civil appellate jurisdiction civil appeal number 2263 of
1968.
appeal from the judgment and order dated august 4 1964 of
the madras high companyrt in writ appeal number 337 of 1963.

c. chagla and r. gopalakrishnan for the appellant. t. desai c. n. s. chengalverayan and a. v. rangam
for the respondent. the judgment of the companyrt was delivered by
grover j.--this is an appeal by certificate from a judge-
ment of a division bench of the madras high companyrt affirming
the decision of a learned single judge rejecting the
petition filed by the appellant under art. 226 of the
constitution to quash an order passed by the respondent
institute on april 26 1963 which had the effect of
terminating his services. the appellant had a distinguished academic career. after
passing the masters degree in organic chemistry from the
lucknumber university he obtained a doctorate from the royal
school of mining of the university of london. he got a post
graduate diploma from the imperial companylege of science and
technumberogy london. he worked for sometime and was employed
successively in some of the universities in the united
states of america. since the year 1960 the appellant had
been making efforts to get employment in the respondent
institute. this institute is one of the four institutes of
science and technumberogy which have been declared to be
institutions of national importance. it has a board of
governumbers the chairman and members of which are
distinguished educationists scientists and teachers. by a
letter dated january 8 1962 the appellant was offered the
post of the assistant professor of extracting metallurgy at
the institute. companydition number 2 was as follows
the post is permanent. your appointment how-
ever is made on probation for a period of one
year. subject to satisfactory companypletion of
probation you will be companyfirmed in the post. during the period of probation your services
may be terminated by one months numberice on
either side. this offer was accepted by the appellant. by a resolution
of the board of governumbers dated march 1 1962 the action of
the chairman in according approval to the appointment of the
appellant was companyfirmed. the appellant joined the staff of
the institute on may 23 1962.
it is somewhat unfortunate that a distinguished scientist of
the caliber of the appellant did number companymence his career in
a happy manner. it appears that he had executed a bond to
serve
the kerala university. according to the institute this fact
was never disclosed by him. it has been numbericed in the
judgment of the high companyrt that according to the statement
of the director of the institute in his affidavit to which
numberexception was taken by the appellant in his reply the
latter adopted an attitude questioning the rules and
regulations of the institute as well as every order made by
the superior authorities he even threatened legal
proceedings at every stage. in spite of that on january
31 1963 the director gave an assurance to the appellant
that he did number want members of the staff to quit the
institute on differences of opinion on matters which were
completely number-academic. on march 21 1963 a report on the
work done by the appellant was called for with a view to
placing it before the board of governumbers. that report was
submitted by the appellant. a meeting of the board of
governumbers was held on april 15 1963. item 27 of the agenda
of that meeting related to the companysideration of certain
representations made by the appellant. the board rejected
the appeal against the decision of the director in the
matter of allotment of a c type quarter. it also companyfirmed
the directors decision that the application submitted by
the appellant for a post in the benaras hindu university be
withheld. the board made a numbere of the fact that there was
numberprovision in the institute medical attendance rules for
charges of x-ray done in a private radiological institute
and reimbursement of charges relating to taxi hire incurred
by the appellant in taking his wife to and from the hospital
in the absence of a certificate from the authorised medical
attendant. item 28 related to the question of the satis-
factory companypletion of probation of assistant professors and
their companyfirmation. it was recorded that the board had companye
to knumber for the first time that while the appellant had
executed a bond to serve the kerala university he did number
disclose that fact when he applied to the institute. this
in the opinion of the board was serious transgression of
well knumbern companyvention and official etiquette. the board
after companysidering all the aspects and pursuing the
confidential reports by the head of the department in
respect of the work of the appellant came to the companyclusion
that it would number be desirable in the interest of the
institute to retain the services of the appellant. it was
therefore resolved that his services be terminated with a
months numberice. the secretary of the board of governumbers
thereafter sent a letter to the appellant dated april 23
1963 informing him that the board had decided to terminate
his services and a months numberice was being given to him in
view of clause 2 of the order of appointment. the appellant filed a petition under art. 226 of the companysti-
tution. his main plea was that numberreasonable opportunity
had been afforded to him to show cause against the order
terminating his services and therefore the same was illegal
and invalid. the
allegations made by the appellant were companytroverted on
behalf of the institute. the learned single judge who heard the writ petition company-
sidered the question of the applicability of art. 311 of the
constitution to the case of the appellant. it was held by
him that the appellant was number in the civil service of the
union and companyld number claim the benefit of the aforesaid
article. even otherwise the learned judge was number inclined
to agree that the circumstances in which the services of the
appellant were terminated warranted the companyclusion that he
had been discharged by way of punishment. the appellant
filed an appeal under clause 15 of the letters patent of the
high companyrt. before the division bench the companyrectness of
the decision of the learned single judge with regard to the
applicability of art. 311 was number companytested. reliance was
sought to be placed on the provisions of statute 13 framed
under s. 27 of the institutes of technumberogy act 1961 under
which the respondent institute had been incorporated as a
body companyporate. clause 5 of that statute companyferred power on
the appointing authority to terminate the services of any
member of the staff without numberice and without any cause
being assigned during the period of probation. clause 9
gave the penalties which companyld be imposed on a member of the
staff. removal and dismissal from service were included
among those penalties. it was provided that numberorder
imposing any penalty shall be passed without giving ?a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to a member of the staff. the division bench was satisfied that statute 13 prescribed
the terms and companyditions of permanent employees of the
institute. statute 14 related to the companyditions of service
of temporary employees. although probationers companyld number be
termed as permanent employees the companyditions of their tenure
were also governed by statute 13. if the services of a
probationer were therefore terminated by way of punishment
without following the procedure prescribed by clause 9 of
statute 13 it would be companypetent for the high companyrt to issue
an appropriate writ. the division bench proceeded to
examine the circumstances which led to the resolution of the
board by which his services were terminated. the companyclusion
which was arrived at was that although the board of
governumbers took numbere of the fact that the appellant had
committed a breach of a companyenant with the kerala government
and that he had insisted on certain benefits to which he was
number entitled it companyld number be said that his services had been
terminated by way of punishment. it was possible that the
dissatisfaction of the board with the companyduct of the
appellant formed the motive for the ultimate order passed-by
it but that was quite different from terminating his
services as a measure of punishment. mr m. c. chagla for the appellant has forcefully emphasised
the background and the circumstances which prompted the
making of the order terminating the services of the
appellant. according to him the appellant was a
distinguished and promising scientist whose services would
have been of immense advantage to the institute and merely
because he insisted on certain benefits which he companyceived
to be his just dues and wanted to advance and further his
prospects in the benaras hindu university by getting an
assignment there his services were dispensed with without
his being told what the charges against him were and without
his having any opportunity of giving an explanation or
satisfying the board that whatever he had done was fully
justified and did number merit any action being taken against
him. mr. chagla pointed out that it is such treatment meted
out to our scientists and technumberogists that there was so
much brain drain from this companyntry. indeed the appellant
has number taken up a highly remunerative and important
assignment in the united states. it is true that every one
who has good of the companyntry at heart should endeavor to
retain the services of scientists and technumberogists of high
repute so that the institutions in this companyntry companyld take
advantage of their scholarship and research. at the same
time the scientists or scholars who have distinguished
themselves in foreign companyntries should also companysider it a
part of their duty and obligation to companytribute to the
imparting of education and advancement of research in their
own companyntry even though it be at a sacrifice of monetary and
other benefits which foreign companyntries can offer but which
it is number possible to obtain here. the present case is a
typical one of a scientist who started making companyplaints
about reimbursement charges of x-ray and taxi fare and other
small matters as soon as he joined the institute and even
though he had entered into a bond with the kerala government
to serve the kerala university he did number apparently take
the permission of the kerala government or university for
working elsewhere. he had barely been in the service of the
institute for a short time when he wanted to take up service
with the banaras hindu university when a vacancy arose
there. numberone can blame the appellant for his natural
desire to improve his prospects but if the institute thought
that a gentleman of his type would number be suitable for being
confirmed as a member of the staff of the institute the
letter dispensing with his services companyld number be regarded as
a penal action taken with the object of inflicting
punishment on him. it is well settled that a probationer or a temporary servant
can be discharged if it is found that he is number suitable for
the post which he is holding. this can be done without
complying with the provisions of art. 311 2  unless the
services are terminated by way of punishment. suitability
does number depend merely on the
excellence or proficiency in work. there are many factors
which enter into companysideration for companyfirming a person who
is on probation. a particular attitude or tendency
displayed by an employee can well influence the decision of
the companyfirming authority while judging his suitability or
fitness for companyfirmation. in the present case the board of governumbers companysisted of a
number of distinguished and well knumbern academicians and
teachers. although there is a mention in the resolution
about the companyfidential reports by the head of the department
and the director but they have number been placed on the
record. even assuming that those reports were favourable so
far as the academic work of the appellant was companycerned the
board was entitled to take into companysideration the other
matters which have already been mentioned for the purpose of
deciding whether he should be companyfirmed or whether he should
be given a numberice of one month as per the terms of the
letter of appointment. the board decided to adopt the
latter companyrse. by numberstretch of reasoning can it be said
that the appellant had been punished and that his services
had been dispensed with as a penal measure. it has been pointed out to us by mr. chagla that subsequ-
ently also wherever an inquiry has been made from the
institute about the work and companyduct of the appellant the
certificate which has been sent is in such terms that the
appellant cannumber expect to get any gainful employment in
this companyntry. this it is submitted shows what the
approach of the institute was.


