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Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc Shephali IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2473 OF 1991 WITH NOTICE OF MOTION NO. 334 OF 2018 AND CHAMBER SUMMONS (L) NO. 130 OF 2018 Bombay Suburban Khatik Association, an Association registered under the provisions of the Societies Registration Act, being Registration No. 670/81 having their ofce at 285 Jame Masjid, B.K.J.M. Trust Ofce, S. V. Road, Bandra, Bombay 400 050. ...Petitioners ~ versus ~ 1. The Municipal Corporation of Greater Bombay, a Corporation formed under the provisions of the Bombay Municipal Corporation Act, 1888 and having its registered ofce at Mahapalika Bhavan, Mahapalika Marg, Fort, Bombay 400 001. 2. The Municipal Commissioner, the Municipal Corporation of Greater Bombay, having his ofce at Mahapalika Bhavan, Mahapalika Marg, Fort, Bombay 400 001. Page 1 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc 3. Jeevan Jagruti Trust, Public Charitable Trust, registered under the provision of the Bombay Public Trust Act, having their ofce at 6, Dhun Mansion, Avantikabai G Street Bombay 400 004 through Atul Vrajlal Shah of Bombay Indian Inhabitant authorised member for and on behalf of the Trust. ...Respondents A PPEARANCES FOR THE PETITIONERS Mr Vijay Sambhaji Kurle & APPLICANTS FOR RESPONDENT- Mr Anil Y Sakhare, Senior MCGM Advocate,with Joel Carlos and Ms Vandana Mahadik. ALSO PRESENT Dr Yogesh Shete, General Manager, Deonar Abattoir. Dr Pathan KA, Deputy General Manager, Deonar Abattoir. CORAM : S.C.DHARMADHIKARI & G.S. PATEL, JJ. JUDGMENT RESERVED ON : 20th September 2019 JUDGMENT PRONOUNCED : 19th December 2019 ON JUDGMENT (per G.S. Patel, J)Page 2 of 72
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1. This Petition, fled under Article 226 of the Constitution of India, seeks the following reliefs:
"(a) That this Hon'ble Court be pleased to issue an appropriate Writ, order or direction of this Hon'ble Court quashing and setting aside the letter of the Respondents dated 20th July 1991 being Exhibit E hereto and declare the same as null and void and no efect in law;
(b) That the Respondents their agents, and representatives be restrained by a perceptual order of injunction of this Hon'ble Court from acting pursuant to the aforesaid letter dated 20th July 1991 being Exhibit E hereto and in any was interfering and/or disturbing with the slaughtering of sheeps and goats by the members of the Petitioners who have been granted licences to do so in their shop, a list of whom is annexed hereto as Ex. D to the Petition;
(c) That the Respondents be directed by an Order and direction of this Hon'ble Court to process the Applications of the other members of the petitioners for the purpose of obtaining licences to slaughter sheep and goats in their respective premises and dispose the same in accordance with law and in spirit of letter dated 6th April 1991;"
2. We have heard Mr Vijay Kurle for the Petitioner and Mr Sakhare, learned senior counsel for the Respondent, the Municipal Corporation of Greater Mumbai ("MCGM") at length. Page 3 of 72
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3. Before we proceed further, we note that the present Writ Petition was previously tagged with the Public Interest Litigation No. 197 of 2014 (Ajay Marathe v State of Maharashtra & Ors). We are now separating that Public Interest Litigation which will then be taken up separately by the appropriate bench.
4. Since there is a reply afdavit as also additional afdavits, we dispense with the issuance of Rule and take up the petition itself.
5. The Petitioner, The Bombay Suburban Khatik Association, is an association registered under the Societies Registration Act 1860. It is an association of butchers and mutton and sheep-meat vendors in Mumbai. The 1st Respondent is the Mumbai Municipal Corporation ("MMC"). The 2nd Respondent is its Municipal Commissioner. The 3rd Respondent is the Jeevan Jagruti Trust with which we are presently not concerned.
6. The Petition states that before 1973, the slaughter of sheep and goats was being done at a slaughter house in Bandra in Mumbai. Since the municipal authorities perceived the need for a proper and Page 4 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc appropriately provisioned slaughter house, they recommended the construction of a full-fedged abattoir. This proposal was frst initiated in 1968 when an abattoir near Deonar near Chembur was constructed. The Bandra slaughter house was demolished in 1973 and all animal slaughter operations were shifted to the Deonar abattoir. The petition says in paragraph 2 that the licensees found it difcult to get proper service at Deonar and that the abattoir there was going at a loss. Ultimately, after various representations being made to improve conditions and to increase efciency, licensees including the Petitioners, persuaded the municipal authorities to consider their case for permitting slaughter houses outside the Deonar abattoir. The Petitioners agree that they were heard by the municipal authorities in 1991. Finally, by a communication dated 6th April 1991 the municipal authorities informed the Petitioners that they were being granted individual licenses to slaughter sheep and goats. There were various conditions set out in this communication, a copy of which is at Exhibit "A" to the petition. Page 5 of 72
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7. It is, therefore, appropriate that we turn to this document at this stage itself. We may only note that the averments in the petition that this communication of 6th April 1991 itself stated that the Deonar abattoir will be closed are entirely incorrect. There is no such statement in the letter in question. We feel it best to reproduce the communication in full to avoid all ambiguity.
"MUNICIPAL CORPORATION OF GREATER BOMBAY To, The President Bombay Suburban Khatik Association, 285, Jama Masjid, B.K.J.H.
Trust Ofce, S.V. Road, Bandra, Bombay 400 050 Sub.: Permission for removing the animals from Deonar Abattoir and to slaughter at the slaughtering chambers attached to the shops.
Sir, Kindly refer to your discussion with D.R.C. (Z-V) in this ofce on 20.3.91.
In this matter the undersigned would like to inform you that D.N.C. (Z-V) is pleased to consider your request to allow the members of your association to remove sheep and goats from Deonar Abattoir and to get it slaughtered at the slaughtering chambers attached to their respective shops Page 6 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc with immediate efect from 6.4.91 on the following terms and conditions.
1) Request of the individual licensee will not be considered. Association will have to submit letter with details of licensee and his demand every time. Association will also have to declare that licensee recommended in the list has got a slaughter chamber of approved design.
2) The members of the Association will purchase sheep and goats at Deonar Abattoir (i.e. Live Stock Market) on marketing days and the animals will be lairaged at Deonar Abattoir.
3) The Association will arrange to remove the required number of sheep and goats from Deonar Abattoir, everyday, on payment of Rs. 20/- per animal (schedule charges).
4) The sheep and goats will be transported by the Association from Deonar Abattoir to their shops, through their own transport.
5) The animals will be kept, for few hours, prior to slaughter at such a place that it will not cause any nuisance to the nearby public.
6) After the slaughter of sheep and goats, the concerned licensees will have to keep the waste products in a polythene bag which will be lifted by the Association's vehicle.
Under no circumstances the ofals and the paunch (waste) should be dumped at the nearby public dust-bin.
7) The licensees, recommended by the Association, will have to make necessary arrangements for maintaining the hygiene at the slaughtering chamber. After the days slaughter, the slaughtering chamber should be thoroughly Page 7 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc cleaned and washed by using detergents, available in the local market.
GENERAL MANAGER DEONAR ABATTOIR"
8. We are informed that about 360 of such individual licences were so issued. According to the Petitioners, the names of the licensees were being verifed until June 1991. There were some problems regarding waste and waste disposal.
9. Paragraphs 6 and 7 of the petition makes an allegation against persons unnamed and accuses them of making false allegations and of pressuring the Respondents. We prefer to ignore this generalised allegation.
10. What is undoubtedly true is that on 20th July 1991 the Respondents issued a communication, the one that is the subject matter of the challenge in this Writ Petition. A copy is at Exhibit "A" at pages 52-53. This is how that document reads:
"MUNCIIPAL CORPORATION OF GREATER BOMBAY Page 8 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 :::
Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc To, The President Bombay Suburban Khatik Association, 285, Jama Masjid, B.K.J.H.
Trust Ofce, S.V. Road, Bandra, Bombay 400 050 Sub.: Permission for removing the animals from Deonar Abattoir and to slaughter at the slaughtering chambers attached to the shops.
Sir, The members of your Association have been allowed vide D.M.C. (Z.V)'s orders to remove sheep and goats from Deonar Abattoir and to slaughter them in the slaughtering chambers attached to their respective shops on certain terms and conditions with efect from 4.5.91.
However, as per Municipal Commissioner's recent orders, your are, hereby informed that the permission so granted on experimental basis is for a period of 3 months only i.e. upto 3.8.91.
You are, therefore, kindly requested to note he above orders and do not present the further list of the mutton tall holders, in this behalf.
The existing suburban licensees to whom the permission have already been granted, will be allowed to remove sheep and goats from Deonar Abattoir to their respective shops till 3.8.91. The said permission will, however, be revoked with efect from 4.8.91.
Thanking you, Yours faithfully, GENERAL MANAGER Page 9 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc DEONAR ABATTOIR"
11. Now this communication states that the permission earlier granted was for three months only up to 3rd August 1991; that it was experimental; but all permissions would be revoked from 4th August 1991.
12. The wording of this impugned communication is the starting point of Mr Kurle's assault on it. He says that it was never stated at the beginning, i.e., at the time of issuance of the licences on 6th April 1991 that this permission was only for three months and that it was experimental. No such condition could have been added or imputed later. The Petitioners and the licensees having complied with all other terms and conditions, the unilateral revocation and cancellation of licenses is, in his submission manifestly arbitrary, unfair, discriminatory and violative of principles of natural justice since no hearing was aforded to the Petitioners.
