Calcutta High Court (Appellete Side)
Shirin Foods Limited & Anr vs Kolkata Municipal Corporation & Ors on 6 October, 2016
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 4091 (W) of 2015
Shirin Foods Limited & Anr.
-Vs.-
Kolkata Municipal Corporation & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioners : Mr. Pratik Dhar, Adv.
Mr. Sabyasachi Chatterjee, Adv.
Mr. Pappu Adhikari, Adv.
Mr. Sourav Mondal, Adv.
For the KMC : Mr. Alok Ghosh, Adv.
Ms. Era Ghosh, Adv.
For the State : Mr. Samrat Sen, Adv.
Ms. Munmun Tewari, Adv.
For the respondents : Mr. Saptangshu Basu, Adv.
Mr. Subhabrata Das, Adv.
Mr. Arijit Dey, Adv.
Heard On : 10.09.2015, 18.09.2015, 26.11.2015,
01.12.2015
04.05.2016, 06.05.2016
CAV On : 06.05.2016
Judgment On : 06.10.2016
Arijit Banerjee, J.:
(1) The subject matter of challenge in this writ petition is an order dated 5 December, 2014 passed by the Joint Municipal Commissioner (D & G), Calcutta Municipal Corporation rejecting the application of the petitioner company for renewal of licence to slaughter buffalo in the new modern abattoir of the Corporation. Facts of the case:-
(2) On 12 June, 2012, the petitioner company applied to the Kolkata Municipal Corporation (in short 'KMC') for a licence for slaughtering of 200 buffaloes (approximately) per day in KMC Slaughter House. It was mentioned in the said application that the petitioner company deals in export of inter alia, frozen buffalo meat and for its proposed food processing project (100 per cent export) at Uluberia, Howrah, it required proper supply of buffalo meat from a slaughterhouse.
(3) KMC issued a licence dated 10 July, 2012 in favour of the petitioner company for the year 2012-13 for slaughtering a maximum number of 200 buffaloes per day. However, it was stipulated in the licence that slaughtering will be started only from the new abattoir when the same starts operating. (4) Pursuant to the petitioner company's application dated 4 July, 2013 for renewal of the licence for a period of one year, KMC issued a licence dated 30 July, 2013 for the year 2013-14. (5) By an order dated 23 September, 2013 KMC informed the Agricultural and Processed Food Product Development Authority (in short 'APEDA'), which is an authority constituted under the Agricultural and Processing Food Product Development Authority Act, 1985 (in short 'APEDA Act') that it had granted a licence to the petitioner company for slaughtering of 200 buffaloes per day in its newly built modern abattoir for export. KMC further mentioned in the said letter that 'the said firm is authorised to make registration with APEDA'.
(6) On 23 April, 2014 the petitioner sought further renewal of its licence for slaughtering of 200 buffaloes per day. KMC sat tight over the matter. The petitioners filed WP No. 27729 (W) of 2014 in this Court.
(7) On 1 September, 2014 the new modern abattoir of KMC became operational.
(8) By an order dated 18 November, 2014 the aforesaid writ petition was disposed of by directing KMC to dispose of the petitioners application by passing a reasoned order. (9) On 5 December, 2014 the impugned order was passed by the respondent no. 3.
Contention of the petitioners:-
(10) Mr. Pratik Dhar, Learned Senior Counsel submitted that on a perusal of the impugned order it would appear that the application of the petitioner company was rejected primarily on three grounds:-
(a) Export licence has been granted exclusively to M/s. Al Nasir Exports Pvt. Ltd. And M/s. Meatek Food Machinery India Pvt. Ltd.
(private respondents). Accordingly, the petitioner company can apply for licence only for domestic purpose.
(b) The petitioner company was never granted the licence for export of the slaughter products.
(c) The licence in favour of the petitioner company has already expired. Hence, it has to apply for fresh licence and there is no question of renewal.
