Bombay High Court
Bombay Suburban Khatik Association vs Municipal Cornp.Of Gr. Bombay And ... on 9 October, 2018
Author: B.P. Colabawalla
Bench: S.C. Dharmadhikari, B.P. Colabawalla
suresh 905-906-WPG-2473.1991.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2473 OF 1991
Bombay Suburban Khatik Association .... Petitioner
Vs.
The Municipal Corporation of Greater
Bombay & Others .... Respondents
WITH
NOTICE OF MOTION NO.334 OF 2018
IN
WRIT PETITION NO.2473 OF 1991
Bombay Suburban Khatik Association .... Applicant
In the matter between
Bombay Suburban Khatik Association .... Petitioner
Vs.
The Municipal Corporation of Greater
Bombay & Others .... Respondents
WITH
CHAMBER SUMMONS {L} NO.130 OF 2018
IN
WRIT PETITION NO.2473 OF 1991
Maharashtra Khatik Association
Suburban Mumbai .... Applicant
In the matter between
Bombay Suburban Khatik Association .... Petitioner
Vs.
The Municipal Corporation of Greater
Bombay & Others .... Respondents
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Mr. Vijay S. Kurle for the Petitioner.
Mr. A.Y. Sakhare, Senior Advocate, with Mr. Sagar
Patil, Mr. Yeshwant Dhanegave, Mr. Rohan Mirpury,
Mr. Yashwardhan Borse & Mr. Raviraj Shinde for
Respondent No.1-MCGB.
WITH
PUBLIC INTEREST LITIGATION NO.197 OF 2014
{CIVIL JURISDICTION}
Ajay Marathe .... Petitioner
Vs.
State of Maharastra & Others .... Respondents
WITH
CIVIL APPLICATION NO.158 OF 2014
IN
PUBLIC INTEREST LITIGATION NO.197 OF 2014
Mumbra Kausa Peace Educational and .... Applicant/
Welfare Trust Intervener
In the matter between
Ajay Marathe .... Petitioner
Vs.
State of Maharastra & Others .... Respondents
WITH
CIVIL APPLICATION NO.159 OF 2014
IN
PUBLIC INTEREST LITIGATION NO.197 OF 2014
WITH
CIVIL APPLICATION NO.20 OF 2015
IN
PUBLIC INTEREST LITIGATION NO.197 OF 2014
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suresh 905-906-WPG-2473.1991.doc
WITH
CIVIL APPLICATION NO.3 OF 2017
IN
PUBLIC INTEREST LITIGATION NO.197 OF 2014
Ms Siddh Vidya and Ms Ankita Pawar i/by Law Global
for the Petitioner.
Mr. B.V. Samant, AGP, for Respondent Nos.1, 3, 4, 7,
10 & 11.
Mr. Parag Vyas with Ms P.H. Kantharia for Respondent
No.2-UoI.
Mr. A.Y. Sakhare, Senior Advocate, with Mr. Sagar
Patil for Respondent No.5
Mr. Sandeep V. Marne for Respondent No.6.
Mr. Yogesh Shetye, General Manager, Dr. A. Pathan,
Deputy General Manager, Deonar Abattoir, present
in both matters..
Mr. N.V. Patkar, Assistant Superintendent of Market,
present in both matters.
CORAM: S.C. DHARMADHIKARI &
B.P. COLABAWALLA, JJ.
DATE : OCTOBER 09, 2018 P.C:
1. In this petition under Article 226 of the Constitution of India, which is entertained as a PIL, the petitioner has claimed diverse reliefs.Page 3 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 :::
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2. We do not wish to mix up the issues for what we have noticed is that the enactments like the Mumbai Municipal Corporation Act, 1888 ("MMC Act" for short), which is a pre-
constitutional enactment, has now inserted provisions whereby slaughter of animals will take place only in a slaughter-house established by the Municipal Corporation or a licenced slaughter-house.
3. However, on the earlier occasion we had invited the attention of the Senior Counsel appearing for the Municipal Corporation to several provisions in the MMC Act and under the caption "Regulation of Factories, Trades, etc., which mandate that certain articles or animals not to be kept and certain trades, processes and operations not to be carried out, without a licence, and things liable to be seized, destroyed, etc., to prevent danger or nuisance (Section 394). Then, we have a provision in the same statute whereunder the Municipal Corporation has to make extensive arrangements to set up its own markets. By Section 398, which appears under the caption "Maintenance and Regulation of Markets and Slaughter-houses", which was Page 4 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc renumbered by Bombay Act 54 of 1955, sub-section (1) thereof says very clearly that all markets and slaughter-houses which belong to or are maintained by the Corporation shall be called "municipal markets" or "municipal slaughter houses". All other markets and slaughter-houses shall be deemed to be private. Section 399 provides for new municipal markets and slaughter- houses, and then Section 400 provides for closure of municipal markets and slaughter-houses. The Commissioner of the Municipal Corporation, with the sanction of the Corporation and of the State Government, at any time, close any municipal market or slaughter-house, and the premises occupied for any market or slaughter-house so closed may be disposed of as the property of the Corporation.
