BEFORE THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM W.P. (C) No. K.U.Kunju Mohammed & another
of 2017 …
Petitioners
…
Respondents
vs.
Union of India and others
SYNOPSIS The 1st petitioner is engaged as a trader in purchasing cattle (Buffalos, ox) from various animal markets inside and outside the State of Kerala for the purpose of slaughtering for human consumption.
The petitioner purchases
buffalos from animal markets in Kuzhalmandom (Palakkad), Perumbilavu (Kunnamkulam), and Vaniamkulam (Pattambi), within the State of Kerala and from places like Nelloor in Andra Pradesh and Pollachi in Tamil Nadu.
The
animals are transported to the slaughter house in Kaloor, Kochi, observing all statutory requirements for transportation under the relevant laws. Once the animals reached the slaughter house, they are kept at the lairage. The animals are then inspected by veterinary doctors and after the certification, they are slaughtered in the slaughter house. The petitioner has, his meat shop inside the Kaloor Market, where he trades in buffalo meat. The petitioner is aggrieved by the introduction of
Rule 22 of the Prevention of Cruelty to Animals
(Regulation of Livestock Markets) Rules, 2017, framed by the 1st respondent in
so far as it directly affects the petitioner’s right to trade under Article 19(1)(g) of the Constitution of India. The petitioner’s business has already affected to a huge extent since the supply of buffalos for the purpose of slaughter is prohibited under the impugned Rules. The petitioner will have to close down his business, if the said impugned order is permitted to stay in the statute book.
The impugned rule is contrary to the parent act and is also
unconstitutional in as much as the Centre does not have the legislative competence to frame the impugned Rules under the respective entries in the list. Thus this Writ Petition for appropriate reliefs.
Dated this the 29th day of May, 2017 COUNSEL FOR THE PETITIONER
BEFORE THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM (Special Original Jurisdiction) W.P. (C) No.
of 2017
PETITIONERS:1) K.U.Kunju Mohammed, Kalooparambil House, Deshabhimani Road, Karukappilly – Mamangalam Lane, Kaloor, Kochi – 682 017. 2) Hibi Eden, M.L.A Eden Gardens, George Eden Road, Deshabhimani Road, Kaloor, Ernakulam, Kochi – 682 017.
Vs RESPONDENTS: 1. Union of India, Represented by the Secretary, Ministry of Environment & Climate Change Paryavaran Bhavan, New Delhi 110 001. 2. State of Kerala represented by its Chief Secretary, Government Secretariat, Thiruvananthapuram – 695 001 3. The Director, Animal Husbandry Directorate Vikas Bhavan, Thiruvananthapuram – 695 033.
WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
Address for service of notice and process to the petitioner is that of his Counsel M/s.MATHEW & MATHEWS, Philip J. Vettickattu, & Haris Beeran, Advocates, High Court Road, Kochi – 682 031.
Address for service of notice and process to the Respondents are as shown above.
STATEMENT OF FACTS 1. The 1st petitioner is engaged as a trader in purchasing cattle (Buffalos, ox) from various animal markets inside and outside the State of Kerala for the purpose of slaughtering for human consumption. from
animal
markets
in
The petitioner purchases buffalos
Kuzhalmandom
(Palakkad),
Perumbilavu
(Kunnamkulam), and Vaniamkulam (Pattambi), within the State of Kerala and from places like Nelloor in Andra Pradesh and Pollachi in Tamil Nadu.
The
animals are transported to the slaughter house in Kaloor, Kochi, observing all statutory requirements for transportation under the relevant laws. Once the animals reached the slaughter house, they are kept at the lairage. The animals are then inspected by veterinary doctors and after the certification, they are slaughtered in the slaughter house. The 1st petitioner is conducting the above business with license issued by the competent authority.
True copy of the
receipt dated 3-3-2017, showing remittance of license fee by the 1st petitioner before the Kochi Corporation is produced herewith and marked as Exhibit P1. True copy of receipt dated 18-2-2017showing remittance of profession tax for the period 2016 – 2017 by the petitioner is produced herewith and marked as Exhibit P2. 2. He has, his meat shop inside the Kaloor Market, where he trades in buffalo meat. The 1st petitioner has been in this business since 1956, where his father is to run the business.
The petitioner has been purchasing animals from
various markets for the last 15 years.