(11) Learned Counsel submitted that grant of export licence to the private respondents exclusively by KMC is an act without jurisdiction. It is an act of gross bias to give monopoly to the private respondents in the matter of export. This is impermissible since export is Item No. 41 in the Union List and as such is exclusively within the domain of the Central Legislature. He referred to Art. 246 of the Constitution read with List 1. There exists a separate statutory authority namely APEDA which has framed its own Rules under the APEDA Act, 1985 and has issued several notifications dealing with export. As per its notification No. 82 (RE-2010)/2009-14 dated 31 October, 2011 only two things are required to be ensured prior to export of the processed buffalo meat. These are, firstly, the raw buffalo meat is procured from an APEDA registered abattoir; and secondly, such meat is processed from an APEDA registered processing unit. The petitioner company has always been ready, willing and prepared to comply with the aforesaid requirements.
(12) Learned Counsel then referred to the certificate of registration issued by APEDA in favour of Al Nasir Exports Pvt. Ltd. (respondent no. 11) and submitted that the said respondent is also not authorised to export meat and meat products. Further, the said respondent does not have any processing unit registered with APEDA. It has only got a registration for the purpose of slaughtering of buffalo at the KMC abattoir. (13) Mr. Dhar then submitted that under Art. 19(1)(g) of the Constitution of India, the petitioner company has a fundamental right to carry on any profession/trade/business. KMC cannot decide what the petitioners will do with the end product i.e. with the raw meat after slaughtering. There is no provision in the KMC Act which excludes or restricts export. Even Sec. 426 of the KMC Act uses the phrase 'for the use of persons carrying on trade or business'. The words 'trade' or 'business' have to be understood within the compass of Art. 19(1)(g) of the Constitution. Hence, by holding that the petitioner company can only apply for licence for domestic purpose, KMC has violated the fundamental right of the petitioner company under Art. 19(1)(g). (14) Learned Counsel then submitted that under Sec. 599 of the KMC Act, KMC is mandated to have regard to the other existing laws. The impugned order passed by KMC is violative of Sec 3 of the Competition Act, 2002.
(15) He then submitted that the impugned order is also violative of Sec. 27 of the Indian Contract Act which provides that every agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. (16) The next submission of the petitioners was that maintenance of the abattoir in question and obtaining a licence for slaughtering of buffaloes in that abattoir are completely different things. The private respondent, being a single tenderer, was entrusted with the job of maintaining the abattoir. As a consideration, out of the two shifts, one shift for slaughtering of buffaloes has been allotted exclusively to the private respondent. The petitioners do not have any objection with regard to such arrangement. However, earmarking of one shift exclusively for the private respondent, cannot and does not mean that restriction can be put on the licensees operating in the other shift.
(17) Learned Counsel referred to the Notice Inviting Tender at page 184 of the writ petition and submitted that the same was issued to call for offers from parties interested in operating and maintaining the abattoir. In the name of operation and maintenance, KMC cannot give exclusive export right to the private respondent by restricting the petitioners to undertake slaughtering only for domestic purpose. KMC has no jurisdiction to impose restrictions on the petitioner company as regards the export of the slaughtered buffalo meat.
(18) The contention of KMC is that only the private respondent is authorised to export and not the petitioner company is factually incorrect. It is the APEDA which has the authority to decide whether the petitioner company should be allowed to export or not. Once licence is granted by KMC which is a pre-requisite, the petitioner company would be able to process its application before APEDA seeking permission to export. On the basis of the licence granted earlier by KMC, the petitioner company set up its processing unit at Uluberia after taking a huge loan from the State Bank of India. Disbursement of the loan has been stopped midway only on the ground of non-renewal of licence by KMC and consequently the petitioner company is unable to get its registration with APEDA.
