DISTRICT : KOLKATA
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE
SIDE
W. P. NO. 20387 (w) of 2015
IN THE MATTER OF :
An application under Article 226 of
the Constitution of India ;
AND
IN THE MATTER OF :
Writ of
and/or in the nature of appropriate Writs, orders and/or directions issued
thereunder;
AND
IN THE MATTER OF :
West Bengal Animal Slaughter Control Act, 1950 and
the West Bengal Animal Slaughter Control Rules, 1951, Notifications and
Circulars issued thereunder;
AND
IN THE
MATTER OF :
Inaction on the part of the State of West Bengal in
failing to implement the provisions of the West Bengal Animal Slaughter Control
Act, 1950 and the Rules framed thereunder by imposing the provisions of Cow
Slaughter on the ‘Bakri -id’ day;
AND
IN THE
MATTER OF :
Enforcement and implementation of the prohibitions
contained in the provisions of the said Act and the Rules framed thereunder,and
the directions and Orders passed by this Hon'ble Court and the Hon'ble Supreme
Court of India with respect to slaughter of Cows and/or its progeny;
AND
IN THE MATTER OF :
1.Dr. Shri Krishan Mittal, son of late K.C. Mittal, presently residing
at 7/1, Babulal Lane, 3rd Floor, Cotton Street, Kolkata-700 007
2. Subrata
Gupta, son of late Shanti Ranjan Gupta, residing at 718, SPD Block, Baghajatin, Kolkata-700 086
3. Enamul Haque C/o. Golam Kader, Village and P.O. Bamshire, P.S.
Bhatar, Dist. Burdwan-713520
4. Rajiv Mundhra, residing at 22,
Narayantolla West, Chawlpatty, Devi Apartment, 3rd Floor, Baguiati, Kolkata-700
059
5. Sunil Dwivedi, son of
Satyendra Kumar Dwivedi, residing at BD 4/2, Jamuna Apartment, Taltolla,
Kolkata-700 059
PETITIONERS
VERSUS
1.
State of West
Bengal, service through the Chief Secretary to the Government of West Bengal,
having his office at ‘Nabanna’, 325,
Sarat Chandra Chatterjee Road, P.O. Shibpur, Howrah-711102;
2.
Principal Secretary to the Government of
West Bengal, Home Department, having his office at ‘Nabanna’, 325, Sarat Chandra Chatterjee Road, P.O. Shibpur, Howrah-711102;
3.
Principal Secretary to the Government West
Bengal, Animal Resources Development Department, having his office at ‘Nabanna’, 325, Sarat Chandra Chatterjee Road, P.O. Shibpur, Howrah-711102;
4.
Principal
Secretary to the Government West Bengal, Transport Department, having his
office at ‘Nabanna’, 325, Sarat Chandra Chatterjee Road,
P.O. Shibpur, Howrah-711102
5.
Principal Secretary to the Government West
Bengal, Municipal Affairs Department, having his office at ‘Nabanna’, 325, Sarat Chandra Chatterjee Road, P.O. Shibpur, Howrah-711102
6.
Director General and Inspector General of
Police, West Bengal, having his office at West Bengal Police Directorate, 2nd
Floor, Bhabani Bhaban, Alipore, Kolkata – 700027.
7.
Inspector General of Police, West Bengal,
having his office at West Bengal Police Directorate, 2nd Floor, Bhabani Bhaban,
Alipore, Kolkata – 700027.
8.
Commissioner of Police, Kolkata, having his
office at 18, Lalbazar Street, Kolkata – 700 001.
9.
Transport Commissioner, Government of West
Bengal,
Paribahan
Bhavan, 12, R. N. Mukherjee Road, Kolkata-700 001
10.
Food Safety Commissioner, Swasthy Bhawan,
3rd Floor, Wing B, GN 29, Sector V, Salt Lake, Kolkata-700 091
11.
Kolkata
Municipal Corporation, having its office at 5, S. N. Banerjee Road, Kolkata –
700 013.
