AJMAL MIAN, J.-This is an appeal with the leave of this Court against the judgment dated 7-6-1988 passed by a learned Single Judge of the High Court of Sindh in Civil Revision No.85 of 1984, filed by the respondents against the judgments/decrees of the two Courts below i.e. Of the trial Court and of the District Judge, whereby the appellants' suit for the following reliefs was decreed and in appeal the same was maintained:-
(a) For declaration that the plaintiffs are the absolute owners of their animals and all their parts and blood slaughtering in Municipal slaughter houses after paying the fee thereof;
(b) Interfering in, and obstructing the plaintiffs in the matter of collection and removal of blood of the animals slaughtered by the plaintiffs in slaughter houses maintained by the defendant, and/or itself collecting and/or giving on lease the collection thereof; allowing the same and setting aside the above concurrent judgments/decrees of the Courts below on the ground that the suit was defective, as the same Was filed against the Mayor instead of the Corporation, and also on merits, the High Court concluded as follows:-- "The question for consideration in this case is whether there is anything in the context of the definition of 'refuse' suggesting any restricted meaning for the word. The word 'refuse' has been defined in section 3(55) for the purposes of section I6 of the Ordinance, Clause (55) of section 3 of the said Ordinance deals with the word 'refuse'. Subsection (1) of section 76 of the Ordinance provides that a Council may acquire and hold property, both movable and immovable, whether within or without the limits of the Council. Subsection (2) provides that all property of the nature described in clauses (a) to (f) not being specially reserved by Government shall stand vested in Council, Clause (d) of subsection (2) provides that all public sewere. And drains-lesspool or elsewhere, Clause (b) provides that all public markets are maintained by the Council. Normally, therefore, the definition of the words 'refuse' in clause (55) of section 3 would have been attracted in interpreting clauses ,(b) and (d ) of subsection (2) of section 76 of the Ordinance. The purpose of defining the word 'refuse' in clause (55) appears to be, in my opinion, only to exclude certain items which would otherwise be comprehended within it rather than to restrict its m waning itself. The word "rubbish, broken bricks, morter, broken glass, offal, right soil, sweepings, carcasses of animals, deposit of sewerage, waste-blood, horns, hoofs, bones and meant-waste and any other offensive matter" in the expression 'refuse' are were enough to include the refuse in this case. Thus "waste blood" would come within the meaning of 'refuse'. I am, therefore, unable to accept the contention of Mr. Nawab Mirza that the definition of the word 'refuse' in clause (55) of section 3 is exhaustive.
The word 'refuse' in the natural import would comprehend within it waste-blood. The finding of the Courts below that the oozing out of blood from the animals at the time of slaughter cannot be considered as refuse or waste blood, is against the provision of the Ordinance."
Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the contentions raised by the learned counsel for the appellants, namely, whether the High Court was justified in non-suiting the appellants on the ground that the suit was filed against the Mayor and not against the Corporation, and whether the blood ensuing slaughter of an animal, being a marketable commodity, belonged to the owner of the animal.
2. In support of the above appeal, Mr. Waheed Farooqui, learned counsel for the appellants, has urged that the High Court was not justified to reverse the concurrent finding of the two Courts below on the ground of wrongly impleading the Mayor of the Corporation and also on merits, keeping in view Articles 23 and 24 of the fundamental rights of the Constitution of Islamic Republic of Pakistan, hereinafter referred to as the Constitution.
Mr. Khalid M. Ishaque, learned counsel appearing for the respondents, has not opposed the above appeal on the ground of non-joinder of the proper party. However, his submission was that though the blood is a property belonging to the owners of the animals slaughtered, but the Corporation is entitled to remove the 'refuse' in terms of section 44(1) read with section 3(35) of the late Municipal Administration Ordinance, 1960, hereinafter referred to as the late Ordinance, and also by virtue of section 3(55) of the Sindh Local Government Ordinance, 1979 (Sindh Ordinance No.XII of 1979), hereinafter referred to as the Ordinance, read with para. 2 of Schedule II of Part II to the Ordinance.
3. Adverting to the above submission of Mr. Waheed Farooqui on merits, it may be observed that in support of his above submission, he has referred to the above Articles of the Constitution. It may be stated that Article 23 guarantees that every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan subject to reasonable restrictions imposed by law, whereas Article 24 inter alia postulates that no person shall be deprived of his property save in Accordance with law. It further provides that no property shall be compulsorily acquired or taken possession of save for a public purpose and save by the authority of law which provides for compensation or specifies the principles on and the manner in which compensation is to be determined and given.
Sub- Article (3) of Article 24 contains the exceptions to the above rules, which need not be dilated upon.
4. Mr. Waheed Farooqui has also urged that even in Holy Qur'an in 37 of 22, meat and blood have been treated as separate properties. In this regard, it may be pertinent to reproduce English translation of the above which reads as follows:- "It is not their meat nor their blood, that reaches Allah: it is your piety That reaches Him: He has thus made them subject To you, that ye may glorify Allah for His guidance to you: And proclaim the Good News To all who do right."