13. Our attention is also drawn to a letter dated 3rd January 2018, from the General Manager of the Deonar abattoir to the Petitioners (pages 156-157) which referred to the April 1991 temporary Page 10 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc permission and the revocation in July 1991. This was at the time when the present Petition had been dismissed for default. A reference is also made in this judgment to certain Supreme Court decisions to which we will presently turn. What is, however, important is that a similar Writ Petition appears to have been fled by the All Maharashra Khatik Association being Writ Petition No. 1394 of 2014, in which following the Supreme Court decision in Laxmi Narain Modi v Union of India (Writ Petition (C) No. 309 of 2015) of 27th August 2013, the municipal authorities were ordered not to issue licences for slaughter of animals at any place other than recognised slaughter or licensed slaughter houses.
14. Mr Kurle invites our attention to the Slaughter House Rules of 2001 and contends that the Petitioners are by no stretch of the imagination running illegal slaughter houses. He submits that so long as the Petitioners are willing to abide by all conditions including as to hygiene and disposal, there is no reason to abruptly discontinue the licences granted. Mr Kurle invites our attention to Sections 399 and 403 of the Mumbai Municipal Corporation Act 1888 ("MMC Page 11 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc Act"), which we will consider a little later in this judgment in more detail.
15. Although Mr Kurle has attempted to persuade us on the basis of certain statistics collated, we do not believe this would be helpful in assisting a challenge mounted invoking a constitutional right or entitlement. Similarly, a generalised statement that the Deonar abattoir is bad or unhygienic or that there is no adverse incident reported is, in our view, neither here nor there.
16. The limited conspectus of this challenge is, therefore, to the withdrawal of the letter of 20th July 1991. At this stage we review previous orders. It appears that the Petition was admitted on 8th August 1991 and interim relief granted. An appeal against the interim order failed. The 3rd Respondent, Jeevan Jagruti Trust, sought impleadment and this was allowed after which it fled the Motion for interim reliefs. There was some mistake in the order made in the Motion in the sense that while dismissing the Motion the order referenced the Writ Petition although the Writ Petition was not on board. All this was clarifed by the Division Bench by an Page 12 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc order of 28th February 2003. We need say nothing further in that regard. The papers then had to be reconstructed as passage of time had damaged the record considerably. This exercise was completed by March 2018. The matter was listed periodically. This Court directed the fling of further Afdavits.
17. We come then to a more detailed order of 9th October 2018 by a Bench of which one of us (SC Dharmadhikari J) was a member. At that time the present Petition was listed with the Ajay Marathe PIL as also All Maharashtra Khatik Association applications. The attempt in that order was to more accurately focus the attention of all concerned on the relevant statutory provisions and, in that context, called for further Afdavits. It would be proftable at this stage to reproduce that order for the simple reason that it provides a statutory framework and this will be our guide in the following judgment as well.
"1. In this petition under Article 226 of the Constitution of India, which is entertained as a PIL, the petitioner has claimed diverse reliefs.
2. We do not wish to mix up the issues for what we have Page 13 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc noticed is that the enactments like the Mumbai Municipal Corporation Act, 1888 ("MMC Act" for short), which is a pre-constitutional enactment, has now inserted provisions whereby slaughter of animals will take place only in a slaughter-house established by the Municipal Corporation or a licensed slaughter-house.
3. However, on the earlier occasion we had invited the attention of the Senior Counsel appearing for the Municipal Corporation to several provisions in the MMC Act and under the caption "Regulation of Factories, Trades, etc., which mandate that certain articles or animals not to be kept and certain trades, processes and operations not to be carried out, without a licence, and things liable to be seized, destroyed, etc., to prevent danger or nuisance (Section
394). Then, we have a provision in the same statute whereunder the Municipal Corporation has to make extensive arrangements to set up its own markets. By Section 398, which appears under the caption "Maintenance and Regulation of Markets and Slaughter- houses", which was renumbered by Bombay Act 54 of 1955, sub-section (1) thereof says very clearly that all markets and slaughter-houses which belong to or are maintained by the Corporation shall be called "municipal markets" or "municipal slaughter houses". All other markets and slaughter-houses shall be deemed to be private. Section 399 provides for new municipal markets and slaughter-houses, and then Section 400 provides for closure of municipal markets and slaughter-houses. The Commissioner of the Municipal Corporation, with the sanction of the Corporation and of the State Government, at any time, close any municipal market or slaughter-house, and the premises occupied for any market or slaughter-house so closed may be disposed of as the property of the Corporation.Page 14 of 72
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4. Section 401, which was extensively amended by Maharashtra Amendment 31 of 2018, says that no person shall, without a licence from the Commissioner, sell or expose for sale any animal, and then we have what is inserted by the amendment and that reads as under:-
"In section 401 of the Mumbai Municipal Corporation Act, in sub-section (1), after the words "for sale any animal" the words, brackets and fgures, "elegant or exotic bird and elegant or exotic fsh (except those animals, birds and fshes prohibited under the Wildlife (Protection) Act, 1972 or under any other law for the time being in force)" shall be inserted."
Opening of new markets, styled as private markets, is dealt with by Section 402, and private markets not to be kept or permitted to be kept open and no place to be used or permitted to be used as a slaughter-house, without licence is contemplated by Section 403. Section 403 reads as under:-
"403. (1) No person shall without, or otherwise than in conformity with the terms of, a licence granted by the Commissioner in this behalf --
(a) keep open [or permit to be kept open] a private market;
(b) use [or permit to be used] any place in [Brihan Mumbai] as a slaughter-house or for the slaughtering of any animal intended for human food ;
(c) use [or permit to be used] any place without* [Brihan Mumbai] whether as a slaughter-house or otherwise, for the slaughtering of any animal intended for human food to be Page 15 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc consumed in [Brihan Mumbai].
(2) Provided that- -- (d) the Commissioner shall not refuse, cancel
or suspend any licence for keeping open a private market * The correct word, according to us, ought to be 'within' for any cause other than the failure of the owner thereof to comply with some provision of this Act, or with some regulation framed under section 406 or with some by-law made under this Act, at the time in force and shall not cancel or suspend any such licence without the approval of [the Standing Committee].
(dd) the Commissioner may with the previous approval of the [the Standing Committee] cancel or suspend, any licence for failure of the owner of a private market to give in accordance with the conditions of his licence a written receipt for any stallage, rent, fee or other payment received by him or his agent from any person for the occupation or use of any stall, shop, standing shed, pen or other place therein;
(e) nothing in this section shall be deemed to prevent the Commissioner from granting written permission for the slaughter of an animal in any place that he thinks ft, on the occasion of any festival or ceremony or under special circumstances.
(f) the Commissioner may suspend the licence of a trader, an owner of a private market or of an Page 16 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc abattoir for a period not exceeding sixty days if it is found that the trader or the owner of the private market or, as the case may be, the abattoir is not taking proper measures to keep the premises clean or is not disposing the trade refuse including carcass of dead animals in the proper manner.
(2A) Any animal or fesh intended for human food found in the possession of any person contravening the provisions of clause (b) or (c) of sub-section (1) may be seized by the Commissioner or any municipal ofcer or servant or by any police ofcer and any such animal or fesh may be sold or otherwise disposed of as the Commissioner shall direct. The proceeds, if any, arising from such sale shall belong to the Corporation.
(2B) For the purposes of this section, the owner or occupier of any place which is habitually used for the slaughter of animals intended for human food shall be deemed to have used or permitted to be used such place for the slaughter of animal unless he proves that the place was so used without his knowledge.
(3) When the Commissioner has refused, cancelled or suspended any licence to keep open a private market, he shall cause a notice of his having so done to be afxed in the English, Marathi, Gujarati, [Hindi] and Urdu languages on some conspicuous spot on or near the building or place where such market has been held."
5. Then prohibition of sale in unauthorised private markets is dealt with by Section 404, and Section 405 lays down the guidelines or provisions which are required to be Page 17 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc followed in private market-building and slaughter-houses to be properly paved and drained. Then we have a provision which is expansive and that is Section 406. It enables regulations to be framed for markets and slaughter-houses. Levy of stallages, rents and fees in municipal markets is dealt with by Section 407, and Section 407A, which deals with removal of live cattle, sheep, goats or swine from any municipal slaughter-house, market or premises, reads as under:-
"407A. (1) No person shall, without the written permission of the Commissioner and without the payment of such fees as may be [prescribed by the Corporation], remove any live cattle, sheep, goats or swine from any municipal slaughter-house or from any Municipal market or premises used or intended to be used for or in connection with such slaughter-house:
Provided that such permission shall not be required for the removal of any animal which has not been sold within such slaughter-house, market or premises and which has not been within such slaughter-house, market or premises for a period longer than that prescribed under regulations made by the [Corporation] in this behalf, or which has in accordance with any by-law made under this Act, been rejected as unft for slaughter at such slaughter-house, market or premises.
(2) Any fee paid for permission under sub- section (1) in respect of any animal removed to a Panjrapole shall, subject to the regulations made by the [Corporation] in this behalf, be refunded on the production of a certifcate from the Panjrapole authorities that such animal has been Page 18 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc received in their charge."
6. Then, by Section 409, power is conferred in the Commissioner to expel persons contravening the by-laws or regulations, and there is a clear provision which prohibits sale or supply of animals, except in a market (Section 410). Section 410 reads as under:-
"410. (1) Except as hereinafter provided, no person shall, without a licence from the Commissioner, [sell or supply or expose for sale or supply] any [animal or bird or any meat or fesh or fsh] intended for human food, in any place other than a Municipal or private market:
(2) Provided that nothing in sub-section (1) shall apply to fresh fsh sold from or exposed for sale in, a vessel in which it has been brought direct to the seashore, after being caught at sea."
