Devi Singh Rajpoot and Others vs State and Others

Arun Mishra, J.

In W.P.No. 6112/2001 filed by Devi Singh Rajpoot and others prayer made is to direct respondents no. 1 to 4 to take immediate action against the butchers, who carry on the business of slaughtering of cows, bullocks and other animals illegally against the statutory provisions of M.P. Agricultural Cattle Preservation Act, 1959 (M.P. Krishi Pashu Parirakshan Adhiniyam, 1959) (hereinafter referred to as ''the Cattle Preservation Act'') and M.P. Municipalities Act, 1961 (hereinafter referred to as ''the Municipalities Act). The slaughtering of animals is done within the area of Damoh Municipality in the thickly populated ward viz. Saket & Kasturaba ward which are also known as Bajriya No. 1 and Bajriya No. 7. According to the petitioners uncontrolled and unregulated slaughtering of animals and disposal of waste materials in the nearby places emits foul odour resulting in environmental pollution making it impossible for the residents even to breath.

In W.P.No. 334/2002 filed by Mohd. Mursalim & another, challenge is to a resolution passed by Municipal Council Damon on 10.10.2001 to stop the cattle slaughtering in the market as it leads to various contagious air borne diseases and is detrimental to the health of the residents of Damoh city. The resolution was sent to the Collector and to the Govt. The prayer is to quash the resolution and further direction to construct slaughter house in the plot no. 1302 situated at Bajriya no. 4, Damoh, to regularise the slaughter house and the slaughter of the catties as per sections 265, 266, 267 and 268 of the Municipalities Act. The petitioners Mohd. Mursalim Qureshi and Farjan Ahmed Qureshi belong to Butchers community. The members of community earns their livelihood by selling meat, skin, hydes and bones of the animals. For the town of Damoh a resolution was passed by the Municipal Council in the year 1963. The Municipal Council issued memorandum on 11.12.63 by which it has fixed slaughter house at plot no. 1302 situated at Bajriya no. 4, Damoh. After passing of this resolution the respondents have not paid any heed for construction and establishment of the slaughter house. The action of the Municipal council in restraining the slaughtering of the animals in the Municipal area is Illegal and unconstitutional, thus, liable to be set aside.

In W.P.No. 6112/2001 the petitioners Devi Singh Rajpoot & others allege that Damoh is a duly constituted Municipality. Its population is about 1.25 lacs. It has 39 wards. In the beginning, the butchers have been carrying on the business of sale and transport of meat of the small animals like goats. For the past about 20 years, they have been slaughtering cows, calfs of cows, bullocks, buffaloes etc. on a very large scale. No licence was obtained from the Municipal Council as required under the Cattle Preservation Act. Every day about 150 to 200 animals are slaughtered and their meat is exported to different States as also to nearby places within the district. The waste material is accumulated in the nearby places with the result it emits foul odour which makes it difficult even to breath and creates a serious environmental problem and health hazard is caused with spread of numerous diseases. Petitioners submit that none of the person, who carry on the job of butchering, has been licensed by the Municipal Council. Slaughtering is going on illegally in violation of the Municipalities Act and the Cattle Preservation Act. With an object of preservation of agricultural catties, the State Legislature has enacted the Cattle Preservation Act.

The Cattle Preservation Act contains numerous provisions for the protection of agricultural catties. It completely prohibits slaughtering of cows. It also prohibits slaughtering of other agricultural catties under specified conditions enumerated in Section 3 of the said Act. Section 5 prohibits slaughtering of catties in places not fixed for the purpose. It provides that no cattle in respect of which a certificate has been issued u/s 4 shall be slaughtered, in any place other than the place fixed for the purposes by or under any law for the time being in force and if such law does not provide therefor at place fixed by the competent authority. Section 4 provides for issuance of a certificate by the competent Authority; the veterinary officer after examining the cattle, certifies with regard to the condition mentioned in clause (a) and (b) of sub-section (2) of the said section. Section 6 places an embargo on the transport of any agricultural cattle from any place within the State to any place outside the State for the purposes of slaughtering in contravention of the provisions of the said Act or with knowledge that it will be or is likely to be so slaughtered.

Environmental pollution (Protection Act), 1986 provides for standard to be maintained in respect of slaughter house in item no. 50. None of the statutory provisions are complied with by respondent nos. 5 to 9 and other similarly situated persons who do the job of slaughtering the animals and also sale of flesh. The business of slaughtering and sale of flesh of the animals has assumed such proportion that Damoh has become the biggest market for sale and export of flesh of the animals. Petitioners aver that it is a matter of serious nature affecting the health and environment and should have been taken care of by the district administration to whom numerous representations have been made from time to time. The representations made to the authorities met deaf ears.

