:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 2757 OF 2008 PETITION NO. 2757 OF 2008 PETITION NO. 2757 OF 2008 Subodh Vithaldas Thakkar. ... Petitioner. V/s. Medical Office of Health & Ors. ... Respondents. WITH WITH WITH WRIT WRIT WRIT PETITION NO. 2758 OF 2008 PETITION NO. 2758 OF 2008 PETITION NO. 2758 OF 2008 Kirit Ramji Thakkar. ... Petitioner. V/s. Medical Office of Health & Ors. ... Respondents. Mr. P.J. Ramchandani for the Petitioners. Ms. T.H. Puranik for the Respondents/B.M.C. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 16TH 16TH 16TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . Rule. Respondents waive service. By consent, Rule made returnable forthwith. Heard both sides. 2. Although, "Horse" is an Animal within the meaning of the Mumbai Municipal Corporation Act and more particularly, Section 394 thereof, whether it is "cattle" so as to attract the provisions of the Maharashtra Keeping and Movement of Cattle in Urban Areas (Control) Act, 1976 (for short ‘the Cattle Act’) is the question that arises for determination in this Writ Petition under Article 226 :2: of the Constitution of India, which is directed against the order passed by the Assistant Commissioner ‘D’ Ward of the Mumbai Municipal Corporation on 24th November 2008. 3. The facts are few and simple. The Petitioner has been keeping horses (11 in number) at the premises which he has more particularly described in the Petition. He states that he has been keeping these horses and maintaining them for the last more than 60 years. His late father, the Petitioner and several others are carrying on activities by using the horses. The Petitioners have stated that the Police Sub-Inspector, Traffic Wing, Mumbai has issued licences to keep horses and to let on hire the Hack Victoria. The Petitioners state that for each horse he has a separate licence. The Petitioner states that the horses are medically checked by the Assistant Commissioner of Animal Husbandry and he issued a Health Certificate. The Petitioner has annexed copies of these licences and certificates. According to the Petitioner, the Police licence is valid till 31st March 2009. The Petitioner states that being illiterate and uneducated, he was under a bonafide belief that the Health Certificate and Licences (copies of which are annexed to the Petition) are the only licences required to carry on horse trade. However, the Respondents, pursuant to an order passed in P.I.L. Writ Petition No.2565 of 2005 issued a Notice dated 1st September 2008 calling upon the Petitioner to remove all his horses outside Mumbai. :3: It is stated that a Notification which has been issued by the State Government and duly published in the Official Gazette on 1st July 2006 directs that the entire area upto Mahim Creek and Sion and beyond the same, that is the suburban District, is a prohibited area for the purposes of Section 10(1) of the Cattle Act. In these circumstances, the cattle is required to be removed from Mumbai and therefore, the Petitioner should also comply with the said Gazette Notification. 4. Upon receipt of this notice, the Petitioner replied through his Advocate on 17th September 2008 and pointed out that the subject Notification under the Cattle Act cannot have any application to him. He stated that cattle is defined under the Cattle Act to mean All or any of the Animals specified in the schedule under the Cattle Act. The Petitioner is trading in Horses and horse is not an animal which is included in the schedule to the Cattle Act. Consequently, the Petitioner prayed that he was not required to remove the cattle outside Greater Mumbai. In such circumstances, no action under the Cattle Act or Section 394(4) of the Mumbai Municipal Corporation Act is necessary. Annexure ‘F’ is a copy of the reply given by the Petitioners’ Advocate. 5. It is not necessary to enter into the controversy as to whether the Petitioner is required to obtain a licence for keeping a horse or an animal under the :4: Corporation Act. It is not disputed before me that horse is an animal and therefore, the provisions of the Corporation Act would apply. Secondly, the Petitioner would be required to obtain licence under the Corporation act and Section 394 of the said Act will apply. The Petitioner does not dispute that he will have to obtain such a licence and has stated before me that he has already applied for issuance of the same. However, apprehending that no cognizance will be taken of his request in the light of the stand taken by the Corporation and the issuance of the Notification under the Cattle Act, that he has approached this Court twice. 