferred unless a request is made by them or they are promoted. Petitioner-appellant had earlier been transferred from Rewa to Varanasi after serving at Rewa for 12 years but he did not raise any grievance against the said order. Allegations of mala fides against the higher officers have been levelled without any sense of responsibility as no officer had been impleaded by name. In paragraphs 13 and 14 of the Affidavit accompanying Stay Application in the Special Appeal, allegations have been made of non-compliance of the order passed by the learned Single Judge, for which he had filed the contempt proceedings and relief was granted to him. Thus, the appeal is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

Admittedly, petitioner-appellant is an employee of the Corporation which had not been impleaded as a respondent, and on that ground writ petition ought to have been rejected. In view of the judgment of the Hon’ble Apex Court in The State of Punjab Vs. Okara Grain Buyers Syndicate Ltd., Okara & Anr., AIR 1964 SC 669; Ranjeet Mal Vs General Manager, Northern Railway, New Delhi & Anr, AIR 1977 SC 1701; and Chief Conservator of Forests, Government of A. P. Vs. Collector & Ors, (2003) 3 SCC 472. However, as Shri Mishra prays that he may be given time to implead the Corporation as a party, the appeal is not to be rejected on this ground. In such an eventuality, the party can be impleaded even at the stage of the appeal as held by the Supreme Court in Bal Niketan Nursery School Vs. Kesari Prasad, AIR 1987 SC 1970.

The issue of transfer and posting has been considered time and again by the Apex Court and entire law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. (Vide B. Varadha Rao Vs. State of Karnataka & Ors., AIR 1986 SC 1955; Gujarat Electricity Board Vs. Atma Ram Sungomal Poshani, AIR 1989 SC 1433; Shilpi Bose Vs. State of Bihar, AIR 1991 SC 532; Union of India Vs. N.P. Thomas, AIR 1991 SC 1605; Union of India Vs. S.L. Abbas, AIR 1993 SC 2444; N.K. Singh Vs. Union of India & Ors., (1994) 6 SCC 98; Chief Manager (Tel.) N.E. Telecom Circle Vs. Rajendra Ch. Bhattacharjee, AIR 1995 SC 813; State of U.P. Vs. Dr. R.N. Prasad, 1995 (Suppl)) 2 SCC 151; Union of India & Ors. Vs. Ganesh Dan Singh, 1995 (Suppl) 3 SCC 214; Abani Kante Ray Vs. State of Orissa, 1995 (Suppl) 4 SCC 169; National Hydroelectric Power Corporation Ltd. Vs Shri Bhagwan, (2001) 8 SCC 574; State Bank of India Vs. Anjan Sanyal & Ors., AIR 2001 SCC 1748; and Public Services Tribunal Bar Association Vs. State of U.P. & Anr., AIR 2003 SC 1115).

In Union of India Vs. H.N. Kirtania, AIR 1989 SC 1774, the Hon’ble Apex Court observed as under:-

“Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of malafide.”

In Union of India Vs. S.L. Abbas (Supra), the Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions.

Similar view has been reiterated by the Supreme Court, in Bank of India Vs. Jagjit Singh Mehta, AIR 1992 SC 519, observing that the terms incorporated in the transfer policy require to be considered by the authorities “along with exigencies of administration” and ” without any detriment to the administrative need and claim of other employees”.

In view of the above, it is evident that transfer is an incident of service. An employee working on a transferable post cannot claim a right to be posted at a particular place. It is the choice of the employer to determine as on what place and for how long the services of an employee are required. The Court cannot interfere with the transfer order unless it is found to be in contravention of statutory rules or passed on mala fides. Transfer policy does not create legal right justiciable in the Court of law. Transfer order does not affect any of his legal rights and Court cannot interfere with a transfer/posting which is made in public interest or on administrative exigency. However, if the power of transfer is abused or transfer not made in public interest but for collateral purposes and with oblique motive, the order would stand vitiated.

In Director of School Education Madras & Ors. Vs. O. Karuppa Thevan & Anr, 1994 Supp (2) SCC 666, the issue of transfer in mid academic session was considered by the Hon’ble Supreme Court and it was held that “the fact that children of the employee are studying should be given due weight, if the exigencies of the service are not urgent.” Therefore, it is for the employer to examine as to whether transfer of an employee can be deferred till the end of the current academic session. The Court has no means to assess as what is the real urgency of administrative exigency. Thus, the Court is not inclined to consider this submission at all.

As the learned Single Judge has stayed the transfer order till the end of May, 2005, the contention that the appellant was transferred in mid academic session does not survive any more.

The issue of transfer of a low paid employee was considered by the Hon’ble Supreme Court in State of Madhya Pradesh Vs. Shanker Lal & Ors., AIR 1980 SC 643, and after considering the provisions of the Madhya Pradesh Municipalities Act, 1961 the Court came to the conclusion that unless the statutory rules itself puts an embargo for transfer by a Class IV or low paid employee, there can be no bar to transfer the said employee. However, such a power should be exercised sparingly. The Court observed as under:-

“………….Theoretically, therefore, the power does exist in the State Government to transfer them. We must, however, hasten to add that in case of employees getting small emoluments the power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of Mpl. Employees getting small salaries…………..”

In B. Varadha Rao (Supra) while dealing with the issue of transfer, the Apex Court considered various aspects and observed as under:-
“One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer.

Therefore in view of the above, the law stands summarised that in a case of Class IV or low paid employees, the power of transfer should be used sparingly when required in administrative exigency, and not in a routine manner. More so, the power is to be exercised in good faith, not arbitrarily, and the employer should try to accommodate at a nearby place as his transfer at a far distance may cause him great financial hardship and may make his survival difficult.

The issue of mala fide has been raised contending that petitioner is being harassed being a Scheduled Tribe candidate. The allegations are vague and not specific and precise. Not a single person has been named in the array of parties, therefore, the ground of mala fide cannot be considered for want of necessary party.

It is settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise the allegations cannot be considered. (Vide Dr. J.N. Banavalikar Vs. Municipal Corporation of Delhi & Anr., AIR 1996 SC 326; State of Bihar & Anr. Vs. P.P. Sharma, I.A.S. & Anr, 1992 Suppl (1) SCC 222; I.K. Mishra Vs. Union of India & Ors., (1997) 6 SCC 228; and All India State Bank Officers Federation & Ors Vs. Union of India & Ors., JT 1996 (8) SC 550)

In Federation of Officers Association Vs. Union of India & ors, 2003 AIR SCW 1764, the Apex Court has held that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration.

Allegations made by the petitioners against the Director General are of such a nature that it does not warrant any inquiry on the issue for the reason that the same are not specific and fall short of making any inquiry in this regard. The issue of “malus animus” was considered in Tara Chand Khatri Vs. Municipal Corporation of Delhi & Ors., AIR 1977 SC 567, wherein the Hon’ble Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.

The Hon’ble Supreme Court, in E.P. Royappa Vs. State of Tamil Nadu & Anr., AIR 1974 SC 555; M/s. Sukhwinder Pal Bipan Kumar & Ors. Vs. State of Punjab & Ors., AIR 1982 SC 65; and Shivajirao Nilangekar Patil Vs. Dr. Mahesh Madhav Gosavi & Ors., AIR 1987 SC 294 reiterated the same view.

In M. Sankaranarayanan, IAS Vs. State of Karnataka & Ors., AIR 1993 SC 763, the Hon’ble Supreme Court observed that the Court may “draw a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of institution, surmise or conjecture.”

In N.K. Singh Vs. Union of India & Ors., (1994) 6 SCC 98, the Hon’ble Supreme Court has held that “the inference of mala fides should be drawn by reading in between the lines and taking into account the attendant circumstances.”

There has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide State of U.P. Vs. Dr. V.N. Prasad, 1995 Suppl (2) SCC 151; Arvind Dattatraya Dhande Vs. State of Maharashtra & Ors., (1997) 6 SCC 169; Utkal University Vs. Dr. Nrusingha Charan Sarangi & Ors., (1999) 2 SCC 193; Kiran Gupta & Ors. Vs. State of U.P. & Ors., (2000) 7 SCC 719; Netai Bag & Ors. Vs. State of W.B. & Ors., (2000) 8 SCC 262; and State of Punjab Vs. V.K. Khanna & Ors., (2001) SC 343; and M/s. Samant & Anr. Vs. Bombay Stock Exchange & Ors., AIR 2001 SC 2117).

In First Land Acquisition Collector & Ors. Vs. Nirodhi Prakash Gangoli & Anr., AIR 2002 SC 1314; and Jasvinder Singh & Ors. Vs. State of J & K & Ors., (2003) 2 SCC 132, the Apex Court held that burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under the legal obligation to place specific materials before the Court to substantiate the said allegations.

Petitioner miserably failed to plead and prove the allegations of mala fide. Therefore, the issue does not require any further consideration.

The transfer policy which does not even have any statutory force merely provides that normally low paid employee should not be transferred. The word ‘normally’ has to be understood in proper prospective and it does not put an embargo on transfer of Class IV employees. The word ‘normally’ has a perfectly ordinary meaning which would be given to it by ordinary people in everyday use. In using the word ‘normally’, one is referring to something which is in contradiction to abnormal or exceptional. Peak Trailer & Chassis Ltd. Vs. Jackson, (1967) 1 All ER 172. It means that in exceptional circumstances, transfer order can be passed if so required in administrative exigency. Similarly, the order for not transferring the employee belonging to Scheduled Tribe contains the expression ‘as far as possible’. That has to be understood in the same sense, and it cannot override the power of the employer to transfer the employees for the reason that it is the employer who has to decide as the servant of a particular employee is required at which place and for what period. In Jagjit Singh Mehta (Supra), the Apex Court while considering similar issue of posting of both the spouses at the same place if they were in service and held that as the transfer policy provided ‘as far as possible’, it does not take away the right of the employer to transfer on any administrative exigency or even on administrative ground. This phrase really means that the principles are to be observed unless it is not possible to follow them in the particular circumstances of a case. By use of this phraseology the rule etc. is made directory instead of mandatory. (Vide Rani Vs. Deputy Director of Consolidation, AIR 1959 All 525; and Gopalpur Tea Co. Ltd. Vs. Corporation of Calcutta, AIR 1966 Cal 51).

In Rajender Singh & Ors. Vs. State of U.P. & Ors., (1998) 7 SCC 654, the Hon’ble Apex Court explained the meaning of words ‘as far as possible’ as under:-
“……….These words are not prohibitory in nature. They rather connote a discretion vested in the prescribed authority which can exercise that discretion ………….. It is thus “discretion” and not “compulsion” which contributes the core of this statutory provision……………”

The expression ‘as far as possible’ inhers in it an inbuilt flexibility. (Vide Osmania University Vs. V.S. Muthurangam & Ors., AIR 1997 SC 2758). The expression “as far as practicable” mean, practicable, feasible, possible, performable. It means, not interfering with the ratio prescribed under any rule, which fulfils the interest of administration, but flexible provision clothing government with powers to meet special situations where the normal process of the government resolution cannot flow smooth. (Vide N.K. Chauhan & Ors. Vs. State of Gujarat & Ors., AIR 1977 SC 251). Therefore, as far as possible means, so long it remains practicable and feasible. Thus, it is a discretion to the authority to carve out an exception and it is not necessary for him to give strict adherence to the statutory provisions.

An undertaking had been given before the learned Single Judge on behalf of appellant-petitioner to join after the end of the academic session, and therefore, no interference can be made in the appeal filed by him.

Appellant is an employee of the Corporation which has offices throughout the country and unless any statutory rule specifically prohibits a Class IV employees can be transferred. However, the transfer order should not be issued in an arbitrary or passed on mala fides, or at such a far distance that it may become difficult for the employee to survive on such a meagre salary of a Class IV employee. The petitioner did not raise any grievance whatsoever while joining at Varanasi. He has been transferred in the close vicinity of his present posting. Therefore, it is not a case where he has been transferred at a very far distance causing him great financial hardship which may warrant interference by a writ Court.

We do not find any ground to interfere with the impugned judgment and order.

The appeal accordingly stands dismissed.

16.3.2005

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Arijit Pasayat, J.
By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative to formulate guidelines so that innocent persons are victimized by unscrupulous persons making false accusations.

Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498 IPC are unfounded, stringent action should be taken against person making the allegations. This according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A IPC has been made with oblige motive and with a view to harass the husband, in-laws and relatives.

According to the petitioner there is no prosecution in these cases but persecution. Reliance was also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointed out that accusers are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.

Section 498A appears in Chapter XXA of IPC.
Substantive Sections 498A IPC and presumptive Section 113-B of the Indian Evidence Act. 1872 (in short ‘Evidence Act’) have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983.
Section 498A IPC and Section 113-B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113-B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

Section 498 reads as follows:
“498A: Husband or relative of husband of a woman subjecting her to crueltyWhoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation-For the purpose of this section ‘cruelty’ means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
Section 113-B reads as follows:-
“113-B: Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation-For the purpose of this section ‘dowry death’ shall have the same meaning as in Section have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).”

Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that Sections 304-B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304- B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to be taken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence.

The object for which Section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examines the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in laws and relatives. The avowed object is to combat the menance of dowry death and cruelty.

One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two Section i.e. Section 306 and Section 498A is that of intention. Under the latter. cruelty committed by the husband or his relations drag the women concerned to commit suicide, while under the former provision suicide is abetted and intended.

It is well settled that mere possibility of abuse of a provisions of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administrative and application of a particular law would be done “not with an evil eye and unequal hand” (see A Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax officer and Anr., AIR (1956) SC 246.

In Budhan Choudhry and Ors. v. State of Bihar, AIR (1955) SC 191 a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action; order or decision and grant appropriate relief of the person aggrieved.

In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., [1997] 5 SCC 536, a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty, [1962] 3 SCR 786 this Court observed:

“The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India, [1977] 3 SCC 592 “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth, [1954] 1005.

As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat, [2004] 6 SCC 672, Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors., [2003] 2 SCC 455 and Padma Sundara Rago (dead) and Ors. v. State, [2002] 3 SCC 533. while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of Law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

The judgment of the Delhi High Court on which reliance was made was rendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that case while holding that the allegations regarding commission of offence punishable under Section 498A IPC were not made out. Certain observations in general terms were made about the need for legislative changes. The complaint had moved this Court against the judgment on merits in SLP (Crl)…..of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By order dated 28.11.2003 this Court observed as follows:

“Heard learned counsel for the petitioner.
Delay condoned.
We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002 on the facts of the case. the special leave petition is, therefore, dismissed.
At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments.”

Above being the position we find no substance in the plea that Section 498A has no legal or constitutional foundation.

The object of the provision is prevention of the dowry meance. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not assassins’ weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumption that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumption are drawn which again are reputable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that in innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the ‘CBI’) in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.

The Writ Petition is accordingly disposed of.

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PETITIONER: General Manager, Haryana Roadways

RESPONDENT: Rudhan Singh

DATE OF JUDGMENT: 14/07/2005

BENCH: CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT:

1. This appeal, by special leave, has been filed against the judgment and order dted 145.2001 of the High Court of Punjab and Haryana by which the writ petition preferred by the appellant challenging the award of Industrial Tribunal-cum-Labour Court, Rohtak directing reinstatement of the respondent Rudhan Singh with continuity of service and 50% back wages was dismissed.

2. The respondent Rudhan Singh was appointed in various capacities on a class IV post with the appellant Haryana Roadways and he worked from 16.3.1988 to 28.2.1989 with some breaks. Thereafter, he was not given any appointment. He raised a demand for being reinstated before the Conciliation Officer, Rohtak on 24.8.1991. The conciliation efforts having failed the State Government exercising powers under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short the ‘Act’) made a reference to the Industrial Tribunal-cum-Labour Court, Rohtak as to whether the termination of service of the respondent is justified and valid, and, if not, to what relief he was entitled under law.

3. In his claim statement the respondent pleaded that he was appointed as Helper on 16.3.1988 on daily wage basis. His work and conduct was always satisfactory but his services were terminated on 28.2.1989 without assigning any reason. He further pleaded that neither any notice nor wages in lieu of notice were paid to him and as he had completed 240 days of service in a calendar year, the termination of his service was in violation of Section 25-F of the Act and, therefore, the same was liable to be set aside and he was entitled to be reinstated with continuity of service and full back wages. The appellant (management) filed a written statement on the plea that the respondent Rudhan Singh was initially appointed on daily wage basis for a fixed period from 16.3.1988 up to 31.3.1988. Thereafter, he was appointed as Washing Boy, Helper and Water Carrier as per the needs of the Department.

