Delhi Meat Merchant Association vs East Delhi Municipal Corporation ...
2016 Latest Caselaw 4197 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 31st May, 2016

+              W.P.(C) No.4881/2016 & CM No.20346/2016 (for stay)

       DELHI MEAT MERCHANT ASSOCIATION            ..... Petitioner
                   Through: Mr. S.P. Jha, Mr. Vikrant Bhardwaj
                            and Ms. Jyoti Sharma, Advs.

                                    Versus

    EAST DELHI MUNICIPAL CORPORATION OF
    DELHI & ORS                               ..... Respondents
                  Through: Ms. Mini Pushkarna, Adv. for R-1.
                           Ms. Sakshi Popli, Adv. for SDMC.
                           Mr. Raman Dugga, Standing Counsel
                           for GNCTD with Ms. Aayushi Gupta,
                           Adv. for R-4&5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

CM No.20347/2016 and CM No.20401/2016 (both for exemption)
1.     Allowed, subject to just exceptions.

2.     The applications stand disposed of.

W.P.(C) No.4881/2016 & CM No.20346/2016 (for stay).
3.     The petition impugns:

       (A)     the Office Order dated 1st January, 2016 of the respondent no.1

       East Delhi Municipal Corporation of Delhi (EDMC) laying down the

       "Revised Policy for grant of License to the Meat Shops" insofar as it

       in paragraph 14 (xxviii) and in paragraph 16(xii) thereof provides as

W.P.(C) No.4881/2016                                               Page 1 of 16
        under:-

             "14.      General terms & conditions
             ........

xxviii. The meat shopkeeper would submit no objection certificate or consent letter of the Area Councillor at the time of submission of application for grant of new license to the meat shops.

16. Requirements of documents for grant of licence.

.........

xii. No objection Certificate or consent of area councillor shall be obtained for grant of new license of meat shops (buffalo, sheep, goat, poultry, fish and pork)."

(B) the lack of uniform policy with respect to imposition of fine /

penalty for illegal slaughtering of goat and sheep and the office order /

decision taken by respondent No.3 South Delhi Municipal

Corporation (SDMC) vide Resolution No.81 dated 26th August, 2015

to increase the fine with respect to illegal slaughtering of goat / sheep

to @ Rs.2,000/- per carcass.

4. It is the case of the petitioner (i) that it is a registered society under

the Societies Registration Act, 1860 and represents the interest and welfare

of the meat merchants of State of Delhi who are dealing in meat trade in any

form; (ii) that after the trifurcation of the Municipal Corporation of Delhi

(MCD), the respective Mayor / In-Charge of each of the Corporation is in

the habit of taking arbitrary decisions adversarial to the interest of the

members of the petitioner; (iii) that the petitioner has requested the

respective Municipal Corporations to, before taking any decision, consult

the petitioner but to no avail; (iv) that the condition introduced by the

respondent No.1 EDMC vide its Office Order dated 1st January, 2016 supra

to take a „No Objection Certificate‟ (NOC) or consent letter of the Area

Councillor along with its application for grant of licence is non-existent in

the respondent No.2 North Delhi Municipal Corporation (NrDMC) and the

respondent No.3 SDMC; (v) that in North and East Delhi, the fine for illegal

slaughtering of goat / sheep is Rs.500/- per carcass but in South Delhi the

said fine is Rs.2,000/- per carcass; (vi) that the respondent No.3 SDMC vide

Resolution No.81 dated 26th August, 2015, without any basis and

consultation with the petitioner, has increased the fine for illegal

slaughtering of goat / sheep to Rs.2,000/- per carcass and which is four times

the fine imposed in the jurisdiction of the other Municipal Corporations;

(vii) that the Meat Shop Licence Policy as introduced by the respondent

No.1 EDMC, to the extent it leaves the applicant for meat licence at the

whims and fancy of the Area Councillor, is arbitrary and discriminatory;

(viii) that there was no such condition in the Licence Policy issued on 2 nd

September, 2011 by MCD; (ix) that the requirement of obtaining NOC from

the Area Councillor has no nexus to the object of issuing the trade licence

for running the meat shop; (x) that under the Delhi Municipal Corporation

Act, 1957 (MCD Act), the jurisdiction empowered to grant the licence vests

in the Municipal Corporation but the Office Order dated 1 st January, 2016 of

the respondent No.1 EDMC relegates the said power to the Area Councillor

amounting to abdication of statutory duty and leaving the applicant for the

licence at the whims and fancy of Area Councillor who belongs to a Political

Party and whose decision of issuing NOC or not would be influenced by the

political ideology; (xi) that the condition of obtaining the NOC from the

Area Councillor has no nexus to the grant of licence; (xii) that there can be

no discrimination between the applicants for meat trade licence located in

different localities; (xiii) that the condition for obtaining NOC is

unreasonable restriction on the fundamental right to carry on trade and

business.