7. Now this provision is required to be carefully perused in the light of the arguments which Mr. Sakhare canvasses in this case.
8. We have only reproduced this provision but do not interpret it presently for we are mindful of the fact that we have on board a writ petition of 1991 fled by Bombay Suburban Khatik Association.
9. They have a grievance and in relation to an illegal or unlawful prohibition imposed by the Municipal Corporation on such of those members of this Association who had at one time valid licences. They complain that in the garb of regulatory measures, the Municipal Corporation is not allowing even a lawful trade or lawful legal activity.
10. That is why we only reproduced Section 410.Page 19 of 72
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11. There is a Licensing of butchers, etc., and that is to be found in Section 411, and Section 412 prohibits import of cattle, etc., into Brihan Mumbai without permission. It is in these circumstances that we are expecting a comprehensive afdavit from the Municipal Corporation.
12. The Municipal Corporation says that it is indeed following the mandate of the three statutes referred by Mr. Jha on the earlier occasion, namely, the Prevention of Cruelty to Animals Act, 1960, the Food Safety and Standards Act, 2006 which also has been extensively referred before us and the Prevention of Cruelty to Animals (Slaughter House) Rules, 2001.
13. It is stated that the Maharashtra Animal Preservation Act, 1976 is also present to the mind of the Municipal Corporation of Greater Mumbai.
14. Hence, some action may have been taken periodically and seizures may have been efected, prosecution launched but what we expect is that once there are provisions like Section 316 and other regulatory measures to be found in the MMC Act, then, the afdavit should disclose a compliance therewith and till date.
15. The afdavit should indicate the issue or point-wise compliances with the statutes which we referred and equally the provisions in the MMC Act on the subject.
16. We expect such an afdavit to be fled on or before 2- 11-2018, with advance copy to the petitioner's Advocate.
17. Mr. Samant, appearing for the State and Mr. Marne, appearing for the Navi Mumbai Municipal Corporation ("NMMC" for short), fairly state that the NMMC till date has not establish its own slaughter house.
18. Mr. Marne says that undoubtedly it is the Page 20 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc constitutional obligation of each Municipal Corporation to provide for regulation of slaughter house and tanneries. He says that Section 63(12) of the Bombay Provincial Municipal Corporations Act, 1949 envisages the construction and maintenance of slaughter houses as also the regulation thereof.
19. In para 3 of this afdavit fled today, Dr. Vaibhav Zunjare, Veterinary Ofcer, NMMC, very fairly and candidly says that in the entire area of Navi Mumbai which comprises of the NMMC and Panvel Municipal Corporation, currently there is no private or municipal slaughter-house. However, this afdavit in paras 4 and 5 states as under:-
"4. I further say that the matter of construction of slaughter house within the jurisdiction of Navi Mumbai Municipal Corporation is being taken up on high priority with CIDCO. CIDCO has shown willingness to allot Plot bearing Survey No.323B (Pt.), Shiravane, MIDC, adm. 85163.28 sq. meter to the Municipal Corporation on which it is proposed to construct and establish integrated veterinary complex comprising slaughter house, veterinary hospital, dog control center, cattle pound, animal incinerator. Some issues like payment of lease premium to CIDCO, clearance from Forest Department etc. are being ironed out. Once CIDCO hands over the said plot to the Municipal Corporation, the work of construction of slaughter house thereof would be immediately undertaken.
5. I further say that only on the occasion of the festival of Bakri Eid, the Municipal Page 21 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc Corporation grants temporary permission for slaughter of only small animals under the provision of section 378(1)(iv) of the Maharashtra Municipal Corporations Act. Such temporary permissions are required to be granted on account of the fact that there is no private or municipal slaughter house within the jurisdiction of Navi Mumbai Municipal Corporation."
We accept each of these statements made in this afdavit as undertaking to this Court.
20. We would expect a further afdavit not by a Veterinary Ofcer but the Municipal Commissioner or such other high ranking ofcer duly authorised by him which would indicate the concrete steps taken to move the City and Industrial Development Corporation of Maharashtra ("CIDCO" for short), which has identifed a plot of land to be handed over to the NMMC for establishing a slaughter-house, as to what steps have been taken to follow- up this measure, was the subject-plot allotted by CIDCO. The afdavit should indicate when the handing over of the plot will take place and when the administrative and budgetary approvals and sanctions would be accorded and granted and when the construction activity will commence and within what time will it be completed. Such an afdavit is expected to be fled on the record of this petition as expeditiously as possible and in any event before 19-11-2018.
21. It is thus clear that this public interest litigant has moved this Court after noticing that the State Government and the statutory functionaries have grossly neglected the issue of maintenance and up-keep of slaughter houses, licensing of private slaughter houses, prohibition of illegal slaughter display and sale of animal beef, etc., by carrying out such acts in the open. Several instances have been cited Page 22 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc in the petition of such illegal acts and committed in broad- daylight on pavements and footpaths and such places which are easily accessible and visible to the public, either passing by or using a busy road, a market area or in a residential zone.
22. Mr. Jha had contended before us that contrary to every stipulation and to be found in the above mentioned enactments to the efect that no slaughter-house or no slaughtering should take place within 100 metres of a religious structure or educational institution or a hospital or in the vicinity of such premises or localities where there are houses and homes constructed for residence, etc., above acts are brazenly going on. No vigil is maintained even though it is claimed that there are Flying Squads and the staf works round the clock to prevent these activities. It is for the State now to ensure that each of the rules and which are framed under the provisions of the Prevention of Cruelty to Animals Act, 1960 and the Food Safety and Standards Act, 2006 are not fouted or violated in such brazen manner, as is complained by the petitioner. There are, in feld, several orders and directions issued by the Hon'ble Supreme Court of India. On the earlier occasion we expected Mr. Samant to make a statement with regard to any pending Supreme Court proceedings on the point or issue in this PIL. That was with a view and to prevent multiple legal actions either in public interest or otherwise on the same question. We have found this tendency amongst PIL petitioners also and when they are aware that there are proceedings pending in the Hon'ble Supreme Court of India styled as PILs, they ought not to be moving the High Court unless the PIL petitions by the Supreme Court are disposed of or the Supreme Court is not seized of any of such questions which are the subject-matter of their PILs. It is our experience that multiple PILs do not serve the larger public interest at all. In fact, conficting orders Page 23 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc and decisions are rendered and which are counter- productive. Then, the cause sufers. In such circumstances, a compilation of orders handed over by Mr. Samant and perused carefully by us reveals that presently there is nothing pending in the Hon'ble Supreme Court of India or in this Court and as comprehensively brought before us in these petitions. The PILs of the petitioners in the Supreme Court are disposed of but with proper direction. The compliance of that direction also is an issue and we would expect a similar afdavit, as directed by us in the foregoing paragraphs, to be fled by the State Government. That also be fled on or before 19-11-2018.
23. We place this PIL and the Association's petition in the week commencing 26-11-2018, and the same shall be listed on 29-11-2018.
24. Though a chart is handed over to us by Mr. Sakhare setting out the raids, prosecution and other measures taken to prevent illegalities as highlighted in the foregoing paragraphs and particularly by the Special Vigilance Squad, what we have found is that better co-ordination and co- operation is expected at all levels. On these matters, the State Government and the Municipal Corporations should be acting together or seen to be acting together. It is a matter of public health as well. It is not enough that some measures are taken to prevent pollution for that is but a micro aspect of this whole matter. We have highlighted in the foregoing paragraphs most of the issues and which are equally our concern. We, therefore, expect the State Government not only to guide every Municipal Corporation and Panchayat in the State but to equally control them under the power vesting in the State Government and issue such direction as would bind them and in the event these binding directions are not abided, then, to take such steps and measures as the municipal legislation and the Page 24 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc constitutional provisions permit the State to initiate and carry forward. In these circumstances, the presence of the State Government is extremely vital for a proper decision on this issue.
25. While we direct fling of the afdavits, we clarify that we have not expressed any opinion on the legal contentions which have been raised in this PIL as also the petition of Bombay Suburban Khatik Association. None of the directions issued by us shall preclude or prevent the petitioner/Bombay Suburban Khatik Association Khatib as also the petitioner in the PIL from canvassing oral and written submissions in support of their petitions."
18. After some intervening orders, we were fnally able to take up the matter, and after a short delay beyond our control concluded the hearing on 20th September 2019.
Brief Analysis of Afdavits Filed on Record:
19. It is not possible to clearly identify these Afdavits as being in reply or rejoinder. Since there are further Afdavits we simply take them sequentially.
20. The frst afdavit is fled by one Ashok Anant Padalkar, the then General Manager of Deonar abattoir. In this Afdavit, he Page 25 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc denies that the Petitioners have a right of any kind to any licence or permission to slaughter goats or sheep attached to their respective shops. He submits that there is no case made out for the grant of any relief. He also complains of a delay in fling the Petition. In paragraph 7 at page 60B, Mr Padalkar states that 6th April 1991 permission was purely temporary and on an experimental basis. It was done in order to fnd out whether the scheme of granting such permissions would work successfully without risk or danger to public safety and health. He accepts that this kind of a permission ran contrary to well-settled and established standing practice since the time the Deonar abattoir was commissioned, i.e. that since that time there has been a policy in place not to grant any such private slaughter chamber permission to any person. His submission is that the very object of establishing the abattoir and spending (at that time) nearly Rs. 5 crores on it was in the interest of public safety and health especially in a densely populated congested metropolitan city such as Mumbai. The Deonar abattoir was designed to allow appropriate medical examination by veterinary doctors of the animals before slaughter and of the bodies after slaughter so that all Page 26 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc of this could be done conveniently in one place. It was also found necessary to concentrate all these activities in a single facility to be better able to control hygiene and to ensure that the entire process and the meat products were disease free. The object was also to prevent unauthorised slaughter at diferent places by private persons or agencies, to prevent the private and unauthorised transportation of animals for slaughter into the city and to ensure that the product was ft for human consumption. In paragraph 8 Mr Paladkar submits that it is very difcult to control and supervise slaughter at diferent places. If the Petition is accepted, the municipal authorities would have to supervise and control 150 to 189 locations and perhaps more and would not be able to provide the necessary veterinary assistance. He submits that there are always malpractice going on.