According to the appellant the appointment of the respondent was for a fixed period which came to an automatic end and, therefore, it was not a case of retrenchment in view of Section 2(oo)(bb) of the Act and consequently Section 25-F of the Act had no application to the facts of the case. The respondent filed a replication controverting the please taken in the written statement and reasserting the contents of the claim statement. The parties adduced oral and documentary evidence in support of their case. The Industrial Tribunal-cum-Labour Court held that the respondent had worked for 264 days in one calendar year and, therefore, the termination of his service without complying with the requirements of Section 25-F of the Act was illegal as neither any notice nor salary in lieu thereof nor any retrenchment compensation was paid to him. Regarding back wages it was held that the same can be awarded to the workman keeping in view the actual loss suffered by him by remaining out of employment. Since the respondent was working on a class IV post and the said type of work was available in Haryana as large number of labourers come from Eastern UP and Bihar for doing that kind of work, the Industrial Tribunal-cum-Labour Court concluded that it cannot be held that the respondent did not earn any amount during the period he was out of employment. It was thus held that the respondent was entitled to 50% back wages. Accordingly an award was passed on 26.5.2000 directing reinstatement of the respondent on his previous post with continuity of service and 50% back wages. The appellant filed a writ petition challenging the award of the Industrial Tribunal-cum- Labour Court before the Punjab and Haryana High Court, which was dismissed on 14.5.2001.

4. Learned counsel for the appellant has submitted that the respondent had been appointed for a fixed period and his appointment came to an automatic end after the expiry of the period and, therefore, it was not a case of retrenchment in view of Section 2(oo)(bb) of the Act.

It is true that in view of the aforesaid provision the termination of service of a workman as a result of non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein would not amount to retrenchment in view of Section 2(oo)(bb) of the Act. However, such a plea that had been taken in the written statement does not appear to have been pressed before the Industrial Tribunal-cum-Labour Court nor the award shows that any evidence was led to substantiate such a plea that the respondent had been engaged on contract for a fixed period or his contractual employment had come to an end in accordance with any stipulation contained therein in that behalf. This plea has also not been raised before the High Court and, therefore, it is not open to the appellant to raise a new plea at this stage.

5. Learned counsel for the appellant has next submitted that according to the own case of the respondent he was appointed on 16.3.1988 and his services were terminated on 28.2.1989 and thus he had not worked for one year and consequently Section 25-F of the Act would not apply to his case. In support of this submission reliance has been placed on Sur Enamel and Stamping Works Ltd. vs. The Workmen [1963] INSC 133; [AIR 1963 SC 1914], wherein it was held that under Section 25-F of the Act only a workman, who has been in continuous service for not less than one year under an employer, is entitled to its benefit. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and next that during those 12 calendar months he had worked for not less than 240 days. It was further held that a workman, who has not at all been employed for a period of 12 months, would not satisfy the requirements of Section 25-B of the Act and would not be entitled to the benefit under Section 25-F of the Act. It is important to note that Section 25-B of the Act, which contains the definition of ‘continuous service’ was amended by Act No. 36 of 1964 and the relevant part thereof reads as under: – “25-B. Definition of continuous service For the purpose of this Chapter, – (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case.

Explanation. – ………………………………………………………….

………………. (omitted as not relevant for the present case)” This amended provision has been considered in Surendra Kumar Verma vs. The Central Government Industrial Tribunal-cum- Labour Court, New Delhi [1980] INSC 186; [AIR 1981 SC 422], where after noticing the ratio of Sur Enamel and Stamping Works Ltd. vs. The Workmen (supra), it was held as under: – “Act 36 of 1964 has drastically changed the position.

S. 2(eee) has been repealed and S. 25-B(2) now begins with the clause “where a workman is not in continuous service …… for a period of one year”. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. ………” In view of this authoritative pronouncement the requirements of Section 25-F of the Act would be satisfied if a workman has worked for 240 days in a period of 12 months and it is not necessary that he should have been in the service of employer for complete one year. The Industrial Tribunal-cum-Labour Court has recorded a finding that the respondent has worked for 264 days and this finding has not been challenged before the High Court. In this view of the matter the provisions of Section 25-F of the Act are clearly applicable and as neither any notice or wages in lieu of the period of notice nor any retrenchment compensation was paid to the respondent, his termination of service has to be held to be invalid.

6. The next question, which requires consideration is whether the respondent is entitled to any back wages. The Industrial Tribunal-cum- Labour Court awarded 50% back wages on the ground that in Rohtak District of State of Haryana work of the nature, which was being done by the respondent, is available in plenty as a large work force comes from Eastern UP and Bihar for doing such kind of work. However, a general observation has been made that keeping in view the facts and circumstances of the case it will be proper to award 50% back wages.

The High Court has also not given any reason for upholding this part of the award.

7. In our opinion certain factors, which are relevant for forming an opinion regarding award of back wages, have been completely ignored and, therefore, the award on this point is vitiated. The list of dates given in the Special Leave Petition, which have not been controverted, show that though according to the own case of the respondent his services had been terminated on 18.2.1989, yet he served a demand notice praying for reinstatement in service after two and half years on 24.8.1991. The State Government made reference to the Industrial Tribunal-cum-Labour Court in the year 1997, which means eight years after the termination of service. Normally, a reference should not be made after lapse of a long period. A labour dispute should be resolved expeditiously and there is no justification for the State Government to sleep over the matter and make a reference after a long period of time at its sweet will. It causes prejudice both to the workman and also to the employer. It is not possible for an employer to retain all the documents for a long period and then to produce evidence, whether oral or documentary, after years as the officers, who may have dealt with the matter, might have left the establishment on account of superannuation or any other reason. The employer is not at fault if the reference is not made expeditiously by the State Government, but it is saddled with an award directing payment of back wages without having taken any work from the concerned workman. The plight of the workman who is thrown out of employment is equally bad as it is a question of survival for his family and he should not be left in a state of uncertainty for a long period.

8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e., whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period, i.e., from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate.

Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year.

9. The written statement filed by the respondent shows that between 16.3.1988 to 31.10.1988 he had been given short term appointments as Helper, Wash Boy and Water Carrier with breaks of two days and seven days respectively on two occasions. After 31.10.1988 he was employed as Helper on 8.1.1989 after a gap of more than two months. This appointment was only up to 31.1.1989 and thereafter he was given fresh appointment on 7.2.1989, which came to an end on 28.2.1989. These facts show that the respondent had not worked continuously from 16.3.1988 to 28.2.1989 in the establishment of the appellant. A person appointed on daily wage basis gets wages only for days on which he has performed work.

10. In Smt. Saran Kumar Gaur and others vs. State of Uttar Pradesh and others [JT 1991 (3) SC 478], this Court observed that when work is not done remuneration is not to be paid and accordingly did not make any direction for award of past salary. In State of U.P. and Anr. vs. Atal Behari Shastri and anr. [JT 1992 (5) 523], a termination order passed on 15.7.1970 terminating the services of a Licence Inspector was finally quashed by the High Court in a writ petition on 27.11.1991 and a direction was issued to pay the entire back salary from the date of termination till the date of his attaining superannuation. This Court, in absence of a clear finding that the employee was not gainfully employed during the relevant period, set aside the order of the High Court directing payment of entire back salary and substituted it by payment of a lumpsum amount of Rs.25,000/-. In Virender Kumar, General Manager, Northern Railways, New Delhi vs. Avinash Chandra Chadha and others [(1990) 3 SCC 472], there was a dispute regarding seniority and promotion to a higher post. This Court did not make any direction for payment of higher salary for the past period on the principle ‘no work no pay’ as the respondents had actually not worked on the higher post to which they were entitled to be promoted. In Surjit Ghosh vs. Chairman and Managing Director, United Commercial Bank and others [(1995) 2 SCC 474], the appellant (Assistant Manager in the Bank) was dismissed from service on 28.5.1985, but his appeal was allowed by this Court on 6.2.1995 as his dismissal order was found to be suffering from an inherent defect. His claim for arrears of salary for the past period came to about Rs.20 lakhs but this Court observed that a huge amount cannot be paid to anyone for doing no work and accordingly directed that a compensation amount of Rs.50,000/- be paid to him in lieu of his claim for arrears of salary. In Anil Kumar Gupta vs. State of Bihar [(1996) 7 SCC 83], the appellants were employed as daily wage employees in Water and Land Management Institute of the Irrigation Department of Government of Bihar and they were working on the posts of steno-typists, typists, machine operators and peons, etc. This Court allowed the appeal of the workmen and directed reinstatement but specifically held that they would not be entitled to any past salary. These authorities show that an order for payment of back wages should not be passed in a mechanical manner but host of factors are to be taken into consideration before passing any order for award of back wages.

11. In the case in hand the respondent had worked for a very short period with the appellant, which was less than one year. Even during this period there were breaks in service and he had been given short term appointments on daily wage basis in different capacities. The respondent is not a technically trained person, but was working on a class IV post.

According to the finding of the Industrial Tribunal-cum-Labour Court plenty of work of the same nature, which the respondent was doing, was available in the District of Rohtak. In such circumstances we are of the opinion that the respondent is not entitled to payment of any back wages.

12. The appeal is accordingly partly allowed and the award of the Industrial Tribunal-cum-Labour Court insofar as it directs reinstatement with continuity of service is upheld but the award regarding payment of 50% back wages is set aside.

13. No costs.

The post General Manager, Haryana Roadways Vs. Rudhan Singh appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (civil) 657 of 1995
Research Foundation For Science Technology and Natural Resources Policy …PETITIONER
Vs
Union of India & Anr. …RESPONDENT
DATE OF JUDGMENT: 05/01/2005
BENCH: Y.K. Sabharwal & S.H. Kapadia
J U D G M E N T
[With SLP (C) No.16175 of 1997 and Civil Appeal No.7660 of 1997]

Y.K.Sabharwal, J

Considering the alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage as a result thereof to the environment, flora and fauna, and also having regard to the magnitude of the problem as a result of failure of the authorities to appreciate the gravity of situation and the need for prompt measures being taken to prevent serious and adverse consequences, a High Powered Committee (HPC) was constituted by this Court with Prof.M.G.K. Menon as its Chairman, in terms of order dated 30th October, 1997. The Committee comprised of experts from different disciplines and fields and was required to examine all matters in depth relating to hazardous waste.

On consideration of the detailed reports submitted by the HPC various directions have been issued by this Court from time to time. Presently, we are concerned with the presence of hazardous waste oil in 133 containers lying at Nhava Sheva Port as noticed by HPC. On the directions of this Court, the oil contained in the said 133 containers was sent for laboratory test to determine whether same is hazardous waste oil or not. It has been found to be hazardous waste.

On consideration of report of HPC, the result of laboratory test and entire material on record, this Court came to the prima facie conclusion that importers illegally imported waste oil in 133 containers in the garb of lubricating oil. In terms of the order dated 25th September, 2003, notices were directed to be issued to 15 importers who imported the said consignment as also to the Commissioner of Customs. The importers were directed to show cause why the consignment shall not be ordered to be re-exported or destroyed at their cost. Since, the Ministry of Environment and Forests had spent a sum of Rs.6.35 lakhs on the laboratory tests, the importers were also required to show cause why the said amount be not recovered from them and why all of them shall not be directed to make payment of compensation on polluter pays principle and other action taken against them.

The affidavits showing cause were filed by the importers. During the course of hearing, one of the contentions urged on behalf of the importers was that in respect of consignments in question, adjudicating proceedings were pending before Commissioner of Customs, Mumbai and this Court may, therefore, defer the decision on the aspect of re-export or destruction of the goods. In the order dated 11th March, 2004, it was observed that for the purpose of present proceedings, it is strictly not necessary to await the final decision of adjudication proceedings but a report from the Commissioner of Customs may assist the court in deciding the aspects indicated in the order dated 25th September, 2003. In this view, the Commissioner of Customs was directed to sent a report to this Court on the question whether the consignment in issue is waste oil within the meaning of the term ’waste oil’ as per Basel Convention or Hazardous Waste Rules, 1989 as amended in the year 2000 and/or as amended in the year 2003 also having regard to the relevant notifications issued on this aspect. The Commissioner of Customs was directed to give reasonable opportunity to the importers to put forth their viewpoint before him while examining the matter and was further directed to associate the Monitoring Committee that was constituted in terms of orders dated 14th October, 2003 reported in 2003 (9) SCALE 303. The question whether any further testing is required to be done as claimed by the importers was left to be decided by the Commissioner in consultation with the Monitoring Committee.

Detailed reports have been filed by Commissioner of Customs (Imports), Mumbai and the Monitoring Committee. We have perused the relevant material including those reports and have heard learned counsel for the petitioner, learned Additional Solicitor General appearing for the Ministry of Environment and Forests as also learned counsel appearing for the Commissioner of Customs and other learned counsel representing the importers. It deserves to be noted that the question to be determined in these proceedings is limited to the environment issue. The issue is in regard to the appropriate directions for dealing with the consignments in question, having regard to the precautionary principle and polluter pays principle. The main question is whether directions shall be issued for the destruction of the consignments with a view to protect the environment and, if not, in what other manner the consignments may be dealt with. The report of the Commissioner of Customs sets out a brief history of the case, history of various Conventions and Laws formulated thereupon from time to time, correlating the same to the various test findings.

The brief history, inter alia, states that :
“In the month of August-September 2000, the Central Intelligence Unit, New Custom House, Mumbai developed intelligence that large volumes of Furnace Oil were to be imported as containerized cargo, at the Jawaharlal Nehru Port at undervalued prices. Accordingly the Central Intelligence Unit maintained a discreet watch at such consignments of Furnace Oil imported at JN Port. Emphasis was laid on Furnace oil stuffed in containers, as the same was quite unusual. Furnace Oil is basically imported in bulk on account of its large volumetric requirements by the industry and its relatively low value makes its import as containerized cargo economically unviable unless the value is suppressed, or some other mis-declaration was restored to, to offset the increased cost of packing and transportation in containers. True to the intelligence gathered, a large number of consignments of Furnace oil, packed in containers arrived at JN port in AugSept and the same were detained for further investigation. In all these cases the declared prices were in the range of US$ 90 to 125 per MT as against the erstwhile international price of US$ 150, when imported in bulk.
During the course of the investigation, samples were sent to the departmental laboratory for conducting tests. The standard reference parameters available pertained to those of Fuel Oil under BIS 1593-1982. Under these standards certain characteristics like Acidity, Ash content, Flash point, Kinematic viscosity, Sulphur content and Water content for Fuel oils have been prescribed by the Bureau of Indian Standards and depending on the specifications the fuel oils get divided into four grades. It is pertinent to note that these standards do not define waste oil or hazardous wastes.
Initial testing of samples, by the Custom House Laboratory, drawn from some of the consignments indicated that the goods were not Furnace oil. The Laboratory, however, could not categorically state whether the samples were used/waste oil, as they did not have the standards/specifications of used/waste oil. Inquiries made with I.O.C. and H.P.C.L also revealed that though they could test and report whether the oil was conforming to the standards of Fuel/Furnace oil but they were not in a position to state whether the same were used/waste oil. As categorical test reports were not forthcoming it was decided to get the samples tested and an opinion obtained from the Central Revenue Control Laboratory (CRCL), New Delhi. Fourteen samples, pertaining to Vidya Chemical Corporation, PCS Petrochem, Shiv Priya Overseas, Royal Implex, Eleven Star Escon and Valley International, were accordingly forwarded to CRCL for testing and their opinion on 24.08.2000. The test results forwarded by the CRCL in all the 14 samples indicated that none of the samples tallied with the specifications of Furnace Oil and all were off specification material i.e. waste oil. Thereafter the CIU seized all the consignments involving 158 containers. One consignment comprising of 25 containers was conditionally released on execution of Bank Guarantee for the differential Duty. Thus a total of 133 containers were left.
On 5.10.2001 the MPCB forwarded a final report from the IIP to the Custom House wherein it was stated that the halogen content tests were done at the Shriram Institute of Industrial Research (SIIR), New Delhi and the PCB content tests were done at the National Institute of Oceanography, Goa. The report concluded that all the 20 samples sent to the IIP were found to be hazardous. In all these cases, where SCNs had earlier been issued, addendums were issued afresh keeping in view the fact that since hazardous wastes imported in violation of the provisions of the Environment (Protection) Act, 1986 had to be re-exported or dealt with as provided for in the Hazardous Wastes (Management and Handling) Rules, 1988. Personal hearings were held in several cases by the Commissioner, Mumbai for adjudication of these cases..”

