Gujarat High Court
Bavanka vs State on 8 October, 2008
Author: Jayant Patel
Bench: Jayant Patel
SCA/21536/2007 21/ 21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21536 of 2007 With SPECIAL CIVIL APPLICATION No. 21537 of 2007 To SPECIAL CIVIL APPLICATION No. 21556 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BAVANKA INUSBHAI JAMALBHAI & 20 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR PS CHAMPANERI for Petitioner(s) : 1 - 21. MR UMANG OZA, AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 3. MR RM CHHAYA for Respondent(s) : 4 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 08/10/2008 COMMON ORAL JUDGMENT
In all the petitions, common question arise for consideration, the same are being considered by this common judgement.
Rule.
Mr. Umang Oza learned AGP waives service of notice of rule for the respondent Nos. 1, 2 and 3 and Mr. Chhaya learned Counsel waives service of notice of rule for respondent Nos. 3 and 4.
With the consent of the learned Counsel appearing for both the sides, the matters are finally heard today.
The short facts of the case appear to be that the petitioners, who are residents of Shihor, are claiming that the municipality should establish the market for non-vegetarian community. It is the contention of the petitioners that no steps are being taken by the municipality, and municipality is preventing the business of meat and other non-vegetarian food and the municipal area and therefore, the petitioners have approached to this Court for the appropriate directions to the municipality to provide suitable space for carrying the trade, business and occupation of non-vegetarian food. It is also prayed by the petitioners to direct respondent municipality to provide and construct the suitable market place in accordance with the earlier resolution of the General Board of the municipality dated 4.9.1997.
The petitioners have also challenged the decision on the part of the municipality for prohibiting the business of non-vegetarian food by the petitioners without obtaining prior licence from the respondent municipality, hence, the order annexure-E communicating to one of the petitioner is also under challenge in the present petitions.
Mr. Champanery learned Counsel appearing for the petitioners does not press the challenge to the decision of the municipality as per annexure-A, in view of the fact that after filing of the petitions, the municipality has not interfered with the activities of the petitioners in doing the business of the non-vegetarian food. Hence, the said aspect is not required to be considered.
Heard Mr. Champanery learned Counsel for the petitioners, Mr. Umang Oza learned AGP for the State Authorities and Mr. Chhaya learned Counsel for the municipality and its officers.
The contention of the petitioners that in any case, it will be required for the municipality to establish market or slaughter house for non-vegetarian food deserves consideration.
Similar question came to be considered by this Court in Special Civil Application No. 13365 of 2007, and allied matters on 5.9.2008 and it was inter alia observed at paragraph Nos. 4, 5, 6, and 7 as under:
4.
The contention of the learned Counsel for the petitioners is that it is obligatory duty on the part of the Municipality to maintain slaughter house as per the provisions of Section 87(d) in the spare of development, which is falling in the category of the duties of the Municipality. Therefore, it was submitted that if no slaughter house is made available to the petitioner, consequently it would result into discontinuation of the occupation of the petitioners and further deprivation of the livelihood. Therefore, it was submitted that suitable directions may be issued by this Court for such purpose. It was also submitted by the learned Counsel for the petitioner that the small slaughter houses were already in existence, but there was grievance raised by the residents of the area and it was also found by the Municipality that slaughter house may not be continued in the residential area and be shifted to the other place namely; the land bearing city survey o.1/874. It was submitted that the petitioners have no objection in continuing the activity to the said place, but the Municipality may be directed to establish the slaughter house at that particular place and until the construction is completed, temporary arrangement may be made for permitting slaughtering of animals at that place by providing water, drainage and electricity facility and after the regular construction is completed the space may be made available to the interested persons. Mr.Patel, learned Counsel appearing for the petitioners submitted that the petitioners have no objection for contributing the amount for enabling the Municipality to make temporary arrangement as well as for construction, but the same may be floated by appropriate modalities, which may be worked out by the Municipality.
5. On behalf of the Municipality, Mr.Rana, learned Counsel submitted that pursuant to the interim order passed by this Court in the present proceedings, ultimately the order dated 27.8.2008 has been passed by the Collector, Anand, whereby the land is ordered to be allotted, admeasuring 1500 sq. mtrs. of city survey No.1/874 for establishing slaughter house and it is also ordered that anticipating the payment, the possession may also be handed over. He submitted that the Municipality has no objection in establishing the new slaughter house at that particular place. However, the Municipality may be required to pay the price as mentioned by the Collector in the said order and may also be required to undertake necessary expenses for making temporary structure as well as the permanent construction with the basic facilities for water, drainage, etc., by taking care that no pollution is created therefrom.
6. On behalf of the State Government, the learned AGP submitted that the order is already passed by the Collector and, therefore, the other aspects are to be undertaken by the Municipality. However, the learned AGP submitted that if some officer of the State Government is assigned with the work to supervise the said aspects of the Municipality, the State Government has no objection for such purpose.
