M/S TAJ RESTAURANT OWNER AAKIB AMINBHAI KHAN vs STATE OF GUJARAT
- Court
- Gujarat High Court
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
Reserved On : 21/10/2026
Pronounced On : 30/10/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13977 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
=============================================
Approved for Reporting Yes No
YES
=============================================
M/S TAJ RESTAURANT OWNER AAKIB AMINBHAI KHAN & ORS.
Versus
STATE OF GUJARAT & ORS.
=============================================
Appearance:
MR. ASARAR L. MANSURI(18390) for the Petitioner(s) No.
1,2,3,4,5,6,7
MS FARHANA Y MANSURI(2526) for the Petitioner(s) No.
1,2,3,4,5,6,7
MR. G H VIRK GOVERNMENT PLEADER WITH MS. DHARITRI
PANCHOLI, AGP, MR. BRIJENSINGH THAKUR, AGP MR.
SHAUNAK VYAS AGP f for the Respondent(s) No. 3,4,5,6,7
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 2
=============================================
CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
CAV JUDGMENT
1. The genesis of the matter lies in the context of dispute
arising from the closure of the restaurants/eateries of the
petitioners. In view of the notification dated 10th August 2026
issued by the learned District Magistrate, Gir Somnath, in
exercise of powers conferred under Section 33(1)(w)(ii) and
Section 33(6) of the Gujarat Police Act, 1951, prohibiting
preparation, sale and storage of non-vegetarian food as well
as eggs on the routes and areas specified therein at Prabhas
Page 1 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
Patan, Taluka; Veraval, District Gir Somnath, is subject matter
of challenge.
2. The petitioners, thus, who are running the hotels being
aggrieved by the aforesaid action of the respondent State
authorities, have approached this Court under Article 226 and
Article 227 of the Constitution of India, essentially praying for
the following reliefs :
“ A. Be pleased to issue a writ of certiorari or any
other appropriate writ, order or direction quashing
and setting aside the Notification No. MAG/C/
Pra.Pa/08/2026 dated 10.08.2026, ΑΝNEXURE -'E'NEXURE -'E'
as well as Prelimnary Notification dated 10.07.2026,
ANNEXURE 'C' to this petition, issued by
respondent No. 6, to the extent it prohibits or is
sought to be applied so as to prohibit the
preparation, sale and storage of non-vegetarian food
and eggs at the hotels and restaurants of the
petitioners, being establishments situated beyond
500 meters from Shree Somnath Temple and not
located on any road used for visiting the said
Temple;
B. Be pleased to in the alternative, and without
prejudice to prayer (A) above, issue a writ of
mandamus or any other appropriate writ, order or
direction, directing Respondent No. 6 to reconsider
the petitioners' objections dated 13.07.2026 and
11.08.2026 to the Preliminary Notification dated
10.07.2026 and Permanent Notification dated
10.08.2026, afford the petitioners a reasonable
opportunity of hearing, and pass a fresh, reasoned
and speaking order thereon before enforcing the
impugned Notification against the petitioners'
establishments;
C. Be pleased to issue a writ of mandamus or any
other appropriate writ, order or direction, directing
stay inasmuch as by directing the respondent
authorities and their subordinate officers not to
Page 2 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
interfere with, obstruct, forcibly close down, or
otherwise disturb the lawful business of the
petitioners' hotels and restaurants, save in
accordance with due process of law;
D. Be pleased to the extent that pending the
admission, hearing and final disposal of this petition,
stay the operation, implementation and effect of the
impugned Notification dated 10.08.2026
ANNEXURE-'E' , insofar as it applies to, or is sought
to be enforced against, the hotels and restaurants of
the petitioners;
E. Be pleased till pending the admission, hearing
and final disposal of this petition, restrain
respondent authorities and their officers,
subordinates and agents, by an order of ad-interim
or interim injunction, from sealing, closing down,
disconnecting utilities of, or otherwise coercively
acting against the hotels and restaurants of the
petitioners;
F. Be pleased to pass such other and further orders
as may be deemed fit and proper; ”
rd
3. The present petition was filed on 3 September 2026 and
th
was registered on 24 September 2026. The matter was
th
notified for admission hearing on 7 October 2026. Since the
respondent authorities represented through their respective
counsels, were served with advance copies of the petition, the
request of learned Government Pleader representing State
authorities to place on record the relevant documents by way
th
of affidavit was accepted. On 13 October 2026, the learned
Assistant Government Pleader appearing for respondent nos.
3 to 7 has placed on record the affirmed copy of the affidavit
filed by the learned Collector and District Magistrate, Gir
Somnath. The matter was thereafter substantially heard and
st
on 21 October 2026, on conclusion of arguments of learned
Page 3 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
counsels representing the respective parties, was reserved for
orders. During the course of hearing of the petition, learned
counsel appearing for the petitioners had urged for interim
orders, seeking permission to operate their respective
restaurants. However, the aforesaid prayer of the petitioner
was vehemently opposed by learned Government Pleader by
submitting that without issuance of any notice or grant of
interim relief, the matter may be taken up for final hearing at
the admission stage. In view thereof, with the consent of
learned counsels appearing for the respective parties, the
matter was heard finally.
4. In order to appreciate the controversy involved in the
present petition, it would be appropriate to consider the facts
emerging in the background as can be gathered from the
record are as under:
4.1 The petitioners have been carrying on lawful business /
occupation of running vegetarian and non-vegetarian hotels
and restaurants at Prabhas Patan, Taluka Veraval, District Gir
Somnath, for the last 35 to 40 years. The petitioners claim to
be holding valid trade licenses issued by respondent No. 2-
Municipality and are also registered and licensed under the
Food Safety and Standards Act, 2006 and the Rules framed
thereunder. The petitioners' establishments are situated on
the Veraval- Una State Highway, Prabhas Patan- Veraval-Una
Road and their buildings are duly sanctioned with proper
parking arrangements.
Page 4 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
4.2 The respondent No. 6 -District Magistrate, Gir Somnath, in
exercise of powers conferred under Section 33(1)(w)(2) of the
Bombay Police Act, 1951, issued Notification being no.