Respondent no. 4 Municipal Council submits that no licence was granted by the Municipal Council or district authority of Damoh for slaughtering of animals within the limits of Damoh. Action has been taken against illegal slaughtering and transportation of flesh by district administration from 1997 to January, 2002. Nine cases were registered and challans were filed before the concerned Court. The cases were also registered u/Ss. 132, 107 and 116(3) of the Cr. P.C. On 8.11.2001 a case of foul smell was detected for the first time and against which immediate action was taken by the District Police Administration and also by the Municipal Council, Damoh and the remains of bones were recovered which could not be transported. Police check post was established at butchers locality/market so that illegal activities may not take place. Municipal Council had passed a resolution on 10.10.2001 in which it has been resolved unanimously that slaughtering of the animals in Damoh town be prohibited on the ground of health and environment problems to inhabitants. A committee of 15 members has been constituted to look after the problems and to take appropriate and necessary action for various problems caused by illegal slaughter.

The respondents no. 1 to 3, State or M.P., Collector, Damoh, Superintendent of Police, Damoh in their return contend that they are making efforts along with Municipal Council, Damoh to eradicate illegal activities in respect of violation of the provisions contained in the Cattle Preservation Act and the Municipalities Act. Detailed Return filed by Municipal Council has been adopted by respondents no. 1 to 3.

Shri Z.M. Shah, learned counsel for respondents no. 5 to 9 submits that the allegations made against them are incorrect. They are not slaughtering any of the animals. They are bringing the animals for sale in accordance with the provisions of law and they have not caused any nuisance or environmental hazard.

In W.P.No. 334/2002 filed by Mohd. Mursalim and Farjan Ahmed Qureshi, it has been alleged that the petitioners belong to the butchers community. The members of community earns their livelihood by selling meat, skin, hydes, bones of the animals after slaughtering the animals. The Municipal Council has failed to establish the slaughter house inspite of resolution having been passed in the year 1963. Some of the members of the community viz. Mohd. Ismile, Abdul Rashid and Babu Qureshi were given permission in the year 1979 to slaughter the animals and it was further observed in the permission that animals will be slaughtered in the slaughter house situated at Bazriya no.1. Representation was also made to Collector that the Municipal Council, Damoh, has not taken any licence fee nor has made any arrangement. There was proposal to shift the slaughter house to an outer place ''Jhinna'' but no action was taken. Application Annexure P.5 was also submitted to C.M.O. to fix the slaughter house in furtherance of the provisions of Section 265, 266, 267 and 268 of the Municipalities Act but no action was taken. When Writ Petition No. 6112/2001 was filed by Devi Singh Rajpoot and others a notice was issued to the respondents. On service of notice the petitioner came to know that Municipal Council has passed resolution prohibiting slaughter within municipal limits which is illegal and unconstitutional in the light of the decision of the Apex Court in Hasmattullah Vs. State of Madhya Pradesh and others, . Hence, direction was sought against respondents no. 2 and 3 to construct the slaughter house in the city of Damoh to regularise the slaughter house as per Sections 265, 266, 267 and 268 of the Municipalities Act.

The respondents Municipal Council, Damoh, and Collector, Damoh, have adopted the return filed in W.P. No. 6112/2001 and leaned counsel appearing for them submitted that illegal slaughtering is not permissible. The respondent justify the resolution on the ground of welfare of inhabitants to eradicate environmental & health hazards.

Before considering the various submissions raised at the bar, it is relevant to note the various provisions of the Municipalities Act and the Cattle Preservation Act. Section 264 of the Municipalities Act requires that Municipal Council may, and when required by State Government, shall fix places, with the approval of the State Govt., either within or without the limits of the Municipality, for the slaughter of animals or of any specified description of animals, for sale, and may with the like approval grant and withdraw licences for the use of such premises, or if they belong to the Municipal Council may charge rent or fees for the use of the same. Sub-section (2) of Section 264 of the Municipalities Act provides when such places have been fixed by the Council beyond Municipal limits it shall have the same power to make bye-laws for the inspection and proper regulation of the same as if they were within these limits. Sub-section (3) of Section 264 prohibits slaughtering or sale of animals. When any such premises have been fixed no person shall slaughter any such animal for sale within the Municipal area at any other place. Sub-section (4) of Section 264 provides any person who slaughters for sale any animals at any place within the Municipal area other than the one fixed by the Council under this section shall be punishable with fine which may extend to fifty rupees. Section 265 of the Municipalities Act provides that the Council may, with the previous sanction of the Collector and by notification, published in accordance with rules, made under this Act, fix premises within the limits of the Municipality in which the slaughter of animals of any particular kind not for sale be permitted, and prohibit, except in case of necessity, such slaughter elsewhere within those limits. Section 266 provides that Council shall arrange for inspection of the animal by a Veterinary Surgeon or a competent person before the animal is killed and may also arrange for inspection of the meat and organs for the purpose of certification, as may be prescribed by bye-laws of the meat for use as food. Section 267 deals with the licensing of butcher. No person shall carry on the profession of a butcher except under a licence from the Council.

