| SooperKanoon Citation | sooperkanoon.com/866180 |
| Subject | Civil |
| Court | Kolkata High Court |
| Decided On | Feb-25-1957 |
| Case Number | Civil Revn. No. 649 of 1954 |
| Judge | Sinha, J. |
| Reported in | AIR1957Cal460,61CWN479 |
| Acts | Bengal Municipal Act, 1932 - Sections 123, 402 and 407; ;Bengal Model Rules, 1934 - Rule 7; ;Constitution of India - Article 226 |
| Appellant | Md. Yakub Mallik |
| Respondent | Commissioner of the Garden Reach Municipality and anr. |
| Appellant Advocate | Tapodhir Krishna Rai Dastidar, Adv. |
| Respondent Advocate | Nani Kumar Chakravarty, Adv. for Opposite Party Nos. 2 and 3 |
Sinha, J.
1. The petitioner states that he has been carrying on the trade or business of butchering; animals within the Garden Reach Municipality, under a license duly granted by the said Municipality. It appears that there is a slaughter house of which the petitioner is a part owner, and this has been licensed by the Municipality, and the slaughter house obtained the requisite certificate as provided for in Section 4 of the West Bengal Animal Slaughter Control Act 1950 (Act XII of 1950). It is stated by the petitioner that the animals which were intended to be slaughtered used to be kept in a stockyard or place attached to the slaughter house, previous to their being transferred to the slaughter house for the purpose of slaughter. It is also stated that there is a quarantine pen attached to the said slaughter house as required by law. On the 11th March, 1953 the Commissioners of the Garden Reach Municipality passed a resolution, a copy whereof has been annexed to the affi-davit-in-opposition affirmed by Sri Surendra Nath Bhattacharjee on the 12th December, 1955, and marked with the letter 'A'. It is stated therein that for the enforcement of the Animal Slaughter Control Act 1950, in its letter and spirit, license for a separate stockyard under Section 407 of the Bengal Municipal Act 1932 is being given to Jonab Harun Rashid and Ahamadur Rahman on certain terms and conditions. It is stated that permission for the stockyard is to be for a period of 15 years and the yard should be constructed as per rules laid down in paragraph 7 of certain rules referred to therein. A license fee of Rs. 300/- per annum was to be imposed and action was to be taken as required under Section 123(2) of the said Act for taking approval of the local Government in the matter of levying fees. The rate of fees to be charged by the licensee from butchers for stocking animals in the yards was fixed at annas -/12/- and -/10/-per buffalo and cow respectively per day. On the 2nd April, 1953 the Chairman of the Municipality issued a notice, a copy whereof is annexure 'A' to the petition. That notice states that for the strict enforcement of the Animal Slaughter Control Act, 1950, it is ordered that all animals intended for slaughter should be produced for proper examination in the stockyard of Jonab Harun Rashid and Ahamadur Rahman and no animal should be passed for slaughter if the same be not kept under observation in the above stockyard for at least 24 hours before examination. Then the charges for animals to be stocked in the yard are set out.
2. The petitioner has now made this application challenging the legality of the aforesaid action on the part of the Commissioners and the Chairman. The short point is as to whether the Commissioners of the Municipality can permit a private stockyard to be licensed, permit such a stockyard to levy charges, and lay down that unless animals are stocked in such stockyards, they will not be permitted to be slaughtered.
3. I must start by saying that I have not the slightest doubt that the Commissioners were imcelled by the highest of motives in doing what they have done. It is however obvious that, as a statutory body, they must have power to do what they have done, otherwise a citizen is entitled to have the order set aside. It is also conceded that the power must be found within the four-corners of the Bengal Municipal Act or the Rules and By-Laws made thereunder. The first provision in the Act to which reference has been made in Section 402 in Chapter XVII, under the heading 'Markets and Slaughter-Places'. The relevant provisions are as follows:
'402. (1)--The Commissioners at a meeting may-
(a) construct, purchase, take on lease or otherwise acquire any land or building for the purpose of establishing a..... municipal stock-yard or of extending or improving any existing..... municipal stockyard, and
(b) from time to time build and maintain such .....municipal stockyards.....for the use ofpersons carrying on trade or business in, or frequenting such.....stockyards, and charge rent,and tolls and fees for the right to expose goods for sale.....and for the use of shops, stalls andstandings therein.
2. The Commissioners at a meeting may place the collection of such rents, tolls and fees under the management of such persons as may appear to them proper or may farm out such rents, tolls and fees on such terms and subject to such conditions as they may think fit.'
The next section to be considered is Section 407, the relevant provisions whereof are as follows:
'407. (1) Notwithstanding anything contained in Section 402, the Commissioners at a meeting may, subject to such conditions as they may impose with the approval of the State Government, grant and withdraw licenses, for the use of any premises either within or, with the sanction of the District Magistrate, without the limits of the municipality for the slaughter of animals or animals of any spe-cified description, for the sale of their flesh for human consumption.