6. He filed a Writ Petition being Writ Petition No.2240 of 2008 which was placed before this Court for admission and a Division Bench of this Court recorded the statement that the Petitioner would be heard before any action is taken in pursuance of the notice and disposed off the Writ Petition. 7. Accordingly, the Petitioner appeared before the Assistant Commissioner and re-iterated his stand in the reply given to the Notice dated 1st September 2008. He pressed for a speaking order. After the Petitioner and the Authorities were heard, the Assistant Commissioner has passed the following order :- . "After going through the various written & :5: oral submissions of the Advocate of the client, petitioner’s oral submission, the argument of the Jt. E.H.O. The order of Hon’ble High Court in Writ Petition No.2240 of 2006 and Writ Petition No.2241 of 2008 and Sections of M.m.C. Act, and Maharashtra Keeping and Movement of Animals in Urban Area Control Act, 1976, the undersigned has come to following conclusion. Speaking Order . It is submitted by M.O.H. "D" Ward that the Petitioner’s application for grant of licence will be rejected by M.O.H. ward office as per instructions from the Jt. E.H.O. . Keeping of animals within limits of Greater Mumbai without Hon’ Municipal Commissioner’s permission is prohibited. Besides the Petitioner does not have licence under Section 394 of M.M.C. Act which is required for this purpose. Hence, the Petitioners must comply with the notice requisitions or else M.C.G.M. is at liberty to take action including seizure action under Section 394(4) of M.M.C. Act. Petitioners will be given 15 days time to approach Hon. Court if they desire." :6: 8. It is this conclusion and the order which is impugned in the Writ Petition. 9. Mr. Ramchandani, appearing for the Petitioner contended that the order passed by the Assistant Municipal Commissioner, ‘D’ Ward is ex-facie erroneous and unsustainable. It is vitiated by an error of law apparent on the face of record. He submits that the Petitioner is not trading in cattle as understood and defined in the Cattle Act. He is trading in "Animal" inasmuch as he has kept horses and earns his livelihood by letting them on hire for ceremonies, religions processions, etc. so also for purposes for plying as a Horse carriage. This business has been conducted by him and his forefathers for decades together. It is not as if he is carrying on this activity without any knowledge of the Respondents. He has obtained licence under the Police Act and has been issued fitness certificate by the Authorities, who are empowered to inspect the premises and examine the animals. Once he is carrying on business in pursuance of these documents and the business being a legitimate activity, his right under Article 19(1)G of the Constitution of India cannot be defeated by resorting to the provisions of the Cattle Act, which have no application to him. The Cattle Act deals with cattle and considering the event that took place in the City and Suburbs on 26th July 2005 that the prohibitory order has been issued by the State. Once, the Cattle Act itself has no application, then, the :7: Notification also would not apply. However, the Petitioner still has applied for issuance of requisite licence under the Corporation Act and his application must be decided without in any manner being influenced by the Notice and the Impugned Order. For all these reasons, he submits that the Petition be allowed. 10. On the other hand, the learned Advocate appearing for the Respondent supported the impugned order and stated that it is issued in public interest. Ultimately, keeping Animals in urban areas is a risk and considering the population of the city and the conditions in which the cattle and Animals are kept, this Court should not interfere in the exercise of its extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India. For all these reasons, she submits that the Petition be dismissed. This is the only contention raised by the Counsel for Respondent. 