TaxTMI 
TaxTMI 
1968 (10) TMI 111
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....t others, Sections 367, 372 and 385 of Act 3 of 1888 enacting that an owner of the carcass of a dead animal shall deposit it at the place appointed in that behalf by the Corporation, and entrusted the Corporation with power to arrange for disposal of the carcasses. On October 1961 the Assistant Head Supervisor of the Municipal Corporation called upon the first respondent to stop removing carcasses from the "K" Ward of the Corporation. On November 27, 1961, the Corporation published a notification inviting the attention of the public concerned to the provisions of Section 385 and other provisions of the Act and warned the persons concerned that violation of the provisions was liable to be punished. On January 10, 1962, the Corporation resolved to grant a contract authorising removal and disposal of carcasses under Section 385 of the Act in respect of Wards, H, K, L, M, E, P, B, & T to the Harijan Workmen's Co-operative Labour Society Ltd., and declared that no other person or agency was authorised to remove and dispose of carcasses under the provisions of Section 385 of the Act. 3. Respondents Nos. 1 & 2 to this appeal moved a petition in the High Court of Bombay for an order cance....
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....on of unhealthy localities, removal of noxious vegetation and generally the abatement of all nuisances. By Sections 365, 366, 367, 368, ,372 and 385 it was provided that- Section 365--"For the purposes of securing the efficient scavenging and cleansing of all streets and premises, the Commissioner shall take measures for securing- (a) X X X X X (b) the removal of the contents of all receptacles and depots and of the accumulations at all places provided or appointed by him under Section 367 or 368 for the temporary deposit of any of the matters specified in the said sections." Section 366- "All matters collected by municipal servants or contractors in pursuance of the last preceding section and of Section 369 and carcasses of dead animals deposited in any public receptacle, depot or place under Section 367 shall be the property of the Corporation." Section 367--The Commissioner shall provide or appoint in proper and convenient situations public receptacles, depots and places for the temporary deposit or final disposal of- (a) dust, ashes, refuse and rubbish; (b) trade refuse; (c) carcasses of dead animals and excrementitious and polluted matter; Provided that- ....
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....f the animal or, if the owner is not known, by the occupier of the premises in or upon which, or by the person in whose charge, the said animal died." The provisions are manifestly enacted with the object of ensuring expeditious removal of carcasses of dead animals which, if allowed to remain, are likely to constitute a grave nuisance and are likely to endanger public health. The carcass of a dead animal is a noxious tiling, which in the hot and humid climate of Bombay putrefies within a short time after the death of the animal and defiles the place and atmosphere with foul smells and is likely to spread disease if immediate and proper steps for removal and disposal are not taken. The Municipal Corporation is entrusted with authority to take steps to protect the health of the residents within the Municipal area. To ensure against a grave nuisance to the residents, duty is imposed by the Act upon the owner of the animal or occupier of the premises in or upon which the animal dies or the person having charge of the animal to remove the carcass with the permission of the Commissioner in that behalf at his own expense, or to have it removed through the agency of the Corporation, If it ....
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....tes in Gerrit W. Clason v. State of Indiana, (1939) 83 Led 858 on which reliance was placed by counsel for the Corporation merely decided that a State statute requiring the owner of a dead animal not slaughtered for food to bury or burn such body on his premises or to deliver it to the representative of a disposal plant licensed to do business within the State, and prohibiting transportation over the highways of the State of the body of such animal except to a licensed disposal plant and with certain sanitary precautions, did not unduly discriminate against and burden inter-state commerce. The judgment does not support the plea that a citizen carrying on the business in the disposal of the carcasses is not entitled to the constitutional protection against unreasonable restrictions on the carrying on of any lawful business or occupation. The second respondent is not a dealer in carcasses. He has a right of ownership in the carcass. He claims that before the enactment of the impugned provisions he was accustomed to sell the carcass of an animal dying in his stable for a price: he is under the Act enjoined to deposit the carcass in an appointed place and for that purpose to incur expe....
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....poses an unreasonable restriction. The High Court also observed that a law which declares that as soon as the carcass--which is a valuable property--is deposited, it becomes the property of the Corporation, makes an unreasonable provision since "it makes no difference whether the carcass is disposed of by a purchaser from the owner of the carcass or by a contractor who purchased it from the Corporation." But in so holding, in our judgment, the High Court ignored the hazard to the public health arising from adulteration of the food of the people. There is evidence on the record which is not controverted that meat and fat from the carcasses are used by unscrupulous persons for adulterating the food of the community. Mere imposition of an injunction to remove the carcass within the prescribed period abates the nuisance likely to result from the carcass remaining on the premises of the owner, it does not eliminate grave hazard to public health by the adulteration of the food of the people by the products from carcasses. By merely enacting that the carcass will be removed expeditiously the second object cannot be served. The Corporation has control over the contractor to whom the carcas....