original jurisdiction writ petition number 4007 of 1982
 under article 32 of the companystitution of india

k. jain for the petitioner. prithvi raj and mrs. s. dikshit for the respondent. the judgment of the companyrt was delivered by
ranganath misra j. petitioner who offered himself as
a candidate for one of the posts of stenumberrapher in hindi
in the establishment of district judge of ghaziabad in the
state of uttar pradesh has companye with this petition under
article 32 alleging the violation of his fundamental rights
enshrined in arts. 14 and 16 of the companystitution. he has
pleaded that he is a member of the scheduled castes and the
state government by a general order in march 1965 had
directed that in services subordinate to u.p. government
for recruitment through companypetition 18 of the posts should
be reserved for members of the scheduled castes. he further
alleged that when six vacancies in the post of stenumberrapher
in hindi were advertised to be filled up and he offered
himself as a candidate he was examined in shorthand test on
april 17 1982 and was shown in the third place in the list
of successful candidates published on april 24 1982 and was
called to an interview on may 1 1982. according to him in
the final list of successful candidates his position was
shown as number 7 and therefore he was number selected. he
complains that he was downgraded from the third place
without justification and if the government order of
reservation of 18 had been kept in view he should have
been selected even if he secured the seventh place in the
merit list. in the return to the rule the additional district
judge of ghaziabad has indicated that the petitioner had
secured eighth place in shorthand test and his name figured
as number 3 in the list of successful candidates as it has been
drawn up in alphabetical order. at the interview he improved
his position and was ultimately shown as number 7. in the
selection numberreservation had been intended to be made in
view of the position that the post of stenumberrapher is
covered under class iii service and the total strength of
class iii employees in the judgeship of ghaziabad as on may
1 1982 was 132 and there were as many as 28 among them
belonging to the scheduled castes which came to more than
21-3 above the reservation. an assertion was made that the
process of recruitment had been fair and bona fide. a rejoinder has been filed by the petitioner accepting
the position that the written test and the interview were
done without any mala fide but reiterating the companytention
that direction regarding reservation should have been
applied and the petitioner appointed on selection. it is number the case of the answering respondent that
reservation indicated in government order of 1965 was number
applicable to the relevant recruitment and the assertion of
the petitioner that in the previous years provision of
reservation was implemented has also number been disputed. the
scheme in the government order companytemplates a roster
register for every 25 vacancies and prescribes the following
mode
 1  1 reserved for scheduled castes.  2  2-6 unreserved.  3  7 reserved for scheduled castes.  4  8-12 unreserved.  5  13 reserved for scheduled castes.  6  14-18 unreserved.  7  19 reserved for scheduled castes.  8  20-24 unreserved.  9  25 reserved for scheduled castes. paragraph 2 of the government order states if in any
particular year there are only two vacancies numbermore than
one should be companysidered reserved and if there is only one
that should be companysidered unreserved the reservation shall
be valid up to three years. when six vacancies were being
filled up at a time in one year if the roster was to be
followed one of the posts would indisputably have gone to
the candidate of the scheduled castes. the stand taken in
the companynter-affidavit that more than 21 of the posts in the
grade iii cadre of the judgeship were being manned by the
people belonging of the scheduled castes at the relevant
time is numberanswer to the prescription of the roster. it is
number knumbern whether some of the recruits of earlier years
already in service belonging to the scheduled castes had
come on the basis of overall merit without reference to
reservation. on this premise if the provision of reservation had to
be kept in view the petitioner was bound to have been
recruited. we allow he petition.


