Patna High Court - Orders
Om Prakash vs The State Of Bihar & Ors on 6 April, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.2265 of 2009
Om Prakash, son of Late Madan Kishore, resident of Main Road, Nawada,
Police Station Nawada, District- Nawada.
......... Petitioner.
VERSUS
1. The State of Bihar.
2. The District Magistrate, Nawada.
3. The Sub-Divisional Officer, Naawada.
4. The Executive Officer, Municipal Council, Nawada.
....... Respondents.
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03 06.04.2009The petitioner complains against the municipal authorities that they are not competent to restrain him from carrying on business of selling fish from his private premises. Petitioner holds a fish market in his private premises. Municipal authorities are asking him to shift to a designated place. Petitioner has two complains. Firstly, that petitioner has a right to carry on business in his own premises, which cannot be interfered by the municipal authorities and he already has a licence granted by the Civil Surgeon. He then submits that the municipal authorities have not formulated any clear policy. It is submitted that some people are being permitted to carry on their fish business in their private premises, whereas others are being asked to move. There appears to be partisan attitude in this regard making hostile discrimination in the matter.
A notice was issued to respondent no. 4, the Executive Officer, Municipal Council, Nawada, but in spite of notices having been sent by registered post noone has chosen to appear. State has also not chosen to file a counter affidavit as directed earlier.
Having considered the matter, in my view, no purpose -2- would be served by keeping this writ petition pending and it is being disposed of at this stage itself.
In terms of Section 342 of the Bihar Municipal Act, 2007 no person can use any premises other than residential purposes without municipal licence. In terms of Section 344 of the Municipal Act a municipal licence is also required for private markets then Section 345 specifically provides for municipal licence for sale of flesh, fish or poultry. These provisions clearly give authority to the municipality to regulate such markets by issuance of licence. For regulating such markets municipality must evolve a policy which should guide their discretion in the matter. The power cannot be exercised in any arbitrary manner by asking someone to stop the business by ignoring someone's business and by permitting someone to do business or directing someone to shift his business. All these actions have to be taken in a common policy for the entire municipal area. This would avoid people complaining of arbitrary exercise of discretion and hostile discrimination in the matter.
In the present case, the petitioner has obtained a licence from the Civil Surgeon. A reference to the said licence would itself show that it is a licence granted in terms of Prevention of Food Adulteration Act and not in terms of the Bihar Municipal Act, as aforesaid. Petitioner has not even made any application under the provisions of the Bihar Municipal Act, as aforesaid. That being the position, the writ petition itself is not maintainable and is liable to be dismissed.
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Petitioner should first make an application to the municipal authority for grant of licence, who would then consider it in accordance with the provisions, as noted above, expeditiously and without hostile discrimination and take a decision in accordance with law till the time the petitioner is not granted a licence under the Municipal Act. The petitioner cannot operate his private fish market. However, considering that it affects the right to trade and do business the municipal authorities would be well advised to take a decision in the matter within a period of one month from the date of application as made by the petitioner.
With these directions, the writ petition itself stands disposed of.
Trivedi/ (Navaniti Prasad Singh, J.)