MAG/C/73/06 on 7th March 2006, thereby imposing a ban on
storage and sale of eggs/ fish meat in the radius of 500 meters
of Somnath Temple as well as on the route from Somnath Bus
Stand Chowk to Somnath Temple. Subsequently, the
Chairman, Executive Committee, Veraval Patan Joint
Municipality (respondent No. 2), passed Resolution No. 110
dated 13th April 2018 declaring a veg zone on the ground of
religious sentiments being likely to be hurt as well as the
status of Somnath Seva Sangh being not damaged, imposed
restrictions on the route from St. Mary School to Katli Market
Yard in view of the power conferred under the Gujarat
Provincial Municipal Corporations Act, 1963. The petitioner
Nos. 3, 4, and 6 along with one M/s. Moon Restaurant, being
affected by such resolution of the Municipality being passed
without affording any opportunity and without giving any
notice by issuing a preliminary Notification affecting their
valuable fundamental rights guaranteed under Article 19(1)(g)
of the Constitution, were constrained to approach this Court
by way of a writ petition which was submitted on 15th
September 2018 and was registered as Special Civil
Application No. 14356 of 2018.
4.3 In the aforesaid petition, the petitioners therein have
prayed for issuance of a writ of certiorari or a writ in the
Page 5 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
nature of certiorari seeking quashing and setting aside of the
th
so-called Notification dated 13 April 2018 issued by the
Municipality. Pending the hearing of the aforesaid petition, the
interim prayer for stay against implementation, operation and
execution of the impugned Notification dated 13th April 2018
was also prayed for. In the aforesaid writ petition, considering
the grounds raised, the learned Single Judge of this Court,
th
vide oral order dated 16 January 2019, had issued notice
which was made returnable on 20th February 2019. The
respondent No. 6- Collector and District Magistrate, Gir
th
Somnath, had submitted a detailed affidavit-in-reply on 8
April 2019. The petition involving similar issues of facts and
law is thus pending consideration, wherein till date no interim
relief has been granted in favour of the petitioners therein.
4.4 Pending the aforesaid writ petition, it further transpires
on record that a third Notification dated 26th January 2019
came to be issued by the District Magistrate, Gir Somnath -
respondent No. 6 herein, once again invoking the powers
conferred under Section 33(1)(w)(2) read with Section 33(6)
of the Gujarat Police Act, 1951, putting a similar ban on the
specified routes, (1). The area of 500 meters radius of
Somnath Temple; (2). The main routes fall within the limits of
500 meters radius of Somnath Temple; (3). The main road
leading to Somnath Temple as well as Triveni Sangam Road;
(4). From Hamirji Circle to Gaurikund Checkpost Road; (5).
Veneshwar Checkpost to Good Luck Circle (Shankh Circle) (6).
From Shankh Circle to Safari Circle - Hiran River.  It is
required to be noted here that there is no challenge to the
Page 6 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
th
aforesaid notification dated 26 January 2019 as reported by
the parties to the proceedings.
4.5  Despite the aforesaid notification being in force, the
learned District Magistrate- respondent No. 2 herein once
th
again issued preliminary Notification dated 10 July 2026,
calling for objections from the affected parties with regard to
the proposed ban to be enforced on the specified routes. The
respondent No. 2, while issuing such notification, has taken
into consideration the various representations made by the
religious as well as social organizations between the period
May 2026 to August 2026 requesting the authority to impose
an absolute ban by declaring the area as a veg zone. The
respondent No. 2 proceeded to issue the final Notification
dated 10th August 2026 under Section 33(1)(w)(2) read with
Section 33(6) of the Gujarat Police Act, 1951, notifying in all
seven public routes falling under the prohibited area. These
mainly include the routes from: (1). Bhalka Mandir to Bhidia
Circle; (2). Bhidia Circle to Sang Circle; (3). Sang Circle to
Safari Circle; (4). Safari Circle to Prajapati Dharamshala
Cross roads; (5). Gita Mandir to Hamirji Circle; (6). Hamirji
Circle to Sang Circle; (7). The entire area falls within the
radius of 500 meters of Somnath Temple.  The petitioners who
own hotels/restaurants serving vegetarian as well as non-
vegetarian food falling under the aforesaid prohibited area,
being aggrieved by such ban, have approached this Court
challenging the aforesaid notification as being ultra vires,
illegal, being issued without authority of law and in violation
of the fundamental rights guaranteed under Article 226 of the
Page 7 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
Constitution of India.
Submissions on behalf of Petitioners :
5. Learned advocate Mr. Mansuri appearing for the petitioner
had stated that petitioners are carrying on lawful business of
running vegetarian and non-vegetarian hotels situated at
Prabhas Patan, Taluka Veraval, District Gir Somnath, since
last 35 to 40 years. It was further stated that restaurants are
duly licensed establishments as the petitioners are holding
valid trade licence issued by the Veraval Patan Joint
Municipality - Respondent No. 2. It was further stated that the
petitioners are registered and licensed with the said authority
under the Food Safety and Standards Act, 2006 and the Rules
framed thereunder. It was further submitted that the
establishment of the petitioners are situated on the Veraval-
Una State Highway, Prabhas Patan-Veraval-Una Road and the
buildings are duly sanctioned and are having adequate
parking arrangements. It was therefore submitted that the
establishments of the petitioners in no manner are likely to
cause any obstruction or inconvenience to any passerby or the
road user.
5.1. Having pointed out the aforesaid facts related to the case
of the petitioners, learned advocate had further stated that in
the town of Prabhas Patan, is predominantly inhabited by
Hindu and Muslim communities and good numbers of daily
wage workers are employed and dependent upon this
business of non-vegetarian hotels. In addition, the workers
employed in the nearby GIDC area, local residents and
Page 8 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
tourists and pilgrims of various communities who regularly
visit the town, also visit their restaurants for meals and also
request for takeaway food services.
5.2. It was further submitted that the hotels run by the
petitioners are situated at a distance of approximately 1.5 to 2
kilometers away from Shri Somnath Mahadev Temple and
around 30 to 40 meters away from the main road. According
to learned advocate, the road on which the hotels are run by
the petitioners, are situated on the route which is usually not
used by the pilgrims or devotees visiting Shri Somnath
Mahadev Temple. In such circumstances, there is no
likelihood of any religious sentiments of persons belonging to
a particular community being affected. He has further
submitted that the kitchens of the hotels run by the
petitioners are located inside the premises of the hotels and
are not visible from the public road. Even, no non-vegetarian
food, meat or all allied items are displayed on the road which
may cause any inconvenience or hurt to the sentiments of any
passers-by, pilgrims or devotees visiting the temple. 