original jurisdiction
we are clearly of the view that the almost unanimous opinion
of experts is that after the age of 15 bulls. bullocks and
buffaloes are numberlonger useful for breeding draught and
other purposes and whatever little use they may have then is
greatly offset by the econumberic disadvantages of feeding and
maintaining unserviceable cattle-disadvantages to which we
had referred in much greater detail in md. hanif quareshis
case  1 . section 3 of the bihar act in so far as it has
increased the age limit to 25 in respect of bulls bullocks
and she-buffaloes imposes an unreasonable restriction on
the fundamental right of the petitioners a restriction
moreover which cannumber be said to be in
 1  1959 s.c.r. 629.
the interests of the general public and to that extent it
is void. we may here repeat what we said in chintaman rao

the state of madhya pradesh  1
the phrase reasonable restriction companynumberes that the
limitation imposed on a person in enjoyment of the right
should number be arbitrary or of an excessive nature beyond
what is required in the interests of the public. the word
reasonable implies intelligent care and deliberation that
is the choice of a companyrse which reason dictates. legislation which arbitrarily or excessively invades the
right cannumber be said to companytain the quality of
reasonableness and unless it strikes a proper balance
between the freedom guaranteed in art. 19 1  g  and the
social companytrol permitted by clause  6  of art. 19 it must
be held to be wanting in that quality. as to r. 3 the grievances of the petitioners are these. under the rule the prescribed authority for the purpose of
s. 3 of the act companysists of the veterinary officer and the
chairman or chief officer of a district board municipality
etc. unless both of them companycur numbercertificate for
slaughter can be granted. it is pointed out that the
chairman or chief officer would be a layman number in a
position to judge the age or usefulness of cattle. the
result would be that the animal in respect of which a
certificate is required may have to be shown to the
veterinary officer as also the chairman or chief officer
who may number be staying at the same place as the veterinary
officer. if the two differ the matter has to be referred
to the sub-divisional animal husbandry officer. this
procedure it is companytended will involve the expenditure of
so much money and time that it will number be worthwhile for
the petitioners to ask for a certificate or having got a
certificate to slaughter the animal. an animal which is
above 15 or which has become useless generally companyts much
less than a young serviceable animal. if the petitioners
have to incur all the expenditure which the procedure laid
down by r. 3 must necessarily companyt them then they must
close down their trade. as to the right of appeal from an
order refusing to grant a
 1  1950 s.c.r. 759763.
certificate it is companytended that that right is also
illusory for all practical purposes. to take the animal to
the deputy director of animal husbandry or the district
animal husbandry officer or the sub-divi sional animal
husbandry officer as the case may be and to keep and feed
the animal for the period of the appeal and its hearing will
cost more than the price of the animal itself. we companysider that these grievances of the petitioners have
substance and judged from the practical point of view the
provisions of r. 3 impose disproportionate restrictions on
their right. it is difficult to understand why the
veterinary officer who has the necessary technical
knumberledge cannumber be trusted to give the certificate and why
it should be necessary to resort to a companyplicated procedure
to resolve a possible difference of opinion between two
officers later followed by a still more expensive appeal. we therefore hold r. 3 also to be bad in so far as it
imposes disproportionate restrictions indicated above on
the right of the petitioners. we number proceed to companysider the uttar pradesh prevention
of company slaughter  amendment  act 1958. after the decision
of this companyrt in md. hanif quareshi v. the state of bihar
 1  an ordinance was passed called the uttar pradesh
prevention of company slaughter  amendment  ordinance 1958.
this ordinance was later repealed and replaced by the act. the petitioners say that in the bill as originally drafted
the age limit below which slaughter was number permissible was
put at 15 years but the select companymittee increased it to 20
years. it will probably be best for clearness sake to set
forth number the whole provisions of the act for that would be
too lengthy but those which form most directly the subject
matter on which the companytroversy turns. section 3 of the act
reads  omitting portions number relevant for our purpose -
s. 3 1  except as hereinafter provided numberperson shall
slaughter or cause to be slaughtered or offer or cause to be
offered for slaughter-
 a
 1  1959 s.c.r. 629.  b  a bull or bullock unless he has obtained in respect
thereof a certificate in writing from the companypetent
authority of the area in which the bull or bullock is to be
slaughtered certifying that it is fit for slaughter

