Calcutta High Court (Appellete Side)
Serajuddin & Ors vs The State Of West Bengal & on 8 February, 2018
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
08.02.18
1049 Ct. No.29
Sws.M
W.P. 4521(W) of 2012
[ Serajuddin & Ors. vs. The State of West Bengal &
Ors.]
Mr. Syed Shahid Imam
Ms. Shaika Khan
....for the petitioners
Mr. Sushovan Sengupta
Mr. Subir Pal
.....for the State-Respondents
Mr. Barin Banerjee Mr. Swapan Kumar Debnath ....for the KMC Party/Parties appear in the order of their name/names as printed above in the cause-title.
The grievance raised by the petitioners is that they are traders in cattle at the Orphangunj Cattle Market which functions from the premises No. 30A, Orphangunj Road, P.S. Watgunge, Kolkata - 700023. The Orphangunj Cattle Market is within the municipal limits of the Kolkata Municipal Corporation.
Mr. Imam, learned Counsel appearing for the petitioners, submits that by the order dated 4th November, 2011 the District Collector, South 24 Parganas banned the trading of cattle in its entirety at the Orphangunj Cattle Market. The order of the District Collector is reproduced below to assist this discussion: 2
"In terms of or of Hon'ble High Court Calcutta in W.P. No. 16749(W) of 2011 and CAN 9850 and 9867 of 2011 (Addition of Party) dated 02.11.2011, the trading of cattle in Orphangunj Market, Kidderpore has been banned. No facilitation in whatsoever nature will be provided. Superintendent, Orphangunj Market is directed to ensure the implementation the order of Hon'ble High Court. All the cattle owners are directed to remove the cattle immediately.
District Collector, South 24-Parganas"
Mr. Imam submits that the order of 4th November, 2011 constitutes a direct infringement on the right of the petitioners to carry on trade and earn livelihood as constitutionally guaranteed. The order of 4th November, 2011 is clearly in excess of jurisdiction vested in the District Collector and, no absolute ban could have been introduced with, the cattle owners directed to remove cattle immediately. It is the further submission of learned Counsel that the petitioners are purely desirous of carrying on trade in cattle for the sake of trade alone.
Learned Counsel for the petitioner additionally points out that the order impugned seeks to rely upon the judgment of a Hon'ble Division Bench of this Court in 3 W.P. No. 16749(W) of 2011 with its connected applications, CAN 9850 and 9867 of 2011.
Again, for the purpose of this discussion the relevant operative portion of the solemn order of the Hon'ble Division Bench dated 2nd November, 2011 is quoted below:
We, therefore, direct the State Government through its Chief Secretary to see that such arrangement and/or markets in the State of West Bengal are not conducted for trading of cattle for sacrifice and which is otherwise not permitted under the West Bengal Animal Slaughter Control Act, 1950 and the Chief Secretary and all functionaries of the State and local bodies would strictly implement the order passed by this Court from time to time for effective and meaningful implementation of the said Act.
In our opinion this sufficiently protects the cause agitated by the petitioners before this Court in this petition and we need not keep the petition pending as by the interim order passed by this Court and by further holding that the Officials of the State and local bodies have not power to facilitate holding of markets for trading of cattle for sacrifice and also the movement of cattle for the said purpose on the occasion of Id-uz-Zoha festival to be celebrated on 7th November, 2011. Nothing survives in this petition.4
We would like to make it clear that otherwise there is no impediment in the slaughter of animals as permitted under the law and there is no order passed by this Court prohibiting such slaughter of animals in the slaughter house in accordance with law.
The petition stands disposed of accordingly. Consequently the application for intervention and addition of parties is also disposed of.
There will be no order as to costs.
Therefore, placing the order of ban dated 4th November, 2011 (supra) and the judgment of the Hon'ble Division Bench dated 2nd November, 2011 (supra) side by side, with the former claiming its basis in the latter, Mr. Imam argues and, to the mind of this Court correctly so, that the ban on trading of cattle per se, was not intended by the judgment dated 2nd November, 2011. However, what was clearly intended by the Hon'ble Division Bench that any trade ought not to be a camouflage for sacrifice of cattle/animals, of which their slaughter stands regulated by the West Bengal Animal Slaughter Control Act, 1950 (for short the 1950 Act).
Mr. Sengupta, learned Senior Government Advocate, raises the legitimate concern, as also observed by the Hon'ble Division Bench vide the order dated 2nd November, 2011 that, there can be no trade facilitating sacrifice and, no slaughter in violation of the 1950 Act.5
Keeping in view the need for a regulatory regime to be in place qua the above issues, the order impugned dated 4th November, 2011 cannot be therefore read to be unduly harsh.
On behalf of the Respondents/Kolkata Municipal Corporation (KMC), Mr. Debnath, learned Counsel led by Mr. Banerjee, learned Counsel submits that the responsibility for permitting the trade lies squarely with the State Government and, no proximate nexus is shown qua the Respondents/KMC to the order dated 4th November, 2011.
Having heard the parties and considering the materials placed, this Court is of the considered view that the order of the District Collector, South 24 Pargapas dated 4th November, 2011 cannot survive in the form as it is.
Therefore, the order dated 4th November, 2011 stands set aside.
This Court, noticing with respect the order dated 2nd November, 2011, protects the constitutional right of the traders to do business/trade at the Orphangunj Cattle Market. At the same time this Court permits the Respondents/Authorities, including the Respondents /KMC, to act as provided under the 1950 Act by creating the necessary infrastructure / personnel for immediate monitoring of the steps to ensure that neither the provisions of the 1950 Act nor, the directions of the 6 Hon'ble Division Bench dated 2ned November, 2011 are observed more in the breach than in the observance.
In the backdrop of the above findings, the District Collector/Magistrate, South 24 Parganas/the Respondent No. 2 is directed to issue fresh orders not later than a period of four weeks from the date of communication of this order.
The appointment of Mr. Sengupta and his junior to the brief be regularised.
W.P. 4521(W) of 2012 stands thus disposed of.
Urgent certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Subrata Talukdar, J.)