21. In paragraph 9 Mr Padalkar says that the experiment was the failure, it had not worked in a manner conducive to the public health and safety. It was impossible to continue supervising waste disposal. The unregulated, unsupervised and uncontrolled disposal of animal waste also attracts waste and itself possess a danger to public safety, Page 27 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc health and hygiene. Therefore, Mr Padalkar submits that after applying his mind to all relevant criteria the Municipal Commissioner took a study and considered decision to issue the letter of 20th July 1991. That letter was signed by Mr Padalkar himself.
22. There is next an Afdavit by one Atul Vrajraj Shah of the Jeevan Jagruti Trust. For the moment we will pass over that Afdavit and proceed to the next Afdavit.
23. This was fled by one Dr Yogesh Jaiprakash Shetty, pages 64-
66. This Afdavit is dated 2018 and at this time Dr Shetty was the General Manager of the Deonar abattoir. In this Afdavit, apart from referencing the previous reply feld by Mr Padalkar, Dr Shetty makes a reference to these 2001 Slaughter House Rules issued under the Prevention of Cruelty to Animals Act 1960. He says that these rules do not permit animal slaughter except in recognised or licensed slaughter houses. Within the MCGM jurisdiction, the Deonar abattoir is the only recognised slaughter house maintained as required under Section 61(h) of the MMC Act. He then makes a Page 28 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc reference to the Supreme Court Judgment in Laxmi Narain Modi and the order of the Supreme Court in that matter. Then there is a reference to the Food Safety and Standard Act 2006 and again to the order of this Court in the Maharashtra Khatik Association's Writ petition. Finally, there is a reference to the Aircraft Act 1934. He points out that it is in view of these statutory restrictions that the MCGM issued and discontinued chamber slaughter activity notice of 3rd January 2018 since the Petitioners had been protected by the interim order at the time of admission. He clarifes in paragraph 4(h) that there is no attempt to deprive the Petitioners' members from selling meat but only for slaughtering animals in chambers attached to these meat shops.
24. The next afdavit is of one Dr Apsing Esmail Paware, then Deputy General Manager (Chief Inspector) Deonar Abattoir, Govandi, Mumbai 400 043 on behalf of the Respondents Nos. 1 and
2. In this he frst makes mention that the permission granted on 5th April 1991 was on an experimental basis for three months until 3rd August 1991 and, that this permission stood revoked on 4th August Page 29 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc 1991. He points out that same Petitioner fled an earlier petition No. 2473 of 1991 challenging the letter issued by the General Manager of the Deonar Abattoir on 28th July 1991, and that this petition was dismissed on 24th June 1992.
25. He then points out that another Petitioner, the Akhil Bharatiya Krushi Go Seva Sangha and another fled Writ Petition No. 2566 of 1991 inter alia challenging the MCGM's decision to permit slaughter houses in this city. That petition is was also dismissed on 8th August 1991. Those petitioners fled Appeal No. 888 of 1991. This appeal was also dismissed on 5th October 1991 when a statement was recorded by the Court on behalf of the MCGM that the permission granted to the 189 members of the present Petitioner was only on a trial basis for three months and would not be extended. The deponent therefore says that the permission granted to the Petitioner and its members automatically stood revoked by virtue of the letter from the Deonar Abattoir of 28th July 1991. In the meantime the MCGM had called upon the Petitioners by letter of 17th October 2000 to discontinue and stop Page 30 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc the 'chamber slaughtering activity'. The Petitioners immediately fled a Notice of Motion No. 367 of 2000 and this was ultimately allowed on 28th February 2003, and which was the order of restoration of the Writ Petition (as mentioned above). He reiterates in paragraph 6 that MCGM has not stopped the business of the Petitioner members nor revoked, suspended or cancel their licenses to sell mutton obtained from the slaughter at the Deonar Abattoir. He then speaks about the statutory obligations of the MCGM and says that the Respondents have only changed the method of slaughtering in the interest of hygiene, civic sanitation and public health. There are details about these that are set out in the afdavit in paragraph 6 that are not immediately necessary. The substance of this averment is that there is no impact on the likelihood of the Petitioner's members at all. Any rights that the Respondents claimed must be weighed and balanced against the competing requirement of safeguarding public health, a statutory obligation cast on the MCGM. Finally he points out that the continuance of the Petitioner's activity poses a danger to the public and to Page 31 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc residence in the vicinity as they are compelled to live with unhygienic and harmful conditions.
26. We next have a short afdavit of 20th June 2018 from pages 147 onwards on behalf of the Petitioner by one Tanveer Patel. In this there is an allegation that the Deonar Abattoir is not functioning properly and that its infrastructure is dilapidated and defunct. He mentions several orders of the Maharashtra Pollution Control Board and the National Green Tribunal and norms of the Bureau of Indian Standards in relation to animal slaughter products. The entire tenor of this afdavit is to suggest that because the Deonar Abattoir is allegedly inadequate or substandard and allegedly because the MCGM is short of manpower therefore the Petitioner and its members have acquired some sort of legally enforceable or even fundamental right. It is also alleged that the Abattoir is in the prohibited zone under the Aircraft Rules 1937. The conclusion in this afdavit is in paragraph 12 at page 155 and this is how it reads:
"12. I say that in view of the fact that the Deonar abattoir which is established by the Respondent Corporation does not have the necessary facilities which are required for Page 32 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc carrying out the activity of slaughtering in a clean and hygienic manner it would not be in the interest of the public at large to prevent the Members of the Petitioner Association from slaughtering of the sheep and goats in the special Slaughtering Chambers which have been constructed adjoining to the shops of the Members of the Petitioner Association. I say that till the Respondent Corporation provides the necessary facilities for slaughtering of the sheep and goats in a clean and hygienic conditions and also provides for necessary facilities for transportation of the meat to the shops of the Butchers the practice which was being followed from 1991 till 2017 may be permitted to be continued."
27. The next Afdavit is dated 31st January 2019 of Dr Arun Kshirsagar, Deputy Superintendent of Markets from pages 254 onwards. It was fled pursuant to an order of the Court. In this in paragraph 4 of this Afdavit the following assertions are made.
"4 Without prejudice to the aforesaid contentions, the brief facts of the present case are as follows:
a) I say that Market Department of MCGM is supervising the action against illegal slaughter of sheep, goats and fowls for the entire Jurisdiction of Greater Mumbai. There has been increase in the No of Markets i.e. 92 Traditional Municipal Markets plus additional 92 Accommodation Reservation Markets.
b) I say that in 92 Traditional Municipal markets of the Respondent MCGM supervision was conducted, there was Special Vigilance Squad for three wings i.e. City, Eastern Page 33 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc Suburban and Western Suburban consisting of 12 Market Inspectors and 03 Head Inspectors, 37 peon along with Raid Van in each section for the purpose of taking swift action against illegal slaughter and illegal sale of fesh of sheep, goats and fowls etc. the duration of their working hours was round the clock.
c) I say that in addition to these 92 traditional municipal markets in the 1980's then there has been a steady increase in the number of markets in the Jurisdiction of MCGM i.e. 92 more additional accommodation reservation markets, Taking the total number of Municipal Markets to 184 markets as on date. Presently the Head Inspector of each Municipal ward has been given responsibility to take actions independently in his respective ward.
d) I say that Head Inspectors of market department who have been given the responsibility of 24 Municipal wards, are attending complaints and are taking suo motto action against illegal slaughter under section 410 (1) of MMC Act 1888 in their respective Municipal wards to best of their capacity with the help of local police.
e) I say that License holder's of mutton, fsh and fowl shops etc have been directed by this department to dump their waste products only in waste collecting trucks of MCGM and the same is strictly followed by the Market Inspectors of MCGM for the purpose of maintaining Hygiene in the markets and avoiding nuisance tot he public. This action carried out by the Market department also helps in reducing the menace caused by birds in the vicinity of airports their by curbing the no of birds-hits in the aerodrome area.
f) I say that mutton and other meat must be brought only from the Deonar Abattoir of MCGM for the purpose Page 34 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc of sale in the shops of licensee, as the Deonar Abattoir is the only authorised slaughter house equipped with Veterinary supervisory staf and all other connected facilities to provide fresh and hygienic meat to the public."
28. Then there is a description of the various powers invoked by the MCGM and as also the procedure followed in implementing the statute.
29. There is an afdavit in rejoinder of Tanveer Patel on behalf of the Petitioner from pages 271 onwards where once again the allegations in regard to the Deonar Abattoir are reiterated. It is also reiterated that the Petitioners are adhering to all conditions terms and requirements.
SUBMISSIONS ON BEHALF OF RESPONDENT NO. 2:
30. This is the relevant record in the Writ Petition itself.
31. We have already summarized Mr Kurle's submissions on the Petition. With this, we will now turn to the rival contentions placed by Mr Sakhare, learned senior Advocate on behalf of the MCGM. Page 35 of 72
19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc He has prepared a compilation of 181 pages to which we will make reference as necessary.
