Om Prakash & Ors Vs. State of U.P & Ors
 Insc 140 (9 March 2004)
D.M. Dharmadhikari Dharmadhikari J.
On the question of competence of the Municipal
Board Rishikesh to amend the bye-law and validity of ban on sale of eggs in
public within the municipal limits of Rishikesh, I have found myself in
respectful agreement with the reasoning and conclusion of learned Brother Shivaraj
V. Patil, J.
I, however, consider it necessary to deal with seperately
the ground urged to assail the bye-law as being violative of fundamental right
of trade guaranteed to citizens under Article 19 (1) (g) read with Article 19
(6) of the Constitution of India.
Right to practice any profession or to carry on
any occupation, trade or business being a very valuable right has been treated
as fundamental and guaranteed under Article 19 (1) (g) of the Constitution.
This right can be restricted under Article 19 (6) only by law and on such
reasonable grounds which are found to be in the interest of general public.
What should be considered a reasonable restriction within the meaning of clause
(6) of Article 19 came up for consideration in a series of cases before this
In Chintaman Rao vs. State of M.P. [AIR 1951 SC
118], it was observed that there should be proper balance between the right of
trade guaranteed under Article 19(1)(g) and the social control permitted under
clause (6) of Article 19 :- 'The word 'reasonable' implies intelligent care and
deliberation, that is the choice of a course which reason dictates. Legislation
which arbitrarily or excessively invades the right cannot be said to contain
the quality of reasonableness and unless it strikes a proper balance between
the freedom guaranteed in Article 19(1) (g) and the social control permitted by
Clause (6) of Article 19, it must be held to be wanting in that quality'.
[emphasis added] In the case of State of Madras
vs. V.G. Row [AIR 1952 SC 196], this Court observed that there can be no
general principles or standards to test reasonableness of a restriction on a
particular trade. Each case has to be judged on the basis of facts and
circumstances brought to the notice of the Court.
'The test of reasonableness, wherever
prescribed, should be applied to each individual statute impugned, and no
abstract standard, or general pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter into the
[emphasis added] The observations in the
aforesaid two decisions have been quoted with approval in the State of Maharashtra
vs. Himmatbhai Narbheram Rao [AIR 1970 SC 1157] in which challenge to Section
385 of Bombay Municipal Corporation Act imposing restrictions on dealing with
carcass or skin of animals within the municipal limits as affecting the trade
of the people dealing in those obnoxious items was negatived holding such
restrictions to be in general public interest.
Reasonable restriction on certain trades in
articles which are hazardous to public health such as liquor, it is held, can
go to the extent of imposing complete prohibition on such trade. See State of Andhra Pradesh vs. Mcdowell & Co.
[1996 (3) SCC 709] .
Complete ban on slaughter of cow and its progeny
has also been upheld to save cow as an animal species highly useful to human
community. See Mohd. Hanif Quareshi & Ors. vs. State of Bihar [AIR 1958 SC 731] and Hashmattullah
vs. State of Madhya
& Ors. [1996 (4) SCC 391 ].
Learned Counsel on behalf of appellants has
argued that trade of eggs cannot be considered as objectionable or injurious to
In fact, egg eating is encouraged as necessary
for improvement of public health. Doctors recognise it as a nutritive
supplement to other food. There are eggs which contain no chicks and,
therefore, acceptable to many sections of the society including those who are
The basic question, therefore, that arises is
whether complete prohibition imposed on trade of eggs within the municipal
limits of Rishikesh can be held to be reasonable and can pass the test of
clause (6) of Article 19, as has been interpreted by this Court from case to
case in various situations It is a matter of common knowledge that Haridwar, Rishikesh
and adjoining town Muni Ki Reti situate on the bank of river Ganges are pilgrim
centres with huge temple complexes, shrines, ashrams, yoga teaching
institutions and other institutions engaged in religious activities and
spiritual practices. The three towns attract pilgrims round the year and in
greater numbers during auspicious days and annual fairs. Pilgrims congregate in
the towns to take bath in river Ganga considered to be holy by them. They visit
temples and stay in various religious places and institutions. There is, thus,
a continuous inflow of pilgrims in these religious towns. Every 6th year a big
religious fair is organised called as Purn Kumbh or Ardh Kumbh in which crores
of people from all over the country congregate in the three towns.
Supporting the imposition of ban on trade of
eggs along with ban on trade of meat and fish, which is already in existence,
it has been stated by the State and the local authority that it was so imposed
on constant demands of citizens, various organisations and institutions
operating within Haridwar and Rishikesh areas. Copies of some of such
representations in writing received from individuals and religious organisations
have been placed on record of this case. A major section of the society in the
three towns consider it desirable that vegetarian atmosphere is maintained in
the three towns for the inhabitants and the pilgrims.
In municipal limits of Haridwar public dealing
in meat, fish and eggs was banned by the Notification issued as far back as on 23rd July, 1956 and in Muni Ki Reti by
Notification dated 18.12.1976.
These restrictions imposed in Haridwar and Muni Ki
Reti have not been challenged by any section of people in the Court and have
continued as fully acceptable to all. The towns of Haridwar and Rishikesh have
acquired religious importance as they are located on banks of river Ganges in the foot hills of Himalayas and are two main entry
points for pilgrimage to Badrinath and Kedarnath located on the heights of Himalayas.