5.3. Having stated so, learned advocate for the petitioner has
submitted that the Notification issued by the learned
Magistrate is arbitrary, unreasonable and violative of
fundamental rights of the petitioner, inasmuch as it violates
the right to equality recognized under Article 14 and right to
livelihood as recognized under Article 19 of the Constitution
of India. It was further submitted that there is no rational
Page 9 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
nexus between the classification made and the object sought
to be achieved, the protection of religious sentiments of the
pilgrims visiting the temple. Learned advocate had heavily
relied upon Article 19(1)(g) of the Constitution to contend that
the impugned notification imposes disproportionate
restriction on the petitioner's fundamental right to carry on
their trade and business. The action of the state authorities is
violative of Article 19(1)(g) as the same is passed without
satisfying the test of reasonableness as contemplated under
Article 19(6) of the Constitution.  He has further submitted
that the State authorities, without considering any less
restrictive alternative, such as confining the prohibition
strictly to the radius of 500 meters as notified way back in the
year 2006, the Notification is required to be quashed and set
aside.  Learned advocate had further submitted that in fact
the impugned notification issued by the learned Magistrate is
without any authority of law. In this regard, learned advocate
had invited my attention to the impugned Notification wherein
it is stated that the learned Magistrate has invoked provisions
of Section 33 read with Section 36 of the Gujarat Police Act,
1951 while issuing the said notification. Referring to Section
33 sub-section (1)(w)(ii), learned advocate had emphasized
that the said provision authorizes the Police Officers or at the
most the District Magistrate to regulate establishments in the
nature of public amusement or public entertainment or to the
extent assembly. The attention of this Court was invited to the
definition of the term public amusement and entertainment
defined under the Act of 1951. Referring to the aforesaid
provision, learned advocate had submitted that so far as the
Page 10 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
establishment in the facts of the case is concerned, is
indisputably a restaurant, which would not fall in the category
of public amusement or public entertainment or assembly as
provided under the Act. He has further submitted that
running a restaurant serving non-vegetarian food would in no
manner relate to public order which otherwise is the core
object of the Act of 1951. He has therefore submitted that
there cannot be prohibition blanketly applied to the entire
area. The provisions of Bombay Police Act are very specific in
nature and shall be not applicable to the present
establishment. He has therefore submitted that in fact District
Magistrate has traveled far beyond the provisions of the Act.
He has therefore submitted that the notification issued
without any authority of law is null and void and is therefore
required to be quashed and set aside. He has also emphasized
on the fact that considering the nature of ban imposed
thereby the petitioners like businessmen running restaurants
have been permanently prohibited to operate in the notified
area. This Court may test the validity of the notification in
light of the doctrine of proportionality. He has fairly submitted
that it is true that the right guaranteed under Article 19 of the
Constitution is not an absolute right and is subjected to
reasonable restrictions as provided under Article 19(6) of the
Constitution and the State can impose reasonable restrictions
on the exercise of right to trade through a law in the interest
of general public. He has therefore, submitted that the
respondent authorities by issuing impugned Notification has
violated fundamental rights guaranteed under Chapter III of
the Constitution of India. The reasonable restriction has to be
Page 11 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
of great prudence before bypassing fundamental rights
guaranteed under the Constitution. However, the Court can
always examine such action of the State in instrumentalities
by applying the test of proportionality. He has re-emphasized
on the fact that such restrictions on the right to trade should
be through a proper mechanism as provided under law,
whereas in the facts of the case the notification issued cannot
be said to be as per the mechanism of the law. 
5.4 In support of his submission, the learned advocate
appearing for the petitioner has placed reliance upon the
decision of Hon'ble Supreme Court in the case of Chintaman
Rao and another versus State of Madhya Pradesh
reported in AIR 1951 SC 118. Referring to the relevant
observations recorded in para 6 and 7 of the aforesaid
decision, learned advocate had submitted that the question
which arises therefore for consideration is whether the statute
under the guise of protecting public interest arbitrarily
interferes with professional business and imposes
unreasonable and unnecessary restrictive regulations upon
lawful occupations, the burden lies on the respondent State
authorities to establish that there is reasonable relation of the
provisions of the Act to the purpose in view. Unless the
aforesaid criteria is not satisfied, the respondent State
authorities under the pretext of such notification cannot
curtail the right of freedom of occupation and business. The
reliance was also placed on the decision of Hon'ble Supreme
Court in the case of State of Madras versus V.G. Row
Page 12 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
reported in AIR 1952 SC 196. Referring to the relevant
observations recorded in para 15, learned advocate had
submitted that the court should consider not only factors such
as duration and extent of restrictions, but also the
circumstances under which and the manner in which their
imposition has been authorized in order to ascertain the test
of reasonableness. Inviting my attention to the relevant
factors as noted by the Hon'ble Supreme Court to be
considered while examining the subjective satisfaction of the
government or its officer, learned advocate had submitted that
since by such action the governments seek to override a basic
freedom guaranteed to the citizen, the Court should be
cautious and may view it as reasonable only in very
exceptional circumstances and within the narrowest limits. He
has emphasized on the observations that such subjective
satisfaction of the Government cannot receive judicial
approval as a general pattern of reasonable restrictions on
fundamental rights. At this stage, learned advocate had
submitted that the effect of the impugned notification is an
absolute prohibition on the right to trade and business,
though being guaranteed as a basic freedom under Chapter
III of the Constitution. Considering its impact, this Court may
kindly take note of the fact that not a single representation
has been received from any local individual raising grievance
against the petitioners. On the contrary, what has been placed
for consideration of this Court on record are the bunch of
representations received from the religious organizations
operating in the surrounding areas of the concerned District.
It was submitted that in fact on bare appreciation of the
Page 13 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
aforesaid representations, it can be noticed that the contents
of the said representations are almost identical, word to word,
and in fact their use of font is also almost similar. He has
therefore, submitted that mechanically without arriving at any
subjective satisfaction, the learned Magistrate has proceeded
to invoke the powers conferred under Section 33 read with
Section 36 of the Gujarat Police Act, 1951, which clearly
demonstrates the arbitrariness of the respondent State
authorities. 
5.5 The reliance was also placed on the decision of Hon'ble
Supreme Court in the case of Mohammad Farooq versus
State of Madhya Pradesh reported in AIR 1970 SC 93 .
According to learned advocate, in a similar set of facts
whereby the concerned municipality acting under the
provisions of municipal law in light of the bylaws which
relates to regulating slaughter of bulls and bullocks,
notification was issued imposing restrictions on running
slaughterhouses. The notification was challenged on the
ground that though the administrative agency has been
entrusted with the power to grant or withhold a permit or
license in its uncontrolled discretion, imposing such
restrictions amounts to infringing the fundamental rights
guaranteed under Article 19(1)(g) of the Constitution. The
question of permitting slaughter of cows, bulls and bullocks
vis-à-vis the sentimental differences between two sections of
the people in the country was also one of the criteria placed
for consideration. The Court has taken into consideration the
judgment 0of Hon'ble Supreme Court in the case of
Page 14 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
Mohammad Hanif Quareshi versus State of Bihar
reported in AIR 1958 SC 731 .