12.
Director of
Animal Resources Development, having his office at LB2,
Sector III, Sale Lake City, Kolkata – 700 098;
RESPONDENTS
To
The Hon’ble Mrs. Manjula Chellur, Chief Justice and
Her Companion Justices of the said Hon'ble Court.
The humble
petition on behalf of the Petitioners above named most respectfully –
SHWETH:
1.
The petitioners
are all citizens of India and are involved in social and charitable work.
2.
The West Bengal
Animal Slaughter Control Act, 1950 [hereinafter referred to as ‘the said Act’]
was enacted to control the slaughter of certain animals, namely, cows and
buffaloes in different species specified in the Schedule of the said Act. Its
object is to increase the supply of milk and avoid the wastage of animal power
necessary for improvement of agriculture.
3.
Section 2 of the
said Act provides application of the said Act to the animal specified in the
Schedule.
4.
Sub-Section (1)
of Section 4 of the said Act, provides that notwithstanding
anything in any other law for the time being in force or in any usage to the
contrary, no person shall slaughter
any animal unless he has obtained in respect thereof a certificate under
sub-section (2) or sub-section (3) of Section 4 of the said Act that the animal
is fit for slaughter.
5.
Sub-section (2) and (3) of Section 4
provides that the President of a municipality or a Parnchayat Samiti, and the
Veterinary Surgeon may issue a certificate of fitness, if the animal is over 14
years of age and is unfit for work and breeding or that the animal has become
permanently incapacitated from work or breeding due to age, injury, deformity
or any other incurable disease.
6.
Section 7 provides that contravention of
the Act is punishable with imprisonment or fine or with both. Section 8 of the
said Act makes such offence cognizable.
7.
Section 12 of the said Act provides that
the said Act may, by general or special order and subject to conditions as it
may think fit, exempt from the operation of the Act, the slaughter of any
animal for any religious, medicinal or research purposes.
8.
Section 13 of the said Act empowers the
State Government to delegate its powers and functions under Section 12 to any
officer of the State Government.
9.
The West Bengal Animal Slaughter Control
Rules, 1951 ([hereinafter referred to as
‘the said rules’] provides the conditions subject to which
exemption may be granted. The said Rules provide that the provisions of the Act
shall not act to the slaughter of any animal for religious, medicinal or
research purpose subject to the condition that such slaughter does not affect
the religious sentiment of the neighbours or the person or persons performing
such slaughter and with the previous permission of the State Government or any
officer authorised by it is obtained before the slaughter.
10.
Section 7 of the said Act makes the
contravention of the Act punishable and Section 8 thereof makes the offence
cognizable. Section 9 of the Act makes the abetment of any offence punishable
under the Act as also attempt to commit any such offence shall be punishable.
From a plain reading of sub-section (2) of Section 4, it would be evident that
even for slaughtering of animals in a slaughter house, no certificate can be
granted unless the animals are over fourteen years of age and unfit for work of
breeding, has become permanently incapacitated from work breeding due to age,
injury, deformity or any incurable disease.
11.
Being aggrieved by the exercise of power of
the State of West Bengal under Section 12 of the said Act, granting permission
to slaughter cows on Bakri-id day, overrides the restrictions otherwise imposed
under the Act, a Writ petition was filed before this Hon'ble Court which was
registered as C.R. No. 709 (W) of 1971. By a Judgment and Order dated August
20, 1982, a Division Bench of this Hon'ble Court, inter-alia, held that
sacrifices of cow on Bakri-id is not an obligatory overt act for a Muslim to
exhibit his religious belief and ideas and such slaughter cannot be considered
to be part of the religious requirement. Exemptions under Section 12 of the
said Act which were being granted for slaughtering of cow on Bakri-id day were
held to be dehors the statute and not within the sanction of the said
provisions. A copy of the said order is annexed hereto and marked with
Annexure-P-1.
12.