In regard to Basel Convention, the report states as under :
“The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted by the conference of the Plenipotentiaries on 22.03.1989. Article I of the Convention, dealing with the scope of the convention, defined ’Hazardous Wastes’ as follows: (a) Wastes that belong to any category contained in Annexure I, unless they do not possess any of the characteristics contained in Annexure III; and (b) Wastes that arte not covered under paragraph (a) but are defined as or are considered to be, hazardous wastes by the domestic legislation of the party of export, import or transit.
In the Annexure I to the Convention, referred to above at (a), dealing with categories of wastes to be controlled, the following categories of Wastes are pertinent to the subject matter: (a)Y8 Waste mineral oils unfit for their originally intended used (b)Y9 Waste oils/water, hydrocarbons/ waster mixtures, emulsions (c)Y10 Waste substances and articles contained or contaminated with polychlorinated biphenyls (PCBs) and/or polychlorinated terphenyls (PCTs) and/or polybrominated biphenyls (PBBs) Annex III gives the list of Hazardous Characteristics such as Explosive, Flammable liquids, Flammable solids, Substances or wastes liable to spontaneous combustion, Substances or wastes which in contact with water emit flammable gases, Oxidizing, Organic Peroxides, Poisonous, Infectious substances, Corrosives, Liberation of toxic gases in contact with air or water, Toxic (Delayed or Chronic), Ecotoxic. The wastes are further specifically covered under Annex VIII in List A which states that ’Wastes contained in this Annex are characterized as hazardous under Article I, paragraph 1(a), of this Convention, and their designation on this Annex does not preclude the use of Annex III to demonstrate that a waste is not hazardous.’ In this List A specific attention is drawn towards the category A3 which deals with ’Wastes containing principally organic constituents, which may contain metals and inorganic materials.’ Sub-division A 3020 of this category deals with ’Waste mineral oils unfit for their originally intended use.’ It is nobody’s case that the material imported is not mineral oil or of mineral origin. In other words the category of Wastes to be concentrated upon is A 3020 as it specifically deals with mineral oils. After identifying the exact category of the material it remains to be seen whether the imported material possesses any of the characteristics as mentioned in Annex III to the Convention. All the test reports obtained from the Indian Institute of Petroleum, Dehradun, indicate that the materials have PCB.
In respect of the impact of the presence of PCBs on the waste oil, reference is made to the ’Technical Guidelines on Hazardous Waste: Waste Oils from Petroleum Origins and Sources (Y8)’ issued by the Basel Convention. Paragraph 10, outlining the characteristics of PCBs is reproduced for reference \026 Particular concern centers on a family of substances known as polychlorinated biphenyls (PCBs) which combine excellent insulation and heat transfer characteristics, with high stability and noninflammability. However they are environmentally extremely persistent and bio-accumulative, toxic (and a suspected carcinogen), and if burned under unsuitable conditions, will give rise to toxic products of combustion including dioxins and dibenzofurans\005.. Paragraph 30 indicates that several countries have brought about Legislation to define the concentration of the PCB below which no concern need be felt and that 50 ppm is the fairly established limit.
All these definitions and various clauses in the Convention indicate that the contents of the convention cannot be seen in isolation to the follow-up laws framed in this regard by the individual member countries. The contents of the Convention are only in the form of guidelines to the member nations and the final question of whether the material is Hazardous Waste or not cannot be answered on the basis of the contents of the Convention alone. With reference to the presence of PCBs in waste oils, the National Laws framed need to be examined to categorically state whether the subject cargo is hazardous or not. The contention of all the importers that their material had not violated the 50 ppm limit prescribed in the Basel Convention and were thus not Hazardous Waste has not strength if the same are not examined in the light of the Laws framed by the Country in the process of aligning with the recommendations of the Convention as the contents of the Convention are by themselves not any Law that could be implemented (to be discussed later).”

The report makes a detailed reference to The Hazardous Wastes (Management and Handling) Rules, 1989 as introduced in 1989 and amendments effected in January 2000 and in the year 2003. In regard to amendments made in January 2000 whereafter the imports were made, the report notices as under :

“For the purpose of import, Rule 3(i) (c) defined Hazardous Waste as those listed in List ’A’ and ’B’ of Schedule-3 (Part A) if they possessed any of the hazardous characteristics listed in Part-B of Schedule. List A of Schedule 3 is a reflection of List A as Annex III of the Basel Convention and the hazardous wastes appearing in this list of Schedule 3 are restricted and cannot be allowed to be imported into the country without DGFT Licence. In this list attention is drawn to the entry ’Waste mineral oils unfit for their originally intended use’ against Basel No A 3020. Such Waste mineral Oils would be characterized as hazardous if they possess any of the Characteristics enumerated in Part B of Schedule 3. The presence of PCB contents in Waste mineral oils renders the material carcinogenic, bio accumulative and ecotoxic. Therefore, any consignment of Waste mineral Oil having PCB would be rendered Hazardous.”(Emphasis supplied).

Thus, from the rules, it is clear and evident that the presence of PCB contents in any consignment of waste mineral oil would render such oil as hazardous waste. On the aforesaid basis, most of the consignments have been found to be hazardous waste. The only consignment imported by Eleven Star Esscon was found not to be hazardous but off specification fit for rerefining. In respect of one container of Oil imported by Royal Implex though the samples were not sent to the IIP for further analysis in respect of Organic halides and PCB determination, the report concluded that it would not be advisable to conduct those tests at that late stage as the prolonged storage may have deteriorated material further and on the basis of the test results available it was obvious that the material was not fit for re-refining.

The report of the Commissioner of Customs has characterized the goods as hazardous waste. The conclusions arrived at by Commissioner of Customs are as under:
“The erstwhile Law therefore had enough provisions to determine whether any given sample of Fuel Oil had hazardous characteristics or not. And based on the directions inherent in these Laws, it has been conclusively proved that all the subject 133 containers of Furnace oil contain Hazardous Waste Oil. It is also abundantly clear that this conclusion was arrived at under the provision of the Law prevalent at that time. The importers had therefore imported Hazardous Wastes in complete and flagrant violation of the Law. I, therefore, hold and conclude that the goods, viz. Furnace oil imported and contained in the said 133 containers are hazardous.”

Noticing that the entire cargo had been imported without proper licence and its movement to the Country is illegal, reference has been made in the report to Rule 15(2) which provides that (i) the waste in question shall be shipped back within thirty days either to the exporter or to the exporting country or (ii) shall be disposed of within thirty days from the date of off-loading subject to inability to comply with sub-rule 2(i), in accordance with the procedure laid down by the State Pollution Control Board or Committee in consultation with Central Pollution Control Board. In regard to the possibility of re-export of the cargo, reference has been made to Article 9(2)(a) of the Basel Convention which provides that in the case of illegal traffic as a result of conduct on the part of the exporter, the state of export shall ensure that the waste in question is taken back by the exporter within 30 days from the time the state of export was informed. It has been stated that even though there are provisions, both in international Conventions, like Basel Convention, and in our national laws, a holistic view needs to be taken in view of the prevailing circumstances. The exporters of the cargo may not take the cargo after 4 years. Besides a whole range of time consuming protocol measures may be involved. The re-export of cargo at this point of time and under the conditions in which the cargo was lying has been ruled out also stating that issues like transportation charges and the ownership and acceptability of the cargo at the destination point may be highly vexed and difficult to surmount. In this backdrop, the possibility of disposal locally as a one-time measure was examined.

Regarding the disposal of the imported hazardous waste, the report states that certain drastic one-time measures are required to be taken. Both the modes of disposal, i.e. by subjecting the waste to re-cycling and alternatively by incinerating it, were examined. It has been suggested that overlooking the PCB presence up to 50 ppm, if the waste oil conformed to the other specifications mentioned in schedule 6, then such consignments may be considered for recycling. These consignments could be adjudicated and released to the importers only under the condition that they would get the material recycled, under the control and supervision of the Central Pollution Control Board authorities, in Units registered with MOEF and having consent/authorization from by the State Pollution Control Board. Further suggestion is that consignments not conforming to the specifications of Schedule 6 and/or having PCB in excess of 50 ppm may be subjected to incineration at the importer’s cost at the Hazardous Incinerator under supervision of the State Pollution Control Board. In cases where the cargo is required to be incinerated, besides cleaning the pollution caused due to leakages, the suggestions is that the importer may also be directed to bear the cost of transportation to the incineration site, its handling there and its incineration costs till final disposal. Further, the report recommends that the importers may be directed to pay all the testing charges incurred by MPCB (Rs.6.5 lakhs) and Customs (Rs.7.5 lakhs approximately) from the initial stage and till final disposal of goods. It also notices that the two importers did not appear for personal hearing despite several reminders. All the 15 importers have been divided into five different categories.

In category one, there are 10 importers in respect whereof recommendations is for recycling or incineration. One importer \026Indochem has been placed in category two in which though sample passed other tests, but presence of PCB rendered the goods hazardous. The recommendation is for release of goods to the importer. The sample of Royal Impex has higher lead content and not fit for recycling. Sample was not tested for PCB contents. Placing it in category three, recommendation is that request for re-export may be considered by this Court. The import of Eleven Star Esscon has been placed in category four. These goods have been confiscated absolutely. The goods have heavy metal concentrations but within recycling limits and do not have organic holds and PCBs. Recycling has been recommended. The two importers who were proceeded exports have been placed in category five and recommendation is that action on above lines be taken.

The attention of this Court has been drawn to the condition of the waste oil stock lying in the Customs area pointing out that many of the drums have exploded and the contents are spread in the area which is definitely a fire hazard and is also causing grave damage to the environment.

The report further points out that in addition to the 133 containers, another group of imports by various parties comprising of an additional 170 containers, which had been imported after the import of 133 containers, are also lodged with the Custodians in the same area and are more or less in the same condition. It has also been pointed out that the importers of these 170 containers have not filed any import clearance documents with the Customs so far.

The aforesaid report of Commissioner of Customs has been considered by the Monitoring Committee. The Monitoring Committee has recommended disposal of all consignments except one by incineration in consultation with two Pollution Control Boards mentioned in its report. It has noticed that adequate facilities are not available even with registered refiners for re-refining oil containing PCBs. Notice has also been taken of the fact that the Director, IIP, Dehradun has mentioned that since all 133 containers have been lying at Mumbai Port since 2000, the oil would have undergone considerable degradation in last four years. Another important factor that has been taken into consideration is about the cost of re-refining being exorbitant and, therefore, it was not economically feasible to rerefine the oil in question.

In respect of consignments of category one, learned counsel for importers sought to contend that PCBs were within the limits prescribed by the Basel Convention and also that the same were of small quantity, it being minimal and negligible and, therefore, the recommendation of the Monitoring Committee for destruction of oil by incineration does not deserve to be accepted. Reference was also made to Technical Guidelines on Hazardous Waste: Waste Oils From Petroleum Origins and Sources [(Y8) Basel Convention] to contend that the presence of PCBs and waste oil as a secondary fuel upto 50 PPM was fairly acceptable in respect of marketing and use. On this basis and with reference to the test report, it was contended that since the PCB in the consignments in question being minimal and negligible, there was no contravention of the Basel Convention. It was contended that as per recommendations of Commissioner of Customs re-refining was possible but the Monitoring Committee has only recommended destruction by incineration without any legal basis.

The Monitoring Committee comprises of experts in the field. It has recommended destruction of the consignment by incineration. The PCBs may be within permissible limit insofar as parameters of Basel Convention are concerned but, at the same time, it has to be kept in view that parameters fixed by the Basel Convention are only guidelines and the individual countries can provide different criterion in their national law to lay down the limits of concentration of PCBs so as to label it as hazardous waste. Even European Community is considering to reduce PCBs concentration from 50 PPM to 20 PPM to make it consistent with the limits on oils being used as fuel. Be that as it may, insofar as our country is concerned, the provision is that the presence of PCBs shall be of nondetectable level. The national law laying stricter condition has to prevail. The Commissioner of Customs, on detailed examination, has concluded that the import was in complete and flagrant violation of law. The import is of hazardous waste. In the garb of furnace oil, hazardous waste has been imported. Further, many of the drums have exploded and the contents spread in the area which besides being a fire hazard is also causing grave damage to the environments. PCBs are environmentally extremely persistent and bio-accumulative, toxic (and a suspected carcinogen), and if burnt under unsuitable conditions, will give rise to toxic products of combustion including dioxins and dibenzofurans. Great care is required in assessing and selecting disposal options for such oils. The CPCB which is implementing the Registration Scheme for actual users of hazardous wastes including used/waste oil, is of the opinion that adequate facilities are not available even with registered refiners for re-refining oil containing PCBs. That apart, oil regeneration technologies depend to some degree of quality of waste oil. Regeneration process involves the application of reasonably sophisticated technology and require care and expertise in their operation. The illegally imported oils remained on the Port for four years and would have undergone considerable degradation during this period. Nothing tangible has been shown so as to take a view different than the one recommended by the Monitoring Committee.

Learned counsel appearing for Royal Impex contended that in the consignment imported by it only Ash contents were more as per the test report on record and, therefore, the consignment may be released to the importer. It was also contended that the sample was not sent to IIP for further test in respect of organic halides and PCB determination. The report, however, states that it may not be feasible to conduct those tests now as prolonged storage may have deteriorated the material further. According to the report of the Commissioner of Customs on the basis of the test results available, the material was not fit for recycling. Our attention was drawn by learned counsel for the importer to the test report of New Custom House Laboratory which only shows that ash contents were more and contention urged was that the conclusion arrived by the Commissioner of Customs that the material was off specification and on account of higher lead contents, it was not fit for recycling is without any basis. It was contended that the test report of Central Revenue Control Laboratory (CRCL) was not on record and on that basis, submission made is that the conclusion that the samples were tested at CRCL which showed that lead contents exceeded the limits prescribed for re-refining was wholly untenable. On directions of this Court, learned counsel for the Commissioner of Customs has filed before us a copy of the report of CRCL which shows the lead MG/LIT being 2824.87. This high percentage of lead was against the prescribed used oil specification for re-refining being 100 PPM. Further, from the reply dated 7th May, 2004 sent to the show cause notice dated 13th April, 2004, the importer did not ask for testing of oil to determine PCB contents. On the other hand, the stand in the said reply is that if sample is tested after passage of four years, the nature of oil would have changed considerably and the oil may have certain impurities and, therefore, the testing of oil will not be an accurate method to ascertain the genuineness of the oil at the time it was imported. Even before us, the submission is not that the sample should now be sent for testing. We do not think that at this stage, the consignment can be allowed to be reexported though agreed to by the Monitoring Committee. It also cannot be allowed to be recycled. The oil deserves to be incinerated.

In respect of import effected by Eleven Star Esscon, heavy metal concentrations are within recycling limits. It does not have organic halides and PCBs. Recommendation of the Commissioner of Customs is for its recycling. The Monitoring Committee has, however, recommended its incineration possibly in view of its deterioration for about four years when the consignment was lying at the Port. The consignment has been confiscated absolutely. It is now the Government’s property. Learned counsel for the importer Eleven Star Esscon has not challenged the confiscation and has rather contended that his client has no intention to challenge the same. In view of the finding that the heavy metals are within recycling limits, there were no organic halides and the PCBs and the consignment has been found to be fit for recycling, we feel that the recycling deserves to be permitted as recommended by Commissioner of Customs but the same shall be done under the supervision of the Monitoring Committee. Having so permitted, we may note that the cost of recycling may be very exorbitant and it may not be economically viable. If recycling is not considered advisable by the Government, the consignment shall have to be destroyed by incineration in the same manner as other consignments. The decision whether the Government desires the consignment to be recycled shall be taken within a period of four weeks failing which the consignment shall be destroyed by incineration along with other consignments. The cost of incineration shall be paid by the Government.

According to the Monitoring Committee, the cost of incineration will be at the rate of Rs.12/- per kilo which also include the cost of transport to be paid by the importers in advance.

The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation.

In respect of the precautionary principle, Rio Declaration (Principle No.15) provides that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as reason for postponing cost effective measures to prevent environmental degradation. This principle generally describes an approach to the protection of the environment or human health based around precaution even where there is no clear evidence of harm or risk of harm from an activity or substance. It is a part of principle of sustainable development, it provides for taking protection against specific environmental hazards by avoiding or reducing environmental risks before specific harms are experienced. Having regard to the aforesaid principle, the import of waste oil containing PCBs of detectable limit has been banned in India. The fact that PCBs content in the consignments was only marginal or minimal and under Basel Convention its permissible limit is 50 PPM, is of no consequence. Judging by Indian conditions, our law has provided the limit of PCBs which if of detectable limits, the import is not allowed. The national law has to apply and shelter cannot be taken under guidelines of Basel Convention.

The polluter pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case.

The observations in Deepak Nitrite Ltd. v. State of Gujarat and Others [(2004) 6 SCC 402] that ’mere violation of the law in not observing the norms would result in degradation of environment would not be correct’ is evidently confined to the facts of that case. In the said case the fact that the industrial units had not conformed with the standards prescribed by the pollution control board was not in dispute but there was no finding that the said circumstance had caused damage to environment. The decision also cannot be said to have laid down a proposition that in absence of actual degradation of environment by the offending activities, the payment for repair on application of the polluter pays principle cannot be ordered. The said case is not relevant for considering the cases like the present one where offending activities has the potential of degrading the environment. In any case, in the present case, the point simply is about the payments to be made for the expenditure to be incurred for the destruction of imported hazardous waste and amount spent for conducting tests for determining whether it is such a waste or not. The law prescribes that on the detection of PCBs in the furnace or lubricating oil, the same would come within the definition of hazardous waste. Apart from polluter pays principle, support can also be had from principle 16 of the Rio Declaration, which provides that national authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interests and without distorting international trade and investment.

Further, learned counsel for the petitioner strenuously contended that the exemplary and/or penal damages shall also be levied on the offending importers. In a given case, it may be possible to levy such damages depending as well upon the nature and extent of offending activity, the nature of offending party, the intention behind such activity but in the present case in absence of clear finding on these aspects, it is unnecessary to examine this aspect in depth. It is, however, to be borne in mind that in India the liability to pay compensation to affected persons is strict and absolute and the rule laid down in Rylands v. Fletcher has been held to be not applicable.