As a justification for extension of ban on trade
of eggs with ban on trade of meat and fish in municipal area of Rishikesh which
adjoins Haridwar and Muni Ki Reti, it has been stated on behalf of Municipal
Board and State that during the periodical Kumbh fairs, the areas which are
notified for organizing Kumbh Mela comprise parts of municipal areas in Haridwar,
Muni Ki Reti and Rishikesh. One such Notification earmarking the areas of Kumbh
Mela held in the year 1992, issued under byclause (2) of United Province, Mela
Act of 1938 (UP Act No.16 of 1938) has been annexed with counter affidavit of
The High Court in upholding complete restriction
on dealing and trading of eggs in Rishikesh has relied on several decisions of
this Court. The High Court has come to the conclusion that such prohibition
extended to the trade of eggs in municipal town of Rishikesh is a reasonable
restriction and has been imposed in the interest of general public.
Whether a particular restriction on trade to the
extent of its complete prohibition can be held to be 'reasonable' within the
meaning of clause (6) of Article 19 depends upon the nature of the trade
involved and the public interest that is intended to be served by such total
The concept of 'reasonableness' defies
definition. Abstract definition like 'choice of a course which reason dictates'
as propounded in the earliest case of this Court in Chintaman Rao (Supra) is
elastic. In the subsequent case of V.G. Row (supra), therefore, this Court has
observed that 'no abstract standard or general pattern' of reasonableness can
be laid down as applicable to all cases. Legal Author Friedmann in his book
'Legal Theory, 4th Ed., at pages 83-85', comments that reasonableness is an
expression used to convey basically the Natural Law ideal of 'justice between
man and man'. The concept of 'reasonable man' is also an application of the
principles of natural justice to the standard of behaviour expected of the
citizen. Th functional and conceptual implication of the term 'reasonableness'
is that it is essentially another word used for public policy. It means the
application of the underlying principles of social policy and morality to an
individual case. Friedmann further observes that the 'test of reasonableness is
nothing substantially different from 'social engineering', 'balancing of
interests', or any of the other formulas which modern sociological theories
suggest as an answer to the problem of the judicial function'.
The term 'reasonable restriction' as used in
Article 19(6) is highly flexible and relative term which draws its colour from
the context. One of the sources to understand it is natural law and in the
sense of ideal, just, fair, moral or conscionable to the facts and
circumstances brought before the Court.
The law regulating local administration of an
urban or rural area affects the social and economic life of the community. As
pointed out by another Legal Thinker Stone, in his book Social dimensions of
Law & Justice 'reasonable restriction', if properly used, helps in
'adjustments of conflicting interests' such as in the present case where large
number of people residing and visiting Rishikesh, believe in strict vegetarianism
as a part of their religion and way of life. The appellants who are running
hotels and restaurants and others like them constitute comparatively a very
small section of the society engaged in carrying on trade of non-vegetarian
food items in the town.
The reasonableness of complete restriction
imposed on trade of non-vegetarian food items has, therefore, to be viewed from
the cultural and religious background of the three municipal towns.
It is a matter of common knowledge that members
of several communities in India are strictly vegetarians and shun meat, fish and eggs. Such
people in great number regularly and periodically visit Haridwar, Rishikesh and
Muni Ki Reti on pilgrimage.
In the three towns people mostly assemble for
spiritual attainment and religious practices. All citizens are enjoined by Fundmental
Duties prescribed in Article 51-A to respect faith of each other and thereby
'promote harmony and spirit of common brotherhood' in a pluralistic society as India is.
Article 51-A "It shall be the duty of every
citizen of India (a) (b) (c) (d) (e) to promote harmony and the spirit of
common brotherhood amongst all people of India transcending religious,
linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;
(f) to value and preserve the rich heritage of
our composite culture." The Fundamental Duties enjoined on citizens under
Article 51-A should also guide the legislative and executive actions of elected
or non-elected institutions and organisations of the citizens including the
The resolution by Municipal Board Rishikesh to
amend its bye- laws for banning public dealing and trade of non-vegetarian food
items in municipal town of Rishikesh along with adjoining towns of Haridwar and
Muni Ki Reti has been taken in deference to the religious and cultural demands
of large number of residents and pilgrims who visit regularly and periodically
on auspicious and festive days to the three towns. It is stated on behalf of
the Municipal Board that major source of revenue and employment in the three
towns is from the continuous inflow of tourists and floating population of
pilgrims. Maintenance of clean and congenial atmosphere in all religious places
which are spread over all the three towns is in common interest of the
residents, pilgrims and visitors. Continuous floating population of pilgrims
benefit the inhabitants of the towns by providing them various sources of
earning livelihood and employment. Tourists and pilgrims are the major sources
of revenue for the Local Municipal Bodies and the inhabitants of the three
Geographical situation and peculiar culture of
the three towns justify complete restriction on trade and public dealing in
non-vegetarian food items including eggs within the municipal limits of the
The High Court rightly upheld it to be a
reasonable restriction. Trade in all kinds of food items vegetarian or
non-vegetarian in adjoining towns and villages outside the municipal limits of
three towns remains unrestricted and there is no substantial harm caused to
those engaged in such trade.
For the aforesaid reasons, the impugned bye-law
notified by Municipal Board Rishikesh cannot be held to be violative of Article
19 (1) (g) of the Constitution. With this addition, I respectfully agree with
the opinion of learned brother Shivaraj V. Patil, J. and with his conclusion
that this appeal be dismissed.