SCA/8116/2008 1/24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.8116 of 2008 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 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 ? ========================================================= SUFIYABANU INAYTULLA ANSARI & 4 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR TEJAS M BAROT for MR DHAVAL M BAROT for Petitioners MS MINI M NAIR, AGP for Respondent(s) : 1 & 3 MR MAHENDRA K PATEL for Respondent(s) : 2, ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 27/06/2008 ORAL JUDGMENT 1. Leave to amend the cause-title of the petition is granted. The learned counsel for the petitioners is permitted to carry out the amendment forthwith. SCA/8116/2008 2/24 JUDGMENT 2. Rule. Ms.Mini M.Nair, learned Assistant Government Pleader, waives service of notice of Rule on behalf of the respondent No.1 and newly added respondent No.3. Mr.Mahendra K.Patel, learned counsel, waives service of notice of Rule on behalf of the respondent No.2. In the facts and circumstances of the case and with the consent of the learned counsel for the parties, the matter is heard and finally disposed of, today. 3. This petition has been filed by the petitioners, who are engaged in the business of selling meat, chicken, mutton, eggs and other meat and poultry products from their shops situated in Mehsana. It is the grievance of the petitioners that the respondent No.2 – Mehsana Nagarpalika has sealed the premises of the petitioners and taken away their goods without following due procedure of law. The petitioners have, therefore, prayed that the respondents may be directed to remove the seals from their shops, to return their goods and to compensate them for their losses. 4. The brief facts of the case, as emerging from a SCA/8116/2008 3/24 JUDGMENT perusal of the averments made in the petition as well as the documents annexed thereto, are that the petitioners have been carrying out their small businesses of selling meat, chicken, mutton, eggs and other meat and poultry products from their shops in Mehsana for the last more than fifteen to twenty years. It is averred in the petition that they are maintaining cleanliness and hygiene in their premises and there has never been any complaint regarding the goods sold by them. The allegation of the petitioners is that the respondent No.2 has caused harassment to the petitioners since the very beginning, without any valid reason and the petitioners have applied on several occasions to the respondent No.2 to issue them licences under the Bombay Shops and Establishments Act, 1948 (“the Act” for short) but the respondents have neither issued the licences nor have decided the applications of the petitioners which are annexed as Annexure-A (collectively) to the petition. It is the case of the petitioners that so far as petitioner No.1 is concerned, he was SCA/8116/2008 4/24 JUDGMENT granted a licence under the provisions of the Act in the year 1999. However, this licence was cancelled by the respondent No.2 by order dated 27.11.2000. The petitioner No.1 challenged the order dated 27.11.2000 of the respondent No.1 before the Collector, Mehsana, by filing Dispute Case No.2 of 2001. The Collector, by order dated 12.2.2001, came to the conclusion that the order of the respondent No.2 was not in conformity with the provisions of Rule 50 of the Prevention of Food Adulteration Rules, 1955 (“the Rules, 1955” for short), and the Meat Food Products Order, 1973, and by virtue of the proviso to Rule 50 of the Rules, 1955, the businesses of selling meat and poultry products such as those of the petitioners are exempted from the requirement of licences. The Collector further proceeded to stay the order dated 27.11.2000 of the respondent No.2 and directed the said respondent to take necessary action, after taking into consideration the relevant provisions of law. A copy of the order dated 12.2.2001 passed by the Collector is annexed as SCA/8116/2008 5/24 JUDGMENT Annexure-B to the petition. It transpires from a reading of the averments made in the petition that the respondent No.2 challenged the order passed by the Collector by filing Revision Application No.16 of 2001 before the Secretary, Urban Development and Urban Housing Department, Gandhinagar. Since this was not the correct forum, the revision application was returned to the respondent No.2 with the stipulation that the said revision be preferred before the Director of Municipalities. In the meanwhile, the Collector, vide order dated 15.7.2002, directed the respondent No.2 to implement his order dated 12.2.2001. A copy of this order is to be found at Annexure-D to the petition. It is the case of the petitioners