In M.C.Mehta and Anr. v. Union of India and Others [ (1987) 1 SCC 395] a Constitution Bench has held that the rule in Rylands v. Fletcher laid down the principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is a statutory authority. This rule evolved in the 19th century at a time when all the developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. In a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to be carried on as part of the developmental programme, Court should not feel inhibited by this rule merely because the new law does not recognize the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activity. Law has to grow in order to satisfy the needs of the fast-changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. The Court cannot allow judicial thinking to be constricted by reference to the law as it prevails in England or in any other foreign country. Though the Court should be prepared to receive light from whatever source it comes but it has to build up its own jurisprudence. It has to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. If it is found that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, the Court should not hesitate to evolve such principle of liability because it has not been so done in England. An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results to anyone on account of an accident in the operation of such activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident as a part of the social cost for carrying on such activity, regardless of whether it is carried on carefully or not. Such liability is not subject to any of the exceptions which operate vis-‘-vis the tortuous principle of strict liability under the rule in Rylands v. Fletcher. If the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate items of its overheads. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards.

The polluter pays principle was applied in Indian Council for Enviro-Legal Action and Others v. Union of India and Others [(1996) 3 SCC 212] to fasten liability for defraying the costs of remedial measures. The task of determining the amount required for carrying out the remedial measures, its recovery/realization and the task of undertaking the remedial measures was placed in this case upon the Central Government. In the present case the approximate expenditure to be incurred for destroying the hazardous waste has been mentioned in report.

In Vellore Citizens’ Welfare Forum v. Union of India and Others [(1996) 5 SCC 647] the precautionary principles and polluter pays principle were held to be part of the environmental law of the country. It was held that the polluter pays principle means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of sustainable development.

In this very case, i.e., Research Foundation For Science Technology National Resource Policy v. Union of India & Anr. [2003 (9) SCALE 303] while examining the precautionary principle and polluter pays principle, the legal principles noticed in brief were :- “The legal position regarding applicability of the precautionary principle and polluter pays principle which are part of the concept of sustainable development in our country is now well settled. In Vellore Citizens’ Welfare Forum v. Union of India & Ors. [(1996) 5 SCC 647], a three Judge Bench of this Court, after referring to the principles evolved in various international conferences and to the concept of “sustainable development”, inter alia, held that the precautionary principle and polluter pays principle have now emerged and govern the law in our country, as is clear from Articles 47, 48-A and 51- A (g) of our Constitution and that, in fact, in the various environmental statutes including the Environment (Protection0 Act, 1986, these concepts are already implied. These principles have been held to have become part of our law. Further, it was observed in Vellore Citizens’ Welfare Forum’s case that these principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law. Reference may also be made to the decision in the case of A.P. Pollution Control Board Vs. Prof. M.V. Nayudu (Retd.) and Ors. [(1996) 5 SCC 718] where, after referring to the principles noticed in Vellore Citizens’ Welfare Forum’s Case, the same have been explained in more detail with a view to enable the Courts and the Tribunals or environmental authorities to properly apply the said principles in the matters which come before them. In this decision, it has also been observed that the principle of good governance is an accepted principle of international and domestic laws. It comprises of the rule of law, effective State institutions, transparency and accountability and public affairs, respect for human rights and the meaningful participation of citizens in the political process of their countries and in the decisions affecting their lives. Reference has also been made to Article 7 of the draft approved by the working group of the International Law Commission in 1996 on “Prevention of Transboundary Damage from Hazardous Activities” to include the need for the State to take necessary “legislative, administrative and other actions” to implement the duty of prevention of environmental harm. Environmental concerns have been placed at same pedestal as human rights concerns, both being traced to Article 21 of the Constitution of India. It is the duty of this Court to render justice by taking all aspects into consideration. It has also been observed that with a view to ensure that there is neither danger to the environment nor to the ecology and, at the same time, ensuring sustainable development, the Court can refer scientific and technical aspects for an investigation and opinion to expert bodies. The provisions of a covenant which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can be relied upon by Courts as facets of those fundamental rights and hence enforceable as such {see People’s Union for Civil Liberties Vs. Union of India & Anr. [(1997) 3 SCC 433]}. The Basel Convention, it cannot be doubted, effectuates the fundamental rights guaranteed under Article 21. The rights to information and community participation for protection of environment and human health is also a right which flows from Article 21. The Government and authorities have, thus to motivate the public participation. These well-shrined principles have been kept in view by us while examining and determining various aspect and facets of the problems in issue and the permissible remedies.”
The aforenoted precautionary principles are fully applicable to the facts and circumstances of the case and we have no manner of doubt that the only appropriate course to protect environments is to direct the destruction of the consignments by incineration in terms discussed above and as recommended by the Monitoring Committee.

It seems that by disposal of the oil under the supervision of Monitoring Committee at the incinerators which have adequate facilities to destroy the oil at a required temperature, there would be no impact on environments.

In regard to 170 containers referred to in the report of the Commissioner of Customs which are also lodged in the same premises in more or less same condition, the Monitoring Committee has noted that these containers have not been claimed by the importers. The details of the importers of these consignments are not on record. Before we issue directions in respect of these 170 containers, it would be necessary to have on record the details of these imports. The concerned authorities, i.e., Jawaharlal Nehru Port or Mumbai Port and all other concerned Departments are directed to furnish to the Monitoring Committee within four weeks up to date information as to the import of the 170 containers, how the consignment was dealt with right from the date of the arrival till date. The Monitoring Committee shall file a report along with its recommendations and on consideration thereof, necessary directions in regard to 170 containers would be issued.

The aforesaid 133 containers are directed to be expeditiously destroyed by incineration as per the recommendations of the Monitoring Committee and under its supervision subject to and in terms of this order. The cost of incineration shall be deposited by the importers with the Monitoring Committee within four weeks. The Monitoring Committee will ensure the timely destruction of the oil at the incinerators mentioned in its report. After the destruction of the oil in question, a compliance report shall be filed by the Monitoring Committee. All concerned are directed to render full assistance and cooperation to the Monitoring Committee. In regard to the consignment of Eleven Star Esscon, in case option for recycling is exercised by the Government, the recycling would be done under the supervision of the Monitoring Committee. If the request for recycling is not received by the Monitoring Committee within four weeks, the said consignment would also be destroyed in the same manner as the other consignments.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 2501 of 2002

Union of India & Another …PETITIONER
Vs
Raja Mohammed Amir Mohammad Khan …RESPONDENT

DATE OF JUDGMENT: 21/10/2005
BENCH: ASHOK BHAN & ALTAMAS KABIR

J U D G M E N T

BHAN, J.

Union of India has filed this appeal by leave of the Court against the final judgment/order dated 21.9.2001 passed by the High Court of Judicature at Bombay in Writ Petition No.1524 of 1997 whereby the High Court has allowed the writ petition filed by the respondent. High Court has further directed the return of the property to the respondent.

In order to appreciate the controversy arising in this appeal the facts are required to be set in detail.

Raja Mohammed Amir Mohammad Khan, writ petitioner/respondent herein is the son of Raja of Mahmudabad in Distt. Sitapur Uttar Pradesh. In December, 1957 the erstwhile Raja of Mahmudabad (father of the respondent) migrated to Pakistan and became a citizen of Pakistan. However, the respondent and his mother Rani Kaniz Abdi (since deceased) continued to reside in India as Indian citizen.

The Defence of India Rules, 1962 made under Section 3 of the Defence of India Ordinance, 1962 came into force with effect from 5.11.1962. Rule 133-V, inter alia, provided that the Central Government was authorised to appoint a Custodian of Enemy Property for India to preserve enemy property. Defence of India Ordinance, 1962 was repealed by Section 48 of Defence of India Act, 1962. The 1962 Rules, however, made under the Defence of India Ordinance, 1962 were deemed to be the rules under the Defence of India Act.

Thereafter, the Government of India in exercise of powers under sub-rule (1) of Rule 133-V issued the Enemy Property (Custody & Registration) Order, 1962. In the year 1965 hostilities between India and Pakistan broke out and on 11.9.1965 the Enemy Property (Custody & Registration) Order, 1965 (for short “the Enemy Property Order, 1965”) was issued by the Government of India. The effect of the order was that all immovable property in India belonging to or held by or managed on behalf of Pakistani nationals stood vested in the Custodian of Enemy Property in India with immediate effect.

Since the father of the respondent was a national of Pakistan his property also vested in the Custodian. Enemy Property Ordinance, 1968 was promulgated which was later on replaced by the Enemy Property Act on 6.7.1968. Enemy Property vested in the Custodian under the Defence of India Rules, 1962, continued to be vested in the custodian under the said Act.

The erstwhile Raja of Mahmudabad died in London on 14.10.1973. The respondent herein is the sole heir of late Raja by virtue of Section 22 of Oudh Estates Act, 1869 as also by virtue of custom and usage of the respondent family. Respondent made numerous representations, including the one dated 18.5.1979 requesting the Union of India as well as the custodian to release the property as the same could not continue to vest with the Custodian after the death of respondent’s father and having vested in him, as an Indian citizen. Director Vigilance, Ministry of Commerce wrote to the respondent on 7.3.1981 inter alia, informing him that the question of release had been taken up by the Cabinet and the Cabinet had decided to release 25% of the said property in favour of the legal heirs and successors of the respondent’s father. Another communication dated 24.9.1981 was received by the respondent from the Director Vigilance, Ministry of Commerce of Union of India informing him that they would release 25% of the property to the legal heirs of the father of the respondent who had always been Indian citizens. Respondent was requested to contact Custodian of Enemy Property for India and complete the necessary procedural and legal formalities. Thereafter, on 10.10.1981 Custodian of Enemy Property wrote a letter to the respondent asking for legal evidence regarding the heirs and successors of respondent’s father to enable him to release the properties to the extent of 25%.

Respondent filed a suit being Suit No.365 of 1981 in the Court of Civil Judge, Lucknow on 18.11.1981 seeking a declaration that he was the sole heir and successor of the deceased Raja of Mahmudabad. This suit was dismissed on 26.3.1984 for non-joinder of the Custodian of Enemy Property (hereinafter referred to as “Appellant No.2”) as a party respondent. In July, 1984 respondent filed a second suit being Suit No.219 of 1984 in the Court of Civil Judge, Lucknow, inter alia, contending that by virtue of taking over the property the title of the property did not vest in the custodian. The vesting was limited for the purposes of taking over of the possession, management and control of the enemy property till such time the property remained the enemy property.

It was, inter alia, prayed that he be declared the sole heir and successor of his father and thereby entitled to 25% of the properties and to such other percentage or the whole of the said properties.

Appellant No.2 filed the written statement contesting the suit inter alia contending that the suit property had vested in the Custodian free from all encumbrances and denied that it had vested in the Custodian for the purpose of management only.

It was denied that the respondent was the heir of late Raja of Mahmudabad. Trial Court decreed the suit on 8.7.1986. It was declared that the respondent was the sole heir and successor of his father and thereby entitled to 25% or whatever percentage it may be of the property in the suit.

The suit was decreed in the following terms:- “The suit of the plaintiff for declaration is decreed with costs against the defendants and it is hereby declared that the plaintiff is the sole heir and successor of his father late Raja Mohammad Amir Ahmad Khan and thereby he is entitled to the 25% or whatever percentage it may be, of the properties in suit, described in Schedule I of the plaint, which are going to be released in favour of the heir of late Raja Mohammad Amir Ahmad Khan under the decision of the Government of India, as alleged.” The aforesaid judgment became final, conclusive and binding as the appellants did not prefer an appeal against the same.

Since despite protracted correspondence over several years, the petitioner No.2 failed to hand over the properties to the respondent, the respondent filed Writ Petition No.1524 of 1997 in the High Court of Judicature at Bombay praying, inter alia, for a declaration that the properties vested with the Custodian ceased to be enemy property and stood divested from appellant No.2 with effect from 14.10.1973 and that the possession of the Custodian was illegal and without authority of law.

By the impugned judgment the High Court has allowed the writ petition and held that on an interpretation of Sections 6, 8 and 18 of the Enemy Property Act, due to vesting of the property in the Custodian, the owner is not divested of his right, title and interest in the property as under the Act title does not come to vest in the Custodian. The vesting is limited to the temporary taking over of the possession, management and control over the property only. It was conceded before the High Court by the counsel appearing for the appellants that respondent who was an Indian citizen was the heir and successor of his late father Raja of Mahmudabad. It was held that the properties were no longer enemy properties as the title of the same now vested in an Indian citizen. The High Court accordingly directed appellant No.2 to handover possession of the properties, actual or juridical, as the case may be, to the respondent within three months from the date of passing of the order.

Respondent’s prayer for mesne profits and compensation in respect of the properties in question were rejected.

Counsel for the parties have been heard at length.

The Enemy Property Act, 1968 was enacted for purpose of continued vesting of enemy property, vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 and the Defence of India Rules, 1971. Section 2(b) defines enemy, an enemy subject or an enemy firm and the same reads as under:- “2(b) “enemy” or “enemy subject” or “enemy firm” means a person or country who or which was an enemy, an enemy subject or an enemy firm, as the case may be, under Defence of India Act, 1962 and the Defence of India Rules, 1962 [or to the Defence of India Act, 1971 and the Defence of India Rules, 1971], but does not include a citizen of India;” Section 2(c) defines the expression “enemy property” as follows:- “2 (c) “enemy property” means any property for the time being belonging to or held or managed on behalf of an enemy, an enemy subject or an enemy firm;

Provided that where an individual enemy subject dies in the territories to which this Act extends, any property which immediately before his death, belonged to or was held by him or was managed on his behalf, may, notwithstanding his death, continue to be regarded as enemy property for the purposes of this Act;” Section 6 of the Act provides or declaring the transfer of property by enemy subject which is vested in the Custodian to be void by the Central Government after giving reasonable opportunity of being heard. Section 6 reads as under:- “6. Transfer of property vested in Custodian by enemy or enemy subject or enemy firm Where any property vested in the Custodian under this Act has been transferred, whether before or after the commencement of this Act, by an enemy, or an enemy subject or an enemy firm and where it appears to the Central Government that such transfer is injurious to the public interest or was made with a view to evading or defeating the vesting of the property in the Custodian, then, the Central Government may, after giving a reasonable opportunity to the transferee to be heard in the matter, by order, declare such transfer to be void and on the making of such order, the property shall continue to vest or be deemed to vest in the Custodian.” This section provides that if any property vested in the Custodian has been transferred, whether before or after the commencement of the Enemy Property Act, by an enemy, or an enemy subject or an enemy firm and if the Central Government is of the opinion that such transfer is injurious to the public interest or was made with a view to evading or defeating the vesting of the property in the Custodian, the Central Government may declare such transfer to be void after hearing the transferee in the matter. This provision makes it clear that there is no bar on the transfer of the enemy property in general by an enemy subject meaning thereby the title still remains with him.

Section 8 deals with power of Custodian in respect of the enemy property vested in him. The same is reproduced here:- “8. Powers of Custodian in respect of enemy property vested in him (1) With respect to the property vested in the Custodian under this Act, the Custodian may take or authorise the taking of such measures as he considers necessary or expedient for preserving such property and where such property belongs to an individual enemy subject, may incur such expenditure out of the property as he considers necessary or expedient for the maintenance of that individual or of his family in India.

(2) Without prejudice to the generality of the foregoing provision, the Custodian or such person as may be specifically authorised by him in this behalf, may, for the said purpose, — (i) carry on the business of the enemy;

(ii) take action for recovering any money due to the enemy;

(iii) make any contract and execute any document in the name and on behalf of the enemy;

(iv) institute, defend or continue any suit or other legal proceeding, refer any dispute to arbitration and compromise any debts, claims or liabilities;

(v) raise on the security of the property such loans as may be necessary;

(vi) incur out of the property any expenditure including the payment of any taxes, duties, cesses and rates to Government or to any local authority and of any wages, salaries, pensions, provident fund contributions to, or in respect of, any employee of the enemy and the repayment of any debts due by the enemy to persons other than enemies.

(vii) transfer by way of sale, mortgage or lease or otherwise dispose of any of the properties;

(viii) invest any moneys held by him on behalf of enemies for the purchase of Treasury Bills or such other Government securities as may be approved by the Central Government for the purpose.

(ix) make payments to the enemy and his dependents;

(x) make payments on behalf of the enemy to persons other than those who are enemies, of dues outstanding on the 25th October, 1962 (or on the 3rd December, 1971); and (xi) make such other payments out of the funds of the enemy as may be directed by the Central Government.

Explanation In this sub-section and in sections 10 and 17, “enemy” includes an enemy subject and an enemy firm.” Section 9 provides that all enemy property vested in the Custodian shall be exempt from attachment, seizure or sale in execution of decree of a civil court or orders of any other authority.

