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IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 3270 of 1998
PETITIONER:
Om Prakash & Others
RESPONDENT:
State of UP & Others
DATE OF JUDGMENT: 09/03/2004
BENCH:
D.M. Dharmadhikari
JUDGMENT:
J U D G M E N T
Dharmadhikari J.
On the question of competence of the Municipal Board
Rishikesh to amend the bye-law and validity of ban on sale of eggs in
public within the municipal limits of Rishikesh, I have found myself in
respectful agreement with the reasoning and conclusion of learned
Brother Shivaraj V. Patil, J.
I, however, consider it necessary to deal with seperately the
ground urged to assail the bye-law as being violative of fundamental
right of trade guaranteed to citizens under Article 19 (1) (g) read
with Article 19 (6) of the Constitution of India.
Right to practice any profession or to carry on any occupation,
trade or business being a very valuable right has been treated as
fundamental and guaranteed under Article 19 (1) (g) of the
Constitution. This right can be restricted under Article 19 (6) only by
law and on such reasonable grounds which are found to be in the
interest of general public. What should be considered a reasonable
restriction within the meaning of clause (6) of Article 19 came up for
consideration in a series of cases before this Court.
In Chintaman Rao vs. State of M.P. [AIR 1951 SC 118], it was
observed that there should be proper balance between the right of
trade guaranteed under Article 19(1)(g) and the social control
permitted under clause (6) of Article 19 :-
’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 by Clause (6) of Article 19,
it must be held to be wanting in that quality’.
[emphasis added]
In the case of State of Madras vs. V.G. Row [AIR 1952 SC
196], this Court observed that there can be no general principles or
standards to test reasonableness of a restriction on a particular
trade. Each case has to be judged on the basis of facts and
circumstances brought to the notice of the Court.
’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
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judicial verdict’.
[emphasis added]
The observations in the aforesaid two decisions have been
quoted with approval in the State of Maharashtra vs. Himmatbhai
Narbheram Rao [AIR 1970 SC 1157] in which challenge to
Section 385 of Bombay Municipal Corporation Act imposing
restrictions on dealing with carcass or skin of animals within the
municipal limits as affecting the trade of the people dealing in those
obnoxious items was negatived holding such restrictions to be in
general public interest.
Reasonable restriction on certain trades in articles which are
hazardous to public health such as liquor, it is held, can go to the
extent of imposing complete prohibition on such trade. See State of
Andhra Pradesh vs. Mcdowell & Co. [ 1996 (3) SCC 709] .
Complete ban on slaughter of cow and its progeny has also
been upheld to save cow as an animal species highly useful to human
community. See Mohd. Hanif Quareshi & Ors. vs. State of Bihar
[AIR 1958 SC 731] and Hashmattullah vs. State of Madhya
Pradesh & Ors. [ 1996 (4) SCC 391 ].
Learned Counsel on behalf of appellants has argued that trade
of eggs cannot be considered as objectionable or injurious to society.
In fact, egg eating is encouraged as necessary for improvement of
public health. Doctors recognise it as a nutritive supplement to other
food. There are eggs which contain no chicks and, therefore,
acceptable to many sections of the society including those who are
otherwise vegetarians.
The basic question, therefore, that arises is whether complete
prohibition imposed on trade of eggs within the municipal limits of
Rishikesh can be held to be reasonable and can pass the test of
clause (6) of Article 19, as has been interpreted by this Court from
case to case in various situations
It is a matter of common knowledge that Haridwar, Rishikesh
and adjoining town Muni Ki Reti situate on the bank of river Ganges
are pilgrim centres with huge temple complexes, shrines, ashrams,
yoga teaching institutions and other institutions engaged in religious
activities and spiritual practices. The three towns attract pilgrims
round the year and in greater numbers during auspicious days and
annual fairs. Pilgrims congregate in the towns to take bath in river
Ganga considered to be holy by them. They visit temples and stay in
various religious places and institutions. There is, thus, a continuous
inflow of pilgrims in these religious towns. Every 6th year a big
religious fair is organised called as Purn Kumbh or Ardh Kumbh in
which crores of people from all over the country congregate in the
three towns.
Supporting the imposition of ban on trade of eggs along with
ban on trade of meat and fish, which is already in existence, it has
been stated by the State and the local authority that it was so
imposed on constant demands of citizens, various organisations and
institutions operating within Haridwar and Rishikesh areas. Copies of
some of such representations in writing received from individuals and
religious organisations have been placed on record of this case. A
major section of the society in the three towns consider it desirable
that vegetarian atmosphere is maintained in the three towns for the
inhabitants and the pilgrims.
In municipal limits of Haridwar public dealing in meat, fish and
eggs was banned by the Notification issued as far back as on 23rd
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July, 1956 and in Muni Ki Reti by Notification dated 18.12.1976.
These restrictions imposed in Haridwar and Muni Ki Reti have not
been challenged by any section of people in the Court and have
continued as fully acceptable to all. The towns of Haridwar and
Rishikesh have acquired religious importance as they are located on
banks of river Ganges in the foot hills of Himalayas and are two main
entry points for pilgrimage to Badrinath and Kedarnath located on
the heights of Himalayas.