that the respondent No.2 has not taken any steps to challenge the order dated 12.2.2001 passed by the Collector and, on the other hand, they are not giving effect to the same. It is further averred that the respondent No.2 has, time and again, issued notices to the petitioners to close their shops, alleging that they are carrying out their SCA/8116/2008 6/24 JUDGMENT businesses without licences but, at the same time, the applications of the petitioners for the grant of licences are not being decided by them, and neither are they adhering to the stipulations contained in the proviso to Rule 50 of the Rules, 1955. It transpires from the petition that on 7.6.2008, the respondent No.2, without any notice or intimation, came to the shops of the petitioners and took away their goods, utensils, weights, etc. and sealed their premises. According to the petitioners, no Panchnama or report of the items taken from the shops of the petitioners have been given to them. Being aggrieved by the abovesaid action of the respondent No.2, the petitioners have preferred the present petition, and sought the relief mentioned hereinabove. 5. An affidavit-in-reply has been filed by the respondent No.2 dated 22.6.2008. It has been stated in the affidavit-in-reply that the petitioners are engaged in the business of selling mutton on the main road, thereby causing hindrance to traffic and nuisance to public. It SCA/8116/2008 7/24 JUDGMENT is further stated that because of the smell of mutton, public health was also seriously affected and in spite of previous notices being issued to the petitioners, they continued their businesses and, therefore, their premises have been rightly sealed by the Municipality. It is also stated in the said affidavit that the petitioners are allotted the area known as “Chhindivad” of Kasba area for doing their businesses of selling mutton, fish, etc. but the petitioners are not doing their businesses at Chhindivad and are instead continuing with their businesses in an area where such activities are not permitted by the respondent No.2. It is further submitted that the respondent No.2 has received a number of complaints from the local residents of the area regarding the nuisance of smell suffered by them, which is affecting the health of the complainants. It is further reiterated that the petitioners are running their businesses without any licence/ permission being granted to them and since this action is illegal and unauthorized, their shops have SCA/8116/2008 8/24 JUDGMENT rightly been sealed. 6. A rejoinder to the affidavit-in-reply has been filed by the petitioners, reiterating the averments made in the petition and denying those made in the reply. 7. Mr.Tejas Barot, learned advocate for Mr.Dhaval M.Barot, learned counsel for the petitioners, has submitted as under: (i) That Rule 50 of the Rules, 1955, specifically exempts the sale of meat and poultry products covered under the Meat Food Products Order, 1973, from the requirement of obtaining licences. It is submitted by him that the petitioner No.1 had been granted a licence under Section 7 of the Act, in the year 1999, which was revoked by the respondent No.2 by order dated 18.2.1999, on the ground that the licence under Rule 50 of the Rules, 1955, had not been obtained. The order of revocation was challenged by the petitioner No.1 before the Collector, who, by order dated 12.2.2001, stayed the order of revocation. It is urged by the learned counsel for the petitioners that the SCA/8116/2008 9/24 JUDGMENT order of the Collector dated 12.2.2001 has not been set aside by the competent forum till date. The respondent No.2 preferred a revision application before the Deputy Secretary, Urban Development and Urban Housing Department, which was returned to it with the stipulation that the same may be preferred before the Director of Municipalities, but till date, no revision against the order dated 12.2.2001 has been preferred by the respondent No.2. (ii) That the petitioners Nos.2 to 5 have made applications for the grant of licences, which is evident from Annexure-A collectively at pages 10 to 18 of the paper-book. These applications have been made as far back as in the years 1996, 2000 and 2001, but till date, the respondent No.2 is neither deciding the applications of the petitioners nor is it permitting the petitioners from carrying out their businesses in spite of the fact that as per the provisions of Rule 50 of the Rules, 1955, there is no requirement of obtaining a licence for the sale of meat and poultry products. SCA/8116/2008 10/24 JUDGMENT (iii) That the notices issued from time to time by the respondent No.2 have been duly replied to and the last notice which was