Even Mr. Khalid M. Ishaque, learned counsel for the respondents, has not disputed that blood is a separate property, which is marketable. We are also inclined to take the view that blood is a specie of property, which is marketable and is inter alia used for manufacturing poultry feed and/or plant manure etc.
5. Mr. Waheed Farooqui has also referred to an unreported judgment, dated 30-7-1974 of a Division Bench of the Lahore High Court passed in the case of Shabhir Ahmad for himself and the General Attorney of the other appellants v. Lahore Corporation, Lahore (in L.PA. No.32 of 1972), in which the learned Judges of the Division Bench examined the provisions of Article 4 of the late Constitution of 1962 in conjunction with Item 25(d) of the Fifth Schedule of the late Ordinance and Bye-laws 10 and 28 of the Lahore Municipal Corporation Slaughter House Bye-Laws framed under section 122 of the same. It may be observed that above Item 25(d) of the Fifth Schedule provided one of the duties of the Corporation, namely. The sanitation of slaughter house and disposal of blood, offal, refuse and other offensive matter", whereas above Bye-Laws 10 and 28 read as follows: - "10.-(1) Each animal shall be slaughtered by a person having licence to slaughter immediately over the drain in the separate bleeding chamber and no blood should be allowed to flow upon the floor.
28. The blood, unwanted offals, refuse or other offensive matter left at the slaughter house premises shall be removed under the supervision and control of the Superintendent to place fixed for the purpose by the Municipal Medical Officer of health and the sanitation of the premises properly maintained after the slaughtering operations are over."
Learned Judges of the Division Bench, after discussing above Article 4 of the late Constitution of 1962 and the relevant provisions of the late Ordinance read with relevant Bye-laws, .Concluded as follows:- "In bye-law 10 it is provided that the animal has to be slaughtered 'immediately Over the drain in the separate bleeding chamber and no blood should be allowed to flow upon the floor'. There is a bleeding chamber and also a drain. The separate bleeding chamber is provided so that the animal should be slaughtered at a fixed place. The provision that the animal should be slaughtered immediately over the drain is for the reason that no blood should flow upon the floor. There is no other purpose of the bye-law. The bye-law can be fully observed if a person places a bucket in the drain and slaughters the animal over it. However, while removing the bucket if he does not take the precautions and the blood flows upon the floor he will render himself liable for a penal action under section 116 of the Municipal Administration Ordinance read with bye-law 31.
"Bye-law 28 provides: The blood, unwanted offals, refuse or other offensive matter left at the slaughter house premises shall be removed under the supervision and control of the Superintendent------------- ." The bye-law was made pursuant to item 25(d) which provides for "disposal of blood, offals, refuse and other offensive matters." It. Is manifest from this that the bye- laws were required to be made for the disposal of the "blood" which clearly implies "the blood which was left at the slaughter house". The bye-law was accordingly made. It applies to the "blood- left at the slaughter house premises."
6. Mr. Waheed Farooqui has further referred to an unreported order, dated 7-10-1970 passed by a learned Single Judge of the erstwhile High Court of Sindh and Baluchistan in the case of Karachi Municipal Corporation v. Fazal Elahi and others (in Civil Revision Application No.249 of 1970), filed by the Karachi Municipal Corporation against the grant of ad interim injunction restraining the K.M.C, from collecting the blood flowing from the slaughter of animals of Landhi Slaughter House. The learned Judge in Chamber, while dismissing the above revision application, construed clause 35 of subsection (1) of section 3 of the late Ordinance, which provided that 'Refuse' includes rubbish, offal, night soil, carcasses of animals, deposits of sewage, waste and any other offensive matter" and held that the right of the Corporation to collect refuse, accrues when the refuse is being deposited at the places fixed by the Corporation. He, therefore, maintained the order of ad interim injunction.
On the other hand, Mr. Khalid M. Ishaque has referred to the above provisions of the late Ordinance, of the Ordinance and the following two judgments of the High Court of Sindh:
(i) Meat and Cattle Merchants Association (Reged.), Karachi v. Karachi Municipal Corporation through its Administrator (PLD 1976 Kar. 373);
(ii) Abdul Ghani and others v. Hyderabad Municipal Corporation (1989 M LD 2878).
7. Before dealing with the above two authorities, we may refer to the provisions of the late Ordinance and of the Ordinance, and to point out the distinction between the two.
The definition of 'refuse' given in clause 35 of subsection (1) of section 3 of the Ordinance has already been reproduced hereinabove while dealing with the order passed by a learned Single Judge of the erstwhile High Court of Sindh and Baluchistan in the case of Karachi Municipal Corporation v. Fazal Elahi and others (supra). It is, therefore, not necessary to reproduce the same.