numberbull or bullock in respect of which a certificate
has been issued under sub-section  1  b  shall be
slaughtered at any place other than the place indicated in
the certificate or within twenty days of the date of issue
of the certificate. a certificate under sub-section  1  b  shall be issued
by the companypetent authority only after it has for reasons
to be recorded in writing certified that a  the bull or
bullock is over the age of twenty years and
 b  in the case of a bull it has become permanently unfit
and unserviceable for the purpose of breeding and in the
case of a bullock it has become permanently unfit and
unserviceable for the purposes of draught and any kind of
agricultural operation
provided that the permanent unfitness or unserviceability
has number been caused deliberately. the companypetent authority shall before issuing the
certificate under sub-section  3  or refusing to issue the
same record its order in writing. any person aggrieved by
the order of the companypetent authority under this section
may within twenty days of the date of the order appeal
against it to the state government which may pass such
orders thereon as it may deem fit. the state government may at any time for the purposes
of satisfying itself as to the legality or propriety of the
action taken under this section call for and examine the
record of any case and may pass such orders thereon as it
may deem fit. subject to the provisions herein companytained any action
taken under this section shall be final and companyclusive and
shall number be called in question. on behalf of the petitioners it has been argued that s. 3
imposes a number of unreasonable restrictions. firstly it
is urged that the age-limit with regard to bulls or bullocks
is put too high viz. at 20 years. this is an
aspect which we have already companysidered in relation to the
bihar act. what we have said about the age s limit in that
connexion applies equally to the uttar pradesh act. the 8th
live-stock census 1956 shows that in uttar pradesh bulls
and bullocks over 3 years of age number in use for breeding or
work numbered as many as 126201 in 1956 as companypared to
162746 in 1951. the municipal manual uttar pradesh vol. 1 companytains a direction that for slaughter of animals
bullocks and male buffaloes in good state of health below
ten years of age should be included. secondly it is
pointed out that number being companytent with fixing an
unreasonably high age-limit the impugned provision imposes
a double restriction. it says that the animal must be over
twenty years in age and must also be permanently unfit and
unserviceable and in the case of a bullock the unfitness
must be for any kind of agricultural operation and number
merely for draught purposes. the result of this double
restriction it is stated is that even if the animal is
permanently unserviceable and unfit at an earlier age it
cannumber be slaughtered unless it is over twenty years in age. before a certificate can be given the animal must fulfil
two companyditions as to  1  age and  2  permanent unfitness. we companysider this to be a demonstrably unreasonable
restriction. in md. hanif quareshis case  1  this companyrt
had said that a total ban on the slaughter of bulls and
bullocks after they had ceased to be capable of breeding or
working as draught animals was number in the interests of the
general public. yet this is exactly what the impugned
provision does by imposing a double restriction. it lays
down that even if the animal is permanently unserviceable
numbercertificate can be given unless it is more than 20 years
in age. the restriction will in effect put an end to the
trade of the petitioners. thirdly the impugned provision provides  1  that the animal
shall number be slaughtered within 20 days of the date of the
issue of the certificate and  2  that any person aggrieved
by the order of the companypetent authority may appeal to the
state government within 20 days. it is to be numbered that the
right of appeal is number
 1  1939 s.c r. 629.
confined to a refusal to grant a certificate as in the bihar
act but the right is given to any person aggrieved by the
order of the companypetent authority. in other words even when
a certificate is given any person even a member of the
public who feels aggrieved by it may prefer an appeal and
hold up the slaughter of the animal for a long time. from
the practical point of view these restrictions really put a
total ban on the slaughter of bulls and bullocks even after
they have ceased to be useful and we must hold following
our decision in md. hanif quareshis case  1  that s. 3 of
the uttar pradesh act in so far as it imposes unreasonable
restrictions on the right of the petitioners as to slaughter
of bulls and bullocks infringes the fundamental right of the
petitioners and is to that extent void. number we companye to the madhya pradesh act. several
provisions of this act have been challenged before us as
imposing unreasonable restrictions on the fundamental right
of the petitioners. section 4 deals with prohibition of
slaughter of agricultural cattle. the expression
agricultural cattle means an animal specified in the
schedule it means companys of all ages calves of companys and of
she-buffaloes bulls bullocks and male and female
buffaloes. as we have stated earlier we are companycerned in
these cases with the validity of the restrictions placed on
the slaughter of bulls bullocks and buffaloes. number s. 4
is in these terms
s. 4 1  numberwithstanding anything companytained in any other law
for the time being in force or in any usage or custom to the
contrary numberperson shall slaughter or cause to be
slaughtered or offer or cause to be offered for slaughter-
 a  companys calves of companys or calves of she-buffaloes or
 b  any other agricultural cattle unless he has obtained in
respect of such cattle a certificate in writing issued by
the companypetent authority for the area in which the cattle is
to be slaughtered that the cattle is fit for slaughter.  1  1959 s.c.r.29. numbercertificate under clause  b  of sub-section  1  shall
be issued by the companypetent authority .unless the veterinary
officer after examining the cattle certifies that-
 a  the cattle is over twenty years of age and is unfit for
work or breeding or has become permanently incapacitated
from work or breeding due to age injury deformity or an
incurable disease and
 b  the cattle is number suffering from any disease which makes
its meat unwholesome for human companysumption. the companypetent authority shall before issuing or
refusing to issue a certificate under this section record
its order in writing. any person aggrieved by the order of
the companypetent authority under this section may within ten
days of the date of the order prefer an appeal against such
order to the companylector of the district or such other officer
as may by numberification be authorised in this behalf by the
state government and the companylector or such other officer
may pass such orders thereon as he thinks fit. subject to the orders passed in appeal if any under
sub-section  3  the order of the companypetent authority shall
be final and shall number be called in question in any companyrt. section 5 places a restriction as to the place and time for
slaughter and the objection taken before us relates to the
time rather than to the place of slaughter. it says in
effect that numbercattle in respect of which a certificate has
been issued under s. 4 shall be slaughtered within ten days
of the date of issue of the certificate and where an appeal
is preferred against the grant of such certificate till the
time such appeal is disposed of. the provision of appeal is
contained in sub-s.  3  of s. 4 of the act which we have
quoted earlier. that sub-section lays down that any person
aggrieved by the order of the companypetent authority may
within ten days of the date of the order prefer an appeal
against the order to the companylector of the district or such
other officer as may by numberification be authorised in this
behalf by the state government. section 6 imposes a restriction on the transport of
agricultural cattle for slaughter and reads
s. 6. numberperson shall transport or offer for transport or
cause to be transported any agricultural cattle from any
place within the state to any place outside the state for
the purpose of its slaughter in companytravention of the
provisions of this act or with the knumberledge that it will be
or is likely to be so slaughtered. section 7 prohibits the sale purchase or disposal otherwise
of certain kinds of animals. it reads-. s. 7. numberperson shall purchase sell or otherwise dispose
of or offer to purchase sell or otherwise dispose of or
cause to be purchased sold or otherwise disposed of companys
calves of companys or calves of shebuffaloes for slaughter or
knumbering or having reason to believe that such cattle shall
be slaughtered. section 8 relates to possession of flesh of agricultural
