IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE SIXTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 16321 of 2008 Between: Are-Katika Mutually Aided, Co-operative Society Limited, H.No.14-2-154, Chandanwadi,Hyderabad 500 012 Rep by its General Manager. ..... PETITIONER AND 1 Government of Andhra Pradesh, Rep by its Principal Secretary, Municipal Administration and Urban Development (F2) Department, Secretariat, Hyderabad. 2 Greater Hydearbad Municipal Corporation, rep. by its Commissioner & Special Officer, Tank Bund Road, Hyderabad. 3 The Commissioner & Special Officer, Greater Hydearbad Municipal Corporation, Tank Bund Road, Hyderabad. 4 The President, Jiyaguda Arya Katika Association, H.No.20-1-569, Gollakidiki, Puranapool, Hyderabad. 5 D. Ashok (Laddu) S/o. D. Gangaji, H.No.20-1-569, Gollakidiki, Puranapool, Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court may be pleased to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents 2 and 3, in granting to respondents 4 and 5, the permission to sell live goat and sheep at Jiyaguda Slaughterhouse premises on nomination basis vide Proceedings No..1579/VET/GHMC/2008 dated 10.06.2008 is arbitrary, illegal and contrary to the provisions of the Hyderabad Municipal Corporations Act, 1955 and amounts to conferment of undue favour in respondents 4 and 5 and consequently set aside the same. Counsel for the Petitioner: MR.B.ADINARAYANA RAO Counsel for the Respondent No.1: GP FOR MUNCIPAL ADMN. & URBAN DEV. Counsel for the Respondent Nos.2&3: Mr. R.RAMACHANDRA REDDY, STANDING COUNSEL FOR GHMC. Counsel for the Respondent Nos.4&5: MR. K.SUBRAHMANYA REDDY, SENIOR COUNSEL APEPARING FOR MR.B.BALREDDY. The Court made the following : O R D E R: The petitioner is Are Katika Mutually Aided Cooperative Society Limited, represented by its General Manager. The proceedings No.1579/VET/GHMC/2008, dated 10.6.2008 issued by the Commissioner and Special oﬃcer, GHMC-3rd respondent granting permission to Jiyaguda Arya Katika Association-4th respondent for sale of live goats and sheep are under challenge in this writ petition. 2. The back ground facts of the case leading to issuance of the proceedings assailed in the writ petition by 3rd respondent, in brief, are : Writ Petitions were ﬁled for closure of existing ﬁve slaughterhouses viz., Gowlipura, Ramanthapur, Amberpet, New Boiguda and Jiyaguda within the jurisdiction of GHMC. As per the orders passed by the Division Bench of this Court in W.P.No.17122 of 1995 and batch, slaughter houses within the city of Hyderabad were directed to be closed w.e.f. 31.12.2003. A new modern abattoir at Chengicherla started functioning from 1.1.2004. The 4th respondent-Association submitted a representation to the Municipal Corporation of Hyderabad seeking permission to sell live goats and sheep at slaughter house at Jiyaguda. The Municipal Corporation of Hyderabad, by order dated 27.07.2004 rejected the representation of 4th respondent-association. The 4th respondent-Association made another representation dated 9.2.2005. When the representation was not considered by the then Municipal Corporation of Hyderabad as well as the Government, the 4th respondent-Association ﬁled W.P.No.3741 of 2005 assailing the inaction of the Government as well as the then Commissioner, Municipal Corporation of Hyderabad. The writ petition came to be disposed of on 2.3.2005. The relevant portion of the order passed in the writ petition reads as under: “ This writ petition was initially disposed of by an order dated 28.2.2005 with a direction to the ﬁrst respondent to treat the representation as revision petition and to pass appropriate orders in accordance with law. However, even before signing the said order, it was pointed out by the learned counsel for the respondents that under Section 679 of the Hyderabad Municipal Corporation Act (for short the Act) the Government can exercise only suo motu powers of revision. Hence, the matter has been listed today for being mentioned and the learned counsel for both the parties have been heard. As can be seen from the material on record, the 2nd respondent has already passed an order dated 27.7.2004 and no remedy of revision is available under the Act against the said order. Hence, the representation of the petitioner dated 9.2.2005 cannot be treated as revision petition and no mandamus can be issued to the 1st respondent to dispose of the same. However, this shall not preclude the petitioner to pursue the remedy, if any, before the appropriate forum. Accordingly, the writ petition is disposed of. No costs.” The 4th respondent-Association persuaded the matter with the government with regard to issuance of permission to sell live goats and sheep at Jiaguda. The Government issued memo dated 15.4.2008 directing the Commissioner and Special Officer, GHMC to review the present situation and