(19) In support of his submission that no monopoly right should be created in respect of any trade or business in favour of a private party, learned Counsel relied on a decision of the Hon'ble Apex Court in the case of State of Rajasthan-vs.-Mohan Lal Vyas, (1971) 3 SCC 705. Learned Counsel relied on paragraphs 6 and 7 of the judgment which are set out hereunder:-
"6. In 1951 there was an amendment of the Constitution whereby Article 19(6) provided that the monopoly rights could be created in favour of the State in respect of any trade on business. The monopoly contracts in the present case were not in favour of the State Government. Article 19(6) of the Constitution provides a reasonable restriction on the fundamental rights of citizens as contained in Article 19(1)(g). If the State obtained a monopoly it would be defensible as a reasonable restriction on the rights of citizens to carry on any business or trade and to ply buses. On the other hand, if the State conferred any monopoly right on a citizen it would be indefensible and impermissible and would be an infraction of the inviolable provision of the Constitution.
7. The Constitution forbids grant by the State to a citizen of monopoly right to carry on the business of plying buses undertaken in the agreements. The manner in which the agreements were to be performed became illegal as a result of the Constitution. The agreements were therefore incapable of enforcement. The Constitution struck at the root of the agreements. The effect was that circumstances of the agreements were radically changed as a result of the Constitution and the agreements were incapable of performance under the law of the land."
(20) As regards the second ground for rejection of the petitioner company's application, learned Counsel submitted that it is incorrect to state that the petitioner company was never given the licence for export of the slaughter products. He contended that the petitioners' first application dated 12 June, 2012 as also the letter dated 23 September, 2013 written by KMC to APEDA would falsify such stand of KMC. He submitted that under Sec. 426 of the KMC Act, KMC can only grant a licence 'for the use of persons carrying on trade or business' and can levy a fee under Sec. 430 (A)(iv). Beyond that KMC has no authority. What a person will do with the raw meat, whether he will use it for domestic purpose or for export, does not fall within the domain of the KMC. Original capacity of the abattoir was for slaughtering 960 buffaloes per day which was subsequently increased to 1200 buffaloes per day. Hence, there can be no cogent reason for not renewing the licence of the petitioner company except for putting the private respondents in a monopolistic position. The petitioners have always been and still are agreeable to pay any fee which may be levied by the KMC under Sec. 430 of the KMC Act.
(21) Learned Counsel also relied on Sec. 60 of the Indian Easement Act, 1882 which provides as follows:-
"S. 60. License when revocable.-A license may be revoked by the grantor, unless-
(a)It is coupled with a transfer of property and such transfer is in force;
(b) The licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution."
Learned Counsel relied on photographs at pages 136 and 137 of the petition in support of his submission that relying on KMC's letter dated 23 September, 2013 written to APEDA, the petitioners have executed works of a permanent nature. The petitioners have invested more than Rs. 4.7 crores in setting up the processing unit. As such, KMC cannot arbitrarily refuse to renew the licence.
Learned Counsel also referred to a letter dated 12 February, 2014 (page 159 of the writ petition) written by the State Bank of India to KMC intimating that out of the sanctioned term loan of Rs. 3 crores, the Bank has stopped disbursement after releasing the amount of Rs. 2.35 crores since the petitioner company has not been able to provide its registration certificate from APEDA for export of meat products. The petitioners cannot obtain such registration with APEDA without the licence from KMC. The petitioner company has been put in jeopardy by KMC's unreasonable refusal to issue the licence.
(22) As regards the third and last ground for rejection of the petitioners' application by KMC, learned Counsel submitted that there is a distinction between grant of licence and renewal of licence. He referred to Sec. 543 (3) of the KMC Act which provides for cancellation of a licence granted by KMC on three grounds, viz, the licence was secured through misrepresentation or fraud or if any of the restrictions or conditions of the licence has been infringed or evaded by the grantee or the grantee has been convicted for the contravention of any of the provisions of the KMC Act or the Rules and Regulations framed thereunder. None of the aforesaid three grounds has been mentioned in the impugned order dated 5 December, 2014 nor any such ground exists. Hence, the licence having been granted by KMC for two successive years, it is not permissible for the Corporation suddenly to say that the petitioners should apply afresh.