4. Section 401, which was extensively amended by Maharashtra Amendment 31 of 2018, says that no person shall, without a licence from the Commissioner, sell or expose for sale any animal, and then we have what is inserted by the amendment and that reads as under:-
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suresh 905-906-WPG-2473.1991.doc "In section 401 of the Mumbai Municipal Corporation Act, in sub-section (1), after the words "for sale any animal" the words, brackets and figures, "elegant or exotic bird and elegant or exotic fish (except those animals, birds and fishes prohibited under the Wildlife (Protection) Act, 1972 or under any other law for the time being in force)" shall be inserted."
Opening of new markets, styled as private markets, is dealt with by Section 402, and private markets not to be kept or permitted to be kept open and no place to be used or permitted to be used as a slaughter-house, without licence is contemplated by Section
403. Section 403 reads as under:-
"403. (1) No person shall without, or otherwise than in conformity with the terms of, a licence granted by the Commissioner in this behalf --
(a) keep open [or permit to be kept open] a private market;
(b) use [or permit to be used] any place in [Brihan Mumbai] as a slaughter-house or for the slaughtering of any animal intended for human food ;
(c) use [or permit to be used] any place without* [Brihan Mumbai] whether as a slaughter-house or otherwise, for the slaughtering of any animal intended for human food to be consumed in [Brihan Mumbai].
(2) Provided that- --
(d) the Commissioner shall not refuse, cancel or suspend any licence for keeping open a private market * The correct word, according to us, ought to be 'within' Page 6 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc for any cause other than the failure of the owner thereof to comply with some provision of this Act, or with some regulation framed under section 406 or with some by-
law made under this Act, at the time in force and shall not cancel or suspend any such licence without the approval of [the Standing Committee].
(dd) the Commissioner may with the previous approval of the [the Standing Committee] cancel or suspend, any licence for failure of the owner of a private market to give in accordance with the conditions of his licence a written receipt for any stallage, rent, fee or other payment received by him or his agent from any person for the occupation or use of any stall, shop, standing shed, pen or other place therein;
(e) nothing in this section shall be deemed to prevent the Commissioner from granting written permission for the slaughter of an animal in any place that he thinks fit, on the occasion of any festival or ceremony or under special circumstances.
(f) the Commissioner may suspend the licence of a trader, an owner of a private market or of an abattoir for a period not exceeding sixty days if it is found that the trader or the owner of the private market or, as the case may be, the abattoir is not taking proper measures to keep the premises clean or is not disposing the trade refuse including carcass of dead animals in the proper manner.
(2A) Any animal or flesh intended for human food found in the possession of any person contravening the provisions of clause (b) or (c) of sub-section (1) may be seized by the Commissioner or any municipal officer or servant or by any police officer and any such animal or flesh may be sold or otherwise disposed of as the Commissioner shall direct. The proceeds, if any, arising from such sale shall belong to the Corporation. (2B) For the purposes of this section, the owner or Page 7 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc occupier of any place which is habitually used for the slaughter of animals intended for human food shall be deemed to have used or permitted to be used such place for the slaughter of animal unless he proves that the place was so used without his knowledge.
(3) When the Commissioner has refused, cancelled or suspended any licence to keep open a private market, he shall cause a notice of his having so done to be affixed in the English, Marathi, Gujarati, [Hindi] and Urdu languages on some conspicuous spot on or near the building or place where such market has been held."
5. Then prohibition of sale in unauthorised private markets is dealt with by Section 404, and Section 405 lays down the guidelines or provisions which are required to be followed in private market-building and slaughter-houses to be properly paved and drained. Then we have a provision which is expansive and that is Section 406. It enables regulations to be framed for markets and slaughter-houses. Levy of stallages, rents and fees in municipal markets is dealt with by Section 407, and Section 407A, which deals with removal of live cattle, sheep, goats or swine from any municipal slaughter-house, market or premises, reads as under:-
"407A. (1) No person shall, without the written permission of the Commissioner and without the payment Page 8 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc of such fees as may be [prescribed by the Corporation], remove any live cattle, sheep, goats or swine from any municipal slaughter-house or from any Municipal market or premises used or intended to be used for or in connection with such slaughter-house:
Provided that such permission shall not be required for the removal of any animal which has not been sold within such slaughter-house, market or premises and which has not been within such slaughter-house, market or premises for a period longer than that prescribed under regulations made by the [Corporation] in this behalf, or which has in accordance with any by-law made under this Act, been rejected as unfit for slaughter at such slaughter-house, market or premises.