Section 2(i) of the Cattle Preservation Act defines "agricultural cattle" as an animal specified in the Schedule which in turn provides :

Cows of all ages

Calves of cows and of she-buffaloes.

Bulls

Bullocks.

Male and female buffaloes.

Section 2 (iii) of the Cattle Preservation Act defines; "slaughter" means killing by any method whatsoever and includes maiming or inflicting of physical injury which in the ordinary course will cause death;

Section 3 of the Cattle Preservation Act provides appointment of veterinary officer. The Director of Veterinary Services, Madhya Pradesh, may, by a general or special order appoint, for the purposes of this Act, any person or class of persons, to be the Veterinary Officer for a person or class of persons, to be the Veterinary Officer for a local area specified in the order, or invest any person with all or any of the powers of a Veterinary Officer in such area. Section 4 of the Cattle Preservation Act contains prohibition of slaughter of agricultural cattle. Section 4 is quoted below:

Prohibition of slaughter agricultural cattle:

Notwithstanding anything contained in any other law for the time being in force or in any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered, for slaughter -

(a) cow, calf of cow, calf of she-buffalo, bull or bullock; and

(b) any other agricultural cattle unless he has obtained in respect of such cattle a certificate in writing issued by the competent authority for the area in which the cattle is to be slaughtered that the cattle is fit for slaughter.

(2) No certificate under clause (b) of sub-section (1) shall be issued by the Competent Authority unless the Veterinary Officer after examining the cattle certifies that -

(a) the cattle is -

(i) over 15 years of age; or

(ii) has become permanently incapacitated for work or breeding due to injury, deformity or an incurable disease and such permanent incapacity has not been caused deliberately; and

(b) the cattle is not suffering from any disease which makes its meat unwholesome for human consumption.

(3) where the Competent Authority refuses to issue a certificate under this section it shall record its reasons in writing and any person aggrieved by such refusal may, within fifteen days from the date of communication thereof, appeal against the order of refusal to the Collector of the district or such other Officer as may, by notification in the Official Gazette, the(be) authorized in this behalf by the State Government and the Collector, or such other officer may pass such orders thereon as he thinks fit; and

(4) Subject to the orders passed in appeal, if any, under sub section (3), the order of the Competent Authority shall be final and shall not be called in question in any Court.

(5) A certificate issued under clause (b) of sub-section (1) shall be valid for ten days from the date of its issue.

Section 5 defines as under:

Prohibition of slaughter cattle in places not fixed the purpose -

No cattle in respect of which a certificate has been issued u/s 4 shall be slaughtered in any place other than a place (a place) fixed for the purpose by or under any law for the time being in force and if such law does not provide therefor, at a place fixed by the Competent Authority.

Section 6 prohibits transport of agricultural cattle other than cow or calf of cow for slaughter and Section 6-A puts restrictions on export of cow etc. Section 6 and 6-A are quoted below:

"No person shall transport or offer for transport or cause to be transported any (agricultural cattle other than cow or calf of cow) from any place within the State to any place outside the State, for the purpose of its slaughter in contravention of the provision(s) of this Act or with the knowledge that it will be or is likely to be so slaughtered.

6-A No person shall export or cause to be exported (cow, calf of a cow, calf of she buffalo, bull or bullock) for the purpose of slaughter either directly or through his agent or servant or any other person acting on his behalf in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be slaughtered.