The licence was first granted on 10 July, 2012 for the year 2012-13 which obviously means the financial year 2012-
13. Hence, technically speaking the licence lapsed with effect from 1 April, 2013. The petitioners applied for renewal on 4 July, 2013. This is a normal practice. Accordingly, the licence was renewed on 30 July, 2013. If the policy of the KMC was that a licence will not be renewed if application for renewal is not made prior to expiry of the validity period, then KMC should not have renewed the licence on 30 July, 2013 on the basis of the application for renewal made after expiry of the financial year 2012-13. This hyper-technical point has been taken by KMC only to cover up the real reason i.e. to ensure that after the abattoir started its operation, nobody but the private respondents get exclusive right for export of buffalo meat.
Contention of KMC:-
(23) Appearing on behalf of KMC Mr. Alok Ghosh, Learned Senior Counsel, submitted that the licence dated 30 July, 2013 issued by the KMC authorities was not a renewed licence but a fresh licence. Further, the said licence does not say anything about export. On the request of the petitioners made by letter dated 12 September, 2013, to enable the petitioner company to obtain registration with APEDA for the purpose of export of buffalo meat, the Chief Municipal Health Officer wrote a letter dated 23 September, 2013 to APEDA stating therein, inter alia, 'that the said licence is granted only for slaughtering and export strictly of buffalo meat not for cows'. The petitioners are trying to encash and take undue advantage of the said sentence and wrongfully contend that KMC had granted licence to the petitioners to export buffalo meat. However, KMC has no authority to issue licence for export of buffalo meat. It has no power either to grant or deny permission for such export.
APEDA is the only authority with whom the petitioners must get registered to be able to export buffalo meat on such terms and conditions as APEDA may specify. Learned Counsel further submitted that the abattoir in question which is situated at Premises No. 74, DC Dey Road, Calcutta, was established as per guidelines of and with the financial assistance of the Central Government. (24) Learned Counsel then submitted that KMC floated a tender for operation and maintenance of the said abattoir for three years. In fact, KMC decided to run and maintain the said abattoir in public-private partnership and accordingly issued Notice Inviting Tender. Prior to that, the petitioner company had participated in a pre-bid meeting but did not participate in the tender process. Only one tender was received from the private respondent no. 11 which carries on business in collaboration with the private respondent no. 12. KMC entered into an agreement with the respondent no. 11 for operation and maintenance of the said abattoir.
Under the terms and conditions of the agreement, the said party would operate and maintain the said abattoir against payment of royalty in the sum of Rs. 2.4 crores per annum. Although the said agreement speaks of bovines, the APEDA registered the said abattoir approving slaughtering of buffaloes only. The respondent no. 11 has obtained registration with APEDA for export of buffalo meat and has also obtained permission from KMC to slaughter a maximum of 800 animals per day at the said abattoir. (25) Learned Counsel then drew this Court's attention to a letter dated 28 April, 2014 addressed to the Chairman of APEDA by the petitioners with a request 'to restrict registration of the contractor for his own shift only i.e., 600 animals and allow our registration of 200 animals per day under licensees shift'. Mr. Ghosh submitted that in the meantime the licence of the petitioner company for the year 2013-14 lapsed by efflux of time and the petitioner company does not appear to have obtained any positive response from APEDA to its representation dated 28 April, 2014.
(26) Learned Counsel emphasised that the petitioners are fully aware of the fact that KMC is not the authority to grant licence for export. APEDA is the authority and APEDA has presently granted exclusive right to export to the private respondents. The petitioner company is at liberty to apply to KMC for issuance of licence for slaughtering of buffaloes and upon obtaining the same may approach APEDA for obtaining registration for export of buffalo meat. He submitted that in the above factual background there is no infirmity in the impugned order dated 5 December, 2014 which permits the petitioners to apply for obtaining licence afresh to slaughter buffaloes in the said abattoir for domestic purposes upon compliance with all requirements and formalities.
