IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

SPL. APPL. WRIT No. 1362 of 1999

GOPALAK GOSHI SAMAJ SEWA SAMITY

V/S

NAGAR PARISHAD, BIKANER & ANR

Mr. RAM RAKH VYAS, for the appellant / petitioner Mr. DILIP MOOLCHANDANI, for the respondent Date of Judgment : 21.5.2009 PRESENT

HON'BLE SHRI N P GUPTA,J.

HON'BLE SHRI GOVIND MATHUR,J.

JUDGMENT

BY THE COURT : (PER HON'BLE GUPTA,J.)

REPORTABLE

This appeal seeks to challenge the order of the learned Single Judge dated 16.8.1999, dismissing the appellant's writ petition, on the interpretation of Section 92(2)(c) of the Rajasthan Municipalities Act. The facts of the case are, that the petitioner filed the writ petition before this Court, alleging inter- alia, that the petitioner is a registered association, and wrote many letters, asked permission to remove the carcasses of their own cattle, which was given by the State, the petitioner deposited Rs.10,000/-. However, the 2

non-petitioners No.1 and 2 restrained the servants of the petitioner from removing the carcasses. Thereupon the petitioner filed writ petition being S.B. Civil Writ Petition No.3895/91, which is pending. It is alleged, that on 8.8.90 the Municipal Council Bikaner wrote a letter to the Director, Local Bodies, mentioning, that according to Section 92(2)(c) all the carcasses are the property of the Municipality. The Director did not agree with this view, and issued permission mentioned above, which is Annex.1. According to the petitioner, the Municipality thereafter issued an advertisement, to give contract for removal of carcasses, for the period 1.10.1991 to 31.3.1992. Copy of the agreement, entered into pursuant thereto, was not given to the petitioner. The petitioner alleges to have filed a criminal case on 1.11.91 under Section 379 IPC. The petitioner then referred to Section 246 of the Municipalities Act, and submitted, that the carcasses are the property of their owners, therefore, the non- petitioners, being the Municipality, or the contractor, has no right to take it without permission of the owner, and the petitioner is removing carcasses according to Section 246, which the Municipality did not allow, which interference is arbitrary. Inter-alia with this, it is prayed, that an appropriate writ, order or direction be issued, directing the non-petitioners to allow the petitioner to dispose of their own carcasses of dead animals, and not to interfere in such disposal. 3

The writ petition was opposed, by filing reply by the Municipal Board. It is pleaded, that Annex.1 has been withdrawn vide order-dated 22.11.91, and as such it is not in force, and the writ petition has thus become infructuous. The copy of the order-dated 22.11.91 has been produced as Annex.R/1. It was also pleaded that the amount deposited by the petitioner is without any order of the Municipality, therefore, the said cheque was never accepted. It was also pleaded that the Director, Local Bodies has no right to grant such permission, as such Municipality is not bound to obey such orders like Annex.1, apart from the fact, that it had already been withdrawn. Then it was pleaded, that pursuant to advertisement Annex.4 and 5, contract for removal of carcasses has been granted to non-petitioner No.2, for the period 1.10.1991 to 31.3.1992. Then pleading on the anvil of Section 246 and Section 92(2)(c) have been replied, contending inter-alia, that the two provisions are supplementary to each other, and the combined reading of the two provisions would show, that the live animal is the property of the owner, and the dead one is property of concerning Board or Municipality, and therefore, Section 246 does not help the petitioner, and accordingly, such carcasses are collected by the Municipal Servants, at the request of the owners of the live animal, after its death. With this, it was pleaded that the petitioner has no case to maintain the writ petition, and the same is required to be dismissed. 4

Learned Single Judge found, that it appears, that the petitioner is not able to make up mind, that what writ it wants from this Court, and such vague relief cannot be granted. Then Section 92(2)(c) has been reproduced, and it has been concluded, that from this provision it is clear, that it is right of the Municipality only to remove the dead body of the animals from the houses, privies, sewers, cesspool or elsewhere. Thus, no substance was found in the writ petition, and the writ petition was dismissed. Arguing the appeal, learned counsel for the appellant again read to us the provisions of Section 246 and 92(2)(c) of the Municipalities Act, and submitted, that according to Section 246 (1) the council shall provide or appoint in proper and convenient situations, places for the "disposal" of the carcasses of animals. Then, according to sub-section (2) whenever any animal in the charge of any person dies, otherwise than by slaughter for sale or for religious purpose, such person shall, within twenty four hours, either "convey" the carcass to a place provided or appointed under sub-section (1), or to a place beyond one mile of the municipal limits, or shall give notice of the death to the council, which shall thereupon cause the carcass to be "removed" and "disposed of". Then, according to sub-section (3) the occupier of any premises, in or upon which any animal shall die, or in or upon which the carcass of any animals shall be found, shall also take action in respect of such carcass, in accordance with sub-section 5

(2). Then, according to sub-section (4), the Municipality is authorised to charge fees for removal of carcass from the person giving notice of the death to the council such fees as it may prescribe, and may recover the same, if not paid in advance, and by sub-section (5) failure to act in accordance with sub-section (2) or sub-section (3) entails penalty of fine, which may extend to Rupees twenty. In our view two categories of persons have been comprehended under Sub-section (2) and (3). The first being any person in whose charge the animal happens to be, and happens to die, while the other being, any occupier of any premises in or upon which any animal shall die, or upon which the carcass of any animals shall be found, and both the categories of persons are required to take action under either of clause (a) or (b) of sub-section (2), for which fee is to be paid, in the event of taking action under clause (b), and failure entails fine, which may extend to Rupees twenty. This section does not at all deal with the aspect, as to in whom, the ownership of the carcass is to vest, in either event.