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....atanjali Sastri, C. J., in State of Madras v. V. G. Row, 1952CriLJ966 "the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict." As stated by Mahajan, J., in Chintamanrao v. State of Madhya Pradesh, [1950]1SCR759 : "The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted, Clause (6) of Article 19 it must be held to be wanting in that quality." The High Court was of the view that looking to the object intended to be achieved it was not nec....
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....e levy of ₹ 20 as fee for removal of each carcass was excessive. But there is no evidence before the Court about the expenses which the Corporation is required to incur in performing the service relating to the removal of carcasses of all animals some of which may yield in disposal valuable by-products and others not. Evidently in a large and crowded metropolitan city it would be necessary to maintain covered wagons for removal of carcasses, to maintain an inspecting staff, to make adequate arrangements for deposit of carcasses at certain places, and for their disposal under the supervision of the Municipal staff. Whether the fee levied from the owner of the carcass of an animal in excess of the expenditure which the Corporation will have to incur for the maintenance of the service is not commensurate is a matter on which no investigation appears to have been made and this Court cannot enter upon that question for the first time. 14. It was, however, urged that a provision which not only extinguishes the title of the owner in the carcass thereby involving him into loss of the value which he would have obtained by sale of the carcass, but simultaneously imposes upon him a lia....
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.... or (b) the provisions of any law which the State may hereafter make- (i) x x x x x x (ii) for the promotions of public health or the prevention of danger to life or property; or (iii) x x x x x (6) x x x x x x" Before the Constitution (Fourth Amendment) Act, 1955, the prevailing opinion in this Court was that Article 31(1) and (2) dealt with the same subject-matter and were not mutually exclusive in their scope and content, and should be read together and understood as dealing with the same subject, namely, the acquisition or taking possession of property referred to in Clause (2) of Article 31, and that Article 31 (before amendment) is a self-contained Article providing for a subject different from that dealt with in Article 19. But since the enactment of the Constitution (Fourth Amendment) Act, 1955, Clauses (2) and (2A) of Article 31 and Clause (1) of Article 31 deal with different subjects: Clauses (2) and (2A) deal with acquisition and requisitioning of property; and Clause (1) with deprivation of property by authority of law; Kavalappara Kottarathil Kochuni v. State of Madras, [1960]3SCR887 . It was also held in that case that the word 'law' used in Article 31(1)....
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....es for compensation for the property so acquired or requisitioned. The expression "acquired or requisitioned x x for a public purpose" means acquired or requisitioned for being appropriated to or used for a public purpose. But the law which provides for extinction of the ownership and creation of an interest in the Corporation for the purpose of disposal of the carcass is not a law for acquisition of property for a public purpose: its primary purpose is of destruction of the carcass in the public interest, and not utilisation of the property for a public purpose. The case would not, therefore, fall within the terms of Article 31(2). In any case the statute is squarely protected by Clause (5) (b) (ii) of Article 31 and on that account the owner is not entitled to compensation for loss of his property. The words of Article 31(5)(b)(ii) are express and specific. Nothing in Clause (2) shall affect the provisions of any law which the State may hereafter make for the promotions of public health or the prevention of danger to life or property. If a law is enacted directly for the promotion of public health or for the prevention of danger to life or property, then, notwithstanding that it ....
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....tion of danger to life or property sometimes has to provide for destruction and impairment of value of private property and the taking of temporary possession of the property by the State. It may be necessary to destroy contaminated food or to burn plague-infested buildings for the promotion of public health, to pull down a building to prevent a fire from spreading and consuming other buildings in the locality, to demolish a building in a ruinous condition endangering the safety of its occupants and other persons in its vicinity. The destruction and the temporary taking of property for such purposes, though necessary for promoting public health or preventing danger to fife or property amounted to taking of property within Clause (2). But for Clause (5)(b)(ii), a law authorising such a taking of property would have been invalid unless it provided for compensation. Clause (5) (b) (ii) saved such laws from the operation of Clause (2) and those laws were not invalid because they authorised such a taking without payment of compensation. A law authorising the abatement of a public menace by destroying or taking temporary possession of private properties if the peril cannot be abated in s....
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....tion by the (Constitution Fourth Amendment) Act. 21. It is sufficient for the purpose of this case to hold that a law declaring extinction of the right of the owner in movable property not with a view to use it for a public purpose but to destroy it for abating nuisance and preventing danger to public health and vesting it in the Corporation entrusted with power to take steps to maintain public health is not a law for acquisition of property for a public purpose. In any event the law is not, because of the exemption contained in Clause (5)(b)(ii) of Article 31 of the Constitution, invalid even if it does not provide for payment of compensation for deprivation of the right to property. The owner of the carcass is, therefore, unable to sustain his plea that Article 19(1)(f) or Article 31(2) were infringed by the impugned provisions. 22. The claim of the first respondent who would, but for the law, have been able to purchase carcasses from the second respondent does not require any elaborate discussion. The first respondent is carrying on business as a skinner of carcasses and claims protection of its fundamental right under Article 19(1)(g) of the Constitution. Evidently it has no ....