Aggrieved by the Judgment and Order of the
Division Bench of this Hon'ble Court dated August 20, 1982, the State of West
Bengal preferred appeals before the Hon'ble Supreme Court of India. By a
Judgment and Order dated November 19, 1994, the Hon'ble Supreme Court of India
was pleased to dismiss the appeals and affirmed the Division Bench judgment of
this Hon'ble Court. Both, the Judgment of Division Bench of this Hon'ble Court
and Supreme Court of India are reported. The petitioners crave leave to refer
to the same at the time of hearing of this Writ Petition. A copy of the said
order is annexed hereto and marked with Annexure-P-2.
13.
The Supreme Court, while confirming the
order of the Division Bench of this Hon'ble Court, inter-alia, held that there
is no fundamental right of a Muslim to insist on slaughter of healthy cows on
Bakri-id and the same cannot be a valid ground for exemption by the State under
Section 12 of the said Act. It was held that the contention of the State that
Article 25(1) of the Constitution of India deals with essential religious
practices and Section 12 of the said Act may cover even optional religious
practices were held to be untenable.
14.
In view of the Judgment of the Division
Bench of this Hon'ble Court and the Supreme Court of India the State Government
issued an appeal on the occasion of Bakri-id which was published in the
Hindustan Times, English Edition, on 4th May, 1995. A true copy of the
publication is annexed hereto and marked as Annexure – P-3.
15.
Despite orders of this Hon'ble Court and of
the Supreme Court of India, the National Commission on Cattle Protection,
Preservation and Development, filed a report in July 2002, published by the
Government of India, Department of Agriculture and Animal Husbandry
[hereinafter referred to as National Commission’s Report of 2002] It was
recorded ,inter alia, that its
Investigating Team had witnessed sale of 5 to 6 thousand cows for sacrifice on
Bakri-id at Kidderpore Animal Market. The said Team also witnessed 1 lac cows
in temporary market near Sankrail and Dhulagar in Howrah District. In March
2001 it found 4,000 healthy cows in Rajabajar Animal Temporary Market. The said
Report further records that on Bakri-id day in Kolkata, more than 1,50,000
healthy cows and its progeny were slaughtered.
16.
The National Commission on Cattle recorded
that its investigating team found that in spite of Judgments of Court,
sacrifice of cows on Bakri-id is continuing.
17.
Between the period from 1997 till 2010
several Writ petitions were filed before this Hon'ble Court and on each
occasion orders were passed directing the State Authorities to comply with
directions and implement the restrictions imposed under the said Act with
respect to slaughtering of cows on Bakri-id.
18.
The Division Bench of this Hon'ble Court by
an order dated November 12, 2010, in W. P. No. 1378 of 2010 along with other
Writ Petitions, directed, inter-alia, the State and its agencies to implement
the provisions of the said Act and to take steps if any incidence of cow
slaughter on Bakri-id comes to its notice. A true copy of the order dated
12.11.2010 is annexed hereto and marked as Annexure–P-4.
19.
Once again, despite specific order of the
Division Bench of this Hon'ble Court, the State authorities failed to take any
steps against slaughter of cows on Bakri-id held in November, 2010.
20.
The Division Bench of this Hon'ble Court in
the Writ Petition being W.P. No. 16749 (W) of 2011, by its Judgment and Order
dated November 2, 2011 directed the
State Government through its Chief Secretary to see that the State
instrumentality does not facilitate arrangement and/or markets in the State of
West Bengal for delivering of cattle for sacrifice which is not permitted under
the said Act. Directions were also given for strict implementation of the order
passed by this Hon'ble Court from time to time for effective and meaningful
implementation of the said Act. A copy of the Judgment and Order dated
2.11.2011 is annexed hereto and marked as Annexure-"P5".
21.
Several contempt proceedings have been
initiated from time to time for gross violation of the orders of the Hon'ble
Court. Some of the contempt proceedings are still pending before this Hon'ble
Court. The petitioners crave leave to refer to the said contempt proceedings
and/or the orders passed therein at the time of hearing, if necessary.