32. Our starting point for this discussion is a division bench order of 23rd July 2017 at pages 180 and 181 of the compilation. This was in a petition fled in Writ Petition No. 1394 of 2014 fled by another similar association called the All Maharashtra Khatik Public Trust. That order reads thus:
"1. Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondents. This petition is fled by an Association of butchers. There are two substantive prayers in this petition under Article 226 of the Constitution of India. The said prayers are prayer (b) and (c) which read thus:-
(b) By issuing appropriate writ in the nature of mandamus or any other appropriate writ, order and/or directions this Hon'ble Court may be pleased to direct the Respondents to grant license in favour of members of the Petitioner Association to conduct and run mutton shop and to slaughter sheep and goats in their respective shops.
(c) By issuing appropriate writ in the nature of mandamus or any other appropriate writ, order and/or directions this Hon'ble Court may be pleased to quash and set aside the letter dated 16.02.2009 issued by the General Manager of Deonar Abettor and declare the same as null and void and no efect in law;Page 36 of 72
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2. The Respondents have fled an afdavit-in-reply, in which they have relied upon the order dated 27th August 2013 passed by the Apex Court in Writ Petition (Civil No. 309/2003, Laxmi Narain Modi Vs. Union of India & Ors.) The Respondents are also relying upon further order passed by the Apex Court in the same petition.
3. The order dated 27th August 2013 contains a clear direction that animals shall not be slaughtered except in recognized and licensed slaughter houses. It further holds that no person shall slaughter any animal within a Municipal Area except in a slaughter house recognized and licensed by the concerned authority. Prayer (b) relates to communication dated 16th February, 2009 by which the application made by the Petitioner was rejected in the light of the communication issued by the State Government.
4. So long as the direction issued by the Apex Court stands, the Respondents cannot issue a license to the members of the Petitioners permitting them to slaughter animals at any place other than the recognized or licensed slaughter houses.
5. Hence, there is no merit in the petition and the same is rejected."
33. In itself, this order, though brief, is a complete answer even to the present petition. There is no material point of distinction between the two. However we proceed to consider the other arguments since they have been presented at some length. Mr Sakhare's essential arguments are that the chamber slaughter houses were a temporary permission for three months and purely on an Page 37 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc experimental basis. They carried no assurance of permanence and no issues of promissory estoppel or legitimate expectation can or do arise.
34. He is at pains to point out that the MCGM's decision not to continue that temporary experiment is not vulnerable. By its very nature the temporary experimental permission created no right and the non-extension of it is therefore not violative of any legally enforceable right let alone any fundamental right. The Petitioner and its members are at liberty to obtain licenses to vend mutton and other meat products. Their source of livelihood is in no way curtailed. There is no fundamental right of the nature claimed i.e. that the Petitioner and its members are limited to selling only those meat products that they generate from in-house slaughter in slaughter chambers attached to their respective shops. In fact no such fundamental right is specifcally pointed out and it is only generally alleged that there is a violation of the Petitioner's right to livelihood. Once it is demonstrated that the right to livelihood is not in fact curtailed in the slightest, the petition must necessarily fail. Page 38 of 72
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35. Importantly he submits, it was never open to the MCGM to grant a permission in violation of a contrary to statutory restrictions, policies or norms. It is for this reason that the permissions were strictly temporary and experimental. Once it was found that there continuance posed a danger to public health, public safety, sanitation and public hygiene, there would be no question of continuing those licenses, because to do so would have involved the violation by a statutory corporation of various statutes including its governing and constituting statute. The MCGM is of course bound by the provisions of MMC Act 1888 and he frst drew our attention to certain relevant provisions. These are included in the compilation submitted on behalf of the MCGM.
36. Under Section 317 with a concurrence of the Police Commissioner, the Commissioner may grant a written permission for the temporary erection of booth or other structure on any street on occasions of ceremonies and festivals. He emphasizes here is that there are various types of temporary permissions, this being one of Page 39 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc them. Section 398 deals with the maintenance and regulations of markets and slaughter houses. That Section reads thus:
"398. Maintenance and Regulation of Markets and Slaughter Houses. What to be deemed municipal; markets and slaughter houses.
1. All markets and slaughter houses which belong to or are maintained by the portion shall be called "municipal markets" or "municipal slaughter houses." All other markets and slaughter houses shall be deemed to be private.
2. The corporation may also establish markets for the purchase and sale of or trading agricultural produce specifed in Schedule JJ. The corporation may, with the previous action of the State Government, add to, amend or cancel, by notifcation in the Ofcial Gazette, any of the items of agricultural produce specifed in Schedule JJ."
37. Then there is a Section 399 which deals with the provision of new municipal markets and slaughter houses and which reads thus:
"399. Provisions of new municipal markets and slaughter houses.
1. The Commissioner, when authorized by the corporation in this behalf, may construct, purchase or take on lease any building or land for the purpose of establishing a new municipal market or a new municipal slaughter house or of extending or improving any existing municipal market or slaughter house, and may from time to time build and maintain such municipal markets and slaughter houses and Page 40 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc such stalls, shops, sheds, pens and other buildings or conveniences for the use of the persons carrying on trade or business, or frequenting, such municipal markets or slaughter houses, and provide and maintain in such municipal markets such buildings, places, machines, weights, scales and measures for weighing and measuring goods sold therein as he shall think ft.
2. Municipal slaughter houses may be situate within or, with the sanction of the (State Government) without (Brihan Mumbai)."
38. Sections 400 to 417 are comprehensive and we will summarise these below. Section 400 says that the Commissioner may with the sanction of the Corporation and of the State Government at any time shut down any municipal market or slaughter house and the premises occupied for such market or slaughter house may be disposed of as the property of the Corporation. Section 401 contains a prohibition of sale in a municipal market without a specifc license from the Commissioner. Any contravention invites summary removal of the person contravening the Section. It is for the Corporation under Section 402 to determine whether new private markets are to be permitted within the Corporation's command area but no one can establish a new private market for the purposes of exposing for sale or for the Page 41 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc sale of animals intended for human food or any other article of human food except with the prior permission of the Commissioner. This permission is to be guided by the decisions of the Corporation at the relevant time. Section 403 specifcally says that no person shall without or otherwise then in conformity with the terms of the license granted by the Commissioner use any place as a slaughter house or for slaughtering of animals intended for human use or use or permit to be used any place whether as a slaughter house or otherwise for slaughtering of any animal intended for human food to be consumed in Greater Mumbai. Sub-section 2(dd) says that the Commissioner may with the previous approval of the standing committee cancel or suspend any license for failure of the owner to adhere to the terms of the license. Finally sub-section (f ) says that the Commissioner may suspend the license of trader or any owner of a private market or of an abattoir if it is found that the trader or the owner is not taking proper measures to keep the premises clean and is not disposing of the trade refuse including carcasses of dead animals in the proper manner. Under Section 404 unauthorised private markets selling animals or articles of food are prohibited. Page 42 of 72
19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc Similarly there are prohibitions and regulations in regard to the removal of live animals from any municipal slaughter house or municipal market without written permission of the Commissioner. Section 405 says that these private markets and slaughter houses are to be properly paved and drained. Under Section 406 regulations are to be framed for markets and slaughter houses including for preventing nuisance and obstruction maintaining cleanliness, removal of flth and refuse, proper ventilation, sufcient water supply and so on. Section 410 prohibits the sale or supply of animals except in the market and under Section 411 all butchers and persons who sell or supply the fesh of animals are to be compulsorily licensed. Section 412 prohibits the importation of cattle etc into Brihan Mumbai without permission. The MCGM has the power to enter into any place for inspection under Section 413 and to inspect articles exposed for sale for human food under Section 414. Section 415 says that unwholesome articles may be inspected and seized if found to be deceased or unsound or unwholesome or unft for human consumption. Such items which are perishable and are so seized may be disposed of under Section 416. Non-perishable of Page 43 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc items and animals are to be taken before the presidency magistrate who may cause the same to be destroyed if found to be unsound or unwholesome.
39. Mr Sakhare then invites attention to Section 461 of Chapter XVII of the MMC Act and this gives the MCGM the power to frame bye-laws consistent with the Act inter alia with regard to maintenance of drains, ventilation, drainage works, municipal water works, public streets, inspection of markets and slaughter houses and of shops in which articles intended for human food are kept or sold, control and supervision of butchers, regulating the use of any municipal market building, market place or slaughter house and controlling and regulating the sanitary conditions of markets and slaughter houses and preventing the exercise of cruelty. Sections 476(a) and 476(b) provide for punishments.
40. The overall ambit of this statutory municipal regime is that the primary focus has to be at all times on public health, hygiene, sanitation and safety. If the Petitioner's submission are to be accepted, Mr Sakhare submits, then the Petitioners would Page 44 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc essentially taking an exemption from all these statutory provisions. He points out that in 1970s the original Abattoir was at Bandra which is found to be unsuitable and therefore the Deonar Abattoir proposal came to be made. As a practicality he states that it is not possible for the MCGM to discharge its statutory function if the licensed Butchers/Vendors are scattered across the city in large numbers. Where they are in one place, then that statutory purpose is achieved. He also points out that there is no assertion that the Petitioners are indeed compliant with all these regulations or are able to comply with them. There is not even an averment and there can be no fundamental right to this kind of a trade being done in a non-compliant manner.
41. In addition there are the provisions of other statutes that are equally applicable. There is the Prevention of Cruelty to Animals Act 1960 to be read with the applicable Rules. Section 11(e) defnes one form of cruelty to be the keeping or confning of any animal in a cage or receptacle which is not of an appropriate or sufcient height, length and breadth to permit the animal reasonable opportunity of Page 45 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc movement. A cruel killing of mutilation is also an act of cruelty within the meaning of Section 11(l). Section 28 does say that nothing in that Act renders it an ofence to kill an animal in a manner required by the religion of any community but this is not, in his submission, something that can be supervised efectively for the reasons already set out.