Submissions on behalf of Respondent State Authorities:
6. Learned Government Pleader Mr. G. H. Virk appearing for
the respondent State Authorities has invited my attention to
the affidavit in reply filed by the Collector and District
Magistrate, Gir Somnath. 
6.1 At the outset, learned Government Pleader has vehemently
objected to the maintainability of the writ petition on the
ground that the petitioner nos.3, 4, and 6 have earlier
preferred writ petition along with M/s.. Moonstar Restaurant
questioning the Veraval Patan Joint Municipality's resolution
th
dated 13 April 2018, in which, this Court vide oral order
th
dated 16 January 2019 has issued notice. The attention of
this Court was invited to the memo of the aforesaid petition
produced on record at Annexure R-3 and the order passed
therein. He has further submitted that except for the order of
notice being issued, the aforesaid petitioners have not
pursued the matter nor have they pressed for any interim
relief. In such circumstances, the Resolution passed by the
Veraval Municipality in 2018 still continues to operate. It was
further submitted that no rejoinder affidavit has been filed to
respond to the affidavit filed by the State.
6.2 He has further submitted that the impugned notification
Page 15 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
has been issued by the learned Magistrate after following due
process of law in as much as preliminary notification dated
10th July 2026 was issued by the learned Magistrate seeking
response from the public at large in regard to the proposed
ban. It was further submitted that no objections have been
raised by the petitioners herein, despite the fact that the
resolution issued by the Municipality in 2018 was opposed. It
was further submitted that, in fact, the State was constrained
to act in view of the various representations received from the
local religious and social organizations raising concerns about
the preparation and sale of non-vegetarian food on or
adjoining public approaches used by the pilgrims including
the complaints regarding exposed preparation, order, food
waste, and the experience devotees faced while reaching to
the religious sites. It was further submitted that by virtue of
impugned notification, the three routes forming part of earlier
th
notification dated 26 January 2019 i.e. from (I) Sun Circle to
Safari Circle; (II) from Hamirji Circle to Gita Mandir; (earlier
known as Main Temple to main road to Triveni Sangam road
to Gita Mandir: and (III) from Hamirji Circle to Sun Circle,
(earlier known as Hamirji Circle to Gauri Kund Checkpost to
Vaneshwar Check post to Goodluck / Sun Circle). In order to
justify the aforesaid action of the respondent State Authority,
learned Government Pleader had highlighted the religious and
historical significance attached to the Somnath Temple and its
surrounding holy places. He has further submitted that in fact
as per the record available, approximately Rs.1.16 crore
footfalls have been noted, which clearly suggest the sustained
scale of activity within the Temple town whose economy is
Page 16 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
dependent on the mass inflow of pilgrims. He has further
invited my attention to the coloured Google map to highlight
the comparative routes which has been gradually modified by
the State right from imposing first Notification way back in
the year 2006, which according to him still operates confining
initially to radius of 500 meters from Somnath Temple,
followed by the notification of 2018, 2019 and the last
Notification of 2026. He has therefore submitted that the
impugned action of the respondent State Authorities is very
much in sync with the test of reasonableness and
proportionality and does not violate Article 19(1)(g) of the
Constitution of India.  It does not violate fundamental rights of
the petitioners guaranteed under Article 19(1)(g) of the
Constitution of India. 
6.3 In support of his submissions, learned Government
Pleader had invited my attention to the decision of Hon’ble
Supreme Court in the case of Om Prakash and others
versus the State of UP and others reported in (2004) 3
SSC 402 . It was pointed out that the by-laws of Rishikesh
Municipality contained a provision prohibiting the sale of
meat and fish. By amendment, the Municipal Board added
“eggs” in that bylaw along with meat and fish.  The appellants
approached earlier before the High Court to challenge the
said amendment on the ground that total prohibition of sale of
eggs imposed an unreasonable restriction on their rights
under Article 19(1)(g). On the other hand, the respondent
State Authorities invited attention of the High Court to the
Page 17 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
general powers conferred on the municipality under section
298(1) of the Uttar Pradesh Municipality Act.  The respondent
had argued that words “animals”, “meat”, or “fish” occurring
in Section 241 were not followed by the word “only” which
meant that for other articles also this might be a requirement
for license. The Hon’ble Supreme Court confirming the view
taken by the High Court, held that the appellant had failed to
point out the amended by-laws in question being inconsistent
with the provisions of the Act or the Rules. The attention of
this Court was further invited to the concurring view
expressed by the learned Judge of the Supreme Court on the
issue as to whether a particular restriction on trade to the
extent of its complete prohibition can be held to be reasonable
within the meaning of Article 19(6).  It was further submitted
that in fact the Constitutional Bench decision in the case of
Chintaman Rao ( Supra ) was considered and criticized by
the learned Judge by expressing that each case has to be
judged on the basis of facts and circumstances brought to the
notice of the Court. The attention of the Court was also invited
to the judgment in the case of V. G. Row (Supra) being also
taken into consideration in the aforesaid case. It was
therefore submitted that the term reasonable restrictions as
used in Article 19(6) is a highly flexible and relative term
which has to be drawn from the context in which it is to be
applied. Learned Government Pleader had further pointed out
that in fact the decisions relied upon by the learned advocate
for the petitioners were in the regime prior to the insertion of
Article 51A of the Constitution which, in fact, lays down
fundamental duties enjoyed on the citizens. Reliance was also
Page 18 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
placed on the decision of Punjab and Haryana High Court in
the case of Rajinder Kumar and others versus State of
Punjab and others reported in 2026 SSC Online Punjab
and Haryana 9990 , wherein the writ petitioner had
approached High Court seeking direction against Estate
Officer of Municipal Corporation to unsealed the business
premises of the petitioner which was sealed in pursuance of a
notification issued by the State Authorities. The petitioner
therein was a registered shop owner carrying on business of
wholesale supply of fish which was situated near the fish
market in Amritsar. On the other hand, the Punjab
Government had issued notification imposing restrictions on
the sale and use of liquor and other related products,
cigarettes and tobacco and other intoxicants and meat, etc.,
within the city. A similar arguments were advanced by the
petitioner therein. The Court, while examining the issue as to
whether such restrictions imposed constitute a reasonable
restriction within meaning of Article 19(6) of the Constitution,
took into consideration the religious significance attached to
the place, the five takhts or seat of temporal authority of