22.
Your petitioners state that under the
Prevention of Cruelty to Animals (Transport of Animals on Foot) Rules, 2001
[hereinafter referred to as the Prevention Rules] there is a complete
prohibition of transportation of animals by foot whose hooves are not provided
with shoes on hard cement, bitumen-coated or metalled roads. Rule 3 prohibits
any person from slaughtering any animal within a municipal area except in
slaughter house recognized or licensed by the concerned authority.
23.
Rule 9 of the Prevention Rules empowers the
Animal Welfare Board of India or any other welfare organization to inspect the
slaughter house and report the Animal Welfare Board for an appropriate action
including initiation of legal proceeding in the event of violation of any of
the provisions of the said Rules. Rule 3 of the said Rules cast duly upon every
State to establish a Society in other District in the State for prevention of
cruelty to animals.
24.
Section 4 of the Cattle Transport Act, 1871
casts obligation upon the State Government to establish pounds in every
district under its control. Section 11 empowers the person in-charge of public
road to see that any cattle can damage such roads etc.
25.
In Kolkata, there are two Slaughter House,
one is Tangra Cattle Slaughter House, owned and managed by Kolkata Municipal
Corporation and the other is Garden Reach Cattle Slaughter House, owned and
managed by Garden Reach Municipality. Both the Slaughter Houses cater to the
needs of Kolkata and its suburbs.
26.
Your petitioner respectfully states and submits
that despite orders of the Hon'ble Supreme Court of India and diverse orders
passed by this Hon'ble Court from time, thee has been conscious
non-implementation of the provisions of the said Act and the said Rules framed
thereunder. No steps whatsoever have been taken by the State Agency,
responsible for implementation of the said orders on Bakri-id day and also
otherwise on other dates.
27.
Your petitioners respectfully state and
submit that Bakri-id is to be celebrated in the State of West Bengal on September
24/25, 2015. Your Petitioners stat5e that considering the manner in which the
State instrumentalities have turned a blind eye to the implementation of the
provisions of the said Act, the Petitioners have sufficient reasons to
apprehend that thousands of healthy cows and its progeny would be slaughtered
and/or sacrificed on the Bakri-id day.
28.
Your petitioners state that to prevent
unlawful and unauthorized sacrifice and slaughtering of cows on Bakri-id day,
unless appropriate directions are given to the concerned State agencies,
thousands of cows and its progeny would be sacrificed and/or slaughtered on
that day.
29.
Your Petitioners state that even on
Bakri-id in the year 2014, thousands of cows and its progeny were sacrificed.
Several complaints and F.I.R.s were lodged by your Petitioners and other
persons for violation of the provisions of the said Act and for taking
necessary action against the accused persons in accordance with the provisions
of the said Act and all other related Rules. Despite such F.I.R.s being drawn
up, no steps have been taken by the Police authorities to investigate or
proceed with such complaints.
30.
The States and its agencies are under a
bounden duty to ensure implementation of the orders of this Hon'ble Court and
also to ensure that there is no violation and/or infringement of the Animal
Slaughter Control Act, 1950.
31.
Deliberate inaction and/or non-action on
the part of the State authorities in enforcement, implementation and execution
of the provisions of the said Act and diverse order of this Hon'ble Court, is
arbitrary, capricious, unconstitutional and in colourable exercise of
administrative authority.
32.
The State Government and its various
agencies have failed to discharge their statutory duties in enforcing
implementing and executing the provisions of the said Act of 1950 by
prohibiting and/or stopping sacrifice and/or slaughter of cows and its progeny
on Bakri-id and on other days.
33.
The respondents are under bounden duty to perform their duties
and to discharge their functions in accordance with the principle of fair play,
equity and justice.
34.
The State
authorities are under obligation to follow and implement the provisions of the
said Act and all other relevant Acts and Rules pertaining to movement, sale,
sacrifice and/or slaughter of cows and its progeny.