42. The Prevention of Cruelty to Animals (Slaughter House) Rules 2001 have a direct application. Rules 6 in particular deals with the type of the slaughter and prohibits and contains many prohibitions. For instance, no animal is to be slaughtered in sight of another or to be administered any chemical drug or hormone before slaughter except for a specifc deceased or ailment. A separate space is required for stunning of animals prior to slaughter, bleeding and dressing of carcasses. There has to be a knocking section separately planned to suit the animal and a curbed-in bleeding area as also blood drains, foor wash points etc. The construction of a slaughter house is also distinctly specifed in Rule 7 including specifcations of Page 46 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc the building, foors, interior walls, ceilings, windows, doors, screens and best-proofng.
43. There are specifc regulations to be followed by food business operators engaged in the manufacture process storing and selling of meat and meat products under the Food, Safety and Standards Act 2006. There are regulations for sanitary practices and pre-slaughter handling as also animal welfare transportation of animals is regulated as is loading. There are detailed provisions in regulation 4 in respect of the slaughter and the requirement of pre-slaughter stunning, the use of particular types of equipment, precautions to be taken for animal welfare and the recommendation for a model programme. The specifc requirements of meat shops are also set out in regard to their location and size. Again there are distinct specifcations and there is a specifc provision under the caption of sanitary practice, Regulation 9.05, which says that slaughtering of animal/birds inside shop premises must be strictly prohibited. How is it possible, he then asks, to grant the Petitioners any relief except by violating one or more of these regulations? Page 47 of 72
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44. The Transport of Animals Rules 1978 also contains specifc provisions regulating of transport of sheep and goats in Chapter VI and the Water (Prevention and Control of Pollution) Act 1974 specifcally says that there cannot be uncontrolled efuent or other discharge especially leading to a drain or water supply. Water bodies such as streams as wells cannot be used for disposal of polluting matter.
45. There are similarly prohibitions and restrictions under the Environment Act and under the Motor Vehicles Act and Rules. The latter provide for a minimum size of vehicles for each type of animal.
46. Under the Environment Protection Act, the Municipal Solid Waste (Management and Handling) Rules 2000 are notifed and Rule 4 says it is the responsibility of the municipality authority within its territory to implement these Rules for the collection storage, segregation, transportation, processing and disposal of municipal solid waste. Amongst this waste is specifcally include a waste from slaughter house, meat and fsh market etc. Stray animals are not to be allowed to be moved around waste or facilities and the Page 48 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc defnitions of municipal authorities include all municipal corporations while municipal solid waste is defned to include commercial and residential waste generated in a municipal or notifed area including treated by a medical waste. The forms attached with these Rules also require specifc information about slaughter houses and unauthorised slaughtering.
47. Therefore, he submits the Petitioners are simply no positioned to comply with these requirements. Second, it is against public and legislative policy to allow such disbursed small-sized individual slaughter chambers. Large animal slaughters can be permitted only in an abattoir and the slaughter of small animals is permitted only in certain exceptional cases such as festivals.
48. Lastly there is the aspect of a set of orders of the Supreme Court in the Laxmi Narain Modi decisions. In sequence, there are seven orders of the Supreme Court, all titled Laxmi Narain Modi v Union of India & Ors. We list these by date, providing the citations to each. The dates of the orders/judgments are: Page 49 of 72
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(i) 22nd November 2004;1
(ii) 28th March 2005;2
(iii) 23rd August 2012;3
(iv) 10th October 2012;4
(v) 9th July 2013;5
(vi) 27th August 2013;6 and
(vii) 30th January 2014.7
49. It is the order of 27th August 2013 that is most frequently cited and referenced. But we will begin by frst referring to the 23rd August 2012 order.8 The relevant portions read thus:
1. These writ petitions have been preferred in public interest seeking various directions to the State Governments as well as to the Union of India, Ministry of Environment and Forests, Animal Welfare Board of India and other statutory authorities to efectively implement the provisions of the Prevention of Cruelty to Animals (Establishment and Regulation of Societies for Prevention of Cruelty to Animals) Rules, 2000 and also the provisions of the Environment (Protection) Act, 1986, Schedule I 1 (2014) 1 SCC 613.
2 (2014) 1 SCC 612. 3 (2014) 2 SCC 417. 4 (2014) 1 SCC 243. 5 (2014) 1 SCC 241. 6 (2013) 10 SCC 227. 7 (2014) 3 SCC 143. 8 (2014) 2 SCC 417. Page 50 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 :::
Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc Entry 50 and also the Municipal Solid Wastes (Management and Handling) Rules, 2000, etc. Further, direction is also sought to ensure that the animals meant for slaughter are not transported in violation of the Transport of Animals Rules, 1978 and the Prevention of Cruelty to Animals (Transport of Animals on Foot) Rules, 2000. Further, prayers have also been made to ensure that the recognised slaughterhouses are in conformity with the provisions of the Prevention of Cruelty to Animals (Slaughter House) Rules, 2000 and also for other consequential reliefs.
2. A detailed afdavit has been fled by the Central Pollution Control Board (for short "CPCB") as early as in October 2003 wherein it has categorically stated as follows:
CPCB is of the view that the slaughterhouses generate substantial quantities of efuents and solid wastes.  It is, therefore, necessary that these units should install pollution control devices so that they can comply with the prescribed standards. Further, it was stated that the existing slaughterhouses need to modernise their operations with greater emphasis on utilisation of waste to reduce environmental problems and to maintain hygienic conditions. It is also pointed out that most of the slaughterhouses in the country are very old and operate without basic amenities such as proper fooring, water supply, ventilation, etc., and there is no (sic) need to upgrade old slaughterhouses on modern lines.Page 51 of 72
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3. Therefore, CPCB submitted that all the slaughterhouses in the country should comply with the prescribed standards. The local municipal agencies and police concerned should ensure that no illegal slaughtering takes place and also the units conform to the standards set by the State Pollution Control Boards and Pollution Control Committees.
4. This Court has passed various orders alerting the State Governments to properly implement the various provisions referred to hereinbefore but still no efective steps have been taken by various States either to constitute committees or to see that the slaughterhouses are functioning in accordance with the rules framed.
10. Further, it was also pointed out that even though the decision was taken by the MoEF on 26-4-2012 the same was forwarded to various State Governments only on 2-7- 2012 and so far no efective steps have been taken by the State Governments to constitute the Committee and to take further follow-up action. The functions to be discharged by such committees have also been dealt with in the meeting held on 26-4-2012 for proper implementation. The early constitution of the Committees is, therefore, highly necessary for proper and speedy implementation of the rules under the various enactments.
11. In such circumstances, we are inclined to give directions to all the State Governments and the Union Territories to constitute the State Committees for slaughterhouses, as decided in the meeting held on 26-4- 2012, including the Secretary, Local Self-Government as well as Secretary, Panchayat Raj as members of the Committee over and above the members already mentioned.
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50. This is evidently the judicially mandated background that operated to guide the hand of the MCGM in the matter of licensing of slaughter-houses.
51. The next important order is the one of 27th August 2013. 9 The relevant portions are as follows:
3. We reiterate the importance of proper implementation of the provisions of the Prevention of Cruelty to Animals (Establishment and Registration of Societies for Prevention of Cruelty to Animals) Rules, 2000; the Environment (Protection) Act, 1986; the Solid Wastes (Management and Handling) Rules, 2000 and the Prevention of Cruelty to Animals (Slaughterhouse) Rules, 2000. Over and above, it is also of extreme importance that all the State Governments, the State Animal Welfare Boards, Pollution Control Board, etc. should scrupulously follow the guidelines issued by MoEF, in obedience to the direction given by this Court on 10-10-2012 [Laxmi Narain Modi v. Union of India, (2014) 1 SCC 243] .
4. The guidelines are extracted hereinbelow for easy reference:
GUIDELINES FOR TRANSPORTATION OF ANIMALS AND SLAUGHTERHOUSES "I. RESPONSIBILITIES OF ANIMAL HUSBANDRY DEPARTMENT
1. Any livestock which are procured from the market are to be certified by a Veterinary Surgeon for issuing a fitness 9 (2013) 10 SCC 227.
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2. The loading and unloading of the animals in the market place and before transportation shall be supervised by the officials concerned of the Animal Husbandry Department to ensure that the animals are not subjected to unneces- sary pain or suffering.
3. In addition to the above health certificate a certificate has to be issued as per Rule 96 of the Transport of Animals (Amendment) Rules, 2001 by an officer of the Animal Hus- bandry Department not below the rank of Assistant Dir- ector/Deputy Director/Chief Veterinary Officer.
4. The Animal Husbandry Authority shall ensure that all an- imals are provided with shade, shelter, food and water as necessary and they are tethered securely in a way which does not cause unnecessary discomfort to animals.
5. The Animal Husbandry Department shall ensure that the sick, lame, injured and pregnant animals are not transpor- ted for slaughter.
6. They should also ensure that the animals are never lifted or dragged by head, horns, ears, feet, tail or any other part of the body which might cause unnecessary suffering. II. DOCUMENTATION BY DIFFERENT AUTHORITIES
7. It should be ensured that each consignment shall bear a label showing in bold red letters the name, address and telephone number (if any) of the consignor and consignee, the number and types of cattle being transported and quantity of rations and food provided.
8. The consignor shall be informed about the train or vehicle in which the consignment of cattle is being sent and its arrival time in advance.
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9. The consignment of cattle shall be booked by the next train or vehicle and shall not be detained after the consign- ment is accepted for booking.