A glance on the other provisions of Cattle Preservation Act is necessary. Section 7 prohibits purchase, sale or any other manner of disposal of cow, calf of cow, calf of she buffalo, bull or bullock. Section 8 creats prohibition on possession of flesh of agricultural cattle. Section 9 deals with the power of entry, search and seizure. Section 10 defines penalty for contravention of Section 4(1), 6-A and 6-B. Whoever contravenes the provisions of clause (a) of sub-section (1) of section 4 or section 6-A or section 6-B shall be punished with imprisonment of either description for a term which may extend to three years and with fine which may extend to five thousand rupees. Penalty for contravention of Section 4(1) - Whoever contravenes the provisions of clause (a) of sub-section (1) of section 4, shall be punished with imprisonment of either description for a term which may extend to three years and with fine which may extend to one thousand rupees. Section 12 deals with burden of proof on accused. In any trial for an offence punishable u/s 11 for contravention of the provision of section 5, 6 or 7 of the Act the burden of proving that the slaughter, transport or sale of agricultural cattle was not in contravention of the provisions of this Act shall be on the accused. Section 13 makes offences to be cognizable, ''Notwithstanding'' anything contained in the Cr.P.C. all offences under the Act, shall be cognizable. Section 14 is for abatement and attempts. Whoever abets any offence punishable under this Act or attempts to commit any such offence shall be punished with the punishment provided in the Act for such offence. Section 15 deals with the officers exercising powers under the Act, deemed to be public servants, All Competent Authorities, Veterinary Officers and other persons exercising powers under the Act shall, be deemed to be public servants within the meaning of section 21 of the I.P.C. Section 16 protects the persons acting in good faith. No suit, prosecution or other legal proceeding shall be instituted against any person for anything which is in good faith done or intended to be done under the Act or the rules made thereunder. Section 6 places an embargo on the transport of any agricultural cattle from any place within the State to any place outside the State for the purpose of slaughtering in contravention of the provisions of the Cattle Preservation Act or with knowledge that it will be or is likely to be so slaughtered. Section 6 (a) places an embargo on the export of cows, calfs of cows etc. for the purpose of slaughtering either directly or through any agent or servant. Section 6(b) requires a permit for export of any such animals. Section 8 provides that notwithstanding anything contained in any other law for the time being in force, no person shall have in his possession flesh of any agricultural cattle slaughtered in contravention of the provisions of the said Act. Section 9 of the Act provides for powers of entry, search and seizure for the purposes of enforcing the provisions of the said Act.

The factual matrix of the present writ petitions indicates that the Municipal Council and the State Government have not fixed any place for slaughtering of the animals u/s 264 of the Municipalities Act. No place has been fixed by the Municipal Council with the approval of the State Government for slaughter house. u/s 265 of the Municipalities Act, Municipal Council has not fixed with the previous sanction of the Collector and by notification, any place for slaughter of animals. It does not appear that Council has made any arrangement for inspection before animal is killed as mandated by provision u/s 266 of the Municipalities Act. It appears that only a resolution was passed in the year 1963 which was not implemented for establishment of slaughter house which is case of petitioners Mohd. Mursalim and another in W.P.No. 334/2002.

It is also apparent that Veterinary Officer u/s 3 of the Cattle Preservation Act has not been appointed. Certificate of such an Officer is necessary. Under sub-section (2) of Section 4 it is provided that no certificate under clause (b) of sub-section (1) shall be issued by the Competent Authority unless the Veterinary Officer after examining the cattle certifies that the cattle is over 15 years of age or has become permanently incapacitated for work or breeding due to injury, deformity or an incurable disease and such permanent incapacity has not been caused deliberately and the cattle is not suffering from any disease which makes its meat unwholesome for human consumption. The competent Authority under sub-Section (3) of Section 4 may refuse to issue a certificate and shall record its reasons in writing and any person aggrieved by such refusal may, within fifteen days from the date of communication thereof, may file an appeal against the order of refusal to the Collector of the district. Subject to the orders passed in appeal, if any, under sub-section (3) of Section 4 the order of the Competent Authority shall be final and shall not be called in question in any Court. A certificate issued under clause (b) of sub-section (1) of Section 4 shall be valid for ten days from the date of its issue. It does not appear at all that any such exercise has been undertaken at any point of time before slaughtering the animals which appears to be taking place in Municipal limits of Damon.

Sub Section (1) of Section 4 of the Cattle Preservation Act carves out prohibition of slaughter of agricultural cattle. Notwithstanding anything contained in any other law for the time being in force or in any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered, for slaughter of cow, calf or(of) cow, calf or(of) she-buffalo, bull or bullock and any other agricultural cattle unless he has obtained in respect of such cattle a certificate in writing issued by the competent authority for the area in which the cattle is to be slaughtered that the cattle is fit for slaughter. Clause (a) of sub-section (1) of Section 4 of the Cattle Preservation Act prevent slaughter of cow, calf or(of) cow, calf or(of) she-buffalo, bull or bullock.