Then, we come to Section 92, which provides for the power to acquire and hold property, both movable and immovable, and according to sub-section (2), the property of the nature specified in that sub-section, and not being specially reserved by the State government, shall vest and belong to the board, and shall, together with all other 6

property of whatsoever nature or kind, not being specially reserved by the State Government, which may become vested in the board, be under its direction management and control. It is in this caption, that clause (c) talks of dead bodies of animal, and it is on that basis, that an argument is raised by the respondent, that the dead bodies of the animals vest in the municipal board, and are under its direction, management and control.

In view of the above, we have to scrutinise the provisions of clause (c), which catalogues a long list of substance and articles, apart from the dead body of animals, as contended by the learned counsel for the respondent. The list comprises of all public sewers and drains and all sewers, drains, tunnels, culverts, gutters and water-courses in alongside, or under any streets and all works, materials and things appertaining thereto as also all dust, dirt, dung, ashes, refuse, animal matter, filth rubbish of any kind and dead bodies of animals collected by the board from the streets houses, privies, sewers, cesspools or elsewhere.

The million dollar words in Section 92(2)(c) are, "collected by the board" i.e. all nature of substances mentioned before these words "collected by the board" appear are to be the property, obviously, if collected by the board from the places, mentioned after the above expression "collected by the board". Thus, until and unless 7

the substances enumerated, or enlisted in Section 92(2)(c) are collected by the board, from the places mentioned therein, they do not fall within Section 92, so as to become the property of the Board.

We may visualize a situation, that if the substances cataloged in Section 92(2)(c) were to become the property of the Municipality, even without their being collected, and were to vest in the Municipality, obviously their removal, use or consumption by anybody, other than Municipality, would obviously be an offence, for which the Municipality could take action against the person removing, using, consuming or appropriating that property. In the growing days the substances mentioned in 92(2)(c) do have tangible commercial market value, rather the substances like dust, dirt, dung, ashes, refuse, animal matter, filth rubbish etc. are in a manner, and to some extent, marketable commodity, when they are required to be used for the purpose, by the person intending to use them, and to some extent they cannot be treated alike carcass. Obviously carcass has tangible and monetary value in the present times.

In that view of the matter, since the provisions of Section 92(2), providing for vesting of the property in the Municipality, irrespective of the fact, as to, to whom it belongs, and confer statutory title in the Municipality, 8

the provision is required to be strictly construed, and that being the position, reading Section 92(2)(c) strictly, until and unless the substances or articles enlisted or enumerated in Section 92(2)(c) are "collected by the board", and are so collected from the places mentioned therein, it cannot be said, that they would vest in the Municipal Board, ipso facto, depending merely on the nature of substance, being falling in the list enumerated in Section 92(2)(C).

Learned counsel for the respondent relied upon a judgment of the Hon'ble the Supreme Court, in State of Maharashtra Vs. Himmatbhai Narbheram Rao, reported in AIR 1970 SC-1157 to contend, that all such substances ipso facto vest in Municipality.

It would suffice to say, firstly, that the controversy required to be, and actually, gone into, by Hon'ble the Supreme Court was, on the aspect of validity of certain provisions of the Bombay Municipal Corporation Act. That apart, Section 366 thereof very specifically provided as under:-

"S. 366- All matters collected by municipal servants or contractors in pursuance of the last proceeding section and of Section 369 and carcasses of dead animals deposited in any public receptacle, depot or place under Section 367 shall be the property of the Corporation."

9

A look at the above provision of Section 366 would show, that it purport to vest the property in the Municipality, which might not only have been collected by the municipal servants, or contractors, in pursuance of the other provisions, rather it expressly provided for carcass of dead animals, deposited in any public receptacle, depot or place under Section 367, to vest in the Municipality. Significantly section 367 did not cover the eventualities comprehended by Section 385 thereof. So far Section 367 is concerned it is a different provision, providing, that the Commissioner shall provide or appoint in proper and convenient situations public receptacles, depots and places for the temporary deposit or final disposal of various substances mentioned therein, and that includes carcasses of dead animals. Thus, in our view, the provisions of Bombay Municipal Corporation Act, and Rajasthan Municipalities Act, in the matter of providing for vesting of title in the carcass in the Municipality, are materially different.

Learned Single Judge has also proceeded on the basis, that the relief claimed by the writ petitioner is vague. It would suffice to say, that the petitioner has categorically prayed for directing the non-petitioners, to allow the petitioner to dispose of their own carcasses of dead animals, and non petitioners and their servants or agents should not stop and interfere in removing of carcasses of their dead animals. In the prayer two words 10

are significant, one is "their own carcasses of dead animals", and the other being "carcasses of their dead animals". Thus, the prayer made is very clear and categoric. The result of the aforesaid discussion is, that we are constrained to allow the appeal, and set aside the judgment of the learned Single Judge.

Accordingly, the special appeal is allowed. The impugned judgment of the learned Single Judge is set aside, and the writ petition is allowed, and it is directed, that the non-petitioners will not interfere in the petitioner disposing of carcasses of their own dead animals obviously provided they act according to Section 246(2)(a). The parties shall bear their own costs.

( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/