35.
The
respondents have acted on conjecture, surmise, irrelevant and extraneous
consideration.
36.
Being
aggrieved by and dissatisfied with wrongful and illegal acts and conducts of
the State Government and its various agencies in failing to discharge their
statutory duties in enforcing implementation and execution of the provisions of
the said Act of 1950 by prohibiting and/or stopping sacrifice and/or slaughter
of cows and its progeny, your petitioners beg to prefer the instant application
under Article 226 of the Constitution of India, inter alia, on the following
amongst other
GROUNDS
I.
FOR THAT the State and its agencies are
under a bounden duty to ensure implementation of the orders of this Hon'ble
Court and also to ensure that there is no violation and/or infringement of the
Animal Slaughter Control Act, 1950.
II.
FOR THAT the deliberate inaction and/or
non-action on the part of the State authorities in enforcement, implementation
and execution of the provisions of the said Act and diverse order of this
Hon'ble Court, is arbitrary, capricious, unconstitutional and in colourable
exercise of administrative authority.
III.
FOR THAT the State Government and its
various agencies have failed to discharge their statutory duties in enforcing
implementing and executing the provisions of the said Act of 1950 by
prohibiting and/or stopping sacrifice and/or slaughter of cows and its progeny
on Bakri-id and on other days.
IV.
FOR THAT the respondents are under bounden duty to perform their duties
and to discharge their functions in accordance with the principle of fair play,
equity and justice.
V.
FOR THAT the State authorities are under obligation to follow and implement the
provisions of the said Act and all other relevant Acts and Rules pertaining to
movement, sale, sacrifice and/or slaughter of cows and its progeny.
VI.
FOR THAT the respondents have acted on conjecture, surmise, irrelevant and
extraneous consideration.
37. Your petitioners have already demanded
justice from the respondent authorities, but the respondent authorities have
denied justice to your petitioners. In the facts and circumstances, any further
formal demand of justice would be an idle and futile formality.
38. Your petitioners have no other alternative
or equal efficacious and/or alternative remedy apart from invoking the Writ
jurisdiction of this Hon’ble Court and to hear of the same would grant a
complete redressal to your petitioner’s grievances.
39. Your petitioners have not moved any other
application before any other forum on the self same cause of action. .
40. Your petitioner states and submits that
unless appropriate orders are passed and directions are given to the State
Agency for implementation of the provisions of the said Act and the Rules
framed thereunder, and also other applicable provisions of various acts and
Rules for the purpose of movement, entry, sale, sacrifice and/or slaughter of
cows and its progeny on Bakri-id to be held on 24/25 th October, 2015 and
on other days, and is also
directed to implement the directions passed by this Hon'ble Court from time to
time, your Petitioners will suffer irreparable loss, injury and prejudice.
41. It is under these circumstances, Yours
Petitioners respectfully state and submit that appropriate directions are
required to be given to the State Authorities to ensure appropriate
implementation of the provisions of the said Act and the respective Rules
framed thereunder for the purpose of ensuring that cows and its progeny are not
scarified and/or slaughtered on the Bakri-id and on other days in the State of West Bengal.
42. Unless
orders are passed as prayed for herein, your petitioners would suffer
irreparable loss, injury and prejudice.
43. This application is bonafide and made for
the ends of justice.
