Calcutta High Court
Shirin Foods Limited & Anr vs Kolkata Municipal Corporation & Ors on 13 April, 2017
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
W.P. 136 OF 2017
SHIRIN FOODS LIMITED & ANR.
-VS-
KOLKATA MUNICIPAL CORPORATION & ORS.
PRESENT: HON'BLE MR. JUSTICE HARISH TANDON
Mr. Anjan Bhattacharya, Advocate for the Petitioners.
Mr. Alok Ghosh, Advocate for the Respondents.
Judgment on: 13.04.2017 The Court:
The present writ petition is filed challenging the order of the Chief Municipal Health Officer, Kolkata Municipal Corporation dated 1st December, 2016 by which a permit was issued to the petitioner for slaughtering fifteen buffaloes in a day for the year 2016-2017 in the abattoir set up by the Kolkata Municipal Corporation.
This is the third round of litigation before this Court. The first writ petition being WP 27729(W) of 2014 was filed by the petitioner as the KMC (Kolkata Municipal Corporation) did not renew the permit / license, earlier granted for slaughtering 200 buffaloes per day. By an order dated 18th November, 2014 the said writ petition was disposed of directing the KMC to dispose of the application upon passing a reasoned order. The Joint Municipal Commissioner (D.N.G), Kolkata rejected the said application thereby refusing to renew the license to slaughter buffalo in the new modern abattoir established by the Corporation. The said order was further challenged by the petitioner in WP 4091(W) of 2015 before this Court.
A plea was taken before this Court that the Corporation is denuded of power to grant export license to anybody. It was further contended therein that neither Kolkata Municipal Corporation Act, 1980 nor the Rules framed thereunder empowers the Kolkata Municipal Corporation to restrict the use of the end products after slaughtering and therefore permitting a party to use the modern abattoir for slaughtering major number of the buffaloes and restricting the remaining capacity amongst the other persons including the petitioners are violative of Article 19(1)(g) of the Constitution of India.
The said writ petition came to be disposed of on 06.10.2016. The Co- ordinate Bench accepted the contention of the petitioner that the KMC lacks power to grant license for export of the buffalo meat, which is exclusively within the domain of APEDA (Agricultural and Processed Food Products Export Development Authority), constituted under the Agricultural and Processed Food Products Development Authority Act, 1985. The Court also did not find support the stand of the KMC that the petitioner can only apply to slaughter the buffalo meat for domestic purposes. The Co-ordinate Bench was of the view that if the KMC did not have the authority grant permission to export the buffalo meat, it certainly does not have the power to restrict the user of the end products. On a plea of dividing number of slaughters between the persons who obtained permission from APEDA to export the meat and the other persons, who were not granted license by APEDA, it was observed that once the agreement has been entered into by the Corporation no judicial intervention is required as the Government must have a freedom of contract except it is not free from arbitrariness or affected by the bias or accentuated by mala-fide. The Co-ordinate Bench in an operative portion of the said judgment directed the KMC authorities to dispose of the application filed by the petitioner within the specified time without being influenced by any irrelevant considerations.
It does not appear from the statements made in the instant writ petition that the petitioner challenged the said order in an intra-Court appeal. This Court, therefore, can safely proceed that the said order attained finality and therefore is binding upon the parties therein. Pursuant to the said direction passed by this Court in an earlier writ petition, the Chief Municipal Health Officer of KMC granted the permit / license to the petitioner for slaughtering fifteen cows in a day for the year 2016-17. The sum and substance of the impugned order as it appears from the reasons recorded therein that one M/s Al- Nassir Exports Pvt. Ltd. have obtained the permission from APEDA to slaughter a maximum of 800 animals per day for export from the said abattoir. Since, the said abattoir has a maximum capacity of 1200 slaughters per day, the remaining 400 slaughters are to be divided amongst the sixty permit slaughters and there is only scope of fifteen slaughters as other sixty persons have already been permitted to slaught 385 buffaloes per day for the year 2016-17.
The present writ petition is filed taking a plea of expiration of the period enshrined in the agreement entered into between the said exporter with the KMC. It is stated that the said agreement has expired on 07.03.2017 and therefore restricting the slaughter to fifteen buffaloes per day is arbitrary, whimsical and to favour the said exporter to have the monopolistic position over the petitioner.