As a justification for extension of ban on trade of eggs with ban
on trade of meat and fish in municipal area of Rishikesh which
adjoins Haridwar and Muni Ki Reti, it has been stated on behalf of
Municipal Board and State that during the periodical Kumbh fairs, the
areas which are notified for organizing Kumbh Mela comprise parts of
municipal areas in Haridwar, Muni Ki Reti and Rishikesh. One such
Notification earmarking the areas of Kumbh Mela held in the year
1992, issued under byclause (2) of United Province, Mela Act of
1938 (UP Act No.16 of 1938) has been annexed with counter
affidavit of the State.
The High Court in upholding complete restriction on dealing
and trading of eggs in Rishikesh has relied on several decisions of
this Court. The High Court has come to the conclusion that such
prohibition extended to the trade of eggs in municipal town of
Rishikesh is a reasonable restriction and has been imposed in the
interest of general public.
Whether a particular restriction on trade to the extent of its
complete prohibition can be held to be ’reasonable’ within the
meaning of clause (6) of Article 19 depends upon the nature of the
trade involved and the public interest that is intended to be served by
such total restriction.
The concept of ’reasonableness’ defies definition. Abstract
definition like ’choice of a course which reason dictates’ as
propounded in the earliest case of this Court in Chintaman Rao
(Supra) is elastic. In the subsequent case of V.G. Row (supra),
therefore, this Court has observed that ’no abstract standard or
general pattern’ of reasonableness can be laid down as applicable to
all cases. Legal Author Friedmann in his book ’Legal Theory, 4th Ed.,
at pages 83-85’, comments that reasonableness is an expression
used to convey basically the Natural Law ideal of ’justice between
man and man’. The concept of ’reasonable man’ is also an application
of the principles of natural justice to the standard of behaviour
expected of the citizen. Th functional and conceptual implication of
the term ’reasonableness’ is that it is essentially another word used
for public policy. It means the application of the underlying principles
of social policy and morality to an individual case. Friedmann further
observes that the ’test of reasonableness is nothing substantially
different from ’social engineering’, ’balancing of interests’, or any of
the other formulas which modern sociological theories suggest as an
answer to the problem of the judicial function’.
The term ’reasonable restriction’ as used in Article 19(6) is
highly flexible and relative term which draws its colour from the
context. One of the sources to understand it is natural law and in the
sense of ideal, just, fair, moral or conscionable to the facts and
circumstances brought before the Court.
The law regulating local administration of an urban or rural area
affects the social and economic life of the community. As pointed out
by another Legal Thinker Stone, in his book Social dimensions of
Law & Justice ’reasonable restriction’, if properly used, helps in
’adjustments of conflicting interests’ such as in the present case
where large number of people residing and visiting Rishikesh, believe
in strict vegetarianism as a part of their religion and way of life. The
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appellants who are running hotels and restaurants and others like
them constitute comparatively a very small section of the society
engaged in carrying on trade of non-vegetarian food items in the
town.
The reasonableness of complete restriction imposed on trade of
non-vegetarian food items has, therefore, to be viewed from the
cultural and religious background of the three municipal towns.
It is a matter of common knowledge that members of several
communities in India are strictly vegetarians and shun meat, fish
and eggs. Such people in great number regularly and periodically
visit Haridwar, Rishikesh and Muni Ki Reti on pilgrimage.
In the three towns people mostly assemble for spiritual
attainment and religious practices. All citizens are enjoined by
Fundmental Duties prescribed in Article 51-A to respect faith of each
other and thereby ’promote harmony and spirit of common
brotherhood’ in a pluralistic society as India is.
Article 51-A\027 "It shall be the duty of every citizen of India \027
(a)
(b)
(c)
(d)
(e) to promote harmony and the spirit of common
brotherhood amongst all people of India transcending
religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite
culture."
The Fundamental Duties enjoined on citizens under Article 51-A
should also guide the legislative and executive actions of elected or
non-elected institutions and organisations of the citizens including the
municipal bodies.
The resolution by Municipal Board Rishikesh to amend its bye-
laws for banning public dealing and trade of non-vegetarian food
items in municipal town of Rishikesh along with adjoining towns of
Haridwar and Muni Ki Reti has been taken in deference to the
religious and cultural demands of large number of residents and
pilgrims who visit regularly and periodically on auspicious and festive
days to the three towns. It is stated on behalf of the Municipal Board
that major source of revenue and employment in the three towns is
from the continuous inflow of tourists and floating population of
pilgrims. Maintenance of clean and congenial atmosphere in all
religious places which are spread over all the three towns is in
common interest of the residents, pilgrims and visitors. Continuous
floating population of pilgrims benefit the inhabitants of the towns by
providing them various sources of earning livelihood and
employment. Tourists and pilgrims are the major sources of revenue
for the Local Municipal Bodies and the inhabitants of the three towns.
Geographical situation and peculiar culture of the three towns justify
complete restriction on trade and public dealing in non-vegetarian
food items including eggs within the municipal limits of the towns.
The High Court rightly upheld it to be a reasonable restriction. Trade
in all kinds of food items vegetarian or non-vegetarian in adjoining
towns and villages outside the municipal limits of three towns
remains unrestricted and there is no substantial harm caused to
those engaged in such trade.
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For the aforesaid reasons, the impugned bye-law notified by
Municipal Board Rishikesh cannot be held to be violative of Article 19
(1) (g) of the Constitution. With this addition, I respectfully agree
with the opinion of learned brother Shivaraj V. Patil, J. and with his
conclusion that this appeal be dismissed.