Your petitioners therefore humbly prays
before Your Lordships for the following orders :
a)
A writ or
and/or writs in the nature of Mandamus do issue commanding the respondents and
each of their men and/or agents and each one of them and/or their men, agents
and servants to implement and execute the provisions of the West Bengal Animal
Slaughter Control Act, 1950 and the Rules framed thereunder and all other
applicable provisions of the other Acts and Rules with respect to movement,
sale and sacrifice and/or slaughter of cows and its progeny on Bakri-id and
on other days in the State of West
Bengal;
b)
A writ or
and/or writs in the nature of Prohibition do issue prohibiting the respondents
and each of their men and/or agents and each one of them in respect of
sacrifice and slaughter of cows and its progeny on the occasion of Bakri-id and
on other days ;
c)
Direct
the respondents and each of their men and/or agents and each one of them and/or
their men, agents and servants not to give any declaration or any declared
relaxation for sacrificing and/or slaughtering of cows and its progeny during
Bakri-id festival for the year 2015;
d)
Direct
the respondents and each of their men and/or agents and each one of them and/or
their men, agents and servants not allow cattle hut (temporary animal market)
within the areas of Municipal Corporation, Kolkata and Howrah, other
municipalities as also in other areas within the State of West Bengal for sale
and purchase of cows and/or its progeny for being sacrificed and/or slaughter
during Bakri-id festival for the year 2015;
e)
Direct
the respondents and each of their men and/or agents and each one of them and/or
their men, agents and servants to take all preventive measures and necessary
steps including sealing of all entry points into the State of West Bengal
restricting and/or prohibiting entry and movement of cows and its progeny for
the purpose of sale, sacrifice and/or slaughter on Bakri-id for the year 2015;
f)
Direct
the respondents and each of their men and/or agents and each one of them and/or
their men, agents and servants not to facilitate sale and purchase of cows
and/or its progeny for Bakri-id in any of the Government markets or other
temporary animal markets’
g)
Direct
the respondents to make appropriate publications through print and electronic
media and by all other means in English and other vernacular languages as also
through loudspeaker to the effect that sacrifice and/or slaughter of any cow or its progeny during
Bakri-id festival is prohibited and banned under the West Bengal Animal Slaughter
Control Act, 1950 and in terms of the
earlier orders of this Hon'ble Court and Hon'ble Supreme Court of India;
h)
Direct
the Police authorities to take immediate action on complaints from the
Petitioners and/or from other members of the public to prevent violation of the
West Bengal Animal Slaughter Control Act, 1950 and for slaughter/sacrifice of
cows and its progeny on Bakri-id and on all other days;
i) A committee be constituted in the manner as
This court may deem fit and proper for supervision and implementation of the
provisions of The West Bengal Animal Slaughter Control Act, 1950, the
directions and earlier orders of this Hon'ble Court and Hon'ble Supreme Court
of India
j)
Rule Nisi
in terms of prayers above,
k)
Ad-interim
order in terms of prayers above;
l)
Such
further or other order or orders be passed and/or direction or directions be
given as to this Hon'ble Court may deem fit and proper.
For this act of kindness your petitioner is
in duty bound and shall ever pray.
AFFIDAVIT
I, Dr. Shri Krishan Mittal, son of late Sri K.C.
Mittal, aged about
64 years, by faith Hindu, by
Occupation Animal Activist and presently
residing at 7/1, Babulal Lane, 3rd Floor, Cotton Street, Kolkata-700 007, do hereby solemnly affirmed and state as
follows :-
1. That
I am the petitioner No.1 herein and constituted attorney of petitioner No.2 to
4 and I know facts and circumstances of the instant case. Hence I am competent
to affirm this affidavit on behalf of petitioners No.2 to 4.
2. That
the statements made in paragraphs to are true to my knowledge and those made in
paragraphs are my humble submission before
this Hon'ble Court.
Prepared in my Office The deponent is known
me
Advocate Clerk to Mr.
Advocate
Solemnly affirmed before me
On this day
of August, 2015
Commissioner.
DISTRICT : KOLKATA
W.
P. NO. (W) OF 2015
IN
THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL
WRIT JURISDICTION
APPELLATE
SIDE
In the matter of :
An application
under Article 226 of the Constitution of India ;
A n d
In the matter :
..........
....... Petitioners.
Versus
The State of West Bengal
& Ors.
...... Respondents.
P E T I T I O N
Mr. Lalratan
Mandal,
Advocate,
6, Old Post Office Street,
1st Floor, Room No.
Kolkata-700 001
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