The learned Advocate appearing for the petitioner submits that the impugned order is an outcome of bias mind and no proper reasons have been assigned to restrict the slaughtering of the animal at such negligible number. It is further submitted that in a previous order, the petitioner was permitted to slaughter 200 buffaloes a day and the reason to restrict the slaughter by giving the major portion to the exporter violates Article 14 and Article 19 of the Constitution of India. It is thus submitted that the impugned order is liable to be set aside.
The learned Advocate representing the Kolkata Municipal Corporation says that the points urged by the petitioner in the instant writ petition is squarely covered by the judgment rendered in an earlier writ petition and therefore it is no open to him to re-agitate the same. It is thus contended that if the point, which was directly and substantially in issue in an earlier proceeding have been decided by a Court of competent jurisdiction such point cannot be reopened and / or re-agitated in a subsequent proceeding. It is further submitted that the slaughterhouse established by the Corporation is registered with APEDA and if the license is granted for export, the preference should be given to the exporter as it generates foreign revenue, which helps in financial strengthening of the country.
On the conspectus of the aforesaid submission there is no hesitation to say that the larger issue involved in the instant writ petition had already been finally decided by the Co-ordinate Bench in an earlier writ petition. The only issue, which appears to this Court to have been raised in the writ petition, is the decision of the Corporation in restricting the number of slaughters amongst the various license holders to exploit the maximum capacity of the modern abattoir.
Admittedly, the petitioner has not obtained any permit or license from APEDA to export the buffalo meat. The Co-ordinate Bench already held that such permit on license can only be granted by APEDA and the KMC has no jurisdiction or authority to grant such permit or license. The agreement, which such exporters in an earlier order, was held not to be violative of the provisions of the KMC Act. It would not be out of place to mention that the number of slaughters divided by the KMC between the exporters and for the domestic purposes was not the subject matter of challenge in the writ petition. The challenge was restricted on a condition being imposed in the permit granted to the petitioner that the buffalo meat shall be used only for domestic purposes. The Court, however, deprecated such action of the KMC as it held that the KMC cannot decide how the end product would be used by the respective license holders. It would be apposite to reproduce the relevant excerpts from the judgment dated 06.10.2016 passed in WP 4091(W) of 2015 in the following:-
"Hence, I make it clear that if the petitioners apply for licence for slaughter buffalo, the KMC authorities shall process such licence in accordance with law and the rules prescribed without going into the question as to whether the petitioner intends to offer the buffalo meat in the domestic market or in the international market by way of export. Since for two consecutive years the KMC authorities issued licences to the petitioner company for slaughtering buffalo in the KMC's new abattoir, it is expected that KMC shall issue similar licences to the petitioner company for the future if otherwise eligible for such licence. Any application made by the petitioner in this regard shall be disposed of by the KMC authorities expeditiously and in any event within 4 weeks from the date of receipt of the application strictly in accordance with law and uninfluenced by any irrelevant consideration."
It is therefore manifest from the above observations that the division of the maximum capacity of the modern abattoir into two shifts, one exclusively for the exporters and the other for the domestic users has not been conclusively decided in an earlier writ petition. Since the agreement already entered into and acted upon by the parties thereto does not require a judicial intervention and the same was kept outside the scope of consideration. The aforesaid observations recorded herein above would be fortified by the categorical observation in the said judgment that the authorities were directed to consider whether the similar license can be issued to the petitioner company for the future.
Admittedly, the impugned order was passed at a relevant point of time when the agreement with the exporter was in force and did not expire by the efflux of time. The petitioner could not succeed in getting the said agreement declared void in an earlier writ petition and therefore the authority restricting the number of slaughter at fifteen cannot be said to be unreasonable, irrational and contrary to law. The present writ petition is pre-matured in the sense that the petitioner apprehends that once the license has been granted restricting the number of slaughters to fifteen, it pre-supposes that the major portion shall be allotted to such exporters for the year 2016-17.
This Court, therefore, does not find any illegality in the impugned order at least on a day when it is passed for the reason that the said agreement was in force and binding upon the parties thereto. Now when the agreement has expired by efflux of time, it is open to the petitioner to apply for increasing the number of slaughters and if such application is made, the Corporation shall take a pragmatic view of the matter more particularly that there is no subsisting agreement to give permit for enhanced slaughters. The authority shall assign proper reasons for allotting the number of slaughters to each of the applicants and the element of intelligible differentia must be reflected therein.
With these observations, the writ petition is disposed of. However, there shall be no order as to costs.
(Harish Tandon, J.)