5. Though notice of the petition has not been issued as yet but the

counsels for all the respondents appear on advance notice.

6. Being prima facie of the opinion that the requirement introduced by

the respondent No.1 EDMC, of obtaining an NOC from the Area Councillor

for applying for a meat trade licence, cannot be sustained and being of the

view that the adjudication on the said aspect does not require a counter

affidavit and the petition can be disposed of at this stage only, I have put so

to the counsels for the respondents.

7. The counsel for the respondent No.1 EDMC is carrying the file

containing the reasons for introducing the said requirement and has

therefrom stated (a) that complaints were invariably received from the

residents with respect to the meat trade licence granted for any location; (b)

that it was thus felt that the Area Councillor as the representative of the

citizens is best suited to identify the location within his ward with respect

whereto meat trade licence can be granted and is expected to issue the NOC

in accordance with the public sentiment and which would also eliminate the

complaints being made by the residents; (c) that Section 415(2) of the MCD

Act empowers the Commissioner to impose conditions for grant of licence;

(d) it thus cannot be said that the respondent No.1 EDMC was not

authorised in law to impose such a condition.

8. I have enquired from the counsel for the respondent No.1 EDMC,

whether the file brought by her contains any guidelines issued to the Area

Councillors for issuance of the NOC.

9. The counsel replies in the negative.

10. I have further enquired from the counsel for the respondent No.3

SDMC the basis on which the fine of Rs.2,000/- per carcass has been

computed.

11. The counsel again fairly states that there are no rules as to the rate of

fine.

12. I will first take up the challenge to the term in the Revised Policy for

grant of licence to meat shops of the EDMC requiring the applicant for

licence for a meat shop to submit NOC or consent letter of the Area

councillor along with his application.

13. Chapter XX of the MCD Act is titled "Markets, Slaughter Houses,

Trades and Occupations". Section 415 (1) thereunder prohibits carrying on

the trade of a butcher, fish-monger, poulterer or importer of flesh intended

for human food or use of any place for the sale of flesh, fish or poultry

intended for human food without or otherwise than in conformity with a

licence from the Commissioner. Section 415(2) empowers the

Commissioner to while granting such licence impose conditions as to

supervision and inspection. Section 415(3) prescribes the validity of the said

licence as the end of the year for which it is granted and Section 415(4)

provides that if any place is used for the sale of flesh, fish or poultry in

contravention of the provisions of Section 415, the Commissioner may stop

the use thereof by such means as he may consider necessary.

14. Thus the MCD Act empowers the Commissioner to grant licence for

meat shops and to lay down conditions thereof.

15. However the Commissioner, EDMC is found to have in the Revised

Policy framed by him made the exercise of power by him of grant of licence

with respect to a meat shop conditional upon the Area Councillor giving a

NOC or consent letter for grant of such licence. As per the said Revised

Policy, if the Area Councillor refuses to give a NOC or a consent letter for

establishing a meat shop in a premises with respect to which licence is

desired, the Commissioner has been left powerless to grant such licence.

16. I have perused the MCD Act to see whether thereunder Area

Councillor has been vested with any such power and do not find any such

provision.

17. Vide Section 3 of the MCD Act the Corporation is a body corporate

composed of Councillors to be chosen by direct election on the basis of adult

suffrage from various wards into which the Corporation is divided.

Qualifications prescribed to be chosen as a Councillor are only of having

attained the age of 21 years and of having the name registered as an elector

in the electoral roll for a ward.

18. Chapter IV of the MCD Act titled "Municipal Authorities under each

Corporation" in Section 44 thereunder provides for each Corporation to have

a Standing Committee and a Wards Committee of which the Councillors are

members. Section 49 of the Act provides that the Standing Committee shall

exercise such powers and perform such functions as are specifically

conferred or imposed upon it by or under the Act and Section 52 provides

that Wards Committee shall exercise the powers and perform the functions

as specified in the Fifteenth Schedule in relation to that Zone. Fifteenth

Schedule to the Act does not concern grant of licence to meat shops.