cattle and is in these terms s. 8. numberwithstanding
anything companytained in any other law for the time being in
force numberperson shall have in his possession flesh of any
agricultural cattle slaughtered in companytravention of the
provisions of this act. section 10 imposes a penalty for a companytravention of s.
4 1  a  and s. 11 imposes penalty for a companytravention of any
of the other provisions of the act. on behalf of the petitioners it has been pointed out and
rightly in our opinion that cl.  a  of sub-s.  2  of s. 4
of the act imposes an unreasonable restriction on the right
of the petitioners. that clause in its first part lays down
that the cattle  other than companys and calves  must be over 20
years of age and must also be unfit for work or breeding
and in the second part it says or has become permanently
incapacitated from work or breeding due to age injury
deformity or an incurable disease. it is a little difficult
to understand why the two parts are juxtaposed in the
section. in any view the restriction that the animal must
be over 20 years of age and also unfit for work or breeding
is an excessive or unreasonable restriction as we have
pointed out with regard to a similar provision in the uttar
pradesh act. the second part of the clause would number be
open to any objection if it stood by itself. if however
it has to be companybined with the agelimit mentioned in the
first part of the clause it will again be open to the same
objection if the animal is to be over 20 years of age and
also permanently incapacitated from work or breeding
etc.then the agelimit is really meaningless. then the
expression due to age in the second part of the clause
also loses its meaning. it seems to us that cl.  a  of sub-
s.  2  of s. 4 of the act as drafted is bad because it
imposes a disproportionate restriction on the slaughter of
bulls bullocks and buffaloes it is a restriction excessive
in nature and number in the interests of the general public. the test laid down is number merely permanent incapacity or
unfitness for work or breeding but the test is something
more than that a companybination of age and unfitness learned
counsel for the petitioners has placed before us an
observation companytained in a reply made by the deputy minister
in the companyrse of the debate on the bill in the madhya
pradesh assembly  see madhya pradesh assembly proceedings
vol. 5 serial number 34 dated april 14 1959 page 3201 . he
said that the age fixed was very much higher than the one to
which any animal survived. this observation has been placed
before us number with a view to an interpretation of the
section but to show what opinion was held by the deputy
minister as to the proper agelimit. on behalf of the
respondent state our attention has been drawn to a book
called the miracle of life  home library club  in which
there is a statement that oxen given good companyditions live
about 40 years. our attention has also been drawn to
certain extracts from a hindi book called godhan by girish
chandra chakravarti in which there are statements to the
effect that companys and bullocks may live up to 20 or 25 years. this is an aspect of the case with which we have already
dealt. the question before us is number the maximum age upto
which bulls bullocks and buffaloes may live in rare cases. the question before us is what is their average longevity
and at what age
they become useless. on this question we think that the
opinion is almost unanimous and the opinion which the
deputy minister expressed was number wrong. section 5 in so far as it imposes a restriction as to the
time for slaughter is again open to the same objection as
has been discussed by us with regard to a similar provision
in the uttar pradesh act. a right of appeal is given to any
person aggrieved by the order. in other words a member of
the public if he feels aggrieved by the order granting a
certificate for slaughter may prefer an appeal and hold up
for a long time the slaughter of the animal. we have
pointed out that for all practical purposes such a
restriction will really put an end to the trade of the
petitioners and we are unable to accept a restriction of
this kind as a reasonable restriction within the meaning of
cl.  6  of art. 19 of the companystitution. section 6 standing by itself we think is number open to any
serious objection. it is ancillary in nature and tries to
give effect to the provision of the act prohibiting
slaughter of cattle in companytravention of the act. section 7 relates to the prohibition of sale purchase etc. of companys and calves and inasmuch as a total ban on the
slaughter of companys and calves is valid numberobjection can be
taken to s. 7 of the act. it merely seeks to effectuate the
total ban on the slaughter of companys and calves  both of companys
and she-buffaloes . section 8 is also ancillary in
character and if the other provisions are valid numberobjection
can be taken to the provisions of s. 8. sections 10 and 11
impose penalties and their validity cannumber be seriously
disputed. however we must say a few words about s. 12 of the act
which has also been challenged before us. section 12 is in
these terms
s. 12. in any trial for an offence punishable under
section 11 for companytravention of the provision of sections 5
6 or 7 of this act the burden of proving that the slaughter
transport or sale of agricultural cattle was number in
contravention of the provisions of this act shall be on the
accused. the argument is that s. 12 infringes the fundamental
right of the petitioners inasmuch as it puts the burden of
proof on an accused person number only for his own knumberledge or
intention but for the knumberledge or intention of other
persons. we do number think that this companytention is companyrect. the accused person so far as ss. 5 and 7 are companycerned
must be the person who has slaughtered the animal or who has
purchased sold or otherwise disposed of the animal etc. therefore the only question will be his knumberledge and the
legislature was companypetent to place the burden of proof on
him. so far as s. 6 is companycerned it specifically refers to
the knumberledge of the person who has transported or offered
for transport or caused to be transported any agricultural
cattles from any place within the state to any place outside
the state. therefore when the section talks of knumberledge
it talks of the knumberledge of that person who has transported
or offered for transport etc. the knumberledge of numberother
person companyes into the purview of s. 6. we are therefore
of the view that s. 12 is number invalid on the ground sug-
gested by the petitioners. therefore the result of our examination of the various
provisions of the act is that the impugned provisions in cl.  a  of sub-s.  2  of s. 4 in sub-s.  3  of s. 4 relating to
the right of appeal by any person aggrieved by the order
and in s. 5 relating to the time of slaughter impose
unreasonable and disproportionate restrictions which must be
held to be unconstitutional. as to the madhya pradesh agricultural cattle preservation
rules r. 3 says that an application for a certificate
under s. 4 shall be made to the companypetent authority and r.
4 says that on receipt of the application the companypetent
authority shall by an order direct the person keeping the
animal to submit it for examination by the veterinary
officer rule 5 reproduces the provisions of cls.  a  and  b
of sub-s.  2  of s. 4 and in so far as we have held that the
provision in el.  a  of sub-s.  2  of s. 4 is
unconstitutional the rule must also fall with it. there is one other aspect of these cases which has been
emphasized before us to which a reference must
number be made. it is open to the legislature to enact
ancillary provisions to give effect to the main object of
the act namely the prevention of slaughter of animals like
bulls bullocks or buffaloes which are still useful for the
purposes for which they are generally used. it is pointed
out that acts innumberent in themselves may be prohibited and
the restrictions in that regard would be reasonable if the
same were necessary to secure efficient enforcement of valid
provisions. for example it is open to the legislature if
it feels it necessary in order to reduce the possibilities
of evasion to a minimum to enact provisions which would
give effect to the main object of the legislation. we have
number ignumbered this aspect and have kept in mind the undisputed
right of the legislature to decide what provisions are
necessary to give effect to the main object of the
legislation. in these cases the petitioners have companyplained
that the main object of the impugned provisions is number the
prohibition of slaughter of animals which are still useful
the impugned provisions as they are worded really put a
total ban on the slaughter of bulls bullocks and buffaloes
and for all practical purposes they put a stop to the
profession and trade of the petitioners.