issued, was in the year 2007. It is submitted that this notice dated 18.4.2007 has been issued on the ground that the business carried out by the petitioners is injurious to health and the petitioners were called upon to close their shops within seven days from the receipt of the same. This notice was replied to by the petitioners by reply dated 24.4.2007. It is emphasized by the learned counsel for the petitioners that thereafter, no action was taken for one year by the respondent No.2 and all of a sudden, on 7.6.2008, the respondent No.2 has sealed the premises of the petitioners without following the due procedure of law. It is emphasized that before sealing the premises of the petitioners, no notice has been given to them and no opportunity of hearing has been provided to the petitioners. On the above grounds, it is prayed that the petition deserves to be allowed. 8. Mr.Mahendra K.Patel, learned counsel for the SCA/8116/2008 11/24 JUDGMENT respondent No.2, has submitted that: (i) The action of the respondent No.2 in sealing the premises of the petitioners has been taken under the provisions of Section 221(2) of the Gujarat Municipalities Act, 1963, since the business carried out by the petitioners is a nuisance to the neighbourhood, dangerous to life, health and property, and, therefore, the action of sealing the premises of the petitioners does not suffer from any illegality. (ii) That the petitioners do not have licences under the provisions of the Act and, therefore, since they are carrying out their businesses in an illegal and unauthorized manner, their shops have rightly been sealed by the Municipality. (iii) That even though the petitioners have made applications for the grant of licences to the Municipality, the same have not been decided by the Municipality for the reason that the petitioners are carrying out their businesses unauthorizedly and, therefore, the licences were not to be granted to the petitioners It is, therefore, submitted that the petition be SCA/8116/2008 12/24 JUDGMENT rejected. 9. I have heard Mr.Tejas Barot, learned counsel for the petitioners, Mr.Mahendra K.Patel, learned counsel for the respondent No.2 and Ms.Mini M.Nair, learned Assistant Government Pleader for the respondents No.1 and 3 and have perused the averments made in the petition and the documents annexed thereto. 10.The principal grievance of the petitioners is that their shops have been sealed by the respondent No.2 and their goods taken away, without following the due procedure of law. In this regard, it has been submitted by the learned counsel for the respondent No.2 that the action of sealing has been taken under the provisions of Section 221(2) of the Gujarat Municipalities Act, 1963. 11.In this background, it will be fruitful to advert to the provisions of Section 221 which pertains to regulation of certain trades, and is reproduced hereinbelow: “221.(1) If it be shown to the satisfaction of the executive committee that any building or place used or intended by any person to be used - SCA/8116/2008 13/24 JUDGMENT (a) for boiling or storing offal, blood, bones and range, (b) for salting, curing or storing fish, (c) for storing hides, horns, or skin, (d) for tanning, (e) for the manufacture of leather or leather goods, (f) for dyeing, (g) for melting tallow or sulphur, (h) for washing or drying wool or hair, (i) for manufacturing or preparing by any process whatever, bricks, pottery or line, (j) for soap making, (k) for oil-boiling or oil extracting, (l) as a manufactory of sageo, (m) as a distillery, (n) for storing hay, straw, fodder, wool, coal or other combustible material, (o) as a manufactory of snuff, (p) for the manufacture of sale of sweetmeats, (q) as a factory, workshop or place of business in which animals are employed or intended to be employed for doing work or in which steam, water or any mechanical power is used or intended to be used, (r) as a manufactory or place of business of any other kind, from which offensive or unwholesome smells arise, or which may involve risk of fire, (s) as a hair dressing saloon or a barber's shop or a Humam Khana, is or is likely to become by reason of such use and of its situation a nuisance to neighbourhood or is so used or is so situated as to likely to be dangerous to life, SCA/8116/2008 14/24 JUDGMENT health or property, the executive committee may by written notice require the owner or occupier - (i) at once to discontinue the use of or at once to desist from carrying out or allowing to be carried out the intention so to use, such building or place, or (ii) to use it in such manner or after such structural alterations as the executive committee in such notice prescribes so