(2) Any fee paid for permission under sub-section (1) in respect of any animal removed to a Panjrapole shall, subject to the regulations made by the [Corporation] in this behalf, be refunded on the production of a certificate from the Panjrapole authorities that such animal has been received in their charge."
6. Then, by Section 409, power is conferred in the Commissioner to expel persons contravening the by-laws or regulations, and there is a clear provision which prohibits sale or supply of animals, except in a market (Section 410). Section 410 reads as under:-
"410. (1) Except as hereinafter provided, no person shall, without a licence from the Commissioner, [sell or supply or expose for sale or supply] any [animal or bird or any meat or flesh or fish] intended for human food, in any place other than a Municipal or private market:Page 9 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 :::
suresh 905-906-WPG-2473.1991.doc (2) Provided that nothing in sub-section (1) shall apply to fresh fish sold from or exposed for sale in, a vessel in which it has been brought direct to the seashore, after being caught at sea."
7. Now this provision is required to be carefully perused in the light of the arguments which Mr. Sakhare canvasses in this case.
8. We have only reproduced this provision but do not interpret it presently for we are mindful of the fact that we have on board a writ petition of 1991 filed by Bombay Suburban Khatik Association.
9. They have a grievance and in relation to an illegal or unlawful prohibition imposed by the Municipal Corporation on such of those members of this Association who had at one time valid licences. They complain that in the garb of regulatory measures, the Municipal Corporation is not allowing even a lawful trade or lawful legal activity.
10. That is why we only reproduced Section 410. Page 10 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 :::
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11. There is a Licensing of butchers, etc., and that is to be found in Section 411, and Section 412 prohibits import of cattle, etc., into Brihan Mumbai without permission. It is in these circumstances that we are expecting a comprehensive affidavit from the Municipal Corporation.
12. The Municipal Corporation says that it is indeed following the mandate of the three statutes referred by Mr. Jha on the earlier occasion, namely, the Prevention of Cruelty to Animals Act, 1960, the Food Safety and Standards Act, 2006 which also has been extensively referred before us and the Prevention of Cruelty to Animals (Slaughter House) Rules, 2001.
13. It is stated that the Maharashtra Animal Preservation Act, 1976 is also present to the mind of the Municipal Corporation of Greater Mumbai.
14. Hence, some action may have been taken periodically and seizures may have been effected, prosecution launched but what we expect is that once there are provisions like Section 316 and other regulatory measures to be found in Page 11 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc the MMC Act, then, the affidavit should disclose a compliance therewith and till date.
15. The affidavit should indicate the issue or point-wise compliances with the statutes which we referred and equally the provisions in the MMC Act on the subject.
16. We expect such an affidavit to be filed on or before 2-11-2018, with advance copy to the petitioner's Advocate.
17. Mr. Samant, appearing for the State and Mr. Marne, appearing for the Navi Mumbai Municipal Corporation ("NMMC" for short), fairly state that the NMMC till date has not establish its own slaughter house.
18. Mr. Marne says that undoubtedly it is the constitutional obligation of each Municipal Corporation to provide for regulation of slaughter house and tanneries. He says that Section 63(12) of the Bombay Provincial Municipal Corporations Act, 1949 envisages the construction and maintenance of slaughter houses as also the regulation thereof. Page 12 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 :::
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19. In para 3 of this affidavit filed today, Dr. Vaibhav Zunjare, Veterinary Officer, NMMC, very fairly and candidly says that in the entire area of Navi Mumbai which comprises of the NMMC and Panvel Municipal Corporation, currently there is no private or municipal slaughter-house. However, this affidavit in paras 4 and 5 states as under:-
"4. I further say that the matter of construction of slaughter house within the jurisdiction of Navi Mumbai Municipal Corporation is being taken up on high priority with CIDCO. CIDCO has shown willingness to allot Plot bearing Survey No.323B (Pt.), Shiravane, MIDC, adm. 85163.28 sq. meter to the Municipal Corporation on which it is proposed to construct and establish integrated veterinary complex comprising slaughter house, veterinary hospital, dog control center, cattle pound, animal incinerator. Some issues like payment of lease premium to CIDCO, clearance from Forest Department etc. are being ironed out. Once CIDCO hands over the said plot to the Municipal Corporation, the work of construction of slaughter house thereof would be immediately undertaken.
5. I further say that only on the occasion of the festival of Bakri Eid, the Municipal Corporation grants temporary permission for slaughter of only small animals under the provision of section 378(1)(iv) of the Maharashtra Municipal Corporations Act. Such temporary permissions are required to be granted on account of the fact that there is no private or municipal slaughter house within the jurisdiction of Navi Mumbai Municipal Corporation."Page 13 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 :::
suresh 905-906-WPG-2473.1991.doc We accept each of these statements made in this affidavit as undertaking to this Court.