Section 13 makes provision for validity of action taken in pursuance of orders of Custodian and reads as under:- “13. Validity of action taken in pursuance of orders of Custodian Where under this Act, — (a) any money is paid to the Custodian; or (b) any property is vested in the Custodian or an order is given to any person by the Custodian in relation to any property which appears to the Custodian to be enemy property vested in him under this Act, neither the payment, vesting nor order of the Custodian nor any proceedings in consequence thereof shall be invalidated or affected by reason only that at a material time, — (i) some person who was or might have been interested in the money or property, and who was an enemy or an enemy firm, had died or had ceased to be an enemy or an enemy firm;

or (ii) some person who was so interested and who was believed by the Custodian to be an enemy or an enemy firm, was not an enemy or an enemy firm.” Section 18 deals with divesting of enemy property vested in the Custodian and reads as under:- “18. Divesting of enemy property vested in the Custodian The Central Government may, by general or special order, direct that any enemy property vested in the Custodian under this Act and remaining with him shall be divested from him and be returned, in such manner as may be prescribed, to the owner thereof or to such other person as may be specified in the direction and thereupon such property shall cease to vest in the Custodian and shall revest in such owner or other person.” A reading of Section 18 makes it evident that enemy property is not permanently vested in the Custodian and divesting the custodian of such property is contemplated.

Section 19 protects the action taken under the Act and provides that no suit, prosecution or other legal proceeding shall lie against the Central Government or the Custodian or enemy property for anything which is done in good faith or intended to be done under the Act.

The High Court of Calcutta in Sudhendu Nath and others, 1976 Calcutta 267, held that on a reading of Section 6, 8, and 18 of the Act, the enemy, due to vesting of his property in the Custodian is not divested of all his right, title and interest in the property, but the vesting in the Custodian is limited to the extent of possession, management and control over the India and Others, AIR 1991 Calcutta 241 the High Court reiterated its earlier view. In this case the High Court was seized of a matter in respect of enemy property which had vested in the Custodian.

After adjudication of title in his favour the appellant filed a writ petition in the High Court claiming the property as it no longer belonged to an enemy subject. The Single Judge dismissed the writ petition. The Division Bench reversing the order of the Single Judge took the view that the appellant therein was entitled to get the property back as it no longer belonged to an enemy subject.

That the title of the property does not vest in the Custodian and the Custodian takes over the property under the Act temporarily for its management and control. The High Court in the impugned judgment has followed the said Rule.

The enemy, an enemy subject or enemy firm under Section 2(b) means a person or country who or which was an enemy, an enemy subject or enemy firm, as the case may be under the Defence of India Act, 1962 and the Rules made thereunder or to the Defence of India Act, 1971 and the Rules made thereunder but does not include a citizen of India.

Enemy property under the Act means any property belonging to or held or managed or on behalf of an enemy, enemy subject or enemy firm for the time being. Proviso to Section 2(c) provides that where an individual enemy subject dies within the territories to which Enemy Property Act extends, any property which immediately before his death belonged to or held by him or managed on his behalf may continue to be regarded as enemy property for the purposes of Enemy Property Act notwithstanding his death.

A conjoint reading of Sections 6, 8 and 18 of the Act, indicates that the enemy subject due to the vesting of his property in custodian is not divested of his right, title and interest in the property. The vesting in the Custodian is limited to the extent of possession, management and control over the property temporarily. This position was not disputed before us by the learned counsel appearing for the appellant. The object of the Enemy Property Act is to prevent a subject of an enemy state from carrying on business and trading in the property situated in India. It is, therefore, contemplated that temporary vesting of the property takes place in the Custodian so that the property till such time as it is enemy property cannot be used for such purpose.

The question that falls for determination is whether the properties in question after its inheritance by the respondent who is a citizen of India can be said to be enemy property.

It is not in dispute that respondent was born in India and is an Indian citizen. His late father migrated to Pakistan in the year 1957 and become a citizen of Pakistan. After the breaking of the hostilities between India and Pakistan in the year 1965 the property of his father located in India got vested in the Custodian. After the coming into force of the Enemy Property Act in the year 1968 the properties of late Raja continued to be vested with the Custodian till he died on 14.10.1973 in London. After the death of his father respondent who is a citizen of India inherited the property being the sole heir and successor of his father.

Can he be termed as enemy or enemy subject within the meaning of Section 2(b) or can the property of an Indian citizen be termed as enemy property within the meaning of Section 2 (c)? Answer is emphatic No. The definition of enemy provided under Section 2(b) excludes citizens of India as an enemy, or enemy subject or enemy firm. Under the circumstances, the respondent who was born in India and his Indian citizenship not being in question cannot by any stretch of imagination be held to be enemy or enemy subject under Section 2(b).

Similarly, under Section 2(c) the property belonging to an Indian could not be termed as an enemy property.

After the death of his father the respondent had filed a Suit No.219 of 1984 seeking a declaration that he was the sole heir and successor of his father. The appellants were defendants in the said suit. The suit was decreed on 8.7.1986.

The said judgment and decree having attained finality there remains no dispute that the respondent is the sole legal heir and successor of his father, the late Raja of Mahmudabad and properties belonging to late Raja came to be owned exclusively by him. After the death of late Raja of Mahmudabad the respondent became the sole owner of the properties which had been taken over by the Custodian of Enemy Property. Having acquired the title by way of succession the properties in question could not be said to be enemy property within the meaning of Section 2(c) because enemy property means the property belonging to or held or managed on behalf of the enemy or enemy subject or enemy firm. Since the respondent was not an enemy within the meaning of Section 2(b), the properties owned, held and belonging to him cannot be held to be the enemy properties under the Enemy Property Act.

As indicated above, the vesting of the properties in the Custodian under the Enemy Property Act is limited to the extent of possession, management and control over the properties only. The right, title or interest of the owner is not taken away. After the ceasing of the property to be enemy property it ceased to be belonging to an enemy. The Custodian cannot be permitted to continue with the possession of such properties. The property which initially vested in the Custodian under the Defence of India Rules and thereafter under the Enemy Property Act ceased to be enemy property upon the death of respondent’s father on 14.10.1973. In the circumstances, property which was vested in the Custodian ceased to be enemy property upon the death of the father of the respondent and the Custodian could not continue with the possession of the property.

Reliance placed by the counsel for the appellant on Section 13 is totally misplaced.

Section 13 does not alter the aforesaid legal position. Section 13 only provides that the vesting of the property of the enemy or enemy subject in the Custodian or order of Custodian or the proceedings in consequence thereof are not invalidated or affected by reason that at the material time such an enemy subject had died or ceased to be enemy. It only means that action of vesting or the order passed by the Custodian of the proceedings taken in consequence thereof is not invalidated or affected on the ground that such enemy subject had died or ceased to be enemy when the vesting took place or the order came to be passed by the Custodian or proceedings in consequence thereof were taken. It does not mean that the property can be continued to be enemy property under the Act when the property is succeeded to by a citizen of India. Once the property is succeeded to by a citizen of India the property ceases to be covered by proviso to Section 2(c). In law, the vesting in the Custodian of the property belonging to an Indian citizen cannot be permitted to be continued under the Enemy Property Act as Indian citizen is excluded from being an enemy in terms of the provisions of Section 2(b).

Counsel for the appellant laying stress on the provisions of Section 18 contended that only the Central Government can divest the Custodian of the enemy property by passing a general or special order directing that any enemy property vested in the Custodian under the Act shall be divested from him and be returned in such manner as may be prescribed to the owner thereof or to such other person as may be specified in the direction and only thereupon such property shall cease to vest in the Custodian and revest in such owner or such other person. Since in the present case no such order has been passed by the Central Government this Court cannot divest the Custodian of the property. We do not agree with this submission.

In the present case the respondent filed several representations but the Central Government did not take a decision on them for years together. In such a situation the power of the Court is not taken away to pass appropriate orders in a case where the property which vested in the Custodian ceases to be enemy property, the same having vested in a citizen of India by way of succession after the death of the enemy subject.

Another interesting feature which can be taken notice of is that on a representation filed by the respondent the appellants agreed to release 25% of the property in favour of the respondent on production of proof of his having succeeded to the property of his father. It shows that the appellants accepted that the property could be released in favour of the respondent provided he had succeeded to it after the death of enemy subject. It further shows that the property could be released in favour of an Indian citizen provided he had succeeded to the estate. It further shows that the title of the enemy property does not vest in the custodian and it had vested in the custodian for the purposes of management, control and possession of the properties only.

In the High Court the Union of India had taken certain points such as delay in filing the writ petition; that properties had been retained by the Government of India as a matter of policy and that the writ petition was barred by the principle of res judicata and the principles analogous thereto were not pressed before us. Apart from the submission noted and dealt with by us no other point was raised.

On 4.9.2001 the High Court directed the appellants to place on record copy of note put up for release of property of the respondent’s father and the decision taken thereon by the Cabinet. The respondents refused to place a copy of the note of the Cabinet claiming privilege in regard to the said document as in their opinion the public interest required that the same should not be disclosed. This shows the mala fide intentions of appellants to retain the possession of huge properties without any authority of law.

To be just and act in a just manner is writ large in our Constitution and the laws. The Legislature is to act in a just manner by enacting just laws within the frame work of the Constitution. The executive is enjoined with a duty to act or apply the laws in a just manner and if an individual or institution is dissatisfied with the State action in enacting the laws or their implementation he can approach the court seeking redressal of his grievances.

Unfortunately a dangerous attitude resulting in doing institution damage is developing, that the justice is required to be done only by the Courts.

This attitude is betrayal of Constitution as well as laws. Every and any authority working under the statute has to discharge its duties in a just manner otherwise people will lose faith in the governance.

The case in hand is a typical example of such an attitude. It is admitted by the counsel for the appellants that under the Enemy Property Act the title of the property of an enemy does not vest in the Custodian. The custodian takes over the enemy property only for the purpose of possession, control and management. An Indian citizen is excluded from the definition of an ‘enemy’ or ‘enemy subject’ under Section 2(b). Respondent was declared to be the heir and successor of late Raja of Mahmudabad. On being so declared the property which came to vest in the respondent who is a citizen of India ceased to be an enemy property.

On a representation filed by the respondent, the appellants recognized this fact and agreed to release 25% of the property although he was entitled to the whole of the property. No reasons were given for doing so. Still worse the appellants did not even release 25% of the property. Again no reasons are forthcoming for doing so. When asked by the Court to produce the cabinet note put up before the cabinet in this regard, the appellants refused to do so and claimed it to be a privileged document. When admittedly the title of the property did not come to vest in the custodian then as soon as the title in the property came to vest in an Indian citizen the property ceased to be an ‘enemy property’. The authorities were duty bound to release the property in favour of the true owner (respondent). Instead of doing it the Union of India forced the respondent to knock at the doors of the Court.

The authorities have deprived the respondent of the possession and enjoyment of the properties for the last 32 years without any justification. The reasons for doing so as we understand is that buildings are being occupied by the Deputy Commissioner, Superintendent of Police and other district officers for their residences as well as for their offices, which they did not want to give up. This is highly objectionable and unjust. It needs to be deprecated.

In the light of what we have stated, we do not find any merit in this appeal and the same is dismissed.

The High Court had refused to grant the mesne profits to the respondents, against the aforesaid finding no appeal has been filed by the respondent.

Since no appeal has been filed, the appellants are not entitled to the mesne profits till the passing of the interim orders of status quo by this Court on 5.4.2002. The respondent would be entitled to the actual mesne profits by filing a suit, if so advised, for this period. However whatever moneys have been collected by the appellants by way of rent or lease etc. after 5.4.2002 till the handing over of the possession of these properties to the respondents be deposited/disbursed to the respondent within 8 weeks.

The appellants are directed to get the buildings (residence or offices) vacated from such officers and handover the possession to the respondent within eight weeks. Similarly, appellants are directed to handover the possession of other properties as well. The officers who are in occupation of the buildings for their residences or for their offices are also directed to immediately vacate and handover the buildings or the properties to the Custodian to enable him to handover the possession to the respondent in terms of the directions given. Failure to comply with the directions to handover the possession within 8 weeks will constitute disobedience of this order and the appellants would be in contempt of this order. Respondent would be at liberty to move an application in this Court if the above directions are not complied with for taking appropriate action against the appellants or their agents. Since the appellants have retained the possession of the properties illegally and in a high handed manner for 32 years, the appeal is dismissed with costs which are assessed at Rs. 5 Lacs.

The post Union of India & Anr Vs. Raja Mohammed Amir Mohammad Khan appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 44 of 2005

Jayendra Saraswathi Swamigal …PETITIONER
Vs
State of Tamil Nadu …RESPONDENT

DATE OF JUDGMENT: 10/01/2005
BENCH: CJI R. C. Lahoti, G. P. Mathur & P.P. Naolekar

J U D G M E N T

(Arising out of SLP(Crl.) No. 6192 OF 2004)

G.P. MATHUR, J.

1. Leave granted.

2. This appeal, by special leave, has been preferred against the order dated 8.12.2004 of Madras High Court, by which the petition for bail filed by the petitioner under Section 439 Cr.P.C. was rejected.

3 An F.I.R was lodged at 7.00 p.m. on 3.9.2004 at Police Station B-2, Vishnu Kanchi by Shri N.S. Ganesan. It was stated therein that at about 5.45 p.m. on 3.9.2004 while he was in the office of Devarajaswamy Devasthanam, two persons armed with aruval came there and caused multiple injuries to Sanakararaman, In-charge Administrative Manager, who was sitting on a chair. Three persons were waiting outside and the assailants escaped on their motor cycles. After the case was registered, necessary investigation followed and several persons have been arrested. According to the case of the prosecution, the actual assault upon the deceased was made by A-6 and A-7, while four persons, namely, A-5, A-8, A-9 and A-10 were standing outside.

4. The petitioner, Shri Jayendra Saraswathi Swamigal, who is the Shankaracharya of Kanchi Mutt, Kanchipuram, was arrested on 11.11.2004 from Mehboob Nagar in Andhra Pradesh. He moved a bail petition before the High Court of Madras, which was rejected on 20.11.2004 and the second bail petition was also rejected by the impugned order dated 8.12.2004.

5. According to the case of the prosecution, the petitioner had entered into a conspiracy with some other co-accused for getting Sankararaman murdered. The motive for the commission of the crime is said to be various complaints alleged to have been made by the deceased levelling serious allegations, both against the personal character of the petitioner and also his style of functioning as Shankaracharya of the Mutt. In the reply statement filed on behalf of State of Tamil Nadu, it is averred that the deceased had filed a complaint before the Commissioner HR&CE not to allow the petitioner to visit China. He filed a writ petition in the Madras High Court claiming the same relief which was later on dismissed as a statement was made by the petitioner that he had no intention of going to the said country.

The deceased sent several letters alleging that the petitioner was selling properties of the Mutt; was indulging in corruption and misappropriation of funds. He also made complaint before Special Commissioner, HR&CE that the petitioner was not observing the rules of Sanyasa Asrama Dharma; was leading a luxurious life enjoying mundane comforts; not performing the Pooja and promoting commercial ventures. It is also the case of the prosecution that the deceased sent a letter under the name of Somasekara Ganapadigal alleging that the petitioner was indulging in immoral activities and was having relationship with women and finally a letter was sent by him on 30.8.2004 to the petitioner as “last warning” wherein it was said that when the petitioner went to Thalakeverj, Kaveri river dried; when he went to the only Hindu Kingdom of Nepal, the entire royal family was wiped out;

and when he went to Kumbakonam, there was a fire tragedy and many innocent lives were lost. Shri K.T.S. Tulsi, learned senior counsel for the State, has submitted that after receipt of this letter dated 30.8.2004 described as “last warning”, the petitioner called accused A-2, A-3 and A-4 and a conspiracy was hatched for eliminating the deceased.

6. In order to establish the aforesaid motive for commission of crime, the prosecution relies upon copies of 39 letters which were allegedly recovered from the house of the deceased himself. What the prosecution claims is that the deceased used to keep copies of all the letters and complaints which he made against the petitioner and it is these copies which have been recovered from the house of the deceased. The prosecution claims that of these 39 letters or complaints 5 complaints were found in the office of HR&CE, Chennai which relate to the period 14.8.2001 to 23.1.2002, one in the residence of A-4 and 2 in the residence of the petitioner. In our opinion, the recovery of these letters from the house of the deceased himself is not a proof of the fact that they were actually received by the petitioner or were brought to his notice. The deceased was not an employee of the Mutt but was working as In-charge Administrative Manager of another Dharamsthanam which has nothing to do with Kanchi Mutt and at least since 1998 he had no connection with the said Mutt. Though according to the case of the prosecution, the deceased had started making complaints against the petitioner since August 2001, there is absolutely no evidence collected in investigation that the petitioner made any kind of protest or took any kind of action against the deceased. Even otherwise, many letters or complaints etc.

are addressed to people holding high office or position and it is not necessary that they read every such letter or complaint or take them seriously. There is absolutely no evidence or material collected so far in investigation which may indicate that the petitioner had ever shown any resentment against the deceased for having made allegations against either his personal character or the discharge of his duties as Shankaracharya of the Mutt. The petitioner having kept absolutely quiet for over three years, it does not appeal to reason that he suddenly decided to have Sankararaman murdered and entered into a conspiracy for the said purpose.