The inclusion of bull or bullock in sub-clause (a) of sub-section (1) of Section 4 of the Act, brought about by the amending Act of 1991 has been held to have imposed an unreasonable restriction on the fundamental rights of the butchers and to that extent only the sub-clause was held to be ultra vires. The effect of this would be that there would be a total ban on the slaughter of cow, calf of cow and calf of she buffalo while the slaughter of bull or bullock, along with other agricultural cattle, shall fall under sub clause (b) of section 4 of the Cattle Preservation Act and they can be slaughtered after complying with provisions of the said sub-clause and obtaining a certificate contemplated by sub-section (2) of Section 4 of the said Act. The unamended Section 4(1) by sub-clause (i) had imposed an absolute ban on the slaughter of cows, calves of cows, or calves of she-buffalo, but other agricultural cattle like male and female buffaloes, bulls and bullocks could be slaughtered only on the receipt of a certificate in writing by the Competent Authority u/s 4 to the effect that the cattle was fit for slaughter. As a result of the amendment introduced by the amending Act, 1991 bulls and bullocks have been added to sub clause (a) of sub-section (1) of Section 4 with the result that an absolute ban on slaughter of bulls and bullocks has also been imposed, notwithstanding the fact that the said animals may have ceased to be draught animals or may have become permanently incapacitated for work or breeding or for any other purposes. In retrospect the first attempt on prohibition of slaughter was the enactment of C.P. and Berar Animal Preservation Act, 1949, which placed a total ban on the slaughter of cows, bulls and bullocks and of all categories of animals of the species of "bovine cattle". The question was considered by the Apex Court in Mohd. Hanif Quareshi and Others Vs. The State of Bihar, . The petitioners therein were butchers and had challenged the validity of the Acts on the plea that the same infringed their fundamental rights under Articles 14, 19(1) (g) and 25 of the Constitution. After going into all the facets of the case and examining the usefulness of the cattle in great detail and keeping in mind the non availability of adequate fodder and other relevant facts, the Hon. Supreme Court in Mohd. Haniffs case (supra) held :

(i) total ban on the slaughter of cows of all ages and calves of cows and of she buffaloes, male and female, was quite reasonable and valid;

(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 were capable of being used as milch or draught cattle, was also reasonable and valid;

(iii) that a total ban on the slaughter of she buffaloes, bulls and bullocks "cattle or buffalo" after they ceased to be capable of yielding milk or of breading or working as draught animals was not in the interest of the general public and was invalid. In coming to the conclusion that ban on the slaughter of bulls and bullocks after they had become usellses, was not valid.

The Apex Court in Abdul Hakim Quraishi and Others Vs. The State of Bihar, while allowing the petitions held that a bull, bullock or buffalo did not remain useful after it was 15 years old, and whatever little use it may then have, was greatly offset by the economic disadvantage of feeding and maintaining unserviceable cattle. The supreme Court in Haji Usmanbhai Hasanbhai Qureshi and others Vs. State of Gujarat, once again reiterated the principle of striking a balance between the right of the butchers and the public interest. It was also held that the prescribed age of 16 years could be said to be a reasonable restriction on the rights of the appellants therein to carry on their trade and profession as mentioned in Article 19(1) (g) of the Constitution. In Hasmattullah Vs. State of Madhya Pradesh and others, , the Supreme Court held in paragraph 22 thus:

In view of the aforesaid decisions of this Court the only conclusion which can be arrived at is that the inclusion of bull or bullock in sub-clause (a) of sub-section (1) of Section 4 of the Madhya Pradesh Agricultural Cattle Preservation Act, 1959, brought about by the Amending Act of 1991 has imposed an unreasonable restriction on the fundamental rights of the appellant and to that extent only the sub-clause is held to be ultra vires. The effect of this would be that there would be a total ban on the slaughter of cow, calf of cow and calf of she buffalo while the slaughter of bull or bullock, along with other agricultural cattle, shall fall under sub-clause (b) of Section 4(1) of the Act and they can be slaughtered after complying with provisions of the said sub clause and obtaining a certificate contemplated by sub section (2) of Section 4 of the said Act.