Contention of the respondent nos. 11 and 12 (private respondents) (27) Appearing on behalf of the private respondents Mr. Saptangshu Basu, Learned Sr. Advocate submitted that the writ petitioners do not have any valid cause of action to maintain the instant application. The application has been filed with the oblique motive of stalling the SARFAESI proceeding initiated by the State Bank of India (in short 'SBI') against the petitioner company and that is why the SBI has been added as a party respondent. He submitted that on 21 February, 2014, the SBI, Connaught Place, Middle Circle, New Delhi issued a notice to the petitioner no. 2 as guarantor under Section 13(2) of the SARFAESI Act for non- payment of Rs. 4.30 crores approximately and such debt has been classified as non-performing asset. To secure the loan, the petitioners have mortgaged certain properties with the SBI including the property where the petitioners claim to have set up the processing plant. To stall such proceedings, the instant application has been filed by way of subterfuge, submitted Mr. Basu.
(28) Learned Sr. Advocate then submitted that APEDA has been constituted under the APEDA Act, 1985 with effect from 8 January, 1985 as the paramount authority for development and promotion of exports of certain agricultural and processed food products including meat and meat products. In consonance with the 1985 Act, the Director General of Foreign Trade (DGFT), Ministry of Commerce and Industry through various notifications has made it mandatory for all integrated abattoirs/meat processing plants to get registered with APEDA and obtain its sanction for export of meat products. An elaborate procedure has been prescribed for such registration. In case the registration committee is satisfied that the applicant's plant conforms to the standard as prescribed under the Export of Raw Meat Quality Control Rules, 1992, certificate of registration may be granted. However, if the processing unit does not conform to the prescribed standards or if processing of meat is done in violation of foreign trade policy of the Government of India or if there are adverse reports from the financial institutions/banks/importing countries or quality complaints, such licence can be cancelled or suspended. The 1985 Act also provides for a statutory appeal to an aggrieved party. Mr. Basu submitted that APEDA has refused registration to the petitioner company because of the adverse financial report due to the ongoing SARFAESI proceedings initiated by the SBI.
(29) Mr. Basu submitted that KMC floated tender on 31 October, 2013 for operation and maintenance of the abattoir in question. Pre-bid meetings were held on 6 November, 2013 and 11 November, 2013. The writ petitioners participated in the pre-bid meeting but ultimately did not participate in the tender process since they did not have the requisite credentials. The KMC authorities, having found the private respondents to be eligible, entered into an agreement dated 7 March, 2014 with the private respondents for three years. The time has been divided into two shifts, 400 bovines for domestic consumption and 800 bovines for export. The private respondents held the necessary export licence issued by APEDA. At that point of time, the writ petitioners did not raise any objection. It was only by way of an afterthought that the writ petitioners applied for renewal of KMC licence on 23 April, 2014 with the ulterior motive of stalling the SARFAESI proceedings as also the operation and maintenance of the said abattoir by the private respondents.
(30) Learned Counsel then submitted that the contention of the petitioners that the action of the KMC authorities violates their rights under Art. 19(1)(g) of the Constitution of India and also the provisions of the Competition Act, 2002, is wholly meritless. For the purpose of organizing a public venture appropriate steps have been taken by the KMC which has entered into a lawful agreement with the private respondents under Art. 299 of the Constitution. KMC is 'state or other authority' within the meaning of Art. 12 of the Constitution and has wide powers for regulation and dispensation of special services like leases, licences and contracts. The magnitude and range of such powers and functions of such statutory authorities are very wide. The Government and statutory authorities while entering into contracts are expected to act in conformity with certain well-established norms and standards which the KMC has done in the instant case. The Competition Act provides for a statutory appeal to an aggrieved party and if the writ petitioners think that provisions of the said Act have been violated, it should approach the authority under the said Act.
(31) Mr. Basu relied on the well-known decision of the Hon'ble Apex Court in the case of Tata Cellular-vs.-Union of India, (1994) 6 SCC 651. In particular learned Counsel relied on paragraph 94 of the judgment which is extracted hereinbelow:-
"94. The principles deducible from the above are:
(1) The modem trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles."