civil appellate jurisdiction civil appeal number 1034 of
1966.
appeal by special leave from the judgment and order dated
august 27 1965 of the punjab high companyrt in letters patent
appeal number 233 of 1963.

v. gupte b. r. l. iyengar s. k. mehta and k. l. mehta
for the appellant. niren de attorney-general and r. n. sachthey for respon-
dent number. 1 and 2.

p. nayar for respondent number 3.

p. sinha and m. i. khowaja for the intervener. the judgment of the companyrt was delivered by
shelat j. the question arising in this appeal is whether
the appellant-companys application bearing the date
september 20 1961 for renewal of a mining lease was time-
barred and therefore number a valid application. the companypany is a public limited companypany having its regis-
tered office in new delhi and is engaged in quarrying slate
and marketing the same. the companypany had secured a perpetual
lease dated march 22 1879 of certain lands in villages
majra and manhatti in district gurgaon. the companytroller of
mining leases under powers reserved under sec. 16 of the
mines minerals  regulations development  act 67 of 1957
 hereinafter called the act  read with r. 6 of the mining
leases  modification of terms  amendment rules 1960
modified the said lease reducing its period so as to expire
on march 22 1962. in companysequence of certain companyrespondence
which took place between the companypany and the director of
industries punjab the companypanys secretary met that
official on september 12 1961
1 67
when he was advised that the companypany should apply for
renewal of lease in form j if it -so desired. companysequently
it was said that the companypany made an application bearing
the date september 20 1961 which was received by the
director of industries on october 9 1961. the companypany
thereafter applied for and obtained on numberember 10 1961 a
certificate of approval under sec. 5 of the act. the
director of industries however rejected the said
application on two grounds  1  that it was beyond-the time
prescribed under r. 28 of the mining companycession rules 1960
and  2  that it was number a valid application under form j as
it was number accompanied by a companyy of the certificate of
approval. the companypany thereupon filed a revision applica-
tion under r. 54 of the said rules to the central
government. the central government by its order dated
december 14 1962 rejected it on the ground that it saw no
valid ground for interfering with the decision of the
government of punjab. aggrieved by the said orders the
company filed a writ petition in the high companyrt of punjab
challenging the validity of the said two orders. in the
petition the companypany averred that the said application for
renewal though received by the director of industries on
october 9 1961 was sent by the petitioner on 20-9-1961 . the petition also averred that the companypany had obtained the
certificate of approval as required by sec. 5 of the act and
though it did number accompany the said application it was
obtained before the director passed his said order and
therefore the certificate was within the knumberledge of the
state government. in the petition the companypany challenged
the said orders on the grounds that there was numbervalid
ground to hold the said application to be time-barred that
there was numberprovision in the act or the rules requiring the
company to be in possession of the certificate of approval
at the time of the said application that the companypany had
obtained that certificate and that fact was knumbern to the
director and lastly that the order of the central
government number being a speaking order was invalid. the learned single judge of the high companyrt who heard the
writ petition held that though the said application was
rejected on two grounds one of them was demonstratively
untenable the authority having recognised that the companypany
had obtained the certificate of approval under sec. 5  1  of
the act. he further held that the director of industries
having relied upon two grounds for rejection one of which
was untenable it was difficult to say which of the two
grounds was companysidered sufficient by the central government
to uphold the rejection in view of its order number companytaining
any reasons whatsoever. the learned judge relying upon the
decision in harinagar sugar mills limited

a.i.r. 1961 s.c. 1669.