take appropriate action to permit the President of 4th respondent-Association to sell live goats and sheep keeping public health in view. Para 3 of the memo needs to be noted and it is thus: “ 3. In the order dated 28.8.2007 in W.P.No.1517 of 2004, the Andhra Pradesh High Court has disposed of the case ﬁled by Sri.D.Ashok (Laddu) as follows: “ This application moved seeking permission to see the live animals at Jiyaguda. We have not passed any order so far, restraining the sale of animals in any area of Andhra Pradesh. Therefore, this application is misconceived and is accordingly dismissed. However, this order will not permit the petitioners to sell live animals, if they are not otherwise permitted to sell, by any law.” 4. The earlier representations and High court of Andhra Pradesh orders have been sent to the Commissioner and Special Oﬃcer, Greater Hyderabad Municipal Corporation, Hyderabad being a competent authority to grant license under Hyderabad Municipal Corporation Act, 1955 for taking necessary action. 5. After careful examination of the matter, Government observed that as per the records, the Hon’ble High Court has neither prohibited the sale of live goats nor permitted the petitioner i.e. President, Jiyaguda Arya Katika Association, Hyderabad to continue the sale. But the then Commissioner Municipal Corporation of Hyderabad has rejected the request of the petitioner on 2.12.2004 on the ground that if the permission is granted, the same would lead to illegal slaughtering and health hazards. 6. Government after careful examination of the matter, hereby direct the Commissioner and Special oﬃcer, Greater Hyderabad Municipal Corporation, Hyderabad to review the present situation and take appropriate action to permit President, Jiyaguda Arya Katika Association, Hyderabad for the sale of live goats keeping public health in view. 7. The Commissioner and Special Oﬃcer, Greater Hyderabad Municipal Corporation, Hyderabad shall take necessary action in the matter.” Pursuant to the memo issued by the Government, the GHMC reviewed the situation and granted permission to 4th respondent Association for sale of live goats and sheep at Jiyaguda subject to certain conditions. As per the conditions enumerated under proceedings dated 10.6.2008, the 4th respondent-Association shall remit 50 percent of the total collection for months i.e. Rs.8,25,750/- and the other 50 percent has to be deposited through post dated nationalized bank cheques of three equal instalments. The period of permission is six months. The said proceedings where under 4th respondent-Association has been permitted the sell of live goat and sheep at Jiyaguda are under challenge in this writ petition. 3. G.Prakash has sworn to the aﬃdavit ﬁled in support of the writ petition. It is averred in the writ aﬃdavit that the 4 th respondent Association is self-styled association and the very title of the 4th respondent Association shows that the said Association does not know the name of the community which is traditionally engaged in activities of butchering etc. It is further averred in the writ aﬃdavit that 4 th respondent Association is set-up by the 5th respondent for the purpose of enriching himself in the name of community and that granting permission to the 4th respondent Association to sell live animals is contrary to law. For better appreciation, I may refer para.9 of the writ affidavit and it is thus: “It is submitted that the action of the respondents 1 to 3 in granting permission to sell live animals is contrary to law. Under Section 538 of the Act, no person shall without a licence sell or expose for sale any four-footed animal, in any place other than a municipal or private market. Section 525 of the Act, all markets and slaughterhouses belong to or managed by the Corporation shall be called municipal markets and under Section 528 of the Act, no person shall without licence carry on trade in municipal markets. Under Section 534 of the Act, the Commissioner is empowered to levy, stall, rents and fees in municipal markets and shall ﬁx the same with the approval of the Standing Committee. It is also held by this Hon’ble Court that under Section 534, the Commissioner had the right to auction the right to collect fees on the sale of right to expose goods for sale in the municipal market. Admittedly, the place where the 4th and 5th respondents were permitted to sell the live animals is a municipal market previously, when the slaughterhouses at Jiyaguda was operating and on its’ closure, with eﬀect from 31.12.2003, the market was also closed. Though there is no prohibition for organizing the market, the respondents 2 and 3 for the reasons better known to them decided to close the market. But now on the application of the respondents 4 and 5 they were allowed to sell live animals subject to payment of the estimated collections on mere representation. This is clearly illegal and hence, this writ petition…..” 