Reliance was also placed on a decision of the Hon'ble Apex Court in the case of Michigan Rubber (India) Limited- vs.-State of Karnataka, (2012) 8 SCC 216, wherein at paragraph 23 of the judgment, the Hon'ble Apex Court indicated the limited circumstances in which the power of judicial review should be exercised in tender matters. Paragraph 23 of the judgment is as follows:-
"23. From the above decisions, the following principles emerge:
(a) The basic requirement of Article 14 is fairness in action by the State, and non-
arbitrariness is essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by court is very limited;
(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by court is not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
(e) If the State of its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim a fundamental right to carry on business with the Government."
(32) In conclusion, Mr. Basu submitted that the writ petitioners have no legitimate ground to maintain the instant application and the same should be dismissed. Court's View:-
(33) The short grievance of the petitioners is that the KMC Authorities have not renewed the licence in favour of the petitioner company for slaughtering of buffaloes in the KMC's new abattoir for export of the buffalo meat. The petitioners have challenged the order passed by the Joint Municipal Commissioner (D & G), KMC on several grounds. (34) Firstly, Learned Counsel for the petitioners submitted that KMC is not empowered or authorised to put any restrictions on the petitioners. Export is a subject of the Union List and authority like the KMC constituted under a State Act cannot have any say on export. It is the APEDA which is the sole statutory authority which can regulate export of meat products.
I agree with the Learned Counsel that KMC is not the authority to grant permission for export of meat products. APEDA has been constituted under a Central Act with the power to regulate export of certain agricultural and processed food products including meat and meat products. The APEDA Act received presidential ascent on 8 January, 1986. The functions of APEDA as per Sec. 10 of the Act are to undertake by such measures as it thinks fit, the development and promotion, under the control of the Central Government, of export of scheduled products. The schedule to the Act mentions 15 categories of products. The second item in the schedule is meat and meat products. Secs. 10 and 12 of the APEDA Act are set out hereunder:-
"S. 10. (1) It shall be the duty of the Authority to undertake, by such measures as it thinks fit, the development and promotion, under the control of the Central Government, of export of Scheduled products.
(2) Without prejudice to the generality of the provisions of Sub-Section (1), the measures referred to therein may provide for-
(a) the development of industries relating to the Scheduled products for export by way of providing financial assistance or otherwise for undertaking surveys and feasibility studies, participation in the quality capital through joint ventures and other reliefs and subsidy schemes;
(b) the registration of persons as exporters of the Scheduled products on payment of such fees as may be prescribed;
(c) the fixing for standards and specifications for the Scheduled products for the purposes of export;
(d) the carrying out of inspection of meat and meat products in any slaughterhouse, processing, plant, storage premises, conveyances or other places where such products are kept or handled for the purpose of ensuring the quality of such products;
(e) the improving of packaging of the Schedule products;
(f) the improving of the marketing of the Scheduled products outside India;
(g) the promotion of export oriented production and development of the Scheduled products;
(h) the collection of statistics from the owners of factories or establishments engaged in the production, processing, packaging, marketing or export of the Scheduled products or from such other persons as may be prescribed on any matter relating to the Scheduled products; and the publication of the statistics so collected, or of any portions thereof or extracts therefrom;
(i) the training in various aspects of the industries connected with the Scheduled products;
(j) such other matters as may be prescribed.
12. (1) Every person exporting any one or more of the Scheduled products shall, before the expiration of one month from the date on which he undertakes such export or before the expiration of three months from the date of coming into force of this section, whichever is later, apply of Authority to be registered as an exporter of the Scheduled product or Scheduled products:
Provided that the Authority may, for sufficient reasons, extend the time-limit for registration by such period as it thinks fit. (2) Registration once made shall continue to be in force until it is cancelled by the Authority."