III. GUIDELINES TO BE FOLLOWED BY THE AUTHORITIES FOR TRANSPORTATION OF DIFFERENT ANIMALS (CATTLE, SHEEP AND GOAT, PIG) THROUGH RAIL OR ROAD
10. The average space provided per cattle in the railway wagon or vehicle shall not be less than two square metres.
11. Suitable rope and platforms should be used for loading cattle from vehicles.
12. In case of railway wagon the dropped door of the wagon may be used as a ramp when loading or unloading is done to the platform.
13. The cattle shall be loaded after they are properly fed and given water.
14. Watering arrangements on route shall be made and sufficient quantities of water shall be carried for emer- gency.
15. Sufficient feed and fodder with adequate reserve shall be carried to last during the journey.
16. Adequate ventilation shall be ensured.
17. Emergency/first-aid equipment is carried.
18. The vehicle should have suitable ramps and platforms for loading and unloading.
19. There should be sufficient bedding on the floor of the vehicle.
20. The vehicle breast bars should be properly placed. Page 55 of 72
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21. The vehicles are maintained so as not to cause injury, pain or suffering.
22. The vehicle is clearly identified as an animal carrier.
23. There is a permanent indication of the maximum an- imal/vehicle load.
24. The latest amended space allowance for transporting the cattle by rail or vehicle is given in Tables I and II given below:
TABLE I Cattle weighing up to 200 kg 1.0 square metre (sq m) Cattle weighing 200-300 kg 1.20 square metre Cattle weighing 300-400 kg 1.40 square metre Cattle weighing above 400 kg 2.0 square metre Page 56 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc TABLE II Space requirement for cattle while being transported in commonly sized road vehicles Number of cattle Vehicl Floor Cattle Cattle Cattle Cattle e size area of weighing weighing weighing weighing length vehicle up to 200 200-300 kg 300-400 kg above × in kg (1.0 sq (1.20 sq m (1.40 sq m 400 kg width square m space space per space per (2.0 sq m square metre per cattle) cattle) cattle) space metre (sq m) per cattle) 6.9 × 16.56 16 14 12 8 2.4 5.6 × 12.88 12 10 8 6 2.3 4.16 × 7.904 8 6 6 4 1.9 2.9 × 5.481 5 4 4 2 1.89 IV. GUIDELINES FOR TRANSPORT OF SHEEP AND GOATS BY RAIL OR ROAD INVOLVING JOURNEYS OF MORE THAN SIX HOURS
25. Sheep and goats shall be transported separately; but if lots are small special partition shall be provided to separ- ate them.
26. Rams and male young stock shall not be mixed with fe- male stock in the same compartment.
27. Sufficient food and fodder shall be carried to last during the journey and watering facility shall be provided at regu- lar intervals.
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28. The material for padding, such as straw, shall be placed on the floor to avoid injury if an animal lies down, and this shall be not less than 5 cm thick.
V. PRECAUTIONS TO BE TAKEN WHILE TRANSPORTING SHEEP AND GOATS
29. The animals shall not be fettered unless there is a risk of their jumping out and their legs shall not be tied down.
30. Adequate ventilation shall be provided in every wagon. Upper door of one side of wagon shall be kept open and properly fixed and the upper door of the wagon shall have wire gauge closely welded mesh arrangements to prevent burning cinders from the engines entering the wagon and leading to fire breakout.
31. The space required for a goat shall be the same as that for a woolled sheep and the approximate space required for a sheep in a goods vehicle or a railway wagon is pre- scribed in the rules.
32. The goods vehicles of capacity of 5 or 4½ tons, which are generally used for transporting animals, shall carry not more than forty sheep or goats.
33. In the case of large goods vehicles and wagons, parti- tions shall be provided at every two or three metres across the width to prevent the crowding and trapping of sheep and goats.
34. In the case of ewes, goats or lambs or kids under six weeks of age, separate panels shall be provided. Note: the latest space allowance required for transporta- tion of sheep and goats is given below:
Approximate weight of animals in Space required in kilogrammes square metres Page 58 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 :::
Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc Woolled Shorn Not more than 20 0.17 0.16 More than 20 but not more than 25 0.19 0.18 More than 25 but not more than 30 0.23 0.22 More than 30 but not more than 40 0.27 0.25 More than 40 0.32 0.29 VI. GUIDELINES FOR TRANSPORT OF PIGS BY RAIL OR ROAD: "PIGS" INCLUDES PIGLETS, HOGS, HOGLETS AND ANIMALS OF PIG FAMILY, INVOLVING JOURNEY MORE THAN SIX HOURS (A) Mandatory requirements
35. A valid health certificate by a veterinary doctor to the effect that the pigs are in a fit condition to travel by rail or road and are not suffering from infectious or contagious or parasitic disease shall accompany each consignment in the transport of pigs by rail or road.
36. In addition to the above health certificate a certificate has to be issued as per Rule 96 of the Transport of Animals (Amendment) Rules, 2001 by the officer of the Animal Hus- bandry Department not below the rank of Assistant Dir- ector/Deputy Director; Chief Veterinary Officer.
37. In the absence of a certificate under sub-rule (1), the carrier shall refuse to accept the consignment for trans- port.
38. The certificate under sub-rule (1) shall be in a form spe- cified in Schedule K.
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39. Each consignment shall bear a label showing in bold red letters the name, address and telephone number (if any) of the consignor and consignee, the number and type of pigs being transported and quantity of rations and food provided to them.
40. The consignee shall be informed in advance about the train or vehicle in which the consignment of pigs is being sent and its arrival time.
41. The consignment of pigs shall be booked by the next train or vehicle and shall not be detained after the consign- ment is accepted for booking.
42. First-aid equipment shall accompany the pigs.
43. Suitable ramps shall be provided for loading and un- loading the pigs.
44. In the case of a railway wagon, when the loading or un- loading is done on the platform the dropped door of the wagon shall be used as a ramp.
(C) Necessary precautions to be followed
45. While transporting a group of pigs by rail or road, male young stock shall not be mixed with female stock in the same compartment.
46. While transporting pigs by rail or road, sufficient food and fodder shall be carried to last during the journey and watering facility shall be provided at regular intervals.
47. While transporting pigs by rail or road, materials for padding, such as straw, shall be placed on the floor to avoid injury if an animal lies down, and this shall be not less than 5 cm thick.
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48. While transporting pigs by rail or road, the animals shall not be fettered unless there is a risk of their jumping out and their legs shall not be tied down.
(D) Space requirement during rail travel -- in transport of pigs by rail
49. No railway wagon shall accommodate more than the number of pigs as specifed in the Table below:
Broad gauge Metre gauge Narrow gauge (1) (2) (3) Area of Area of wagon Area of wagon Area of wagon wagon Less 21.1 square Less than 12.5 12.5 than metre and square metre square 21.1 above metre square and metre above Number Number of Number of Number Not al- of pigs pigs 50 pigs 25 of pigs 30 lowed 35
50. Adequate ventilation shall be provided in every wagon and the upper door of one side of wagon shall be kept open and properly fixed and the upper door of the wagon shall have wire gauge closely welded mesh arrangements to prevent burning cinders from the engines entering the wagon and leading to fire breakout.
(E) Space requirement during road travel -- in transport of pigs by road
51. Goods vehicles of capacity of 5 or 4.5 tons, which are generally used for transportation of animals, shall carry not more than twenty pigs.
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52. In the case of large goods vehicles and containers, par- tition shall be provided at every two or three metres across the width to prevent the crowding and trapping of pigs.
53. In the case of pigs under six weeks of age, separate panels shall be provided.
54. (1) The latest update on number of pigs which can be transported through rail is given below: "Broad Gauge (1) Area of wagon VPU having floor area 63.55 square metre Number of pigs 104 (0.61 square metre per pig)" (2) The latest update on the number of pigs which can be transported through vehicle is given below:
Maximum number of pigs permitted for road vehicles Sl.  Weane 43 37 22 19 r 2. Young 31 26 15 13 3. Adult 21 18 10 9 (3) For the purpose of pigs of all breeds, ages and sex, the following space allowances shall apply: Weaner -- piglet which has just been separated from the mother for the purpose of independent rearing and com- monly in the weight range of 12 kg-15 kg.
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VII. SPECIFICATIONS TO BE FOLLOWED FOR UNLOADING AND TILL THE ANIMALS ARE SUBJECT TO SLAUGHTER
55. The reception area of slaughterhouse shall have proper ramps for direct unloading of animals from vehicles or rail- way wagons and the said reception area shall have ad- equate facility sufficient for feeding and watering of anim- als.
56. The unloading of animals should be supervised by the Animal Husbandry Authorities.
57. Separate isolation pens shall be provided in slaughter- house with watering and feeding arrangements for animals suspected to be suffering from contagious and infectious diseases, and fractious animals, in order to segregate them from the remaining animals. The ante-mortem and pen area on slaughterhouse shall be paved.
58. Adequate holding area shall be provided in slaughter- house according to the class of animals to be slaughtered and the said holding area shall have water and feeding fa- cilities.
59. The resting grounds in slaughterhouse shall have over- head protective shelters with impervious material such as concrete non-slippery herring-bone type suitable to stand wear and tear by hooves, or brick, and pitched to suitable drainage facilities and the curbs of said impervious mater- ial 150 to 300 mm high shall be provided around the bor- ders of livestock pen area, except at the entrances and such pen shall preferably be covered.
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60. Every animal after it has been subjected to veterinary inspection shall be passed on to a lairage for resting for 24 hrs before slaughter.
61. The lairage of the slaughterhouse shall be adequate in size sufficient for the number of animals to be laired.
62. The space provided in the pens of such lairage shall be not less than 2.8 sq m per large animal and 1.6 sq m per small animal.