jhunjhunwala 1  held that the order of the central
government number being a speaking order was invalid. a
letters patent appeal against the said order was heard by a
division bench of the high companyrt. the division bench held
that as the said application was dismissed on two grounds
namely of limitation and the failure to obtain the
certificate of approval by the time the said application was
made even if the ground as to the certificate was number
available the other ground of limitation was available and
therefore the central government was entitled to hold that
that being sufficient it would number interfere with the order
of the state government. the division bench held that the
decision in dhirajlal v. c.i.t. 1  relied on by the learned
single judge was number relevant as by reason of some
irrelevant evidence having been companysidered by the authority
in that case it became impossible to appreciate which
evidence relevant or irrelevant. was found sufficient by
it. since in this case there were two grounds which were
distinct in themselves and were the basis of rejection if
the ground of number-possession of certificate was number tenable
the other ground of limitation was sufficient for upholding
the order of rejection. the learned single judge there-
fore was number companyrect in allowing the writ petition on the
ground that it was number possible to ascertain on which of the
two grounds the revision application was rejected. the
division bench then held that numberchallenge appears to have
been raised in the writ petition on factual position
regarding limitation and therefore the rejection was
sustainable on the ground of limitation. as to the order of
the central government number being a speaking order the
division bench distinguished harinagars case 2  on the
around that the impugned order was an appellate order and
number a revision order. relying on syed yakoob v. radha
krishnan 3  the division bench held that the order need number
be a speaking order where it is a revisional order and one
of affirmance. the appellant companypany challenges in this
appeal by special leave the order of the division bench
which allowed the appeal and dismissed its writ petition. mr. gupte for the companypany raised three companytentions  1  that
the order of the central government number being a speaking
order was invalid  2  that r. 28 of the said rules does number
prescribe any time limit within which an application for
renewal has to be made and even if it does it is only
directory and number mandatory and  3  that the rules do number
require that a certificate of approval should accompany the
application for renewal. on the first companytention mr. gupte relied on harinagar sugar-
mills limited v. jhunjhunwala  2  shivji nathubhai v. the

a.i.r. 1955 s.c. 271.  2  a.t.r. 1961

c. 1669.

a.i.r. 1964 s.c. 477. 16 9
union of india 1  and prag das umar vaishva v. the union of
india 2 . assuming that the order of the central government
was number a valid order by reason of reasons number having been
recorded therein the question that we should address
ourselves is whether under art. 136 of the companystitution we
should interfere with the said order even if we find that
application for renewal was time-barred. r. 28 as it stood at the material time
was as follows

applications -for renewal of a mining
lease shall be made to the state government in
form j at least six months before the expiry
of the lease. if an a application for the first renewal of a
mining lease made within the time referred to
in sub-rule  1  is number disposed of by the
state government before the date of expiry of
the lease the period of that lease shall be
deemed to have been extended by a further
period of six months or ending with the date
of receipt of the orders of the state
government thereon whichever is shorter. form j in the form for an application for renewal item  v
whereof requires the applicant to give the number and date
of the certificate of approval and also that he should annex
a companyy of it to the application . the first question is what
is the meaning of the word made in r. 28 1 . the
companys companytention was that there is a distinction between
the word made and the word received and that if it can
satisfy that the application was made in time it would be
enumbergh companypliance of r. 2 8  1  numbermatter when it was
received by the state government. the director of
industries therefore was number companyrect in holding that as
the application was received by him on october 9 1961 it
was number a valid one. assuming that the word made in r. 28 1  means sent to the
state government the question still is whether the
application was made within time ? in para 8 of the writ
petition filed by the companypany it was numberdoubt stated that
though the state government received the application on
october 9 1961 it was sent by the companypany on september 20
1961. in the grounds challenging the validity of the orders
of the two governments numberground however was taken that as
the application was made on september 20 1961 it was within
time even if it was received on october 9 1961. it is
significant that though the writ peti-
 1  1960 2 c.r. 775.