7. Shri F.S. Nariman, learned senior counsel for the petitioner, has submitted that the specific case of the prosecution at the time of the hearing of the first bail application before the High Court was that a huge sum of money amounting to Rs.50 lakhs was withdrawn from an account of the Mutt maintained in ICICI Bank, Kanchipuram for being paid to the hirelings. The same stand was taken by the prosecution when the second bail application was heard by the High Court. In the two orders passed by the High Court by which the bail petitions were rejected, the plea of the State that the money was withdrawn from the account of the Mutt in ICICI Bank, Kanchipuram for payment to the hirelings is clearly mentioned. When the special leave petition was heard for admission on 17.12.2004, a detailed order was passed by this Court, wherein the State was directed to give particulars of the bank account wherefrom money is alleged to have been withdrawn by the petitioner for payment to the assailants and also to produce the copy of the account and the passbook, if any, seized by the investigating agency. However, in the statement in reply which has been filed in this Court by the State on 6.1.2005, a different stand is taken that an agreement had been entered into for sale of 50 acres of land belonging to Kanchi Janakalyan Trust to Bhargava Federation Pvt. Ltd. for Rs.5 crores, wherein an advance of Rs.50 lakhs in cash was received on 30.4.2004 and an endorsement regarding receipt of the said amount was made on the reverse side of the first page of the agreement. It was this money which was retained in cash by the petitioner all along from which payment was made to the hirelings after the conspiracy was hatched soon after the receipt of the alleged letter dated 30.8.2004 sent by the deceased which was described as “last warning”. No documents of the account in ICICI bank have been produced in support of the plea which was twice taken by the prosecution before the High Court while opposing the prayer for bail made by the petitioner.

8. N. Sundaresan (A-23) who is Manager of the Mutt was arrested on 24.12.2004 and was produced before the Judicial Magistrate, Kanchipuram at 1.45 p.m. on 25.12.2004. He stated before the Magistrate that he had received Rs.50 lakhs in cash on 30.4.2004 and the said amount was deposited in Indian Bank, Sankara Mutt Branch on 7.5.2004. Learned counsel for the petitioner has placed before the Court copies of two accounts bearing nos.124 and 125 which the Kanchi Kamakothi Peetham Shri Sankaracharya Swam has in the Indian Bank at No.1, Salai Street, Kanchipuram. This statement of account shows that on 7.5.2004 an amount of Rs.28,24,225/- was deposited in cash in account no.124 and an amount of Rs.21,85,478/- was deposited in cash in account no.125. Thus the total amount which was deposited in cash comes to Rs.50,09,703/-. Learned counsel has explained that in addition to Rs.50 lakhs which received in cash an extra amount of Rs.9,703/- was deposited in order to liquidate the overdraft over which penal interest was being charged by the bank. The statement of account clearly shows that after deposit of the aforesaid amount the entire overdraft was cleared. This clearly shows that the entire amount of Rs.50 lakhs which was received in cash on 30.4.2004 was deposited in Bank on 7.5.2004. This belies the prosecution case, which was developed subsequently after the order had been passed by this Court on 17.12.2004 directing the State to produce copy of the ICICI Bank account, that the cash money was retained by the Petitioner from which substantial amount was paid to the hirelings.

9. The prosecution also relies upon confessional statement of Kathiravan (A-4) recorded under Section 164 Cr.P.C. on 19.11.2004, wherein he stated that he went to the Kanchi Mutt on 1.9.2004 and in the presence of Ravi Subramaniam and Sundaresan, the petitioner said that Sankararaman had written letters and had filed cases and it was not possible for him to bear the torture any longer and, therefore, he should be killed on the same day. It is important to mention here that A-4 retracted his confession on 24.11.2004 when his statement was again recorded under Section 164 Cr.P.C. The prosecution also relies upon confession of Ravi Subramaniam (A-2) which was recorded on 30.12.2004 wherein he made a similar statement that the petitioner offered him Rs.50 lakhs on 1.9.2004 for getting rid of Sankararaman.

10. Shri Nariman has submitted that in view of Section 30 of the Evidence Act confession of a co-accused is a very weak type of evidence which can at best be taken into consideration to lend assurance to the prosecution case.

He has referred to the decision of the Privy Council in Bhuboni Sahu v. The King AIR 1949 PC 257, wherein it was observed that confession of a co- accused is obviously evidence of a very weak type and it does not come within the definition of evidence contained in Section 3 as it is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination. Learned counsel has also referred to Kashmira Singh v. State of M.P. [1952] INSC 12; AIR 1952 SC 159 where it was held that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3 and it cannot be made the foundation of a conviction and can only be used in support of other evidence. It was further observed that the proper way is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed , it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing such evidence which without the aid of the confession he would not be prepared to rely on for basing a finding of guilty. Reliance has also been placed upon the Constitution Bench decision in Haricharan Kurmi v. State of Bihar [1964] INSC 25; AIR 1964 SC 1184, where it was held that the Court cannot start with the confession of a co- accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. It was further observed that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. It has thus been urged that the confession of A-4 which was retracted by him subsequently and also that of A-2 have very little evidentiary value in order to sustain the charge against the petitioner.

11. Shri K.T.S. Tulsi, learned senior counsel, has, on the other hand, placed strong reliance on Section 10 of the Evidence Act and has submitted that this being a specific provision dealing with a case of conspiracy to commit an offence, the principle laid down in the authorities cited by Shri Nariman would not apply and anything said, done or written by any one of the accused is a relevant fact as against each of the person conspiring to commit a crime. In this connection he has referred to State of U.P. v. Buta Singh [1978] INSC 142; 1979 (1) SCC 31, State of Maharashtra v. Damu 2000 (6) SCC 269, Firozuddin Basheeruddin & Ors. V. State of Kerala 2001 (7) SCC 596, Prakash Dhawal Khairnar v. State of Maharashtra 2002 (2) SCC 35 and State of H.P. v. Satya Dev Sharma & Ors. 2002 (10) SCC 601.

12. The opening words in Section 10 are “where there is reasonable ground to believe that two or more persons have conspired together to commit an offence”. If prima facie evidence of the existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all. Therefore, there should first be a prima facie evidence that the person was a party to the conspiracy before his acts or statements can be used against his co-conspirators. No worthwhile prima facie evidence apart from the alleged confessions have been brought to our notice to show that the petitioner along with A-2 and A-4 was party to a conspiracy. The involvement of the petitioner and A-2 and A-4 in the alleged conspiracy is sought to be established by the confessions themselves.

The correct import of Section 10 was explained by the Judicial Committee of the Privy Council in Mirza Akbar v. King Emperor AIR 1940 PC 176 as under :

“The words of S.10 are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The words “common intention” signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference.” Here, the confessions of A-2 and A-4 were recorded long after the murder when the conspiracy had culminated and, therefore, Section 10 of the Evidence Act cannot be pressed into service. However, we do not feel the necessity of expressing a concluded opinion on this question in the present case as the matter relates to grant of bail only and the question may be examined more deeply at the appropriate stage.

13. Shri Tulsi has also submitted that there is also evidence of dying- declaration in order to fasten the liability upon the petitioner and for this reliance is placed upon the statement of S. Vaidyanathan, which was recorded under Section 164 Cr.P.C. on 28.12.2004. This witness has merely stated that he knew deceased Sankararaman and used to talk to him and further that at 1.30 p.m. on 3.9.2004 Sankararaman contacted him over phone and told him that his petition presented to HR&CE Department was numbered and if any danger came to him, Jayendra alone will be responsible for the same. Since the telephonic conversation which the Sankararaman had with this witness, did not relate to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, the same does not come within the purview of Section 32(1) of the Evidence Act and is not admissible in evidence.

14. Shri Tulsi, learned senior counsel for the respondent, has also referred to certain other pieces of evidence which, according to him, showed the complicity of the petitioner with the crime in question. He has submitted that the petitioner had talked on phone to some of the co-accused. The material placed before us does not indicate that the talk was with A-6 and A-7 who are alleged to have assaulted the deceased or with A-5, A-8, A-9 and A-10, who are alleged to have been standing outside. Learned counsel has also submitted that there are two other witnesses who have heard the petitioner telling some of the co-accused to eliminate the deceased. The names and identity of these witnesses have not been disclosed on the ground that the interrogation is still in progress. However, these persons are not employees of the Mutt and are strangers. It looks highly improbable that the petitioner would talk about the commission of murder at such a time and place where his talks could be heard by total strangers.

15. Shri Tulsi has lastly submitted that the prohibition contained in Section 437(1)(i) Cr.P.C. that the class of persons mentioned therein shall not be released on bail, if there appears to be a reasonable ground for believing that such person is guilty of an offence punishable with death or imprisonment for life, is also applicable to the Courts entertaining a bail petition under Section 439 Cr.P.C. In support of this submission, strong reliance has been placed on a recent decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr. 2004 (7) SCC 528. The considerations which normally weigh with the Court in granting bail in non-bailable offences have been explained by this Court in State v.

Capt. Jagjit Singh [1961] INSC 270; AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi Admn.) [1977] INSC 229; AIR 1978 SC 179 and basically they are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. The case of Kalyan Chandra Sarkar (supra) was decided on its own peculiar facts where the accused had made 7 applications for bail before the High Court, all of which were rejected except the 5th one which order was also set aside in appeal before this Court. The 8th bail application of the accused was granted by the High Court which order was subject matter of challenge before this Court. The observations made therein cannot have general application so as to apply in every case including the present one wherein the Court is hearing the matter for the first time.

16. For the reasons discussed above, we are of the opinion that prima facie a strong case has been made out for grant of bail to the petitioner. The appeal is accordingly allowed and the impugned order of the High Court is set aside. The petitioner shall be released on bail on his furnishing a personal bond and two sureties to the satisfaction of the Chief Judicial Magistrate, Chengleput. Shri Nariman has made a very fair statement that till the investigation is under progress, the petitioner shall not visit the Mutt premises. We accordingly direct that till the submission of the charge sheet in Court, the petitioner shall not visit the Mutt premises. He shall also surrender his passport before the CJM.

17. Before parting, we would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this order has been so said only for the purpose of disposing of the prayer for bail made by the petitioner. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the trial court seized of the trial. We have only formed a prima facie opinion and placed the same on record in fairness to the learned senior counsel for the State who raised those pleas and vehemently urged the same by citing various provisions of law and the authorities.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 2918 of 2005

Shri Banarsi Dass ….PETITIONER
Vs
Mrs. Teeku Dutta and Anr …RESPONDENT

DATE OF JUDGMENT: 27/04/2005
BENCH: ARIJIT PASAYAT & S.H. KAPADIA

J U D G M E N T

(Arising out of SLP(C) No.17427 of 2004)

ARIJIT PASAYAT, J.

Leave granted.

The core question involved in this appeal is whether a direction for Deoxyribonucleic Acid Test (commonly known as DNA test) can be given in a proceeding for issuance of succession certificate under the Indian Succession Act, 1925 (in short the ‘Act’).

Challenge in this Appeal is to the order of a learned Single Judge of the Delhi High Court setting aside the order of learned Administrative Civil Judge, Delhi dated 20.12.1999 whereby he had allowed an application under Section 151 of the Code of Civil Procedure, 1908 (in short the ‘CPC’) filed by the appellant seeking DNA test of the respondent no.1 Smt. Teeku Dutta and Sh. Ram Saran Dass Sharma, (who is not a party in this appeal). Respondent No.1 has filed case No.86 of 1944 for grant of succession certificate under Section 372 of the Act.

Background facts in a nutshell are as follows:

The respondent No. 1 filed a petition for grant of Succession Certificate in respect of the properties of one Iqbal Nath Sharma (hereinafter referred to as the ‘deceased’) claiming that she was his daughter and the only surviving Class I legal heir under the Hindu Succession Act, 1956 (in short the ‘Succession Act’). It was indicated in the petition that the deceased had died intestate leaving behind five brothers- Sh. Banarsi Dass, Sh. Amar Nath Sharma, Sh. Ram Saran Dass Sharma, Sh. P.L. Sharma and Sh. K.C. Sharma. Originally Sh.

Banarsi Dass was not impleaded and rest four were impleaded. Out of them Sh. P.L. Sharma and Sh. K.C. Sharma had expired and only Amar Nath Sharma and Ram Saran Dass Sharma were alive and were impleaded as respondents to the petition. During the pendency of the petition Banarsi Dass, was also impleaded. He filed objection to the grant of Succession Certificate disputing Mrs. Teeku Dutta’s claim. It was stated that she was not the daughter of the deceased. Evidence has been led and documentary evidence was also filed in support of the respective stands. At this stage the application under Section 151 CPC was moved by the objector Banarsi Dass alleging that the respondent Mrs. Teeku Dutta was not the daughter of the deceased, but in fact is the daughter of Ram Saran Dass Sharma and since the deceased and his wife both were dead it would not be possible to subject them to a DNA test and compare with the DNA test of Mrs. Teeku Dutta. Since Ram Saran Dass Sharma is alive, DNA test of Sh. Ram Saran Dass Sharma and Mrs.

Teeku Dutta would conclusively establish the paternity of Mrs. Teeku Dutta. The application was opposed on the ground that it was malafide and was made with a view to delay the proceedings. It was further stated that the DNA test would not serve any purpose as sufficient documentary evidence has already been brought on record. The trial court allowed the application primarily on the ground that Mrs. Teeku Dutta had initially concealed the fact that the deceased had five brothers and had deliberately left out Banarsi Dass Sharma from the array of respondents, and this casts doubt on the bonafides of the applicant’s claim of being the daughter of the deceased. The trial court considered the petition for grant of succession certificate and the “no objections” filed by other respondents namely Ram Saran Dass and Amar Nath Sharma to be somewhat collusive. Another reason which appears to have weighted heavily with learned trial judge was that the documentary evidence brought on record was not cogent enough to show that she was the daughter of the deceased. Further the trial court held that since the applicant for the DNA test was willing to bear the cost of the said DNA test, there would not be any difficulty in directing DNA test.

The High Court found that this is not a fit case where such a direction could be given. It was noticed that the scope of the enquiry was very limited and the trial court being a testamentary court should have left the parties to prove their respective cases by such evidence produced during trial, rather than creating evidence by directing DNA test. Accordingly, the Revision Petition filed under Section 115 of the CPC by Mrs. Teeku Dutta was allowed.

In support of the appeal learned counsel for the appellant submitted that the trial court had kept in view the correct perspectives of the case and instead of leaving the matter to be decided by oral and documentary evidence, the High Court should have held that the conclusive DNA test would have provided necessary material for an effective adjudication.

Learned counsel appearing for the respondents submitted that the order of the High Court is based on the correct legal position as regards the desirability of DNA test in such matters.

In Goutam Kundu v. State of West Bangal and Another [1993] INSC 290; (1993 (3) SCC 418) this Court held, inter alia, as follows:

“(1)That courts in India cannot order blood test as a matter of course;

(2)Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test;

whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

It was noted that Section 112 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) requires the party disputing the patronage to prove non-access in order to dispel the presumption of the fact under Section 112 of the Evidence Act. There is a presumption and a very strong one, though rebuttable one. Conclusive proof means proof as laid down under Section 4 of the Evidence Act.

In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage of filiation (parentage) may be presumed, the law in general presuming against vice and immorality.

It is rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.

In Dukhtar Jahan (Smt.) v. Mohammed Farooq [1987] INSC 18; (1987 (1) SCC 624) this Court held:(SCC p. 629, para 12):

“… Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.” The view has been reiterated by this Court in many later cases e.g. Amarjit Kaur v. Harbhajan Singh and Anr. (2003 (10) SCC 228).

We may remember that Section 112 of the Evidence Act was enacted at a time when the modem scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above. (See Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001 (5) SCC 311).

The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties paying debts to representatives of deceased persons. All that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a Certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so chooses, can also adduce evidence to oppose grant of succession certificate. The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA test was conclusive. This is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands. DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundu’s case (supra). Present case does not fall to that category. High Court’s judgment does not suffer from any infirmity.

We, therefore, uphold it. It is made clear that we have not expressed any opinion on the merits of the case relating to succession application.

Above being the position, the direction for DNA test as was given by the trial court is clearly unsustainable and the High Court has rightly set it aside.

Appeal is dismissed with no orders as to costs.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 82 of 2004

State Through Inspector of Police, A.P. …PETITIONER
Vs
K. Narasimhachary …RESPONDENT

DATE OF JUDGMENT: 07/10/2005
BENCH: S.B. Sinha & R.V. Raveendran

J U D G M E N T

S.B. SINHA, J :

The State is in appeal before us from a judgment of the Andhra Pradesh High Court dated 20.03.2003 in Criminal Appeal No.1058 of 1996, recording a finding of acquittal as against the Respondent, upon reversing a judgment passed by the Special Judge for SPE & ACB Cases, Nellore, dated 06.12.1996 convicting the Respondent herein for commission of offences punishable under Sections 7, 11, 13(3) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’) and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-.