3. The 2nd petitioner is a Member of the Kerala Legislative Assembly representing the Ernakulam Constituency. The impugned Rule seriously affects to a great extent totally curtails his choice of food, which is otherwise not banned by any state law. 4. This Writ Petition is filed challenging the validity of Rule 22 of the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 (hereinafter also referred to as ‘the Rules’) to the extent they prohibit selling of cattle for slaughter, on Constitutional as well as on other legal grounds. Inter-alia it is contented that the impugned Rules violate Articles 14, 19 & 21 of the Constitution of India, that the Rules amount to a colorable exercise of the power of delegated legislation, that the Rules encroach upon the exclusive legislative field of the State Legislatures under Entry 15 of List II of the 7th Schedule of the Constitution of India and that the Rules are ultra vires the Statute under which it is framed namely the Prevention of Cruelty to Animals Act 1960 (hereinafter referred to as ‘the Act’). A true copy of the Notification bearing number G.S.R. 494(E) dated 23.5.2017 published in the Gazette of India Extraordinary dated 23.5.2017 is produced herewith and may be marked as Exhibit-P3 for identification.
Since the Rules have already come into force, the petitioner has no other effective alternate remedy other than to approach this Hon’ble Court and pray for reliefs on the following mainly among other grounds which are set out hereinafter without prejudice to and in the alternative to one another : -
GROUNDS A. Ext P.3 is a colorable exercise of the power of delegated legislation. It directly encroaches on the legislative power of the State Legislatures under Entry 15 of List II of the 7th Schedule of the Constitution of India. The legislative entry namely entry 17 of List III cannot be a source of power to issue Rules in the nature of Ext P.3 (to the extent it is impugned).
B. Ext P.3 is unconstitutional and violates the Fundamental Rights of Citizens of India guaranteed under Articles 14, 19 & 21 of the Constitution of India.
C. Ext P.3 Rules is a piece of subordinate legislation under the Prevention of Cruelty to Animals Act 1960. Section 38(1) enables the Central government to make Rules to carry out the purposes of the Act. The objective of the Act, as revealed by its preamble is to prevent infliction of unnecessary pain or suffering on animals. The prohibition imposed in Rule 22 of the Rules for selling cattle for slaughter is clearly ultra vires the Act. In fact, the Act saves and permits killing of animals for the purposes of food. It is very clear from the proviso to Section 11 of the Act, that any act done for destruction of any animal for food of man is outside its purview. Hence, Ext P.3 is ultra vires the Act, a mala fide exercise of power and wholly untenable in law and thus liable to be quashed. The impugned Rules have no nexus whatsoever with the objects sought to be achieved by the Prevention of Cruelty to Animals Act 1960, the plenary legislation to which it owes its existence. It is clearly unsustainable in law. It is trite law that the power of the executive to frame rules under any enactment and act there under is restricted strictly by the object sought to be achieved by such an enactment and will not extend to matters not provided for or contemplated by the statute. D. A combined reading of the definition given to the term Animal Market and Rule 22 of Ext.P1 would clearly show that there is a total restriction for selling and purchasing cattle for slaughtering.
This amounts to a total ban on
slaughtering, which is clearly beyond the purview of the parent act. E. Ext.P3, directly affects the rights of the citizens to choose the food of his choice. F. Ext.P3, takes away common platform for ordinary people to trade their cattle and livestock. As a result of which an ordinary man will not be in a position to trade his cattle which is no longer useful either for agricultural purpose or for diary purpose. G. Ext.P3 would adversely affect the very cattle population of the State since by Ext.P3, there is no way out for disposing aged and useless cattle at all. Further
Ext.P3 casts an obligation on the owner, to maintain a useless animal till its death. H. State of Kerala is a State where cow slaughter or slaughtering of cattle is not banned. However, Ext.P3 will work as an effective ban on slaughter. I. In view of the sweeping definition given to the word Animal Market, no one can be able to sell his cattle even from the stable. J. Ext.P3 infringes the guaranteed right under Article 25 of the Constitution of India. The parent act does not contain any such restriction or prohibition. The present Rule though appears to be a regulatory measure, works out as prohibitory, in effect. K. Rule 22(e)(iii) is directly contrary to Section 28 of the Parent Act as also Article 25 of the Constitution of India in as much as it prohibits the sale of cattle for the purpose of sacrificing the animal for any religious purpose. L. Ext.P3 casts an unnecessary, unreasonable and unlawful restriction on the buyer that he should not sell the animal for the purpose of slaughtering. Such a provision will effectively prevent an owner from disposing cattle, which terms out to. This in turn will distract the ordinary person from rearing cattle. The diary will be affected badly. M. The restriction of conducting animal markets within a radius of 25 KM of State boundaries is absolutely illegal, ordinary and not in conformity with the provisions of the parent act. N. The procedure prescribed for selling and purchasing the cattle is illogical unworkable and will effectively block the industry. For these and other grounds that may be submitted at the time of hearing, it is humbly prayed that this Hon’ble Court may be pleased to grant the following:-
RELIEFS (i)
Declare that prohibition imposed in Rule 22 of the Rules for selling cattle for slaughter contained in the Prevention of Cruelty to Animals (Regulation
Livestock Markets) Rules, 2017
and published vide
notification bearing number G.S.R. 494(E) dated 23.5.2017 in the Gazette of India Extraordinary dated 23.5.2017 is unenforceable, ultra vires the Prevention of Cruelty to Animals Act 1960 and that it violates the fundamental rights guaranteed to Citizens of India under Articles 14, 19 & 21 of the Constitution of India;
(ii)
Issue a writ in the nature of mandamus or any other writ, order or direction, directing the Respondents not to enforce Rule 22 of Ext P.3 to the extent they prohibit selling of cattle for slaughter;
(iii)
issue such other writs, orders or direction which this Hon’ble Court may deem fit and proper to issue in the facts and circumstances of the case;
Dated this the 29thday of May, 2017. PETITIONERS: 1)
2) COUNSEL FOR THE PETITIONER:
INTERIM RELIEF For the reasons stated in the memorandum of Writ Petition (civil) and the affidavit filed in support thereof, it is most humbly prayed that this Hon’ble
Court may be pleased to stay the operation and implementation of Ext. P.3 pending disposal of the Writ Petition (civil). Dated this the 29th day of May, 2017.