that it may not become or may be no longer, a nuisance or dangerous. Explanation 1 – For the purpose of clauses (q) and (r) nuisance shall include any contamination of the atmosphere whereby a deposit of soot is caused or any mechanical noise. Explanation 2 – Nothing in clauses (q) and (r) shall be deemed to affect any provision of the Indian Boilers Act, 1923, or shall authorize any order relating to the fixing or fencing of any engine, mill-gearing, hoist or other machinery in any factory to which the provisions of the Factories Act, 1948, are applicable. (2) Whoever after notice has been given under sub-section (1), uses any building or place or permits it be used in such a manner as to be a nuisance to the neighbourhood or dangerous to life, health, or property, shall be punished with fine which may extend to five hundred rupees, and with further fine which may extend to seventy- five rupees for every day on which such use or permission of use is continued after the date of the first conviction. (3) Upon a conviction being obtained under this SCA/8116/2008 15/24 JUDGMENT section, the Magistrate shall, on the application of the executive committee but not otherwise, order such place to be closed and thereupon appoint persons or take other steps to prevent such place being used for any purpose mentioned in sub-section (1). (4) Whoever uses without licence or during the suspension or after the withdrawal of a licence, any place for any purpose mentioned in sub- section (1) in any municipal borough in which bye-laws are for the time being in force prescribing the conditions on or subject to which, the circumstances in which, and the areas or localities in respect of which, licences for such use may be granted, refused, suspended or withdrawn, shall be punished with fine which may extend to one hundred rupees and with further fine which may extend to twenty rupees for every day on which such use is continued after date of first conviction.” A perusal of Section 221(2), under which the action of sealing has purportedly been taken by the respondent No.2, makes it clear that whoever, after issuance of notice under sub- section (1), uses any building or place or permits it to be used in a manner so as to be a nuisance to the neighbourhood, dangerous to life, health or property, shall be punished with SCA/8116/2008 16/24 JUDGMENT fine which may extend to five hundred rupees, and with further fine which may extend to seventy-five rupees for every day on which such use or permission of use is continued after the date of the first conviction. Section 221(1) provides that any building or place used or intended to be used for the purposes mentioned in Sections 221(1)(a) to (s) can be directed to be discontinued by the executive committee of the Municipality by service of a notice. Section 221(2) comes into play after the stage of issuance of notice, under Section 221(1) of the Act. A perusal of the provisions of Section 221(2) of the Act makes it clear that if, after the issuance of a notice under Section 221(1), the said building or place is used in a manner so as to be a nuisance to the neighbourhood, dangerous to life, health or property, the person using that building or place in such a manner will be levied a fine which may extend to Rs.500/-, with a further fine which may extend to Rs.75/- for every day on which such use is continued, after the date of first conviction. SCA/8116/2008 17/24 JUDGMENT Section 221(3) provides that upon conviction being obtained under the Section, the Magistrate shall, on an application of the Executive Committee, but not otherwise, order such place to be closed and thereupon appoint persons or take other steps to prevent such place being used for any purpose mentioned in sub-section (1) of the Act. Admittedly, the procedure under the provisions of Section 221 of the Act has not been followed by the respondent No.2. This position is not disputed by the learned counsel for the respondent No.2. No notice has been given to the petitioners under Section 221(1), no fine been levied and there is no conviction under Section 221(3) in respect of the petitioners. Further, there is no order from the Magistrate for closure of the premises. 