It can be clearly carved out from above quoted para that total ban on slaughter of bull or bullocks was held to be unreasonable. The total ban on slaughter of cow, calf or cow, calf or she buffalo is valid whereas bull or bullocks and other agricultural cattle shall fall u/s 4(1), they can be slaughtered after complying with the provisions of said section and obtaining a certificate under sub-section 2 of Section 4 of the said Act which means that cattle over 15 years of age has become permanently incapacitated for work or breeding due to injury, deformity or an incurable disease and such permanent incapacity has not been caused deliberately and the cattle is not suffering from any disease which makes its meat unwholesome for human consumption. Until and unless such a certificate is obtained, no slaughtering of bull or bullocks or other agricultural cattle is permissible at all. It is not a case that such permission has been granted or obtained at any point of time in the instant case.

The Apex Court in Buffalo Traders'' Welfare Association Vs. Maneka Gandhi and Others, considered and held: Slaughter house is an hazardous Industry, it cannot be allowed to operate in unhygienic condition, endangering environments. It is clear from the averments made in the petition that slaughtering is taking place at the places where slaughter houses are not fixed. The bones and skeleton are left open causing foul odour and environmental hazard and it has become impossible in various areas even to breath properly. The fact that there is no proper cleaning and there is environmental hazard, finds support from the representations submitted by All India Jamaitul Quresh, a Social Organization of Quresh Community to Collector, District Damoh in which it has been mentioned that Govt. is not making arrangement to fix the slaughter house and Municipal Council is responsible for not cleaning area causing environmental problems. It is also apparent that long back only few persons were issued temporary licences but no place was fixed and prayer was made in the year 1993 to shift the slaughter house to Zhinna as the area in question was not suitable. It appears that Veterinary Officer has also not been appointed at Damoh. If at all appointed remains on paper only as no certificates are obtained for slaughtering as per Section 4 of the Cattle Preservation Act. Damoh Municipality is thickly populated area and it is clear from the averments made in the petition and the return filed by the Municipal Council and the State and other functionaries that from the year 1997 to January, 2002 for illegal slaughter only, 9 cases were registered and after the due investigation and enquiry, challan was filed before the concerned Court at Damoh and these cases are pending which cannot be said to be an effective step to prevent violation of the Cattle Preservation Act & the Municipalities Act.

In similar set circumstances which exist in instant case, the Apex Court in Buffalo Traders'' Welfare Association Vs. Maneka Gandhi and Others, , Buffalo Traders'' Welfare Association Vs. Maneka Gandhi and others, held slaughter house situated at Idgah to be one of the 168 hazardous/noxious/heavy/large industries operating in Delhi, already directed to stop functioning in city of Delhi. The argument that closure of the slaughter house would see unhygienic meat in the market, the Apex Court observed that this apprehension does not seem justified because there are licensed slaughter houses near Delhi and slaughter house has to give way for environment which is essential of life itself. In paragraph 10 their Lordships held:

In the aforesaid premises, though the interlocutory applications are liable to be dismissed, but the consideration which is weighing with us in not dismissing the same altogether is the interest of a large number of consumers in the territory of Delhi. This is the only industry of its type in the territory. There being no other slaughter house near at hand to cater to the needs of the residents of Delhi some hardship is likely to be caused to the meateaters. At the same time the interest of environment and ecology cannot be ignored. It cannot be disputed that the slaughter house is being run under highly polluted environment. With a view to keep a balance between the need of the people of Delhi and the environment, we direct as under :

(1) We permit the Idgah Slaughter House to function till 30.6.1997 on the following conditions :

(i) Goats/he-goats/sheep numbering 2000 per day shall be permitted to be slaughtered in the premises, no other animal shall be slaughtered.

(ii) Buffaloes (any sex), cows, bulls (i.e. large animals) shall not be permitted to be slaughtered as their slaughter generates more pollution. The bufallo section is the most polluted section in the slaughter house. We reiterate that except 2000 (two thousand only) goats/he-goats/sheep no other animal to be slaughtered in the premises. The buffalo section of the slaughter house shall be closed with immediate effect.

(iii) The slaughter house shall be kept environmentally clean by the MCD.

(2) The Central Pollution Control Board shall visit the slaughter house every two months till 30.6.1997 and file report in this Court indicating the environmental status of the premises.

(3) The Animal market shall not be permitted to function near the slaughter house. Holding the animals market in the crowded part of the city is environmentally hazardous and cannot be permitted.

(4) The Deputy Commissioner of Police of the area shall stop the holding of the market in the vicinity of the slaughter house. The meat-sellers/butchers may bring the animals to the slaughter house in an environmentally clean manner and take the meat back in similar way. No market should be permitted in the area.