The Respondent herein was a Mandal Revenue Inspector in the office of Mandal Revenue Office, Cuddapah in the year 1994. The complainant (PW-1) was the owner of some immovable property situated within the jurisdiction of the said Mandal Office. He intended to get himself registered as a contractor with the Public Works Department wherefor a certificate as regard valuation of his property was necessary. An application to that effect was filed before the Mandal Revenue Officer (PW-3) on 01.03.1994. The Mandal Revenue Officer adopted a peculiar procedure by putting his initial thereon and handed over the same to PW-1 himself and asked him to give it to the accused. When PW1 handed over application to the accused on the same day, he is said to have asked him to present the same before the Village Administrative Officer (PW-4) and to bring cultivation accounts relating to his lands and certain statements. PW-4 thereafter recorded the statements of PW-1 and his grandmother. He granted his own (VAO’s) Statement, statement of PW-1, his grandmother and village elders as also certified copies of Adangals, extracts (revenue records) marked as Exs.P-2 to P-6 to the said PW-1. PW-1 allegedly handed over the same to the Respondent on 02.03.1994. The Respondent is said to have demanded a sum of Rs.1,000/- for issuance of the property valuation certificate. He on the next day i.e. on 03.03.1994 met the Respondent at the office of PW-3 and upon negotiation, the amount of alleged illegal gratification was reduced to Rs.600/- from Rs.1000/-. A complaint was made to the ACB on 05.03.1994 at 6.35 A.M. A trap was laid at 12.30 P.M. on the same day upon complying with the usual formalities. A sum of Rs.600/- in the denomination of Rs.50/- is said to have been recovered from the Respondent allegedly kept by him in his right pocket of the trouser.

The defence of the Respondent was that certificate valuing the complainant’s land for a sum of Rs. one lac was submitted on 04.03.1993 itself whereas PW-1 wanted that the valuation of the lands should be made three lacs; and as the Respondent did not oblige, PW-1 bore grudge against him as a result he was falsely implicated.

The learned Special Judge framed as many as five issues and answered them against the Respondent by a judgment dated 6.12.1996, holding the Respondent guilty of the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act.

On appeal, the High Court reversed the said findings, inter alia, holding that the order of sanction dated 1.5.1995 was not proved by PW-6 in accordance with law. On merit of the matter also, the High Court opined that the prosecution has not been able to prove its case against the Respondent.

Mr. P. Vinay Kumar, the learned Counsel appearing on behalf of the Appellant, in assailing the impugned judgment, would contend that the High Court committed an error in holding that the order of sanction was not admissible in evidence having not been proved by PW-6 in accordance with law.

The learned counsel also took us through the evidences of the prosecution witnesses and submitted that PW-3 and PW-5 corroborated the evidence of the complainant (PW-1). It was contended that the fact that the Respondent was merely a recommending authority and not the final authority for the purpose of grant of a valuation certificate cannot be treated to be a ground for disbelieving the entire prosecution case.

Mr. Srinivas R. Rao, the learned counsel appearing on behalf of the Respondent, on the other hand, would submit that the prosecution was bound to prove the order of sanction in accordance with law. The learned counsel in this behalf relied upon a decision of this Court in R.J. Singh Ahuluwalia vs. The State of Delhi [(1970) 3 SCC 451].

The learned counsel would take us through the judgment of the High Court and submit that the High Court has taken into consideration all the facts and circumstances of this case in arriving at a finding that the State has not been able to prove its case against the Respondent.

The order of sanction dated 02.03.1995 has been produced in original. The order of sanction is a Government Order No.GOMs. No.76 dated 02.03.1995 A bare perusal of the order of sanction shows that the allegation as against the Respondent herein for taking into consideration that the Government of Andhra Pradesh, who was the competent authority to remove the said Sri K. Narasimha Chari, Mandal Revenue Inspector, Cuddapah, from the Government Service, after fully and carefully examining the material placed before them in respect of the said allegations and having regard to the circumstances of the case considered that the Respondent should be prosecuted in the court of law; whereupon the order of sanction was issued in the name of the Governor. Shri N. Madanmohan Reddy, Secretary to the Government, merely authenticated the said order of sanction which was issued in the name of the Governor of Andhra Pradesh. The order of sanction was, thus, issued by the State in discharge of its statutory functions in terms of Section 19 of the Act. The order of sanction was authenticated. The said order of sanction was an executive action of a State having been issued in the name of the Governor. It was authenticated in the manner specified in the Rules of Executive Business. The authenticity of the said order has not been questioned. It was, therefore, a public document within the meaning of Section 74 of the Indian Evidence Act. PW-6 proved the signature of Shri N. Madanmohan Reddy. He identified his signature.

He was not cross-examined on the premise that he did not know the signature of Shri N. Madanmohan Reddy. In answer to the only question put to him, he stated “By the time the Secretary signed in Ex.P.17 I was in G.A.D.” Nothing was, thus, elicited in the cross-examination of the said witness to show that he was not a competent witness to identify the signature of Shri Madanmohan Reddy.

The Respondent, therefore, allowed the said document to be exhibited without any demur. He did not question the admissibility of the said document before the Trial Court, either when the same was exhibited or at the final hearing before the trial court. He, therefore, could not be permitted to question the admissibility of the said document for the first time before 2005 AIR SCW 4565 : 2005 (7) SCALE 238].

A public document can be proved in terms of Sections 76 to 78 of the Evidence Act. A public document can be proved otherwise also. The High Court, therefore, was not correct in invoking the provisions of Section 47 of the Indian Evidence Act in the instant case as it was not called upon to form an opinion as to by whom the said order of sanction was written and signed.

PW-6 was not examined as an expert or was required to give his opinion as regard the correctness or otherwise of the signature of the said N.

Madanmohan Reddy. The authenticity of the said document was never in question.

The High Court relied upon a decision of this Court in Gulzar Ali vs.

State of H.P. [(1998) 2 SCC 192], wherein this Court observed :

“It must be remembered that expert evidence regarding handwriting is not the only mode by which genuineness of a document can be established. The requirement in Section 67 of the Evidence Act is only that the handwriting must be proved to be that of the person concerned. In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to. Of course, two modes are indicated by law in Sections 45 and 47 of the Evidence Act. The former permits expert opinion to be regarded as relevant evidence and the latter permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence. Those and some other provisions are subsumed under the title “Opinion of third persons, when relevant”. Opinions of third persons, other than those enumerated in the fasciculus of provisions, would have been irrelevant. Among the permitted opinions those mentioned in Sections 45 and 47 are also included. So it cannot be said that identity of handwriting of a document can be established only by resorting to one of those two sections. There can be other modes through which identity of the handwriting can be established” It is, therefore, evident that the High Court misread and misconstrued the law laid down by this Court in the aforementioned decision. It also wrongly applied Section 47 of the Indian Evidence Act.

In R.J. Singh Ahuluwalia (supra), this Court was concerned with the validity of the sanction; inasmuch as therein the Home Ministry, which was the sanctioning authority did not make any sanction, as a result whereof it was conceded by the State that in absence thereof the prosecution must fail.

In Mohd. Iqbal Ahmed vs. State of Andhra Pradesh [(1979) 4 SCC 172], the order of sanction was found to be invalid as the sanctioning authority did not duly apply its mind.

Therein this Court held that an order of valid sanction can be proved by the Sanctioning Authority in two ways : either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction; or (2) by adducing evidence aliunde to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at by it. In this case, the original order of sanction has been produced.

So far as the merit of the matter is concerned, as would appear from the discussions made hereinbefore that the prosecution case is not entirely free from doubt. PW-1 intended to obtain a signature as regard valuation of his lands so as to enable him to get himself registered with the Public Works Department as a contractor. He went to PW-3. PW-3 did not send the same to the Respondent by following the existing procedure. He merely initialed the same and handed over it back to PW-1 allegedly for the purpose of giving it to the Respondent who in turn asked to take it to PW-4.

It is really curious that when PW-1 handed over the application to PW-4 on 2.3.1994, on the same day his statement as also the statement of his grandmother were recorded and all the documents, namely, Ext. P-2 and P-6 were handed over by him to PW-1 who in turn handed them over to the Respondent. It was at this stage the purported demand was said to have been made. Strangely enough he met the Respondent in the evening of 03.03.1994, although a demand was said to have been made by the Respondent on 02.03.1994 in the office, presumably after office hours and then the amount of gratification was reduced from Rs.1,000/- to Rs.600/-.

PW-1 did not make any complaint to PW-3 on the said date i.e. 03.03.1994 and even on 04.03.1994, although from the conduct of PW-1 and PW-3, it is evident that they were very close to each other. PW-3 apparently intended to help him out of way. The valuation certificate was sent to PW-3 by the Respondent on 04.03.1994 which was signed by PW-3 on the same day. It was also certified by PW-4. It is wholly unlikely that although his demand was not met, the Respondent would forward his certificate to PW-3. The natural conduct of the Respondent, if he had in fact demanded any amount by way of gratification, would have been to wait for PW-1 to meet his demand.

It is not in dispute that it was PW-4, who was to evaluate the property and it was PW-3 who was to grant the certificate. The Respondent was merely a recommending authority. In the aforementioned situation, the High Court has arrived at the following findings :

“The evidence on record in this case discloses that Ex.P1 was submitted by PW1 directly to PW3 and it has moved with almost jet speed. The local verification, recording of statements, furnishing of certified copies of revenue record etc., had taken place within one day. The file reached PW3, in all probability on 03.03.1994 and he signed on the next day. PW3 was very much accessible to PW-1. If he sensed and delay or if there were any hindrances, he could have brought the same to the notice of PW.3 himself. When PW3 received Ex.P1 directly from PW.1 without any objection, there should not have been any impediment in handing over the Ex.P.8 to PW.1 directly. The accused was neither the issuing authority nor was the outward clerk. He figured somewhere in between. The handing over of Ex.P8 by PW3 to the accused appears to be deliberate and planned.

Suggestions to PW3 that he was suspended for certain irregularities on earlier occasion, he bore grudge against the accused and wanted to implicate him gains credence in this regard.” Shri K. Kumar (PW-8) was the Deputy Superintendent of Police, ACB, at Tirupathi. On 05.03.1994, he was at Cuddapah. According to PW- 1, he approached PW-8 at 6.35 a.m., whereas according to PW-8, he came to him at 8.00 a.m. The mediators were summoned and the trap was laid after making all arrangements therefor at about 12.30 p.m. After the transaction was completed, the Respondent was found having not only the tainted amount of Rs.600/- but also a sum of Rs.235/- in different denominations and wads. Why the said amount of Rs.235/- which was recovered from the right pocket of the accused was not subjected to phenolphthalein test is a matter of guess. The amount of Rs.235/- was kept in the same pocket of his trouser, it must have come in contact with the tainted amount.

PW-1 appears to be an influential person. He could approach PW-3 directly. He was in a position to obtain a certificate, copies of various documents from PW-4 on the same day as also obtain a certificate from him on the same day. Thus, as the valuation certificate was sent to PW-3 by the Respondent on 04.03.1994, there does not appear to be any good reason as to why PW-1 would not come to know thereabout. According to him, he came to know that PW-8 was at Cuddapah and be approached him in the early morning at 6.35 on 05.03.1994.

Having regard to the facts and circumstances of this case, we are of the opinion that two views are possible and the view of the High Court cannot be said to be wholly improbable; it cannot be said, in view of the discussions made hereinbefore, that the materials brought on records would lead to only one conclusion, i.e., the guilt of the accused. The impugned judgment, therefore, is sustained.

For the reasons aforementioned, we do not intend to interfere with the impugned judgment of the High Court. The Appeal is dismissed accordingly.

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Ranvir Singh & Anr. …PETITIONER
Vs
Union of India …RESPONDENT
DATE OF JUDGMENT: 07/09/2005
BENCH: Ashok Bhan & S.B. Sinha

J U D G M E N T

W I T H
CIVIL APPEAL NO.4117 OF 2003
CIVIL APPEAL NOS.1429-1435 OF 2004
CIVIL APPEAL NOS.2747-2751 OF 2004
CIVIL APPEAL NOS.2935, 2947-2957 OF 2004
CIVIL APPEAL NOS.3075-3076, 3079, 3083-3094 OF 2004
CIVIL APPEAL NOS.3170-3182 OF 2004
CIVIL APPEAL NOS.3186-3357 OF 2004
CIVIL APPEAL NOS.3359-3369 OF 2004
CIVIL APPEAL NOS.3371-3382 OF 2004
CIVIL APPEAL NOS. 3384-3394 OF 2004
CIVIL APPEAL NOS.3396-3402 OF 2004
CIVIL APPEAL NOS.3426-3438 OF 2004
CIVIL APPEAL NOS.3443-3454 OF 2004
CIVIL APPEAL NO.3463 OF 2004
CIVIL APPEAL NO.4908, 7759-62, 7765-7795 OF 2004
AND
CIVIL APPEAL NOS. 5546-5551, 5553-54, 5557-60 & 5562 OF 2005
[@ SLP (CIVIL) NOS.12073, 12075, 16318-20, 19846, 19848, 19851-52, 19854, 5558, 22411 & 23819 OF 2004]
AND
CIVIL APPEAL NO. 5561 OF 2005
[@ SLP (CIVIL) NO.17837 OF 2005]

S.B. SINHA, J :

Leave granted in the special leave petitions.

These appeals involving similar questions of fact and law were taken up for hearing together and are being disposed of by this common judgment.

The Union of India issued four notifications on or about 13.2.1981, 20.2.1981, 13.3.1981 and 31.12.1981 under Section 4(1) of the Land Acquisition Act (The Act) for acquisition of various blocks of land situated in village Rithala for construction of supplementary drain, sewage treatment plant, remodeling the Nagloi Drain and planned development of Delhi. In relation to the aforementioned acquisitions, four awards were passed being 4/85-86, 20/82-83, 1/83-84 and 16/85-86. The Land Acquisition Officer in its awards in regard to acquisitions in terms of notifications dated 13.2.1981 and 20.2.1981 sub-divided the acquired lands in two blocks and awarded compensation at the rate of Rs. 3800/- per bigha/ Rs. 3.77 per sq. yard for block A and Rs. 2600/- per bigha/ Rs. 2.57 per sq. yard for block B.

However, in regard to the acquisition in terms of notification dated 13.3.1981, compensation was awarded at the rate of Rs. 6500/- per bigha/ Rs. 6.45 per sq. yard whereas as regard the acquisition under notification dated 31.12.1981, compensation was awarded at the rate of Rs. 10837/- per bigha / Rs. 10.75 per sq. yard for block A, Rs. 9000/- per bigha/ Rs. 8.9 per sq. yard for block B and Rs. 7000/- per bigha/ Rs. 6.9 per sq. yard for block C respectively. Reference having been made to the Civil Court at the instance of the claimants in terms of Section 18 of the Land Acquisition Act, the Reference Court enhanced the amount of compensation in the following terms:

Date of Notification Amount of compensation 13.2.1981 Rs. 20000/- per bigha/ Rs. 19.85 per sq. yard 20.2.1981 Rs. 10800/- per bigha/ Rs. 10/- per sq. yard 13.3.1981 Rs. 10800/- per bigha/ Rs. 10/- per sq. yard 31.12.1981 Rs. 21000/- per bigha/ Rs. 20.83 per sq. yard Being not satisfied, the parties hereto preferred respective appeals in the High Court wherein the High Court awarded the following amounts of compensation:

Date of Notification Amount of compensation 13.2.1981 Rs. 67000/- per bigha/ Rs. 67 per sq. yard 20.2.1981 Rs. 67000/- per bigha/ Rs. 67/- per sq. yard 13.3.1981 Rs. 67000/- per bigha/ Rs. 67/- per sq. yard 31.12.1981 Rs. 73584/- per bigha/ Rs. 73 per sq. yard Before this Court, 179 appeals have been filed by the Union of India and 163 appeals have been filed by the claimants out of which 244 matters were listed before us.

The representative fact of the matter is being noticed from Civil Appeal No. 2747 of 2004.

In the award being No. 16/85-86, 677 claim applications were filed claiming different amount of compensation. The Land Acquisition Collector in his awards while determining the market value took into consideration several deeds of sale and/ or awards for acquisition of lands in neighbouring villages held :

“Keeping in view the above facts and taking into account of raising trend in the market value of the land, I assess the fair and reasonable market value of the land which kept in Block A is based on average price of sale deeds mentioned at sarila No.

5-11 which comes to Rs. 10837/- per Bigha.

Therefore, I assured the fair and reasonable market value of land in Block “A” @ 10, 340/- making the round figure of Rs. 10837/- per Bigha, Block “B” @ Rs. 9000/- per Bigha and Block “C” @ Rs.

7000/- per Bigha and accordingly awarded the same. No compensation is assessed for Gair Mumkin Sarak which consists the total land measuring 42 Bigha 06 Biswas.” He, however, in certain individual cases considered the question relating to grant of further compensation in view of special features therein.

Before the Reference Court the claimants relied upon the following documents:

Union of India passed by Shri S.R. Goel, Additional District Judge, Delhi in respect of land acquired vide Award No. 20/82-83 (date of notification U/s. 4 dated 20.2.1981). Market value therein was fixed at the rate of Rs. 20,000/- per bighas.

Union of India passed by Shri H.R. Malhotra, Additional District Judge, Delhi in respect of land acquired vide Award No. 4/85-86 (Notification U/s. 4 dated 13.2.1981) wherein the Market Value was fixed at the rate of Rs. 20,000/-.

(iii). Exhibit P-III: copy of sale deed executed on 9.4.1981 in respect of land measuring 1 bigha out of Khasra No. 967 in village Rithala for a total consideration of Rs. 35,000/-.