63. The animals shall be kept in such lairage separately de- pending upon their type and class and such lairage shall be so constructed as to protect the animals from heat, cold and rain.
64. The lairage shall have adequate facilities for watering and post-mortem inspection.
65. Feeding and watering arrangements in the animal holding area should be made available.
66. Whether ante and post-mortem examination by a quali- fied veterinarian is being carried out.
67. Animals not to be slaughtered except in recognised or licensed houses.
68. No person shall slaughter any animal within a muni- cipal area except in a slaughterhouse recognised or li- censed by the authority concerned empowered under the law for the time being in force to do so.
69. No animal which is pregnant, or has an offspring less than three months old, or is under the age of three months or has not been certified by a veterinary doctor that it is in a fit condition to be slaughtered, shall be slaughtered. Page 64 of 72
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70. The slaughterhouse shall have a reception area of ad- equate size sufficient for livestock subject to veterinary in- spection.
71. The veterinary doctor shall examine thoroughly not more than 12 animals in an hour and not more than 96 an- imals in a day.
VIII. METHOD OF SLAUGHTER OF ANIMAL AND PROCEDURE
72. No animal shall be slaughtered in a slaughterhouse in sight of other animals.
73. No animal shall be administered any chemical, drug or hormone before slaughter except drug for its treatment for any specific disease or ailment.
74. The slaughter halls in a slaughterhouse shall provide separate sections of adequate dimensions sufficient for slaughter of individual animals to ensure that the animal to be slaughtered is not within the sight of other animals.
75. Knocking section in slaughterhouse may be so planned as to suit the animal and particularly the ritual slaughter, if any and such knocking section and dry landing area asso- ciated with it shall be so built that escape from this section can be easily carried out by an operator without allowing the animal to pass the escape barrier."
6. We direct all the State Governments/UTs and the committees constituted to efectively follow the abovementioned guidelines. For giving further directions, initially we are inclined to direct the States of Tamil Nadu, Karnataka, Kerala, Delhi, Maharashtra and Uttar Pradesh to implement the provisions of the Act mentioned earlier as well as the guidelines issued by MoEF, and fle an action taken report within three months. Post after three months Page 65 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc along with the action taken reports. Communicate the order to the Chief Secretaries of the abovementioned States.
52. Given this background, we believe Mr Sakhare to be completely correct in his submissions. The law of the land, as enunciated and pronounced by the Supreme Court, left the MCGM with no discretion to permit on any permanent or continued basis any such private slaughter-chambers. That would not only be contrary to the mandate of the statutes as noted above, but explicitly and directly in violation of the orders of the Supreme Court (which mandated immediate statutory conformity and compliance). To say, therefore, as the Petitioners before us do, that the withdrawal of the temporary permission is bad in law, unlawful or otherwise vitiated is a submission that does not commend itself in the least.
53. We are, of course, also mindful of the well-defned parameters of our remit under Article 226 of the Constitution of India. We cannot and do not travel beyond the decision making process. We cannot substitute an administrative or executive decision with our own, merely on the suggestion of a party or merely because another view is plausible. The applicable test has to be the one derived from Page 66 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc Associated Provincial Picture Houses Ltd vs Wednesbury Corporation.10 This is the well-known test of 'Wednesbury unreasonableness', and it has been steadily applied by our courts. Now whether one considers the Wednesbury unreasonableness test or the doctrine of proportionality really makes little diference. It is hard to conceive of a situation that fails one standard but not the other. The fundamental test is that for a challenge to succeed the assailed decision must be so unreasonable that no rational person could have ever arrived at it. On its own, this carries a secondary requirement: there must be a facial demonstration of perversity and Wednesbury unreasonableness failure. If one is required to go through some convoluted process of reasoning, then there can simply be no question of perversity.
54. On this, and as a matter of law, we note that the two principles of Wednesbury unreasonableness and the doctrine of proportionality operate slightly diferently, in diferent circumstances and have diferent origins. There is an excellent analysis of this distinction by V Sudhish Pai in his article "Is 10 (1948) 1 KB 223 Page 67 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc Wednesbury on the Terminal Decline?"11 After examining the jurisprudential history, the author concludes:
No demise of Wednesbury What emerges from all this, is that in the exercise of the power of judicial review in matters concerning human rights and fundamental freedoms the intensity of the review is greater and there is a lowering of the threshold of unreasonableness.
The Wednesbury test, long established as a ground of judicial review, will be applicable in examining the validity of the exercise of administrative discretion. It is not apposite in cases of constitutional review. In UK, as there was no constitutional review, the Wednesbury test alone was applicable; proportionality was not. Proportionality as a ground of judicial review in UK, was frst adverted to by Lord Diplock in CCSU v. Minister for the Civil Service [1985 AC 374]. But it sufered a setback in R. v. Home Secy., ex p Brind. This was primarily because of the apprehension that the application of the doctrine of proportionality would convert judicial review into a merits review or an appeal.
But, later while dealing with cases involving human rights, the courts in UK adopted tests closely similar to proportionality. Now with the passing of the Human Rights Act, proportionality as a ground of review is invoked and applied as in other jurisdictions, when the case is one which involves human/fundamental rights. It is also true that all the tests will produce the same result in many situations. It needs to be emphasised that they are fexible doctrines depending on the subject-matter and often upon value 11 (2008) 2 SCC J-15.
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19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc judgments and factual evidence having no sharp edges. Flexibility is a prime virtue of the common law. In this background it is submitted that it will be quite inappropriate to speak of the decline or demise of the Wednesbury test. Certain observations, however, appear to require some explanation. The observations of Lord Slynn in Alconbury case [2003 2 AC 295] should not be taken and read out of context. So also the observation of Lord Cooke in Ex p Daly [(2001) 2 AC 532] about Wednesbury being retrogressive23. Wednesbury is thought to be retrogressive only insofar as it suggested degrees of unreasonableness and that only an extreme degree will nullify the action. But as Lord Cooke himself hastens to add "the depth of judicial review and the deference due to administrative discretion vary with the subject-matter". If that be the correct position then it is natural and inevitable that the threshold of unreasonableness justifying judicial intervention and invalidation of the impugned act also varies. It is submitted that Lord Steyn's enunciation of the law on this aspect in Ex p Daly with which all the other Law Lords including Lord Cooke agreed and which is now accepted and followed lays down the correct legal position. Is Wednesbury redundant?
The further question is whether the doctrine of proportionality has subsumed the test of Wednesbury reasonableness and rendered it redundant. A close study and analysis has to yield a negative answer. As stated the proportionality test is a more intense test than Wednesbury, both examining reasonableness. While Wednesbury applies to review of administrative action/discretion, proportionality is applied to test measures, administrative or legislative, which interfere with human rights and Page 69 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc fundamental freedoms and to evaluate the desirability and necessity and sufciency of such interfering measures. de Smith, Woolf & Jowell say that the intensity of review under the principle of proportionality need not necessarily eliminate or even reduce the reserve under the Wednesbury test in relation to interference with the merits of a decision. Judicial exercise applying the Wednesbury test or the proportionality test remains in the nature of a review and not an appeal. Proportionality is a more focused and enhanced form of perversity which is a part of Wednesbury unreasonableness. Outside the feld of human rights, proportionality is normally not applied. The margin of appreciation in proportionality is not very diferent from the threshold under the Wednesbury formulation. It varies according to the subject-matter and the context. The application of the doctrine of proportionality does not necessarily imply the abandonment of the Wednesbury principles appropriate to judicial review of administrative discretion. In a very general sense proportionality is a part and aspect of Wednesbury.
Sir John Laws says that it is a misleading notion that Wednesbury can only represent a monolithic standard of review and points out that nothing in Lord Greene's classic judgment is in the least monolithic. Proportionality and Wednesbury need not be institutionalised in rigid terms and proportionality need not be a separate category to have independent life.
It is submitted that the doctrine of proportionality has not subsumed and rendered redundant the test of Wednesbury reasonableness.
The principle of reasonableness and proportionality cover a great deal of common ground. For example, the Page 70 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc revocation of a trader's licence would be amenable to a successful challenge by judicial review on the ground of proportionality as easily as on unreasonableness. Then again, if a penalty of life imprisonment was given for an ordinary trafc ofence, it would be so outrageous in its defance of logic--hence irrational and unreasonable in the Wednesbury sense. It would also be grossly disproportionate. Such action would be vulnerable to judicial intervention both on the ground of Wednesbury unreasonableness as also proportionality. There are also cases in which the appropriate test for determining the validity of an impugned action will be the Wednesbury test and proportionality will not arise.
(Emphasis added)
55. It is for this reason that we believe that irrespective of which jurisprudential test is brought to bear -- Wednesbury unreasonableness or proportionality -- there is simply no case made out for intervention. As an overarching principle, the wider public concerns of safety, hygiene and sanitation will always prevail. In addition, there are statutory standards, regulations, restrictions and norms that do not permit the continuance of the Petitioners' licenses. There is the added requirement of adherence to orders of the Supreme Court, themselves mandating statutory compliance. We must, therefore, hold, which we do, that it would have been wholly impermissible for the MCGM to permit the continuance of Page 71 of 72 19th December 2019 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 23:54:27 ::: Bombay Suburban Khatik Association vs The MCGM & Ors wp2473-91+-J.doc the Petitioners' licenses. As a direct result, the challenge to that discontinuance must fail.
56. We see no substance in the petition. In our view the Petitioners have not been able to establish any right, let alone any fundamental right for the relief that they seek to continue with the chamber slaughter houses, presumably in perpetuity.
57. The petition is dismissed. There will be no order as to costs.
58. In view of dismissal of the petition, all interlocutory applications are dismissed as infructuous.
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