(5) The Municipal Corporation of Delhi shall stop all illegal slaughtering in Quasebpura area near Idgah or any other part of Delhi. The Commissioner, Municipal Corporation, Delhi shall take necessary steps to stop the illegal slaughtering in all parts of Delhi. If necessary, police help be taken in this respect.

(6) We make it clear that heavy pollution fine shall be imposed by this Court on polluters indulging in illegal slaughtering. Even the MCD shall be liable to pollution fine if the slaughter house is not kept environmentally clean. The staff in charge of the slaughter house may personally be liable to pay the fine.

(7) The Municipal Corporation of Delhi shall take steps on a war footing to construct the modern slaughter house on the alternative land already acquired by the Corporation. We make it clear that the Idgah Slaughter House would not be permitted to continue at the present site beyond 30.6.1997.

It is clear from above quoted para of Maneka Gandhi''s case (supra) that the interest of environment and ecology cannot be ignored and slaughter house cannot be allowed to run under highly polluted environment. Their Lordships directed the shifting of slaughter house with effect from 30.6.1997 and further ordered that the animal market shall not be permitted near the slaughter house holding in private area of the city, the interest of environment & ecology cannot be ignored. In the instant case, untraversed pleadings in W.P. No. 6112/2001 are that the waste material is accumulated in the nearby places which emit foul smell which makes it difficult to breath causing serious health hazard. Saket ward & Kasturba ward are not fixed as slaughter houses. The waste material is scaterred by dogs and eagles and other large birds, efforts of Social Organization and Bar Association failed to move authorities to prevent harm to environment.

In M.C. Mehta v. Union of India, AIR 1996 SC 2231 their Lordships of the Apex Court dealt with the matter of environmental pollution in Delhi - hazardous/noxious/heavy/large industries operating in Delhi liable to be shifted/relocated to other towns of NCR (National Capital Region). After issuing public notices and considering objections from various industries by National Pollution Control Board and National Pollution Control Committee, 168 industries identified as hazardous/noxious/heavy/large industries operating in Delhi and these industries were directed to stop functioning/operating in the city of Delhi. Slaughter house at Idgah has been held to be hazardous activity.

In M.C. Mehta Vs. Union of India (UOI) and Others, Apex Court held that the proclamation adopted by the United Nations Conference on the Human Environment which took place at Stockholm from June 5 to 16, 1972 and in which the Indian delegation also took a leading role runs that man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power to transform his environment and countless ways and on an unprecedented scale. Both aspects of man''s environment, the natural and the manmade, are essential to his well being and to the enjoyment of basic human rights even the right to life itself. The protection and improvement of the human environment is a major issue which affects the well being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all governments. Man has constantly to sum up experience and go on discovering, inventing, creating and advancing; Man''s capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment; We see around us growing evidence of manmade harm in many regions of the earth; dangerous levels of pollution in water, air, earth and living beings; minor and undesirable disturbances to the ecological balance of the biosphere, destruction and depletion of irreplaceable resources. To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and Institutions at every level, all sharing equitably in common efforts. In the instant case, illegal slaughtering is taking place, it cannot be allowed to be continued in an illegal manner in flagrant violation of provisions of the Cattle Preservation Act.

Under Article 48- The directive to State to take Steps for prohibiting the slaughter of cows and calves and other milch and draught cattle is specific. Such prohibition cannot be held to be Unreasonable; restriction upon the rights conferred by Article 19 (1) (g) of the Constitution. Under Article 48A State shall endeavour to protect and improve the environment. Though Article 48A and 51A contains directive principles and fundamental duties but such principles becomes enforceable with mutual aid of interpretation and expanding purposive interpretation of Article 14, Articles 21 and 19 (1) (g). They have found statutory expression in the shape of various provisions in the Municipalities Act and the Cattle Preservation Act. Under Article 51-A(g) the duty of every citizen is to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. It is clear that first duty of all the citizens is towards the environment and when balance is to be struck as laid down by the Apex Court in Hasmattullah''s case (supra) the restrictions of the Cattle Preservation Act and the Municipalities Act are reasonable and cannot be said to be unconstitutional and no activities can be undertaken in violation of the provisions contained in the said Acts.