(iv). Exhibit P-IV: copy of sale deed executed on 27.7.1981 for 1 bigha of land out of Khasra No. 1217 situated in village Rithala for a consideration of Rs. 49,000/-.

(v). Exhibit P-V: copy of sale deed executed on 3.11.1981 in respect of 7 Biswas of land out of Khasra No. 133 situated in Village Rithala for a consideration of Rs. 24,000/-.

(vi). Exhibit P-VI: copy of sale deed executed on 3.11.1981 in respect of 7 Biswas of land out of Khasra No. 133 situated in Village Rithala for a consideration of Rs. 24,000/-.

The claimants had also relied upon a circular dated 21.10.1981 as also a judgment delivered by Additional District Judge in LAC No. 557 of 1993 acquired was assessed at Rs. 21000/- per bigha.

Union of India, on the other hand, relied upon the following documents which were also marked exhibits before the Reference Court:

(i). Exhibit R-1: copy of judgment delivered by Additional District Judge Union of India relating to Award No. 1/83-84 wherein market value was fixed at the rate of Rs. 10,800/- per bigha as on 13.3.1981.

(ii). Exhibit R-II: copy of judgment delivered by Additional District Judge, Delhi in Land Acquisition Collector No. 57/83 titled as Jit Ram & Rithala wherein the market value of the land was fixed at the rate of Rs. 10,800/- per bigha for all kinds of land.

(iii). Exhibit R-III: copy of sale deed executed on 28.11.1981 for a piece of land measuring 4 bighas 12 biswas out of Khasra No. 59/15 situated at Village Rithala for a consideration of Rs. 46,000/-.

(iv). Exhibit R-IV: copy of the sale deed executed on 5.6.1981 for a piece of land 3-12 bigha comprising in Mustalil No. 58 Kila No. 15 situated at Village Rithala for a consideration of Rs. 32,500/-.

(v). Exhibit R-V: copy of the sale deed executed on 9.2.1981 for 1 bigha 3 biswas of land being part of Khasra No. 6/17 situated in village Rithala for a consideration of Rs. 10,800/-.

(vi). Exhibit R-VI: copy of sale deed whereby about 3 bigha 3 biswas of land falling in Khasra No. 58/14 in village Rithala was sold for a consideration of Rs. 34,000/-.

(vii). Exhibit R-VII: sale deed executed on 9.2.1981 whereby land measuring 1 bigha 3 biswas part of Khasra No. 6/19 in village Rithala was sold for a sum of Rs. 10,800/-.

Out of the aforementioned Exhibits, Exs. R-1, R-III, R-IV, R-V, R-VI and R-VII pertain to portions of the acquired lands. The High Court, however, in its impugned judgment principally relied upon a brochure issued by the Delhi Development Authority in respect of Rohini as also the circular letters issued by the Union of India fixing value of the land for the purpose of computing the stamp duty under the Indian Stamp Act.

Mr. R. Mohan, the learned Additional Solicitor General appearing on behalf of the Union of India in assailing the impugned judgment would submit that the High Court committed a manifest error in solely relying upon two documents, viz., Exs. A & B wherein the schedule of rates of developed residential and commercial land in different areas of Delhi were mentioned as also a brochure of Delhi Development Authority inviting applications for purchase of fully developed lease-hold plots in the adjacent residential scheme without taking into consideration the deeds of sale and other judgments which had been relied upon by the parties before the Reference Court.

The learned counsel would contend that the circular letters fixing the circle rates is inadmissible in evidence and, thus, the High Court has committed a manifest error in basing its judgment thereupon. Reliance in this behalf has been placed on Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun through its Secretary vs. Bipin Kumar and Another [(2004) [(1995) 5 SCC 310], U.P. Jal Nigam, Lucknow through its Chairman and Urban Development Authority, Hyderabad and Others, [1995] INSC 92; (1995) 2 SCC 305], Another [(1995) 1 SCC 717] and Jawajee Nagnatham vs. Revenue Divisional Officer, Adilabad, A.P. and Others [(1994) 4 SCC 595].

It was furthermore urged that the sale deeds produced by the parties could not have been brushed aside on the ground that the same had not been proved by examining the vendors and vendees thereof in view of the Constitution Bench decision of this Court in Cement Corpn. Of India Ltd.

relevant piece of evidence for determining the market value as on the date of acquisition would be the sale deeds and in particular pertaining to portions of the acquired lands which having not been taken into consideration by the High Court, the impugned judgment cannot be sustained.

The learned Additional Solicitor General would further contend that such market value has to be assessed not only having regard to the comparable sales method but also having regard to the size of the land, area, other features thereof and several other relevant factors.

The learned Additional Solicitor General submitted that the deduction at the rate of 53% or more is permissible in law as the same would vary from place to place, area to area and extent of development required to be carried out. Reliance in this behalf has been placed on Land Acquisition Officer, Kammarapally Village, Nizamabad District, A.P. vs. Nookala Rajamallu and Acquisition Officer and Others [(1996) 9 SCC 640].

Our attention was also drawn to a decision of 3-Judge Bench of this SCC 167] wherein this Court accepted the amount of compensation as made by the Land Acquisition Collector at the rate of Rs. 12100/- per bigha for Block A, Rs. 12000/- per bigha for Block B and Rs. 6000/- per bigha for Block C and rejected grant of higher compensation by the Reference Court as also the High Court.

Mr. R.F. Nariman, Mr. R. Venkataramani and other learned counsel appearing on behalf of the Respondents, on the other hand, would submit that the xerox copies of the deeds of sale produced before the court were not admissible in evidence and in that view of the matter, the High Court acted within its jurisdiction in relying upon the brochure issued by the Delhi Development Authority in respect of the village Rithala which admittedly is adjacent to Rohini which is a fully developed colony. Rohini, it was urged, was developed during the period 1961 and 1981 and in that view of the matter the notifications under Section 4 of the Land Acquisition Act having been issued on different dates in the year 1981, the price offered for grant of a long term lease by Delhi Development Authority would provide for the best instance for computation of the amount of compensation.

The learned counsel drew our attention to the fact that if the market value of the acquired land was to be determined on the basis of deeds of sale, various factors relevant therefor including distance of the acquired land from the land sold, the quality of the land, and other features thereof as well as various other factors were required to be proved by adduction of oral evidence which having not been done, the High Court cannot be said to have committed any error in relying upon the brochure issued by the Delhi Development Authority.

The learned counsel, however, conceded having regard to the decisions of this Court that the circle rates notified in the circular letters issued by the Union of India for the purpose of fixing the rate of stamp duty would not be admissible in evidence.

Drawing our attention to a recent decision of this Court in R.P. Singh Nariman submitted that having regard to the fact that the market value of the land acquired in village Mangolpur Kalan, Delhi was determined at the rate of Rs. 7000/- per bigha in respect of an acquisition made in the year 1961 and, thus, this Court may assess the market value of the lands situate in village Rithala upon considering the increase therein at the rate of 12% per annum.

In support of the cross-objections filed by the Respondents, the learned counsel would submit that deduction at the rate of 60% by the High Court was on a high side as village Rithala was a semi-developed area. Our attention in this regard has been drawn to a recent decision of this Court in Om Prakash (Dead) By LRs. and Others vs. Union of India and Another [(2004) 10 SCC 627] wherein the judgment of the High Court awarding compensation at the rate of Rs. 82255/- per bigha for acquisition of the land in the year 1983 was not interfered with.

Concededly, the High Court in its impugned judgment did not place any reliance whatsoever upon the sale instances whereupon strong reliance has been placed by the parties solely on the ground that neither the vendors nor the vendees thereof had been examined as witnesses. It has also not placed any reliance upon any other judgment or award filed by the parties.

The High Court while arriving at the said finding evidently took into consideration the law as it then stood. The correctness of the decisions wherein the aforementioned view had been taken was doubted and the matter was referred to a larger Bench. A Constitution Bench of this Court in Cement Corporation of India Ltd. (supra), opined:

“25. Section 51A of the Land Acquisition Act seeks to make an exception to the aforementioned rule.

26. In the acquisition proceedings, sale deeds are required to be brought on records for the purpose of determining market value payable to the owner of the land when it is sought to be acquired.

27. Although by reason of the aforementioned provision the parties are free to produce original documents and prove the same in accordance with the terms of the rules of evidence as envisaged under the Indian Evidence Act, the L.A. Act provides for an alternative thereto by inserting the said provision in terms whereof the certified copies which are otherwise secondary evidence may be brought on record evidencing a transaction. Such transactions in terms of the aforementioned provision may be accepted in evidence.

Acceptance of an evidence is not a term of art. It has an etymological meaning. It envisages exercise of judicial mind to the materials on record.

Acceptance of evidence by a court would be dependent upon the facts of the case and other relevant factors. A piece of evidence in a given situation may be accepted by a court of law but in another it may not be.

28. Section 51 A of the L.A. Act may be read literally and having regard to the ordinary meaning which can be attributed to the term ‘acceptance of evidence’ relating to transaction evidenced by a sale deed, its admissibility in evidence would be beyond any question. We are not oblivious of the fact that only by bringing a documentary evidence in the record it is not automatically brought on the record. For bringing a documentary evidence on the record, the same must not only be admissible but the contents thereof must be proved in accordance with law. But when the statute enables a court to accept a sale deed on the records evidencing a transaction, nothing further is required to be done. The admissibility of a certified copy of sale deed by itself could not be held to be inadmissible as thereby a secondary evidence has been brought on record without proving the absence of primary evidence. Even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word ‘may’. A discretion, therefore, has been conferred upon a court to be exercised judicially, i.e., upon taking into consideration the relevant factors.” In view of the said latest pronouncement of this Court, thus, the High Court was required to consider the deeds of sale in their proper perspective for determining the market values of the acquired land.

Contention of Mr. Nariman that the Xerox copies of the deeds of sale produced by the parties were not admissible in evidence in terms of Section 51A of the Land Acquisition Act is stated to be rejected. The provisions of the Indian Evidence Act postulate that secondary evidence can be led by the parties in the event primary evidence is not available. In a case of this nature, however, the claimant-respondents may be aware of the transactions.

Indisputably, they did not raise any objection as regard admissibility of the said deeds of sale . The xerox copy of the deeds of sale were marked exhibits without any objection having been taken by the Respondents herein.

Such an objection cannot, therefore, be taken for the first time before this Court. [See R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752 & Dayamathi Bai (Smt.) vs. K.M. Shaffi – (2004) 7 SCC 107]. What would be their evidentiary value may ultimately fall for consideration by the Court but the said deeds of sale cannot be rejected only on the ground that only Xerox copies thereof had been brought on records. The onus to prove the market value as obtaining on the date of notification was on the claimants. It was for them to adduce evidence to prove their claims by bringing sufficient and cogent materials on record so as to enable the court to determine the market value of the acquired land as on the date of issuance of notification under Section 4 of the Land Acquisition Act. If the claimants themselves filed Xerox copies of the deeds of sale or failed to examine any witness to prove the relevant factors for determining the market value of the land acquired with reference to the said sale instances, they cannot now be permitted to resile therefrom and contend that the said documents should be totally ignored.

We have noticed hereinbefore the concession of Mr. Nariman as regard inadmissibility of the notification issued by the Union of India determining the circle rates. The notifications issued by the Union of India, therefore, whereupon strong reliance has been placed by the High Court cannot form the basis for determining the market value of the acquired lands.

This leaves us with the brochure issued by the Delhi Development Authority. Before, however, we advert to the rival contentions raised by the parties in this behalf, it may be observed that the Delhi Development Authority was not a party before the High Court and an application was filed only before this Court for impleading it as a party. The Delhi Development Authority, thus, got no opportunity to raise any contention as to why the sale brochure should not be considered to be a determinative criterion for the purpose of fixation of market value of the lands in question. We may, furthermore, notice that a housing scheme at Rohini was floated by the Delhi Development Authority. The lands at Rohini were agricultural in nature.

They were acquired in the year 1961. It became a residential area at the time of issuance of the notification in question issued under Section 4 of the Land Acquisition Act. The approximate population of Rohini was 8,50,000.

There were work centres. Major facilities like health, education, social and cultural were thence available. The provisional rates for land in the said brochure were notified as under:

“Size of plot in sq. mts.

Category Rate per sq. mt.

26 EWS/JANTA Rs. 100 32 LIG Rs. 125 48 LIG Rs. 150 60 MIG Rs. 200 90 MIG Rs. 200” The High Court without having regard to different sizes and different categories of land separately took into consideration the value of 48 sq. mts.

of land at the rate of Rs. 150/- per sq. mtr. It, keeping in view of the fact that the Delhi Development Authority sought to create lease-hold right whereas upon acquisition of land a free-hold right would be created, multiplied the said figure by two and arrived at a conclusion that the market value of 1 sq.

mtr. of land at Rohini would be Rs. 300/-. The mean figure thereof was taken at Rs. 200/- per sq. mts. as wholesale price of free-hold plots in a developed condition. From the said Rs. 200/-, 60% had been deducted towards costs of development and considering the large extent of land, the retail market price was worked out at Rs. 80/- per sq. mtr.

While adopting the said method, in our opinion, the High Court committed manifest errors. The market value of fully developed land cannot be compared with wholly underdeveloped land although they may be adjoining or situated at a little distance. For determining the market value, it is trite, the nature of the land plays an important role.

10 SCC 529], this Court held:

“10. It was next submitted that the claimants were entitled to higher compensation as the Respondents had in 1989 auctioned plots of land at the rate of Rs. 1725 to Rs. 2510 per square yard. In our view this submission merely needs to be stated to be rejected. What price is fetched after full development cannot be the basis for fixing compensation in respect of land which was agricultural.” The High Court did not consider any relevant criteria on the basis whereof it could come to the conclusion that the value of the freehold lands would be double of the value of the leasehold lands. The fact that in terms of the brochure the leasehold was to be a perpetual one and the ground rent payable therefor was absolutely nominal being Re.1/- per plot per annum for the first five years and thereafter at the rate 2 =% of the total amount of the premium, which was to be enhanced only after every 30 years, was a relevant factor which should have been taken into consideration for arriving at a finding in that behalf. It is worth noting that the terms and conditions were set out for sale by the Delhi Development Authority on behalf of the President of India of perpetual lease-hold rights in the residential plots under the Rohini Scheme.

A large amount of money was spent for development of Rohini over a period of 20 years. A large area has been earmarked for schools, hospitals, community halls, etc. Many other advantages were also provided. In law it may be perceived that the scheme floated by the D.D.A. may not be viable and as such the possibility of reduction of the rate at a future date could not be ruled out.

We need not dilate on the relevant criteria for determining the market value as the same are no longer res integra. The relevant factors which were to be taken into consideration for determining the market value have recently been stated by this Court in Viluben Jhalejar Contractor (Dead) By Lrs. vs.

State of Gujarat [(2005) 4 SCC 789]. See also Basavva (supra).

Furthermore, it is well-settled that the sale deeds pertaining to portion of lands which are subject to acquisition would be the most relevant piece of evidence for assessing the market value of the acquired lands. [See Land Morisetty Satyanarayana and Others (2002) 10 SCC 570] For the purpose of determining the market value, even market conditions prevailing as on the date of notification are relevant. [See Jasti Rohini (supra)] The burden of proof that the acquired land and the land covered by sale transaction bear similar or same potentialities or advantageous features is also on the claimant. [See Jawajee Nagnatham (supra), P. Ram Reddy Others, (2001) 7 SCC 650] Sale price in respect of a small piece of land, it is well settled, cannot be the basis for determination of a market value of a large stretch of land. In Ram Phool (supra), this Court held that an isolated deed of sale showing a very high price cannot be the sale basis for determining the market value.

The said decision was rendered in relation to a land situated at village Poothkalan which is adjacent to the lands in question. Even the claimants, it is interesting to note, had exhibited sale deeds in respect to the land situated at village Poothkalan for proving their claim.

We need not dilate upon the other relevant factors in great details NOS. 6825-26 OF 2003] disposed of this date, we have considered the same at some length.

Furthermore, a judgment or award determining the amount of compensation is not conclusive. The same would merely be a piece of evidence. There cannot be any fixed criteria for determining the increase in the value of land at a fixed rate. We, therefore, are unable to accept the contention of Mr. Nariman that as in one case we have fixed the valuation of Rs. 7000/- per bigha wherein the lands were acquired in the year 1961, applying the rule of escalation the market rate should be determined by calculating the increase in the prices at the rate of 12% per annum. We do not find any justifiable reason to base our decision only on the said criteria.

In any event, the claimants having not examined any witness, it cannot be accepted that the village Rithala was a semi-developed area or it had a great potentiality.

Keeping in view the facts and circumstances of this case, we are of the opinion that the impugned judgments cannot be sustained and accordingly the same are set aside. The matters are remitted to the High Court for consideration of the matter afresh. The High Court shall proceed to determine the market value of the acquired land upon taking into consideration the materials on record and all other relevant factors necessary for determining the market value of the lands in question.

These appeals are disposed of with the aforementioned directions.

However, we would request the High Court to consider the desirability of disposing of the appeals as expeditiously as possible and preferably within a period of six months from the date of communication of this order and receipt of records. No costs.

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