(35) It thus appears that the APEDA is the sole authority for permitting export of meat and meat products. Without being registered with APEDA, no person or legal entity can export meat or meat products. Learned Counsel for the KMC frankly admitted and as would also appear from the order impugned in this application that KMC is not the authority to grant or deny permission for export of meat or meat products. KMC has no power to grant a licence for export of meat or meat products. It can only issue a licence for slaughtering of bovines including buffaloes. The relevant provision is Sec. 426 of the KMC Act which provides as follows:-
"S. 426. Provision of municipal markets and slaughter-house._(1) The Municipal Commissioner, when authorised by the Mayor- in-Council in this behalf, may provide and maintain municipal markets, slaughter-houses or stockyards in such number as he thinks fit together with stalls, shops, sheds, pens and other buildings and conveniences for the use of persons carrying on trade or business in, or frequenting such markets or slaughter-houses. (2) Any municipal slaughter-house or municipal stockyard may be situated within or, with the sanction of the State Government, outside Calcutta.
(3) A municipal market or a slaughter-house or a stockyard shall be under the control of the Municipal Commissioner.
(4) Subject to the order of the Mayor-in-
Council, the Municipal Commissioner may after giving a general notice, close any municipal market or slaughter-house or stockyard or any portion thereof on the date specified in the notice; and the premises occupied for any municipal market, slaughter- house or stockyard or any portion thereof so closed may be disposed of as the property of the Corporation."
Hence, the petitioner cannot have any legitimate grievance regarding non-issuance of licence for export of buffalo meat by the KMC since it is not within the competence or authority of the KMC to issue such licence. (36) The petitioner's second contention that the KMC authorities have infringed the petitioners' right under Art. 19(1)(g) of the Constitution is also devoid of merits. No restriction has been put by KMC on the petitioner's right to carry on trade or business. Even the order under challenge does not say that the petitioner cannot carry on the business of slaughtering buffalo meat and exporting the same. It is true that there is a stray observation in the order under challenge to the effect that the right to export is subject to obtaining registration from APEDA and cannot be given to any registered licensee in view of the agreement between KMC and the private respondents. However, the agreement between KMC and the private respondents does not warrant any such observation. The relevant clauses of the said agreement dated 7 March, 2014, are clauses 5 and 12 which are as follows:-
"5. That the second party shall give first priority to cater to the needs of local consumption by the registered licensee of the first party of around upto four hundred bovines/day and the balance slaughtered bovines capacity shall be utilized by the second party for their own business/Export/Value addition Purposes.
12. That the second party shall be entitled to take away their products beyond 400 slaughtered bovine per day also sell/purchase including the By-product blood meal and remains of slaughter bovines like offal, leather and related materials."
The said clauses of the agreement or any other clause do not give any exclusive right to the private respondents to export buffalo meat. Indeed, KMC has no such power to grant any right to any party and the same is exclusively within the domain of APEDA.
(37) Mr. Dhar then referred to Sec. 599 of the KMC Act which provides that 'save as otherwise provided in this Act, nothing contained in this Act shall be construed to authorise the corporation or any municipal authority or any officer or other employee of the corporation to disregard any law for the time being in force.' Learned Counsel submitted that no order of the KMC can be in violation of any law for the time being in force but the impugned order is violative of Sec. 3 of the Competition Act, 2002. Secs. 3(1) and (2) of the Competition Act read as follows:-
"S.3. Anti-competitive agreements.-(1) No enterprise or association or enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.
(2) Any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void."
In my opinion, the aforesaid provisions are not germane in any manner to the facts of the present case. It is true that competition in the market is desirable to ensure maintenance of quality of products and a reasonable price of such products. Elimination of competition or a monopolistic or even oligopolistic situation acts to the detriment of the quality of goods offered to consumers as also tends to raise the price of the commodities artificially. However, in the facts of the present case, I do not find that the KMC authorities have done anything which adversely affects competition. Neither the agreement entered into by and between KMC and the private respondents nor the order impugned in the present application is likely to stifle competition in the market. The petitioner is at liberty to obtain registration with APEDA for the purpose of exporting buffalo meat.