12.The premises of the petitioners have been sealed on 7.6.2008, without any prior notice to them and without giving them an opportunity of being heard. The notice dated 18.4.2007 whereby the petitioners were called upon to close their shops within seven days on the ground of their SCA/8116/2008 18/24 JUDGMENT business being injurious to health was replied to by the petitioners by reply dated 24.4.2007. Since no action was taken for over one year, it can safely be inferred that the respondent No.2 was satisfied by the reply given by the petitioners. No fresh notice was given thereafter. There is nothing on record to show that due procedure of law was followed before the action of sealing was undertaken by the respondent No.2. During the pendency of this petition, the respondent No.2 has returned the belongings of the petitioners on 26.6.2008, pursuant to the order of this Court dated 25.6.2008. The grievance of the petitioners, so far as the seizure of their belongings is concerned, has now been redressed. 13.The only question which remains to be decided is regarding the legality, or otherwise, of the action of the respondent No.2 in sealing the premises of the petitioners. As stated hereinabove, due procedure of law has not been followed by the respondent No.2, inasmuch as no notice has been issued to the petitioners prior SCA/8116/2008 19/24 JUDGMENT to sealing their premises and they have also been denied of an opportunity of hearing. In addition thereto, the action of the respondent No.2 in sealing the premises of the petitioners which, purportedly, has been taken under the provisions of Section 221(2) of the Act, does not conform to the requirements of the said sub- section and cannot be sustained in law. The procedure as detailed in Section 221 has not been followed by the respondent No.2 and even though it is submitted by the learned counsel for the respondent No.2 that the premises have been sealed under the provisions of Section 221(2), the requirements of Section 221, in its entirety have been totally ignored by the respondent No.2. In my considered view, therefore, the action of the respondent No.2 in sealing the premises of the petitioners, is not sustainable in law. 14.At this stage, it would also be pertinent to refer to Rule 50 of the Rules, 1955, which is reproduced hereinbelow: “50. Conditions for licence – (1) No person shall SCA/8116/2008 20/24 JUDGMENT manufacture, sell, stock, distribute or exhibit for sale any article of food, including prepared food or ready to serve food or irradiated food except under a licence: Provided that the fruit products covered under the Fruit Products Order, 1955, solvent extracted oil, deoiled meal and edible flour covered under the Solvent Extracted Oil, De-oiled Meal and Edible Flour (Control) Order, 1967, vanaspati covered under the Vegetable Oil Products (Regulation) Order, 1998, and meat and poultry products covered under the Meat Food Products Order, 1973, shall be exempted from the above rule: Provided further that a producer of milk, who sells milk only to a milk cooperative society which is a member of milk co-operative Union engaged in reconstitution of milk or manufacture of milk products, shall be exempted from this sub-rule: Provided also that no person shall manufacture, sell, stock, distribute or exhibit for sale any article of food which has been subjected to the treatment of irradiation, except under a licence from Deptt. Of Atomic Energy (Control of Irradiation of Food), under the Atomic Energy Act, 1962 (Act 33 of 1962)....” A perusal of the contents of Rule 50 read with the first proviso, makes it clear that the requirement of obtaining a licence to manufacture, sell, stock, distribute or exhibit SCA/8116/2008 21/24 JUDGMENT for sale any article of food, in respect of meat and poultry products covered under the Meat Food Products Order, 1973, is exempted. It is on the basis of this Rule that the Collector has stayed the revocation of the licence of the petitioner No.1 vide order dated 12.2.2001. The decision of the Collector has not been challenged by the respondent No.2 and in spite of the letter of the Collector dated 15.7.2002 to the Chief Officer of the respondent No.2 – Municipality, to give effect to his order and take action in accordance with law, the respondent No.2 has not taken any action for granting licences to the petitioner No.1 or the other petitioners. On one hand, the respondent No.2 is raising the contention that the petitioners are carrying on their businesses without licences and on the other hand, the said respondent is sitting tight upon the applications of the petitioners for the grant of licences, for the past so many years. In effect, the respondent No.2, is itself creating a situation in which the petitioners are carrying on their businesses without SCA/8116/2008 22/24 JUDGMENT licences. Neither are the licences being granted to the petitioners and nor are they being refused. Similarly, neither is the order of the Collector being given effect to and nor has it been challenged by the respondent No.2 before the competent forum. In the above situation, the order of the Collector dated 12.2.2001 is binding