19. On the contrary under Section 54, the Commissioner is to be

appointed by the Central Government and vide Section 59 the entire

executive power for the purpose of carrying out the provisions of the MCD

Act or any other Act conferring any power or imposing any duty on a

Corporation vests in the Commissioner.

20. There is no provision in the MCD Act requiring the Commissioner to

Act on the aid and advice of the Councillor(s). The councillors constituting

the Corporation can only require the Commissioner to report on the matters

enumerated in Section 70 of the Act.

21. Section 415 aforesaid vests the power to grant licence for a meat shop

in the Commissioner and not in the Standing Committee or in the Wards

Committee. The Revised Policy of the EDMC vesting such power in the

Area Councillor and/or making the exercise of such power by the

Commissioner dependent upon the NOC or the consent letter issued by the

Area Councillor is thus clearly contrary to the provisions of the Act.

22. Though Section 491 of the Act empowers the Commissioner to

delegate any power conferred or any duty imposed on him under the Act but

only to a municipal officer or a municipal employee and not to a Municipal

Councillor or an Area Councillor.

23. A Three Judges Bench of the Supreme Court in State of Gujarat Vs.

Krishna Cinema (1970) 2 SCC 744 was concerned with the Bombay

Cinemas (Regulation) Act, 1953, though constituting the District Magistrate

as the Licensing Authority for grant of a cinematograph licence but

requiring an applicant therefor to submit a 'No Objection Certificate' from

the State Government. It was held that the same amounted to making the

power of the Licensing Authority subject to the overriding control of the

State Government and it was observed that it was difficult to appreciate

what purpose was served by providing for an appeal against the order of the

Licensing Authority to the State Government. It was further held that

though the power to issue, revoke or suspend a licence conferred on the

District Magistrate was exercisable on satisfaction of the District Magistrate

of certain objective conditions being met and was quasi-judicial but exercise

of power by the District Magistrate as Licensing Authority to grant a licence

was still made subject to the State Government and the propriety and

validity of making exercise of quasi-judicial power subject to the control at

the stage when it is exercised, of the executive, was questioned. It was

further observed that the vesting of the power of the Licensing Authority in

the District Magistrate was inconsistent with the rule, making the same

conditional on submission of the NOC. It was yet further held that power to

grant a licence is quasi-judicial and by use of the expression 'absolute

discretion', it was not intended to invest the Licensing Authority with

arbitrary power so as to destroy the limitations to which it is subject by its

inherent nature and the Act did not purport to confer arbitrary authority upon

the Licensing Authority--the power to control the Licensing Authority is

not the power to supplant the Licensing Authority.

24. In my opinion, what has been observed / held by the Supreme Court

applies in all force to the present situation also. Here, the position is rather

worse. The power vested by the statute i.e. MCD Act in the Commissioner

has been made by the Commissioner subject to the control of the Municipal /

Area Councillor and which cannot be countenanced in law.

25. Not only so, there are no guidelines prescribed for the Municipal /

Area Councillors to grant or refuse licence. In the absence of any

guidelines, the same amounts to, on the one hand, the Commissioner,

EDMC abdicating his power to grant licence to meat shop and on the other

hand amounts to vesting unregulated power in the Municipal / Area

Councillor to, at his whims and fancy, decide to whom to issue the NOC and

to whom to refuse the NOC, amounting to, to whom to grant licence and to

whom to refuse licence.

26. It is not as if the condition requiring NOC is always bad. I am

reminded of the National Council for Teacher Education (Application for

Recognition, the Manner for Submission, Determination of Conditions for

Recognition of Institutions and Permission to Start New Course or Training)

Regulations, 1995 also providing for an application for recognition to be

accompanied by NOC from the State or Union Territory concerned and

which was subject matter of challenge in St. Johns Teachers Training

Institute Vs. Regional Director, National Council for Teacher Education

(2003) 3 SCC 321. It was held that the power conferred on the State or

Union Territory to grant NOC was not arbitrary or unchannelled, as

guidelines for issuance of NOC existed and which guidelines had a direct

nexus with the object of the National Council for Teacher Education Act,

1993. It was also held that the said requirement did not have the effect of

giving the power of grant of recognition to the State Government or Union

Territory, inasmuch as the grant or refusal of NOC by the State Government

or Union Territory was not conclusive or binding and was made subject to

the decision of the Regional Committee. It was also noticed that the role of

the Government was to supply the requisite data for formation of opinion by

the Regional Committee. However, there are no such parameters in the

present situation. Here, paragraph 14 (xxviii) and in paragraph 16(xii) of the

Revised Policy for Grant of Licence to the Meat Shops making an

application for grant of license incomplete, without the NOC / consent letter

of the Municipal / Area Councillor.