(2) When such premises have been fixed by the Commissioners beyond municipal limits, the Commissioners shall have the same power to make bylaws for the inspection and proper regulation of the same as if they were within those limits'.
The only other section that needs to be considered is Section 123 which gives the Commissioners power to impose taxes. Of course the license in respect of the stockyard does not come within any of the headings specified in Section 123 (1), nor is there any provision for the issuing of any license to a stockyard expressly laid down anywhere else.
4. The only other provision that we have to consider is a by-law included in the Model Rules and By-Laws and contained in Circular No. 4233-4237M dated 11th September 1934. This circular lavs down the model condition for the grant or withdrawal of licenses for slaughter houses and Clause 7 lays dawn that there shall be a quarantine pen maintained for the purposes of the slaughter house where animals which show signs of developing any disease communicable to human beings may be isolated for observation. These being the only provisions of law applicable to the question, the law seems to me to be quite clear and is as follows:.
(1) The Commissioners at a meeting may construct purchase, take on lease or acquire land or building for the purpose of establishing, a municipal stockyard.
(2) If there are any shops or stalls or standings therein, they can charge a fee or rent for the use of the same.
(3) The Commissioners may place the collection of rents, tolls and fees of such a municipal stockyard, under the management of a proper person.
(4) The Commissioners may farm out such rents, tolls and fees, subject to any condition that they may think fit, tout it must be in respect of rents, tolls and fees, subject to any condition that standings in a municipal stockyard.
I find no provision for the issue of a license to a stockyard. Undoubtedly it is an adjunct to a slaughter house, but while Section 407 gives the power to grant or withdraw licenses in respect of the use or premises for the slaughter of animals, it does not grant any power to issue any licenses in respect of a stockyard, which is separate from such a slaugh-ter house. In other words, under the Act a license can be granted to a slaughter house but there is no specific provision for the grant of a license for a stockyard, at least not for a stockyard which is not part of a slaughter house, and certainly none for licensing a private stockyard.
5. Since there is no specific provision for the issue of a license for such a stockyard, it follows that there is no power in the municipality to impose any tax or fee in respect of the same, and no provision therefor is to be found in any part of the Act or the Rules. The Rule contained in the circular dated the 11th September 1934 mentioned above, viz. Rule 7, relates to the provision of a quarantine pen which has nothing to do with a municipal stockyard or a private stockyard sanctioned by the Municipality.
6. That being the position, let us see what has happened in this case. To start with, the Municipality has not acquired any land or building for the construction of a municipal stockyard. It has erected no house or stalls therein. Consequently there arises no question of farming out revenue therefrom. What it has attempted to do is to give a license or sanction for the running of a private stockyard, which is to be run subject to certain conditions. It has conferred the power on a private party to charge fees at rates which have been fixed by the Municipality. This stockyard is not a part of the existing slaughter house and does not belong to the same owner. It appears to me, therefore, that the entire action is unjustified and not in accordance with law. In this application, two reliefs are prayed for. The first relief is that the respondents should be restrained from giving effect to the notice dated the 2nd April 1953 and consequently the license granted to Jonab Harun Rashid and Ahmadur Rahmans should be set aside. To start with, these two gentlemen are not before me and there can be no doubt that I can make no order affecting their rights in their absence. That part of the application must be dismissed on the ground of absence of proper parties. With regard to the first part of the prayer, it must be declared that the respondent municipality has no power to authorise the licensing of a private stockyard or for the imposition of any fee therefor or for the farming out of any fee or for imposing a condition on slaughter within its jurisdiction that such stockyard shell be patronised, or any rates or imposition paid before any animal can be slaughtered, and to this extent this Rule must be made absolute. As I have said, the motives of the respondents were good, but in order to achieve the desired objective it would be necessary to bring the law to their aid and this cannot be done according to the law as it stands at present. It will be for the appropriate authorities to look into the question. I must however say one thing. Under the. West Bengal Animal Slaughter Con-trol Act, a certificate has to be obtained from the President of the Municipality etc. If such an authority feels that it cannot grant a certificate unless animals are placed under observation in some manner, that is a matter which cannot be covered by this decision of mine. It will be a matter between the authority concerned and the persons who require the certificate. Further, I make no observation on the question as to whether the petitioner had himself carried out, or whether the existing slaughter house does carry out, all the provisions of law in regard to the running of the same. If not, the respondents are at liberty to revoke the license. It is not however permissible to levy an imposition which is not warranted by law.
7. There is a dispute as to whether the respondents have received an application made by the petitioner with regard to certified copies. It is agreed that the petitioner will make a fresh application within a week from date and offer the proper fees and that the respondents will grant the same.
8. This Rule is accordingly made absolutein part and there will be a Writ in the nature ofmandamus issued restraining the respondentsfrom compelling the petitioner to produce animalsfor examination in the stockyard of Jonab HarunRashid and Ahamadur Rahman or to pay thecharges mentioned in the notice dated the 2ndApril 1953. There will be no other order on thisapplication. Each party will pay his own costs.