4. Notice before admission came to be ordered on 29.07.2008. 5. 2nd respondent ﬁled counter-aﬃdavit. Dr.P.Venkateshwar Reddy, Chief Veterinary Oﬃcer, has sworn to the counter- affidavit. It is stated in the counter-aﬃdavit that the 2 nd respondent is empowered to levy, stallage, rent and fee in municipal markets with the approval of the Standing Committee and that Section 525 of the Hyderabad Municipal Corporation Act, 1955 (for short, ‘the Act’) deals with what to be deemed municipal markets and slaughterhouses. Section 528 of the Act deals with prohibition of sale in a municipal market without licence of the Commissioner. Likewise Section 534 of the Act deals with levy of stallage, rents and fees in municipal markets and slaughterhouses and the only condition is that the right to expose goods for sale in a municipal market or slaughterhouses, rents and fees shall be payable to be ﬁxed by the Commissioner with the approval of the Standing Committee. The other condition in terms of clause (b) of Section 534 of the Act is that the period shall not exceed one year at a time. It is further stated in the counter-aﬃdavit that Section 148 of the Act empowers the Commissioner to dispose of property and interest therein and that the permission to sell live animals at Jiyaguda, is according to the rules and no provisions of the Act are violated. Thus, the impugned proceedings dated 10.06.2008 are legal and proper. 6. Respondents 4 and 5 ﬁled common counter-aﬃdavit. D.shok @ Laddu has sworn to the counter-aﬃdavit. It is stated in the counter-aﬃdavit that the Government has got power under Section 679 of the Act to revive the orders of the Commissioner. In para.7 of the counter-aﬃdavit, it is stated that the 4th respondent Association participated in the several meetings took place for the purpose of modernization of the existing slaughterhouses and the Government in principle decided to modernize the closed slaughterhouses. Para.8 of the counter-affidavit needs to be noted and it is thus: “8. In reply to para.No.6 of the aﬃdavit under reply, it is denied that consequent upon the closure of the slaughterhouses, the municipal markets organized by the 2nd respondent corporation at the slaughterhouses for sale of live animals also came to be closed. What is closed by this Hon’ble Court is slaughtering at the slaughter house but this Hon’ble Court has never prohibited selling of live animals at open places outside the slaughter houses. This Hon’ble Court made it clear in W.P.M.P.No.20483 of 2007 in W.P.No.1517 of 2004 by order dated 28.8.2007 which is extracted hereunder: “This application is moved seeking permission to sell the live animals at Jiyaguda. We have not passed any order so far, restraining the sale of animals in any area of Andhra Pradesh. Therefore, this application is misconceived and is accordingly dismissed. However, this order will not permit the petitioners to sell live animals, if they are not otherwise permitted to sell, by any law”. No pollution will be caused if live goat and sheep are sold. The corporation has got enough power to see that no illegal slaughtering takes place. It is denied that live animals are sold in other markets organized by the corporation and also in private markets.” 7. When the writ petition came up for hearing, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal. 8. Heard learned counsel appearing for the petitioner; learned Government Pleader of MA & UD appearing for the 1st respondent; learned Standing Counsel of GHMC appearing for the respondents 2 and 3, and Sri K.Subrahmanya Reddy, learned senior counsel appearing for the respondents 4 and 5. 9. Learned counsel appearing for the petitioner submits that permitting the 4th respondent Association to sell live goats and sheep at Jiyaguda without notifying the place as a market is impermissible under the provisions of the Act. He further submits that right of collecting fee in the market cannot be entrusted to a private agency and even if it is entrusted, it could not be pick and choose and the said right is to be put in auction or tenders are be called for. Learned counsel took me to the provisions of the Act laying much emphasis on Sections 525, 528, 529, 534 and 538 of the Act. 10. Learned Standing Counsel for the respondents 2 and 3 submits that clause (b) of Section 534 of the Act empowers the Commissioner to grant licence for sale of live goats and sheep and therefore, the order impugned in the writ petition is within the powers of the Commissioner and in which case, the writ petition is liable to be dismissed. 