COUNSEL FOR THE PETITIONERS
BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM W.P.(C) No. K.U. Kunju Mohammed & another
of 2017 …
Petitioners
…
Respondents
vs. Union of India and others
AFFIDAVIT I, Hibi Eden, aged 34 years, S/o Late George Eden, Eden Gardens, George Eden Road, off Deshabhimani Road, Kaloor, Ernakulam, Kochi – 682 017, do hereby solemnly affirm and state as follows: 1. I am the 2nd petitioner in the above Writ Petition. I am acquainted with the facts and circumstances of the case. I am swearing this affidavit on my own behalf and also on behalf of 1st petitioner, who have authorized me to do so. 2. All the averments made in the accompanying Writ Petition (Civil) are true to the best of my knowledge and information and they may be read and treated as part of this affidavit. Exhibits produced along with the Writ Petition (Civil) are true copies of the original documents. 3. The petitioner has not filed earlier any petition seeking similar and identical reliefs in respect of the same subject matter. All the facts stated above are true to the best of my knowledge, information and belief. Dated this the 29thday of May, 2017. DEPONENT
Solemnly affirmed and signed before me by the deponent, who is personally known to me, on this the 29thday of May, 2017, in my office at Ernakulam.
ADVOCATE
Presented on: 29. 05.2017
SUB: Miscellaneous
– Challenging the Validity of the Prevention of Cruelty to Animals (Regulation Livestock Markets) Rules, 2017
BEFORE THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM
(Special Original Jurisdiction) W.P. (C) No.
of 2017
K.U. Kunju Mohammed & another
:
Petitioner
Vs Union of India and 2 others
:
Respondents
WRIT PETITION (Civil) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
MATHEW & MATHEWS PHILIP J. VETTICKATTU (P.282) & HARIS BEERAN(H.
)
Advocates High Court Road Ernakulam – 682 031
BEFORE THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM
(Special Original Jurisdiction) W.P. (C) No.
of 2017
K.U. Kunju Mohammed & another
:
Petitioner
Vs Union of India and 2 others
:
Respondents
COMPUTER COPY
MATHEW & MATHEWS PHILIP J. VETTICKATTU (P.282) & HARIS BEERAN(H.
)
Advocates High Court Road Ernakulam – 682 031
BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C) No.
K.U. Kunju Mohammed & another
of 2017
…
Petitioners
vs. Union of India and others
…
Respondents
INDEX
Sl.No. 1. 2. 3. 4. 5. 6.
Particulars Synopsis Memorandum of Writ Petition (Civil) Affidavit EXT-P1 True copy of the receipt showing remittance of license fee by the 1st petitioner EXT-P2 True copy of receipt showing remittance of professional tax by the 1st petitioner EXT-P3 True copy of relevant pages of the Notification bearing number G.S.R. 494(E) dated 23.5.2017 published in the Gazette of India Extraordinary dated 23.5.2017
Page Nos. 1 2-8 9 10 11 12 - 22
Dated this the 29th day of May, 2017.
Counsel for the petitioners
APPENDIX
PETITONERS’ EXHIBITS
Ext.P1:
True copy of receipt showing remittance of license fee by the 1st petitioner
Ext.P2
True copy of receipt showing remittance of professional tax by the 1st petitioner
EXT-P3
True copy of the Notification bearing number G.S.R. 494(E) dated 23.5.2017 published in the Gazette of India Extraordinary dated 23.5.2017