Sikhism being located in the near vicinity and being treated as
the holiest site and most visited Gurudwara not only by
Sikhs, / Hindus, but by people of other religious faiths, held
that the restrictions imposed were not in respect of the whole
city of Amritsar but only to the specified area which was the
walled city of Amritsar. which posts Sri Darbar Saheb. The
Hon’ble High Court therefore opined that a limited or area-
specific restriction is less intrusive than a complete
prohibition which is sustainable in law. The Notification
Page 19 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
issuing prohibitory order may cause inconvenience or some
dislocation to the petitioners. However, the restriction
imposed does not cease to be in the interest of the general
public.The restriction imposed does not cease to be in the
interest of the general public. The Court has therefore upheld
the action of the respondent state authority issuing such
notification. The attention of this Court was invited to the
seven Bench Judges' judgment in the case of State of Gujarat
versus Mirjapur Moti Kureshi Kasab Jamath and others
reported in ( 2005) 8 SCC 534 . Referring to the facts of the
case, learned Government Pleader had pointed out that in the
State of Gujarat, the Bombay Animal Preservation (Gujarat
Amendment) Act, 1994 intended to put the restriction with
regard to bulls and bullocks below the age of 16 years not to
be slaughtered. The aforesaid amendment was subject matter
of challenge before this Court, thereby after dealing with all
similar issues in detail had held the amendment ultra virus
and hence the appeal was preferred by the State before the
Hon’ble Supreme Court. The attention of this Court was
invited that as per the majority view, the Court opined that
slaughtering of cows on Bakrid was neither essential to nor
necessarily required as part of religious ceremony and
therefore was to be treated as an optional religious practice
not covered under the shield of Article 25(1) of the
Constitution. The majority view, after considering the ratio
laid down in Qureshi 1 ( Supra ), held that considering the
material available as regards ban, the Court was satisfied that
such ban was in the interest of the general public, merely
because it may cause inconvenience or dislocation to the
Page 20 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
butchers the restriction imposed was found the restriction
imposed does not cease to be in the interest of the general
public.  The attention of this Court was invited to the relevant
observations made by the Larger Bench in as recorded in para
47 onwards. It was submitted that in fact the law laid down in
Qureshi I stands diluted in view of this judgment of strength
of seven judges though one being dissenting in as much as the
larger bench has considered the significantly distinct factors
of “restrictions” as against “total prohibition“ while
appreciating the Article 9(1)(g).
6.4 Learned Government pleader had therefore submitted that
the State has no objection if the restaurant or eateries
operates on the notified route serving vegetarian food and
therefore the petitioners cannot assailed the action of State by
submitting it to be unreasonable and disproportionate. He has
therefore urged to dismiss the present petition as being not
maintainable and even otherwise there being no merits in the
matter.
7. In Rejoinder, learned advocate for the petitioner has argued
that the restrictions imposed from legal infirmities and
therefore the subsequent challenged by this petition related to
a different notification would not take away their right to
approach this court in writ jurisdiction. He concluded by
submitting that nothing can be above the law.
ANALYSIS :
Page 21 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
8. I have carefully considered the arguments advanced by
learned, advocate, appearing for the respective parties and
have appreciated the same in light of the legal principles
pressed into service by referring to the various authorities
relied upon during the course of hearing.
7.1 The pure question of law which arises for consideration
of this court is as to whether a District Magistrate under
section 33 (w)(ii) read with section 36 of the Gujarat Police
Act, 1951 is competent to issue notifications putting
restrictions on running of the restaurants serving non-
vegetarian food situated on the ground of religious sentiments
of people following a faith?
7.2 Before examining the aforesaid core issue, it would be
appropriate to take note of relevant facts of the case. There
cannot be any dispute about religious and cultural history of
Shree Somnath Mahadev temple, revered as pratham
jyotirling of twelve jyotirlings. The sacred and resilient
Somnath Temple stands as an eternal symbol of unwavering
devotion. For people following Hindu dharma, visiting the
majestic shrine offers a transcendent spiritual experience that
connects the soul to the divine. There are other holy places
situated near the Somnath temple which include Bhalka tirth
situated at a distance of 4.5 to 5kms from Somnath temple. As
per hindu mythology, it is believed to be the sacred place as
Lord Krishna's last abode before leaving this world. At a
nearby distance of one kms from Somnath temple is Triveni
Page 22 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
sangam where three rivers Hiran, Kapila and Saraswati meet
and people take holy dip during kartik purnima festival. Thus,
Somnath remains an imperishable beacon of faith, drawing
lakhs of devotees to its sanctified grounds. However, the
present dispute surrounds the routes falling beyond 500
meters radius of Somnath temple and connecting the holy
places especially from Triveni sangam connecting Bhalka
Tirth.
7.3 Admittedly, the petitioners are carrying business /
engaged in the occupation of running hotels serving
vegetarian and non-vegetarian food at Prabhas Patan , Taluka:
Veraval, District Gir Somnath. It is also not in dispute that
they are holding a license to operate such eateries as required
under different laws. The restaurants are operating on a patch
of this road connecting Triveni sangam and Bhalka tirth. Thus,
there is no dispute to the fact that the petitioners are engaged
in lawful trade.
8. Having noted the undisputed facts, before entering into
legal issues and merits of the case, it would be appropriate to
look into the preliminary objection raised by learned
Government Pleader as regards maintainability of present
petition at instance of the petitioners. As rightly pointed out
by respondent State, the petitioners no.3,4 and 6 along with
M/s Moon Restaurant have approached this Court by
preferring writ petition being SCA No. 14356 of 2018
challenging notification of 2018 issued by respondent Veraval
Page 23 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
Municipality. Effectively, by virtue of said resolution of 2018
the restaurants falling on route gets covered under
prohibition and challenge to the same is pending
consideration in the said petition, however, it cannot be
ignored that now the prohibition issued by the respondent
no.6 Magistrate though reasserts such ban on said route
additionally also extends the route to Bhalka Tirth where
restaurant of one of the Petitioner of present petition namely
Taj restaurant situated. In my view, by virtue of notification
10.08.2026, the imposition of ban is reasserted by Magistrate
exercising power conferred under section 33 of the Gujarat
Police Act, 1961 whereas the prohibition imposed in 2018 was
by way of resolution issued by the Executive Committee of
Veraval Municipality exercising powers conferred under
Gujarat Provincial Municipal Corporation Act. In my view, the
petition is therefore maintainable in the eyes of law.