7. As such as per the provisions of Section 87 of the Act, though the duties are to be discharged by the Municipality, the same is always subject to the limitation of the funds available with the respective Municipality and it would also be required for the Municipality to appropriately apportion the fund available, keeping in view the requirement and the other duties to be discharged simultaneously as provided under the Act namely; Section 87. However, as in the present case pursuant to the order passed by this Court, it appears that the District Collector has passed the order upon the proposal of the Municipality to allot the area of 1500 sq. mtrs. from the land bearing city survey No.1/874 for establishing the slaughter house and as it has been declared by the learned Counsel for the Municipality that the Municipality is ready to undertake the project for establishing the slaughter house, the matter can be considered, keeping in view the said declaration and the availability of the land with the Municipality. It may be that if the full fund for construction, may be for temporary or for permanent, is not available with the Municipality from the resources available, the persons, who are interested in doing the business may be put to certain conditions of contributing the amount for utilizing the facility of slaughter house. Ultimately, it will be for the Municipality as well as the concerned officer of the State Government, who may be nominated by the Collector as ordered hereinafter to float a scheme for enabling the Municipality to establish the project of slaughter house and the petitioners and such similarly situated persons to make use of such place as slaughter house upon the payment of requisite and reasonable amount. Even otherwise also, it may not be possible for this Court to finalize the cost structure and its operation thereof by the users and/or by the Municipality and it is just and proper to leave it at the discretion and wisdom for proper exercise of the power by such authorities. In any event, if the facilities of the slaughter house is made available to the interested persons, it will take care of the rights of the petitioners for earning their livelihood subject to the limitations, which may be put forward by the Municipality, keeping in view the availability of the financial resources as well as the other germane circumstances to be considered.
Thereafter, in the said matters the following directions were issued at paragraph No. 8:
(a) The District Collector, Anand shall mark one officer not below the rank of Dy. Collector for over-seeing and supervising the implementation of the project of the Municipality for establishment of the slaughter house at land bearing City Survey No.1/874 by shifting the same from land bearing City Survey No.1/3544.
(b) The respondent No.1 Municipality, in consultation with the aforesaid officer, shall float a scheme in inviting applications from the interested persons, who are occupied in the activity of slaughter the animals for earning their livelihood. The scheme shall include the regularization of the timings, charges payable step-wise and the facilities to be made available to such persons, etc. The application shall be invited and the allotment shall be made available, in accordance with law, to the eligible persons, subject to their fulfilling the requisite conditions and the criteria.
(c) Under the supervision of the aforesaid officer, the Municipality shall ensure that the possession of the Land bearing City Survey No.1/874 admeasuring 1500 sq. mtr., is taken over on the terms and conditions as mentioned by the Collector in the order dated 27.8.2008. The aforesaid exercise of taking over the possession shall be completed within one month from today and the market rate may be finalized at the later stage and the said process may also be completed within one month thereafter.
(d) The Scheme as referred to hereinabove would also include the temporary structure and the availability of the facility and the construction of permanent structure of slaughter house and the facilities may be available therein by issuance of appropriate permission/licence to the interested persons on payment of the requisite amount, as may be determined by the Municipality in consultation with the said officer. Such scheme shall be finalized within a period of two months from today. It is further directed that temporary arrangement shall be made available within two months after the finalization of the Scheme.
(e) The Municipality shall ensure that by temporary use or permanent use of the land, no pollution is created therefrom and sufficient arrangement is made for water and drainage, so that the nuisance may not be created on account of non-hygienic condition.
(f) After the temporary space is made available, it would be open to the Municipality to discontinue the activity of slaughter over the space available at City Survey No.1/3544 by shifting the slaughter house to the new place.
(g) The officer, who may be appointed by the Collector will have incidental power to finalize the terms and conditions as well as to issue appropriate directions to the Municipality for implementation of the present order.
(h) In the event the order is not implemented, it would be open to the petitioners to apply.
If the facts of the present case are examined in light of the aforesaid position of law, the municipality is to provide land, if it is so allotted by the Government. So far as the State Government is concerned, it appears that pursuant to the earlier order passed by this Court in the present petitions, the area of Survey No. 492 admeasuring 1500 sq. mtrs., vide communication dated 21.7.2008 by the District Collector was to be allotted to the municipality. However, as mentioned in the said communication, price of the land is fixed at Rs. 990 per sq. mtrs. and the valuation assessed at Rs. 14,85,000/-, and the 50 percent of the said amount comes to Rs. 7,42,500/-, which is required to be paid by the municipality, but the municipality has not shown willingness to deposit the said amount. It has also been mentioned in the said communication that the land cannot be allotted to individual traders or the persons like petitioners and since, religious temple is located in the nearby area, sentiments of the people are also required to be considered. Therefore, it has been submitted for the Government by the District Collector that at present no direction may be issued by this Court for allotment of land bearing Survey No. 492 admeasuring 1500 sq. mtrs.