11. Learned Senior Counsel appearing for the respondents 4 and 5 submits that the petitioner is not at all the competitor for licence to sell live goats and sheep since no application has been ﬁled by him seeking permission to sell live goat and sheep at Jiyaguda. Learned Senior Counsel also submits that Section 534(b) of the Act empowers the Commissioner to grant licence for sale of live goats and sheep for a period of not exceeding one year at a time. A reference to Section 428(1) of the Act has also been made by the learned senior counsel during the course of arguments. 12. Indisputably, slaughtering house at Jiyaguda came to be closed with eﬀect from 31.12.2003. The 4th respondent Association made application for permission to sell live goats and sheep at Jiyaguda. When the Corporation did not pass any orders on the application ﬁled by the 4th respondent Association, it moved WPMP No.20483 of 2007 in W.P.No.1517 of 2004. A Division Bench of this Court disposed of the WPMP clarifying that no order has been passed in W.P.No.1517 of 2004 restraining the sale of animals in any area of Andhra Pradesh. Thereafter, the Government issued Memo.No.4288/F2/2007-5, dated 15.04.2008 directing the Commissioner and Special Oﬃcer, Greater Hyderabad Municipal Corporation, Hyderabad, to review the situation and take appropriate action to permit the 4th respondent Association for sale of live goats and sheep. The 2nd respondent Corporation reviewed the situation and proceeded to issue proceedings No.1579/VET/GHMC/2008, dated 10.06.2008 granting permission to the 4th respondent Association for sale of live goats and sheep at Jiyaguda subject to certain terms and conditions. 13. Three aspects are required to be highlighted at this juncture. Firstly, the 4th respondent Association has been making representations for the last more than 4 years seeking permission to sell live goats and sheep at Jiyaguda; Secondly, the petitioner Society has never made any application seeking permission to sell live goat and sheep at Jiayaguda; and thirdly, the permission accorded to the 4th respondent Association is only for six months and out of six months, nearly two months have been elapsed and left over period is only for about four months. 14. One of the contentions advanced by learned counsel appearing for the petitioner is that the place where permission has been granted to sell live goats and sheep to 4th respondent Association is not notiﬁed as market and therefore the permission accorded is liable to be set aside. I do not see any substance in his contention since Jiyaguda Slaughter House was once notiﬁed as a market and slaughtering of animals came to be banned w.e.f. 31.12.2003. Therefore, Jiyaguda continues to be a market. But what is prevented is slaughtering of sheep and goat. Sec.528 of the Act deals with prohibition of sale in a municipal market without licence of the Commissioner. Section 529 deals with opening of new private markets and Sec.534 of the Act deals with levy of stallages, rents and fees in municipal markets and slaughter-houses. The Commissioner has power under section 534 of the Act to auction the right to collect fees on the sale of the right to expose goods for sale in the municipal market. For better appreciation, I may refer Section 534 of the Act, which reads as under: S.534. Levy of Stallages, rents and fees in municipal markets and slaughter-houses: The commissioner may – (a) charge for the occupation or use of any stall, shop, standing, shed or open in a municipal market or slaughter-house and for the right to expose goods for sale in a municipal market, and for weighing and measuring goods sold in any such market and for the right to slaughter animals in any municipal slaughter house such stallages, rents and fees as shall from time to time, be ﬁxed by him, with the approval of the standing committee, in this behalf; or (b) with the approval of the Standing Committee, from the stallages, rents and fees leviable as aforesaid or any portion thereof, for any period not exceeding one year at a time; or (c) put up to public auction, or, with the approval of the Standing committee, dispose of, by private sale the privilege of occupying or using any stall, shop, standing, shed or open, in a municipal market or slaughter-house for such term and on such condition as he shall think ﬁt to impose.” A plain reading of the above referred section indicates that the Commissioner has a power to accord permission with the approval of the Standing Committee for a period not exceeding one year at a time. In the case on hand, the Commissioner has accorded permission to 4th respondent-Association to sell goats and sheep for six months. The power exercised by the Commissioner is well within the provisions of Section 534 of the Act. Therefore, the proceedings impugned in the writ petition are not liable to be quashed. 15. In view of the above, this writ petition is dismissed. No costs. (B.Seshasayana Reddy,J) Date: 06th September, 2008. cs/tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{LS}