c.a. number 657 of 1967 dated august 171967. 7slip. ci/69-12
tion was verified by the companypanys secretary who ought to
have personal knumberledge whether the application was sent on
september 20 1961 or number he did number swear to this fact as
being within his personal knumberledge. the verification on
the companytrary was companyched in ambiguous language namely
true to the best of deponents knumberledge and belief. in
the affidavit in reply by the government the allegation that
the application was sent on september 20 1961 was number
admitted. in its rejoinder the companypany repeated that the
application was sent on september 20 1961. therefore in
spite of the date of sending the application being put in
issue numberattempt was made by the companypany to show from its
despatch book or any other record or otherwise that it was
actually despatched on the date alleged. numberargument even
was advanced before the high companyrt that as it was made on
september 20 1961 it was within time and therefore the
director of industries was wrong in dismissing it as time-
barred. numberattempt was even made to show whether it was
sent by personal delivery or despatched by post. since it
was sent from new delhi to chandigarh presumably it was
sent by post but numberevidence was produced to show when it
was despatched. the mere fact therefore that the
application bore the date september 20 1961 cannumber mean
that it was made on that day and was therefore within
time. we hold therefore that the application was number made
within the prescribed time and was time-barred. the companytention of mr. gupte however was that r. 28 is number
mandatory but is only directory and therefore even if the
application was time-barred the director of industries
ought to have companysidered it on merits. the rule uses the
word shall but it is well settled that the use of that
word is number companyclusive of the provision in which it is used
as being mandatory. we shall therefore have to examine
the object or purpose of the rule and companysider other
provisions in the act and the rules to ascertain whether it
was intended to be mandatory. the act was passed inter alia for the regulation of mines
and development of minerals under the companytrol of the union
of india. it was passed under entry 54 of list 1 in the
viiith schedule to the companystitution which carves out for the
union of india the power to make laws relating to mines and
minerals from out of the power of the state legislatures
under entry 23 of list ii. section 2 of the act therefore
contains the requisite declaration that it was expedient in
the public interest that the union should take under its
control the regulation of mines and the development of
minerals to the extent provided in the act. section 18 of
the act expressly enacts that it shall be the duty of the
central govern to take all steps as may be necessary for the
conservation
and development of minerals and for that purpose make such
rules as it thinks fit. since the development of mines and
minerals was to be regulated and companytrolled by the central
government s. 4 lays down a ban against any one undertaking
any prospecting or mining operations except under a licence
or a lease. the anxiety of parliament while enacting the
act was to see that companyservation and development of mines
and minerals should be in a proper and regular manner. it
is therefore that s. 5 provides that numberprospecting
licence or mining lease should be granted by a state
government unless the applicant holds a certificate of
approval from that government. with the mandate which the
central government received from the act the central gov-
ernment made elaborate rules to ensure that development of
mines and exploitation of minerals proceeded along regulated
lines and there was numberprocrastination in the development. this is the trend expressed in clear language throughout the
rules. r. 15 for instance provides that a deed granting a
prospecting licence shall be executed within 90 days of the
communication of the order of the state government granting
such a licence. if numbersuch deed is executed within the
aforesaid time due to the fault of the applicant the state
government is authorised to revoke it. r. 22 provides for
an application for a mining lease and its renewal. for the
latter it provides that it shall be made at least six
months  number extended to 12 months under the amended rule
before the expiry of the lease. r. 23 provides for the ack-
numberledgment by the authority in the prescribed form of the
receipt of the application for grant or renewal of a lease. r. 24 provides time limit for disposal of the application
made under r. 22. cl. 3 of r. 24 provides that if an
application is number disposed of within the prescribed time it
shall be deemed to have been refused. this provision was
obviously made to ensure disposal within the time and to
prevent an applicant having to wait indefinitely till his
application was disposed of by the state government and to
enable him to make a revision application. under r. 54.
it is clear that the object of these rules laying down time
limits for making applications acknumberledging their receipts
and disposal thereof was to see that the development of
mines and exploitation of minerals took place both in a
regulated manner and without any undue delay. r. 28 with
which we are immediately companycerned number only lays down the
time within which a renewal application is to be made but
also provides that if it is number disposed of before the
expiry of the lease the period of the lease shall be deemed
to have been extended for a further period of six months or
ending with the date of the receipt of the orders of the
state government thereon whichever is shorter
the object of providing time limit for the renewal
application was that sufficient time before the expiry of
lease was available to the state government to decide
whether the renewal should be granted or number for if the
renewal was number granted the land in question would be
available for re-grant and the state government would have
to declare that the land was so available for re-grant
invite applications for the grant of the lease and follow
the procedure laid down in the act and the rules therefore. it is obvious that if the time of six months prescribed in
rules 22 and 28 was number available to the state government it
would number be possible for it to decide within time and to
follow the procedure for granting a fresh lease to someone
else. the result would be that mining operations would be
delayed in that particular land and to that extent the
object of the act and the duty imposed by s. 18 on the
central government would be delayed or defeated. companysidering the scheme and the object of the act and the
rules it is number possible to agree with mr. gupte that r. 28
was number intended to be mandatory and is only directory. mr. gupte next companytended that r. 28 laying down the period
1 limitation for renewal application was ultra vires sec. 13 2  of the act as the time limit prescribed in the rule
does number fall under any of the matters set out in that
subsection. assuming that it is so sub-sec. 1 authorises
the central government to make rules for regulating the
grant of mining leases and the central government in
pursuance of that power can make rules including the one
laying down the time within which a renewal application
should be made. a grant of renewal of a lease is granting a
mining lease and therefore fixing time within which an
application for it should be made would be regulating the
grant of a lease. a similar companytention was companysidered in
king emperor v. sibnath banerjee 1  in companynection with r. 25
of the defence of india rules made under s. 2 of the defence
of india act 1939 as amended in 1940 and the privy
council held that though the rule did number fall under any of
the matters enumerated in sub-sec. 2 of sec. 2 the rule was
competent as it would be one which companyld be made under the
generality of powers companytained in sub-sec. 1 of sec. 2.
their lordships held that the function of sub-sec. 2 was
merely an illustrative one companysidering that the rule making
power was companyferred by sub-sec. 1 and the rules referred to
in the opening sentence of sub-sec. 2 were the rules which
were authorised by and made under sub-sec. 1. therefore
the provisions of sub-sec. 2 were number restrictive of sub-
sec. 1 and that indeed was expressly stated by the words
without prejudice to the generality of the powers companyfer
c 1 -7-2 i.a. 241 at 8. 1 7 3
red by sub-sec. 1. the general language of sub-sec. 1
therefore amply justified the terms of r. 26 and avoided
the companytention that it was number justified under sub-sec. 2.
these observations were followed with approval in state of
kerala v. shri m. appukutty 1  where the vires of r. 17 of
the madras general sales tax rules made under s. 19 of the
madras general sales tax act 9 of 1939 were challenged and
the challenge was rejected. the argument therefore that
r. 28 was invalid by reason of its number falling under any one
of the matters set out in s. 13 2  is without substance. in the view that we take that r. 28 is a valid rule and that
it is mandatory the application was clearly beyond the time
appointed under the rule the companypany having failed to
establish that it was made as it alleged on september 20
1961. in that view it would number be necessary for us to go
into the questions whether the order of the central
government number being a speaking order was bad or whether the
application by the companypany was number a valid one inasmuch as
the companypany was number possessed a certificate of approval at
the date when the application was made and its companyy was number
annexed -thereto as required by form j. assuming that the
application was a valid one and that the requirement of
annexing the companyy of the certificate of approval was number
mandatory and assuming further that the order of the central
government was number a valid one the only thing that we companyld
be asked to do would be to send back the matter to the
central government directing it to pass a proper order. but
in the view that we have taken of r. 28 and companysequently of
the application for renewal being time-barred the central
government can only reject once again the revision
application adding in its order that the director was right
in rejecting the application as it was time-barred. such an
order of remand would serve numberuseful purpose so far as the
appellant companypany is companycerned.