9. Coming back to merits of the case, having noted the
undisputed facts, another important issue of law which arises
for consideration is as to whether the action of the state
authority restricting the fundamental right to trade business
or occupation under article 19(1)(g) of the Constitution of
India is justified in the facts of the case?
9.1 There is no dispute to the fact that the effect of the
notification is that it imposes a permanent ban on the running
of any restaurant/ hotels serving non vegetarian food on the
route specified. In such circumstances, the burden heavily lies
Page 24 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
on the State to establish that the action of the District
Magistrate restricting the fundamental right to trade,
business or occupation as guaranteed under Article 19 (1)(g)
withstand the test of reasonableness and the doctrine of
proportionality as provided under article 19(6). Learned
advocate appearing for the petitioner has placed heavy
reliance upon the decision of Supreme Court in the case of
Chintaman r ao (supra). Before the Constitutional Bench the
question for consideration posed was as to whether the
statute under the guise of protecting public interest, can
arbitrarily interfere with Private business and imposed
unreasonable and unnecessarily restrictive regulations upon
lawful occupation. The court observed that the phrase
“reasonable restrictions” connotes limitations imposed on a
person in enjoyment of right should not be arbitrary or of an
excessive nature, beyond what is required in the interest of
the public. The word ‘reasonable’ implies intelligent care and
deliberation, that is the choice of course, which reason
dictates. Legislation which arbitrarily or excessively invades,
the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between
freedom guaranteed in Article 19(1) (g) and social control
permitted by clause (6) of Article 19, it must be held to be
wanting in that quality.
10. On careful consideration of the impugned notification
issued by the learned Magistrate, the restrictions have been
imposed in regard to sale, distribution, or storage of non-
Page 25 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
vegetarian foods on the route specified. The only reason which
appears from the reading of notification for imposing such
restrictions is the religious sentiments of the pilgrims visiting
the temple. Once the restrictions under law is established, the
burden shifts on the State to prove that the restrictions
imposed is “reasonable” and in the “interest of the general
public”. In religions, like Hinduism, the concept of
nonviolence and ritual purity, inherently conflict with the
slaughter, storage, and consumption of non-vegetarian food.
In religious places, the traditions of maintaining the
environment in sacred space is considered vital for respecting
the deities, pilgrims and core theological tenets. However, one
cannot lose sight of the fact that by impugned notification, the
learned Magistrate has imposed permanent restrictions on
business of the petitioners and others similarly situated. In
such circumstances, it would be more imperative on the
authority to demonstrate and satisfy that a complete
prohibition was absolutely necessary which is proportionate
and no other remedial measure was available than taking such
stringent action. It is equally important to note that the right
to freedom of conscience, profession, practice and
propagation of religion as provided under Article 25 is subject
to public order, morality, health and other provisions of Part
III of the Constitution including other fundamental rights
guaranteed. Thus, the right to practice religion is to be
harmonised with other fundamental rights rather than
overriding them.
11. The test of reasonableness is also required to be
Page 26 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
scrutinised from the view point that such business which was
permissible when prohibition was confined to 500 meters
radius of temple a decade ago , what factors have led to
extend such prohibition beyond radius of 500 meters. The
representations made by various organizations are produced
collectively on record by respondent State at Annexure R4 to
justify the emphasis for ban of sale of non vegetarian food on
road connecting from Triveni sangam leading to Bhalka tirth.
Such representations have been moved in the month of May-
August, 2026. Though the representations are from various
organizations of different castes following Hindu religion, on
close inspection of contents of said representations, it voiced
the religious sensitivity towards the open preparation and
exhibition of non-vegetarian food on public streets. However,
the moot question still requires to be answered is whether the
religious belief of one section of society can override the
fundamental right of another section of society.
12. At this stage, it would also be appropriate to consider the
landmark decision of the constitution bench in the case of
Mohed. Hanif Quareshi vs. State of Bihar, reported in AIR
1958 SC 731 , wherein the Supreme Court first detailed how
the test of "reasonable restriction" under Article 19(6)
responds to claims made under Article 25. Before considering
the aforesaid judgement, it would be appropriate to mention
that the Seven Judges Bench of the Supreme Court in the case
of Mirzapur Moti Kureshi Kassab Jamat (supra) has partly
overruled the said decision however, in para 120 clarifies that
Page 27 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
in case of Qureshi I, the challenge to the constitutional
validity of the legislation impugned therein was turned down
on several grounds, though forcefully urged , excepting one
ground “reasonableness”, which the Court recorded was no
longer the position in the case before them as in altered
factual situation and circumstances. It is required to be noted
further that referring to Qureshi I, the Court observed that
the reasonableness of the restrictions pitted against the
fundamental right to carry on any occupation, trade or
business determine the final decision, having been influenced
mainly by considerations of weighing the comparative
inconvenience to the butchers and advancement of public
interest. Hence, the court held that the detailed discussion
contained in the judgment revealed this determination not
purely of law rather it is a mixed question of facts and law. In
Mohed.Hanif ( supra ), the facts of the case suggest that
petitioners belonging to Butcher communities challenged total
state bans on cattle slaughter, claiming it to have violated
their right to carry on a trade/occupation under Article 19(1)
(g). The State defended the bans partly based on Directive
Principles (Article 48) and the religious sentiments of the
majority community. The Court held that a restriction under
Article 19(6) is not reasonable if it is based solely on the
religious susceptibilities or sentiments of a section of the
people. To test whether a restriction is reasonable, the Court
looked into whether the religious practice in question was an
"essential religious practice" under Article 25. In fact, the
Court noticed that because sacrificing a cow was not deemed
an essential religious mandate in Islam, the ban on cow
Page 28 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
slaughter was considered a reasonable restriction in the
general public's interest. However, a blanket ban on all old,
useless cattle was struck down as an unreasonable restriction
on the butchers' trade. In Mirzapur Moti, the challenge to the
total ban on the slaughter of bulls and bullocks was confined
almost exclusively to Article 19(1)(g) read with Article 19(6).
It is required to be noted that the seven judges bench decision
in case of Mirzapur Moti ( supra) focus of the larger bench
was mainly on evaluating whether a total ban constituted a
"reasonable restriction" in the interest of the general public.