Mr. Chhaya learned Counsel appearing for the respondent municipality submitted that the municipality has no fund to provide for paying price of the land. At the same time on behalf of the petitioners, the learned Counsel also submitted that the petitioners have no capacity to make payment of such a huge amount. Keeping in view the said aspect namely that neither municipality is having financial capacity to make payment nor petitioners have shown willingness to contribute the same, coupled with the circumstance that nearby the said place, historical temple of 'Gautmeshwar' is located, the government may drop the idea of allotting the said land bearing Survey No. 492 admeasuring 1500 sq. mtrs to the municipality. At the same time it would be required for the State Government to identify another waste land of the Government, which may be allotted to the municipality for establishing the meat market. It will be for the municipality to move appropriate proposal to the District Collector by identifying the land, keeping in view the distance to be maintained from the residential locality and also religious sentiments of the public at large, where the market is to be established. Religious sentiments means religious sentiments of all the religions, and not only of one particular class. It will be required for the municipality to bear in mind that essential purpose of establishing the market is to see that those, who are dealing non-vegetarian food, or who are consuming non-vegetarian food, may be in a position to do the business, and facility of buying and selling may be available, but such activities are required to be undertaken in a manner, which does not create any nuisance to the nearby locality, nor it does create any hygienic problem. It will also be required for the municipality to select the place, which may be away from the religious place or the residential locality, so that further complication of adversing effect of religious sentiments of the people or creating nuisance to the residential locality can be avoided. I find it proper at this stage leaving it to the wisdom of the municipality for identifying such land in consultation with the officer, who may be nominated by the Collector as ordered hereinafter for such purpose. The aforesaid shall take care of suitability and the identification of the land. At that stage the petitioners may also express their views by joint representation to the municipality, which may be taken into consideration by municipality, at the time when the particular land is to be identified or otherwise for establishing the market.
Mr. Champaneri learned Counsel appearing for the petitioners declared before the Court that if the municipality has no sufficient fund available for establishing the market, the petitioners are ready to contribute for such purpose, as it was considered by this Court in the above referred decision in Special Civil Application No. 13365 of 2007 and allied matters. It has been therefore, submitted that if the direction is given to the municipality to establish the market at the place, which may be ultimately allotted by the Collector to the municipality, the petitioners are ready to pay reasonable amount to the municipality by way of their contribution. Mr. Chhaya learned Counsel for the municipality has no objection for such purpose and he submitted that the municipality is ready to establish the market, if the fund is either contributed by the petitioners or is provided by the Government.
It is true that the municipality is the local authority and has also to discharge the duty for establishing the market, but at the same time as observed in the above referred decision, such duty to be discharged by the municipality is always subject to the limitation of the fund available with the respective municipalities and it would also be required for the municipality to appropriately apportion the fund available, keeping in view other duties to be simultaneously discharged by the municipality under the Act. No further discussions may be required, more particularly in view of the peculiar circumstance that the petitioners have also shown willingness to contribute reasonable amount.
It further appears that if one officer is marked of the level of Deputy Collector by the Collector for overseeing the work of the municipality for establishing the non-vegetarian food/meat market, the same would be just and proper and it would also enable the municipality to speedup the work for such purpose by exploring the benefit of the other policies of the Government, available for such purpose, in the establishment of such market, may be by way of the allotment of the land, funds, or any other scheme as prevailing for such purpose.
In view of the aforesaid, I find that following directions shall meet with the ends of justice:
A) The District Collector, Bhavnagar shall mark one officer not below the rank of Deputy Collector for overseeing and supervising the implementation of the project of the municipality for establishment of the non-vegetarian food/meat market at the place, which may be allotted by the Government for such purpose.
B) The municipality shall make appropriate proposal in consultation with the aforesaid officer, who may be nominated by the Collector and also after considering the views of the petitioners for allotment of suitable land away from the residential area for establishing market. Such proposal shall be finalised at the level of the municipality and shall be submitted within a period of eight weeks from today.
C) The District Collector shall examine the proposal and if possible may allot the same land as proposed by the municipality, but in case if the said land is not available or otherwise, another alternative land shall be allotted by the District Collector to the municipality on the prevailing policy of the Government.
D) After the amount is finalised, to be paid by the municipality, the municipality in consultation with the aforesaid officer nominated by the Collector, shall undertake the modalities for construction and the generation of fund for such purpose.
E) It would be open to the municipality to float the scheme providing the opportunity to the interested persons including the petitioners herein and to collect the reasonable contribution for such purpose, ultimately with the intention to provide facility to such person by regulating their activities of sale and purchase of non-vegetarian food.
F) The applications shall be invited for allotment, to be made in accordance with law from all the eligible persons, subject to their fulfilling the requisite conditions and the criteria.
G) The municipality in consultation and under the supervision of the aforesaid officer, shall ensure that the possession of the said land, which is allotted is taken over and the construction of the market is completed as per the scheme and the area/place is allotted to the eligible persons, who have contributed in this regard.
H) The municipality shall also ensure that the construction, which may be made, is by maintaining standard, and by the use of the space for non-vegetarian food/meat market and no pollution is created therefrom and sufficient arrangement is made for water and drainage, so that the nuisance may not be created on account of the non-hygienic condition or otherwise.
I) The officer, who may be nominated by the Collector will have incidental power to finalise the terms and conditions, and also to issue appropriate directions to the municipality for implementation of the present order.
The petitions are disposed of in terms of the aforesaid directions. Rule partly made absolute. No order as to costs.
(JAYANT PATEL, J.) Suresh*