27. The reason(s) expounded by the counsel for EDMC for providing so

and as recorded above also do not justify the requirement for NOC from the

Area Councillor. It cannot be forgotten that the Area Councillor though the

elected representative of the ward and even if elected by a wafer thin margin

and post election required to ignore as to who all supported him and who all

opposed his / her election and to act in the interest of all, is rarely able to act

so. This may result in the decision to grant or refuse licence having a

political hue rather than administrative, as is statutorily required. The Area

Councillor thus cannot be said to be best suited to identify the location for

grant of licence. Also, Section 415(2) though empowers the Commissioner

to impose conditions but only as to supervision and inspection. In exercise

of power thereunder a condition abdicating the power to be exercised cannot

be imposed.

28. Mention may also be made of PVR Limited Vs. State of Karnataka

(2015) 13 SCC 140 concerned with Karnataka Cinemas (Regulation) Act,

1964. Section 12 thereof empowered the State Government to issue

direction to any licensee or to licensees generally requiring the licensees to

exhibit such film or class of films having scientific or educational value or

dealing with news or current events or documentary films having special

value to the public, as may have been approved by the State Government.

The procedure for the State Government to approve such films was also laid

down in the Rules. The State Government, without following the procedure

prescribed for approval, required the licensees to exhibit films approved by

the Films Division. It was held that the State Government without approval

in accordance with the procedure prescribed in the Rules could not direct the

licensees to exhibit the films approved by the Films Division.

29. The ratio of the aforesaid judgment applies to the present situation

also. The Commissioner, EDMC instead of himself / herself adjudging the

suitability of the premises for grant of meat trade licence, has left the said

question to be decided by the Municipal / Area Councillor.

30. Paragraphs 14 (xxviii) and 16(xii) of the Revised Policy for Grant of

License to the Meat Shops of the respondent No.1 EDMC thus cannot be

sustained and are struck down.

31. As far as the challenge on the ground of lack of the uniform policy

with respect to the imposition of fine / penalty for illegal slaughtering is

concerned, no merit in found therein.

32. Supreme Court as far back as in Municipal Board of Abu Road Vs.

Jaishiv 1987 (Supp.) SCC 301 held that people residing within each

municipal area can be classified as one group different from those residing

in any other municipality and the plea of discrimination on the basis of rates

prevalent in another municipality cannot be entertained. Recently also in

Yogendra Kumar Jaiswal Vs. State of Bihar (2016) 1 SCC 183 it has been

held that the question of bringing in the concept of equality qua persons who

function in other States is an unacceptable proponement and it is impossible

to accept the same.

33. Similarly, no merit is found in the contention of the counsel for the

petitioner that no consultations were held with the petitioner and / or no

hearing given to the petitioner before fixing the rates of penalties. A

Division Bench of this Court in Gulab Rai Vs. Municipal Corporation of

Delhi 1990 (42) DLT 121, relying upon Sunderdas Kanhaiyalal Bhatija Vs.

Collector, Thane, Maharashtra (1989) 3 SCC 396 held that in the absence

of express statutory provision for compliance with principles of natural

justice, those principles are not attached to a decision taken by the legislative

process and that while exercising such powers the Government is not subject

to the rules of natural justice. It was further held that as rates are fixed and

the charges are levied and varied by the Corporation under the provisions of

the MCD Act, the principles of natural justice are not incorporated as in

fixing thereof the Corporation exercises its statutory powers.

34. The petition is therefore partly allowed. The challenge to paragraphs

14 (xxviii) and 16(xii) of the Revised Policy of the respondent No.1 EDMC

for grant of licence to the meat shops is succeeds and the said paragraphs are

struck down / quashed. However, as far as the other reliefs claimed in the

petition are concerned, the petition is dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

MAY 31, 2016 „pp/bs‟..

(corrected and released on 27th August, 2016.