In the process it harmonized Article 19(1)(g) with Articles 48,
48A, and 51A(g) (Directive Principles and Fundamental
Duties), using secular arguments concerning agricultural
economics, organic manure, and biogas to declare the
restriction valid. However, if the opening headnote of the
decision in the case Mirzapur Moti (supra ) is noted the
Court has expressly clarified that the issue as regards Article
25 viz. Essential religious practice of slaughtering of cow and
cow progeny on even of Bakri Eid, as held to be neither
essential to nor necessarily required as part of religious
ceremony; since neither of the parties have touched on Article
25 in the facts of said case of Mirzapur Moti ( supra ), has not
been gone into and therefore the ruling of Qureshi I as
regards Article 25 vis a vis Article 19(1)(g) still holds good
and therefore it has been partly over ruled.
13. Bearing in mind the aforesaid guiding principles, it is
apparent that the limitation imposed on a person's right must
Page 29 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
not go beyond what is truly necessary in the interest of the
general public. At the same time, there must be a fair balance
between the social control or the public interest sought to be
achieved and the freedom of the individual. The test is,
therefore, whether a reasonable person would necessarily
view it as an excessive or arbitrary invasion of the right
otherwise guaranteed under the constitution. The sole reason
assigned by the Learned Magistrate to impose ban is the
religious sentiments of sections of society who are against the
visual display of non vegetarian food on street however, such
display of non vegetarian food on street cannot be read as
“essential religious practise” under Article 25. It is required to
be stated that Chapter 17 ( Shraddhatraya-Vibhaga Yoga) of
Bhagavad Gita classify food into three gunas (qualities):
Sattvic (pure/vegetarian), Rajasic (stimulating), and Tamasic
(heavy/non-vegetarian), encouraging Sattvic diets for spiritual
advancement but not strictly outlawing others. Also, Hinduism
is not monolithic but the choice or ritual of consuming food
varies region wise. Thus, consumption of nonvegetarian food
cannot be recognised as an essential feature of religious
practice but rather a personal choice. The impugned
notification thus does not withstand the test of reasonableness
and such imposition is thus held to be arbitrary and ultra
vires the fundamental rights guaranteed under Article 19(1)
(g) of the Constitution.
As regards reliance placed by learned Government
pleader on various judicial pronouncements; in the case of
Mirzapur Moti Kureshi (supra), the challenge was made to
amendment brought in the Bombay Animal Preservation
Page 30 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
(Gujarat Amendment ) Act, 1994 by Act no. 4 of 1994 whereby
restrictions were imposed on slaughtering of bulls and
bullocks below the age of 16 years was extended to
slaughtering of progeny of cows. The Seven Judges Bench
while dissecting Qureshi I has recorded finding in para 124
onwards, on reading of the same, what can be curled out is
that the Court has revisited the ratio in light of changing
circumstances, more particularly India in the phase of a
developing country. While dealing with Finding-2, the Court
has dealt with the issue of “restrictions” as against “total
prohibition” as a fallacy while considering the effect of the
ban described as causing total prohibition. However, in my
view, merely because the State has agreed to let the
petitioners continue with restaurant business by serving
vegetarian food not amounting to total prohibition would be
an answer to the inherent defect of lacking authority to
impose such ban by impugned notification.
14. Secondly, the test of proportionality as reaffirmed by the
constitutional bench in K. S. Puttaswamy (Aadhar-5J) vs.
Union of India , reported in (2019) 1 SCC 1, as observed in
para 147 to 158, reasserting the view taken in the earlier
decision in case of Modern Dental College & Research
Centre vs. State of M.P., (2016) 7 SCC 353 has held that
the four sub components of proportionality as recognised in
the case of Modern Dental (supra), needs to be satisfied.
Thus, while examining the validity of state action on the test
of proportionality, what is required to be appreciated as per
Page 31 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
recognised sub-components is that : (a) A measure restricting
right must have a legitimate goal (legitimate goalstage ) (b) It
must be a suitable means of furthering this goal ( suitability or
rational connection stage) (c) There must not be any less
restrictive but equally effective alternate (necessity stage). (d)
The measure must not have a disproportionate impact on the
right -holder(balancing stage). In view of the above four sub-
components, the test of proportionality is also required to be
applied to test the validity of the impugned action of state
authorities. The legal proposition as settled through
authoritative judicial pronouncements on the doctrine of
proportionality is that the restrictions imposed by state
authorities must not be arbitrary or excessive. It is settled law
that any permanent restriction on a citizen’s right to practice
any profession, or to carry on any occupation, trade or
business, violates Article 19(1)(g) of the Constitution. While
reasonable restrictions can be placed under Article 19(6) in
the interest of the general public, the Courts have consistently
opined and ruled that a total and permanent ban on legitimate
trade cannot be imposed by an executive or judicial
magistrate under the guise of police regulations or local law
and order.
15. At this stage, it would be appropriate to consider the
regulations notified under the central legislation: the Food
Standard and Safety Act whereby under Chapter 2,
Regulation 2.1.2 (1)(5) read with Schedule 4, part IV of Food
Safety and Standards (Licensing and Registration of Food
Business ) Regulations, 2011 lays down guidelines with regard
Page 32 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
to location of meat shop. The said regulation provides a
minimum distance between the licensed shop and any place of
worship not less than 50 meters. It further provides for a
minimum of 100 meters if meat shop premises are situated
directly opposite to the entry gate of a religious place
belonging to a community. In view of aforesaid guiding rules,
the appropriate authority under the Central legislation being
empowered to regulate the licensing of such activities in
premises can impose suitable prohibition. However, the
documents on record more particularly the license issued
under the Food Safety and Standard Act, no such condition
has been imposed in case of petitioners. Alternatively, the
respondent authority could have offered some solution to
balance between protection of fundamental rights under
Article 19(1)(g) and right to religious preferences under
Article 25 by taking least restrictive measures. The petitioners
have shown their willingness to abide by the regulations
strictly and have ensured to not display the food on the street
or road. In such circumstances, the permanent ban imposed
by the respondent state authority is not only disproportionate,
excessive and violative of fundamental rights of the
petitioners but is without any authority of law.
16. Having observed so, the core issue which arises for
consideration as recorded earlier is the scope of power of the
learned magistrate to issue such notification en-route through
section 33 read with section 36 of the Gujarat Police Act,
1961. Section 33(1)(ii) (w) empowers the licensing Authority
or Police to issue rules and regulate the licensing and control
Page 33 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
of places of public amusement or entertainment , primarily to
maintain public order, safety, and health. It does not grant the
power to legislate dietary restrictions or dictate food
preferences. Chapter 4 of the Gujarat Police Act, 1951 deals
with the provisions under the heading ‘Police Regulations’.