It may be pertinent to observe that subsection (1) of section 44 of the late Ordinance provided that a Municipal Committee shall make adequate arrangements for the removal of 'refuse' from all public streets, public latrines, urinals, drains and all buildings and' lands vested in the Municipal Committee and for the collection and proper disposal of such refuse. It may further be observed that clause (55) of section 3 of the Ordinance defines 'refuse' as follows:-- "(55) "refuse" includes rubbish, broken bricks, mortar, broken glass, offal, night soil, sweepings, carcasses of animals, deposit of sewage, waste blood, horn, hoofs, bones and meat waste and any other offensive matter;"
Whereas para. 2 of Part II of Schedule II framed under section 40 of the Ordinance, imposes obligation inter alia on the part of the Corporation to remove, collect and dispose of 'refuse'. The above para. 2 reads as under:- "2. Removal, collection and disposed of refuse.-A corporation, municipal committee or town committee shall make adequate arrangements for the removal of refuse from all public streets, public latrines, urinals, drains and all buildings and lands vested in the council concerned and for the collection and proper disposal of such refuse."
7- A. If we place the provisions of the late Ordinance and of Ordinance in juxtaposition, it becomes evident that clause (3) of subsection (1) of section 3 of the late Ordinance did not mention the words "waste blood" while defining the term "refuse", but this has been included in the above clause
(55) of section 3 of the Ordinance. It is, therefore, evident that the Corporation is entitled to collect waste blood apart from collecting the other items of 'refuse' defined in clause (55) of section 3 of the Ordinance.
8. We may now revert to the above two authorities relied upon by Mr. Khalid M. Ishaque. In the above first case, Meat and Cattle Merchants Association had filed a revision application against an order of the learned Additional District Judge passed in a civil miscellaneous appeal vacating ad interim injunction granted by the learned Civil Judge restraining the Karachi Municipal Corporation from interfering with the right of the petitioners to remove the blood of slaughtered animals.
Naimuddin, J. (as his Lordship then was), while holding that the blood was a property, at the same time held that the Karachi Municipal Corporation was entitled to collect the blood of animals slaughtered in its Slaughter Houses as 'refuse' in terms of clause (51) of section 2 read with Schedule 11, para. 3(4) of the late Sindh People's Local Government Ordinance, 1972 (II of 1972). The question, whether butchers could collect blood of their slaughtered animals without contravention of law and rules and whether they could be deprived of their property save in accordance with law in view of Article 24 of the Constitution, was left open.
Whereas, in the above second case of Abdul Ghani and others v. Hyderabad Municipal Corporation (supra), a Division Bench of the High Court of Sindh to which one of us (Amal Mian, J.) was a Member, declined a Constitution petition filed by the petitioners/butchers against the Hyderabad Municipal Corporation for declaration that they were the lawful owners of the animals slaughtered in the Slaughter Houses and also for an injunction restraining the Corporation from collecting and auctioning the blood of the slaughtered animals directly or indirectly. The above Lahore case of Division Bench was distinguished and on the basis of the definition of the terms 'refuse' given in clause (55) of section 3 of the Ordinance read with para. 2 of para II of Schedule II of the Ordinance, the following conclusion was arrived:- "5. It is evident from the perusal of the above-quoted definition of the word "refuse" that it includes waste blood, whereas under Schedule II, Part II one of the compulsory functions assigned to a Corporation is removal, collection and disposal of refuse. Since the waste blood has been included in the definition of refuse, the respondent Corporation is under statutory obligation to remove the same though in that process it earns money while disposing of the waste blood of the animals."
9. It is apparent that in the above two cases of Karachi, the question of violation of the fundamental right was not examined and, therefore, the above authorities are distinguishable from the present case. Since meat and blood are the end products of a slaughtered animal, it must follow that the same belong to the owner of the slaughtered animal. If the owner of the slaughtered animal is entitled to remove meat, he is also entitled to remove blood. The blood being a separate property, the owner of the same cannot be deprived of it without being compensated in view of Article 24 of the Constitution. However, the right to acquire, hold and dispose of property under Article 23 of the Constitution, is subject to reasonable restrictions. In the present case, it is the statutory duty of the respondent Corporation to remove 'refuse' which includes 'waste blood'. If the butchers leave the blood on the floor and/or allow it to flow in the drain of the slaughter house, it becomes 'waste blood' warranting removal of the same by the respondent Corporation in discharge of its statutory duty, but in case the butchers can remove the blood before it becomes "waste blood' without contravening any statutory rule as to the maintenance of hygienic conditions, they can remove the same as their property.
10. We would, therefore, allow the above appeal and set aside the judgment of the High Court and would restore the judgment and decree of the trial Court. However, we may observe that it will be appropriate for the appellants p and the respondent Corporation to arrive at some arrangement, whereby the blood may be collected/removed by the appellants and/or by some other agency and/or by the respondent Corporation without contravening any bye-laws and at the same time ensuring the maintenance of hygienic conditions within and outside the slaughter houses with the object to have healthy surroundings for the public at large, which is the statutory duty of the respondent Corporation.
11. With the above observation, the above appeal stands allowed, with no order as to costs.