20. We would expect a further affidavit not by a Veterinary Officer but the Municipal Commissioner or such other high ranking officer duly authorised by him which would indicate the concrete steps taken to move the City and Industrial Development Corporation of Maharashtra ("CIDCO" for short), which has identified a plot of land to be handed over to the NMMC for establishing a slaughter-house, as to what steps have been taken to follow-up this measure, was the subject-plot allotted by CIDCO. The affidavit should indicate when the handing over of the plot will take place and when the administrative and budgetary approvals and sanctions would be accorded and granted and when the construction activity will commence and within what time will it be completed. Such an affidavit is expected to be filed on the record of this petition as expeditiously as possible and in any event before 19-11-2018.
21. It is thus clear that this public interest litigant has Page 14 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc moved this Court after noticing that the State Government and the statutory functionaries have grossly neglected the issue of maintenance and up-keep of slaughter houses, licensing of private slaughter houses, prohibition of illegal slaughter display and sale of animal beef, etc., by carrying out such acts in the open. Several instances have been cited in the petition of such illegal acts and committed in broad-daylight on pavements and footpaths and such places which are easily accessible and visible to the public, either passing by or using a busy road, a market area or in a residential zone.
22. Mr. Jha had contended before us that contrary to every stipulation and to be found in the above mentioned enactments to the effect that no slaughter-house or no slaughtering should take place within 100 metres of a religious structure or educational institution or a hospital or in the vicinity of such premises or localities where there are houses and homes constructed for residence, etc., above acts are brazenly going on. No vigil is maintained even though it is claimed that there are Flying Squads and the staff works round the clock to Page 15 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc prevent these activities. It is for the State now to ensure that each of the rules and which are framed under the provisions of the Prevention of Cruelty to Animals Act, 1960 and the Food Safety and Standards Act, 2006 are not flouted or violated in such brazen manner, as is complained by the petitioner. There are, in field, several orders and directions issued by the Hon'ble Supreme Court of India. On the earlier occasion we expected Mr. Samant to make a statement with regard to any pending Supreme Court proceedings on the point or issue in this PIL. That was with a view and to prevent multiple legal actions either in public interest or otherwise on the same question. We have found this tendency amongst PIL petitioners also and when they are aware that there are proceedings pending in the Hon'ble Supreme Court of India styled as PILs, they ought not to be moving the High Court unless the PIL petitions by the Supreme Court are disposed of or the Supreme Court is not seized of any of such questions which are the subject-matter of their PILs. It is our experience that multiple PILs do not serve the larger public interest at all. In fact, conflicting orders and Page 16 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc decisions are rendered and which are counter-productive. Then, the cause suffers. In such circumstances, a compilation of orders handed over by Mr. Samant and perused carefully by us reveals that presently there is nothing pending in the Hon'ble Supreme Court of India or in this Court and as comprehensively brought before us in these petitions. The PILs of the petitioners in the Supreme Court are disposed of but with proper direction. The compliance of that direction also is an issue and we would expect a similar affidavit, as directed by us in the foregoing paragraphs, to be filed by the State Government. That also be filed on or before 19-11-2018.
23. We place this PIL and the Association's petition in the week commencing 26-11-2018, and the same shall be listed on 29-11-2018.
24. Though a chart is handed over to us by Mr. Sakhare setting out the raids, prosecution and other measures taken to prevent illegalities as highlighted in the foregoing paragraphs and particularly by the Special Vigilance Squad, what we have Page 17 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc found is that better co-ordination and co-operation is expected at all levels. On these matters, the State Government and the Municipal Corporations should be acting together or seen to be acting together. It is a matter of public health as well. It is not enough that some measures are taken to prevent pollution for that is but a micro aspect of this whole matter. We have highlighted in the foregoing paragraphs most of the issues and which are equally our concern. We, therefore, expect the State Government not only to guide every Municipal Corporation and Panchayat in the State but to equally control them under the power vesting in the State Government and issue such direction as would bind them and in the event these binding directions are not abided, then, to take such steps and measures as the municipal legislation and the constitutional provisions permit the State to initiate and carry forward. In these circumstances, the presence of the State Government is extremely vital for a proper decision on this issue.
25. While we direct filing of the affidavits, we clarify that we have not expressed any opinion on the legal contentions Page 18 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 ::: suresh 905-906-WPG-2473.1991.doc which have been raised in this PIL as also the petition of Bombay Suburban Khatik Association. None of the directions issued by us shall preclude or prevent the petitioner/Bombay Suburban Khatik Association Khatib as also the petitioner in the PIL from canvassing oral and written submissions in support of their petitions.
(B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.) Page 19 of 19 ::: Uploaded on - 16/10/2018 ::: Downloaded on - 16/10/2018 23:01:50 :::