Under section 33 of the Gujarat Police Act, distinct authorities
have been empowered to make rules for regulation of traffic
and for preservation of order in public places, etc. Reading of
subsection (1) of section 33 provides the Commissioner of
Police to make rules for licensing or controlling places of
public amusement or entertainment, prohibiting the keeping
of places or controlling places of public amusement or
entertainment or assembly, in order to prevent obstruction,
inconvenience, annoyance, risk, or danger, or damage to the
establishment. In view of the aforesaid provisions, if the
definition of the term “ place of public amusement ” as defined
under section 2(9) is considered, it includes any place where
music, singing, dancing, or any diversion or game, or the
means of carrying on the same, is provided and to which the
public are admitted either on payment of money, or with the
intention, that money may be collected from those admitted
and includes a race course, circus, theater, music hall, billiard
room, bagatelle room, gymnasium, fencing School, swimming
pool, or dancing hall. At the same time, the definition of the
term “ place of public entertainment ” , if examined as defined
under section 2 (10), it means a board house, lodging house or
residential Hotel in which any kind of liquor or intoxicating
drug is supplied into (such as a Tavern, a wine shop, a beer
shop or a spirit, Eric Todi, Ganja, Bhang aur OPM shop
Page 34 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
bracket over to the public for consumption in or near such
place). Having noted the aforesaid definitions provided under
the Act, it is clearly evident that the term “ any eating house”
has been deleted from the definition of the term place of
public entertainment in view of Gujarat Act no.8 of 2018
notified on 5th April 2018. Again, clause (xa) appearing under
section 33 has also been deleted by Gujarat Act no.8 of 2018
dated 05. 04. 2018. It is required to be noted that prior to
deletion the clause (xa) read as “ registration of eating houses,
including granting a certificate for registration in case each,
which shall be deemed to be written permission, required and
obtained under these act for keeping the eating house for 10
years and decennial of such registration, within a prescribed
period “ . On con-joint reading of the aforesaid provisions of
the Act of 1951, the regulatory powers are granted to the
magistrate or the police authorities under section 33, which
mainly deals with traffic regulation and preservation of order
or under section 37 which prohibits certain acts for
prevention of disorder that are strictly temporary and
preventive in nature. By virtue of Guj Act no.8 of 2018, the
eating house establishments have been deleted from the
regulations covered under section 33. In fact, on inspection of
the entire scheme of the Act, there is no provision under the
act that allows a magistrate to issue a permanent prohibition
or permanent closure of a trade or business.
17. Interestingly, the source of legislative power conferred on
the State lies in Article 246 of the Constitution read with
seventh schedule list II, entries one and two. Entry one in list
Page 35 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
II relates to subject matter; ‘public order’ and Entry two
covers ‘police (including railway and village police). At the
same time, if the object of the Act is considered, it provides to
consolidate and amend the law for regulation of the police
force in the state and the exercise of powers and performance
of functions by the state government and by the members of
the state force for the maintenance of the public order. The
learned Magistrate has committed grave error in exercising
such powers conferred under Act by treating the religious
sentiments of one section of society under ‘public order’ for
regulating establishments like ‘hotels’. On the other hand, if
the provisions of the Gujarat Provincial Municipal
Corporations Act, 1949 are examined, section 2(18) defines
the term “ eating house” and section 377 and 381 empowers
Municipal Commissioners to issue and regulate licenses for
running an “ eating house ” . Even under the aforesaid provision,
it empowers the Commissioner to inspect premises only for
the purpose to verify as to whether hygiene, fire safety
norms , structural permission adhere and public sanitation is
maintained. In light of the aforesaid discussions, this Court is
of the view that the learned Magistrate has acted dehors the
provision of law as the scope of section 33 read with section
36 is in the nature of regulate operations like licensing, to
regulate health, safety and traffic but cannot impose an
absolute ban on a lawful trade or even dictate the food to be
served within the premises like eating house. A complete ban
on running business under a statute that only grants power to
regulate generally violates the fundamental right to carry on
trade or business. The Courts have time and again
Page 36 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
distinguished the power to regulate does not mean to
completely extinguished. On the contrary, power to regulate
implies the continued existence of the activity being
regulated. It allows the State to impose conditions, rules and
boundaries to ensure business is run safely and fairly. It is
settled law that an administrative body or local body derives
their power explicitly given by the statute. Thus, if the statute
confers power to regulate in defined field and if the authority
imposes absolute ban beyond the subject, it amounts to
exceeding the power conferred under the statute and
therefore such action is ultra vires the Act.
18. For the foregoing discussions and reasons, the petition is
allowed. The notification dated 10.08.2026 issued by the
District Magistrate, Gir Somnath as challenged in the present
petition, is quashed and set aside as being ultravires the
provisions of the Gujarat Police Act, 1961 and Article 19(1)(g)
of the Constitution of India.
19. Before parting with the judgment, in view of the assurance
given by the learned advocate for the petitioners, the
petitioners are directed to the assurance given before this
Court. Hence, the petitioners are directed to maintain the
doors of the premises self-closed and covered with dark glass
top and be kept closed and no carcasses of animals should be
kept in a manner which is visible to the public or passersby on
street or road. They shall maintain a high standard of hygiene
conditions not only in kitchen but also inside premises, shall
Page 37 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026
C/SCA/13977/2026 CAV JUDGMENT DATED: 30/10/2026
(GJHC240681372026)
not throw waste in open space exposing towards streets or
roads, shall not operate in open space and shall not display
the hanging carcasses exposing on road. The premises should
be ventilated sufficiently, the waste bin should be regularly
cleared as may be provided by the corporation. The
transportation of the carcasses should be done in an insulated
refrigerated van. Needless to record, the petitioners being
citizens of this Country owes duty as provided under Article
51A of the Constitution to uphold and protect the
sovereignty , unity and integrity of India; to promote harmony
and the spirit of brotherhood amongst all people of India
transcending religious, linguistic and regional or sectional
diversities. With these observations, the petition is disposed
of as allowed.
20. After the pronouncement of the order, learned
Government Pleader Mr. Virk appearing for the respondent
State Authority has prayed for stay of the order pronounced
today in this petition. However, considering the fact that the
livelihood of the petitioners has suffered because of erroneous
exercise of power by the Magistrate, the request for stay is
refused.
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
Page 38 of 38
Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri Oct 30 2026 Downloaded on : Sat Oct 31 01:01:03 IST 2026