(38) Learned Counsel for the petitioner also referred to Sec. 27 of the Indian Contract Act, 1872. I fail to appreciate the relevance of this provision in the given factual matrix. This case does not involve any agreement by which anybody far less the petitioner company has been restrained from carrying on any profession, trade or business nor does the impugned order has that effect. I find no merit in this contention.
(39) Learned Counsel then referred to Sec. 60 of the Indian Easements Act, 1882 which has been extracted above. The said section provides the circumstances when a licence cannot be revoked. A licence has been defined by Sec. 52 of the said Act which is as follows:
"S.52. 'License' defined._ Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right is called a license."
Learned Counsel contended that acting upon the licence that had been granted by KMC, the petitioner has set up infrastructure for its business by investing substantial sums of money. As such, the licence cannot be revoked.
I am again unable to appreciate the contention of the petitioner. The licences granted to the petitioner by KMC for the years 2012-13 and 2013-14 expired by efflux of time. By the impugned order, the KMC authorities have expressly granted liberty to the petitioners to apply for licence afresh to slaughter buffalo in KMC's the new abattoir upon due compliance with requirements and formalities. To the extent the said order says that such application can be made only for domestic purpose, the same has to be read down and has to be understood to mean that the KMC authorities have no power to grant permission to export buffalo meat. I make it clear that no observation in the order under challenge to the effect that the petitioner is entitled to issuance of licence to slaughter buffalo in the KMC's abattoir only for domestic purpose, will be of no effect and is set aside. KMC can neither permit nor restrain the petitioners from exporting the buffalo meat and KMC shall not be concerned with the same while processing any application the petitioners may make for licence to slaughter buffaloes. Only the APEDA can grant or deny permission to the petitioners to export the meat of the buffaloes that the petitioners may slaughter at the KMC's said abattoir.
(40) The other contention of the petitioner company is that it should not be required to apply afresh. On past occasions the petitioner's applications for renewal made after expiry of the validity of the licence were entertained and on two occasions the license was renewed. Hence, in the present case also the licence should be renewed on the basis of the application made by the petitioner.
The aforesaid contention of the petitioner does not seem to be factually correct. Initially the licence was granted by the KMC on 10 July, 2012 for the year 2012-13. This presumably means the financial year ending on 31 March, 2013. On 4 July, 2013 the petitioner apply for renewal of the licence. On 30 July, 2013 the KMC issued a licence for the year 2013-14. It does not appear to be a renewal of the earlier licence. It was really issuance of a fresh licence. The licence granted for the year 2013-14 having expired, in my opinion, the petitioner should apply afresh complying with procedural formalities. I am unable to appreciate what prejudice the petitioner will suffer if it applies afresh for a licence to slaughter buffaloes in the KMC's abattoir in question.
(41) The private respondents have strongly contended that the present application has been filed with the oblique motive of thwarting the recovery proceedings initiated by the State Bank of India against the petitioners. I do not find it necessary for me to go into that question. However, I am definitely a little surprised as to why the SBI has been made a party respondent in this proceeding. (42) In view of the aforesaid, I find no reason to interfere with the order under challenge except to the extent it contains stray observations to the effect that the private respondents have exclusive right to export the buffalo meat slaughtered in the concerned abattoir or that the petitioner can apply for licence to slaughter buffalo in the said abattoir only for domestic purpose. I reiterate that the KMC authorities have no right or power to restrict the manner in which the petitioner may deal with the buffalo meat after slaughtering the buffaloes in the said abattoir. Needless to say that if the petitioner intends to export such buffalo meat, it will have to obtain necessary clearance from APEDA. Hence, I make it clear that if the petitioners apply for licence to 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 proper application is made for the same by the petitioner and if the petitioner is 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.
(43) WP No. 4091(W) of 2015 is accordingly disposed of, without, however, any order as to costs.
(44) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)