It is the duty of Municipal Council to keep the city clean. It is open to Municipal Council under sub-section (2) of Section 264 to fix place of slaughter beyond Municipal limits. Chapter IX of M.P. Municipalities Act enjoins various duties on Municipal Council for promotion of public health safety or convenience, power in regard to nuisance, power to regulate slaughter u/s 264/265. Section 283 provides far regulation of certain dangerous & offensive trades, such as storing hides, horns and skins. There is duty cast to prevent man made hazards to environment. No business can be allowed to the detriment of environmental and hazard to health. The provisions of the Cattle Preservation Act & the Municipalities Act cannot be allowed to become statutory mockery. The various duties enjoined in the provisions contained in the Municipalities Act show that Municipal Council is not discharging its duty and it has failed to prevent indiscriminate, slaughtering of animals and failed to check spread of foul odour. There is force in the submission raised by the petitioner that slaughter is still illegally taking place and proper action by the Municipal Council has not been taken inspite of passing a resolution, the same is equally true as to District administration & Police authorities.

In Dr. B.L. Wadehra Vs. Union of India and others, the duty of the Corporation was considered. Non performance (sic) mandatory duties by Municipal Corporation of Garbage, clearance, scavenging and cleaning Delhi city have been held to be in utter disregard to the provisions of Article 21, 48-A and 51-A of the Constitution.

In M.C. Mehta Vs. Kamal Nath and Others, , the Apex Court held that any activity causing pollution to the environment is violative of Article 21 of the Constitution. The Court enforces the "POLLUTER-PAYS PRINCIPLE" which is widely accepted as a means of paying for the cost of pollution and its control. To put it in other words, the wrong doer, the polluter, is under an obligation to make good the damage caused to the environment. It was for this reason that the Supreme Court in its decision dated Dec. 12, 1996 M.C. Mehta Vs. Kamal Nath and Others, had directed the Motel to pay compensation by way of cost for the restoration of the environment of the area.

In Virender Gaur and Others Vs. State of Haryana and Others, it was held that Article 21, comprehends right to hygienic environment protection. Govt. as well as Municipality are obliged to maintain and protect environment, manmade as well as natural.

Coming to the submissions raised by the petitioner in W.P. 334/2002 that Municipal Council has illegally prohibited slaughtering within the municipal limits. However, considering the facts & circumstances discussed above and that Municipal Council had passed a resolution on the ground of protection of environment and health of all the citizens, the action taken cannot be struck down. It is open to the Municipal Council to fix the slaughter house outside the municipal limits as per the provisions contained in Section 264 of the Municipalities Act. Sub-section (2) of Section 264 clearly provides that when such places have been fixed by the Council beyond Municipal limits it shall have the same power to make bye-laws for the inspection and proper regulation of the same as if they were within these limits.

The Apex Court in Maneka Gandhi''s case (supra) directed the shifting of the slaughtering house outside the Delhi city. As such the action of Municipal Council, Damon cannot be faulted with particularly when Municipal Council has not fixed the slaughter house and has not issued the licences, thus, the activities are being undertaken in an illegal and hazardous manner, it cannot be allowed. It is open to the Municipal Council to find suitable place outside the municipal limits and to allow slaughtering as it may deem fit.

In the result, writ petition no. 6112/2001 is allowed. Writ of mandamus is issued directing the respondents :

(1) No slaughtering of cows, calfs of cows, buffaloes (male and female) shall be allowed at all.

(2) No agricultural catties i.e. bulls, bullocks as well as buffaloes shall be allowed to be slaughtered upto 15 years and thereafter as long as they are capable of being used as milch or draught cattle and a certificate is obtained of Veterinary Officer as required under sub-section (2) of Section 4 of the Cattle Preservation Act. Until and unless certificate is issued, no slaughtering shall be allowed by any person violating the provisions shall be criminally prosecuted and punished u/s 10 of the Cattle Preservation Act.

(3) No slaughtering of animals be allowed at any place which has not been fixed u/Ss 264 and 266 of the Municipalities Act and Section 5 of the Cattle Preservation Act.

(4) No slaughtering be allowed as per resolution of Municipal Council within the limits of Municipal Council, Damoh.

(5) Municipal Council, District administration; police authorities are directed to take positive steps to prevent slaughtering.

(6) Municipal Council is directed to take steps forthwith to clean the city and provide habitable environment and to stop all the slaughter houses running illegally. Respondents no. 1 to 4 are directed to take steps forthwith to prevent the illegal slaughter of animals in violation of provisions of the Municipalities Act and the Cattle Preservation Act.

Writ petition no. 334/2002 is disposed of with the light of the observations made in para 35 quoted above. Cost on the parties.