11. With the assistance of the learned Advocate for both sides, I have perused the Cattle Act and relevant provisions of the Bombay Municipal Corporation Act. Admittedly, the foundation of impugned order is the Notification used under the Cattle Act. 12. The Cattle Act is a Act to provide in the public interest for licensing and regulating or prohibiting, keeping and movement of cattle in urban areas in the State :8: of Maharashtra. It is enacted so as to ensure maintenance of public health and sanitation which is endangered due to keeping of a large number of milch cattles in urban areas. The word "Cattle" is defined in Section 2(b) to means all or any of the animals specified in the Schedule. The Schedule to the Act reads as under :- 1. Buffaloes 2. Cows 3. Heifers 4. Calves 5. Bulls 13. A bare perusal of the schedule would show that this is a Act to regulate or prohibit keeping and movement of cattle in urban area. The Act understands cattle as something connected with milch animals. The term "Cattle" is defined in common parlance as well and that definition in the shorter Oxford Dictionary reads thus :- " Large ruminant animals with horns and cloven hoofs, chiefly domesticated for meat or milk or as beasts of burden; cows and oxen." 14. A bare perusal of this definition would mean that it is keeping in consonance with the Schedule to the Cattle Act. While it is true that Dictionary Meaning is not a safe guide for interpretation, it is equally true :9: that the same word will have different meaning in distinct statutes. The object and purpose of the statute and the context in which a particular word appears is equally important. For Example, in Cattle Trespass Act, 1871, the word "Cattle" is defined in a broad and wide sense. It is inclusive and therefore, includes Horses and other Animals. The intention of that Act is to prevent trespassing of Cattle and therefore, a wider definition of this word. That definition cannot be read into and referred in the Cattle Act as is sought to be done. Thus, the Cattle Act is applicable only to the animals which are defined as cattle in the schedule to the Act. In such circumstances, the Petitioners’ request to issue him a licence cannot be rejected only on the ground that the Notification under the Cattle Act or the Cattle Act applies to him. Both being inapplicable to the case of the Petitioner, the impugned order proceeding on the basis that the same is applicable, is vitiated by an error apparent on the face of the record so also by total non-application of mind. It is patently unsustainable and therefore, is required to be quashed and set aside. 15. Before proceeding further it would be advantageous to refer to paragraph 4(g) of the Affidavit in reply of the Respondents. It reads thus :- " I say that as per section 2(b) of the Maharashtra Keeping and Movement of Cattle in Urban Areas :10: (Control) Act, 1976, the definition of cattle means ‘All or any of the animals specified in the Schedule’. As per the order passed by the Assistant Commissioner, ‘D’ Ward the word ‘all’ includes horses too." It is not possible to accept this contention. As is observed above, Horse is an Animal. So are Cattle. However, for the purpose of Cattle Act, All or Any of the Animals specified in the Schedule alone are Cattle. If admittedly, Horse is not specified in the Schedule, it is not permissible to include it by an interpretative process. Unless "Horse" is included in the Schedule, it is not a Cattle, although it is an Animal. It is necessary to remove this confusion or else the result will be that "Horse" can be termed as a Cattle without amending the schedule. It is not disputed before me by the Petitioner that Section 394 of the Mumbai Municipal Corporation Act, 1888 would apply to the Petitioner. The Petitioner does not dispute that he would be required to obtain a licence as the Mumbai Municipal Corporation Act uses a broader term. What is covered by Section 394 is Articles or Animals. Therefore, a reading of Section 394 would reveal that a licence can be granted by a Commissioner to keep or use or suffer or allow to be kept for use, in any premises, any animal. If such a license can be issued after all conditions stipulated for its issuance are satisfied, then, the Petitioners’ request to :11: issue the same cannot be rejected on the ground that the Notification issued by the State Government under the Cattle Act would apply. That conclusion being unsustainable in law, it is directed that the Respondents shall process and deal with the Petitioner’s application for issuance of a licence to him in accordance with law applicable and pass appropriate orders thereon within a period of six weeks from the date of receipt of a copy of this order. 16. Accordingly, Rule is made absolute in terms of prayer clause (B). However, it is clarified that the Petitioner would be required to obtain a licence under the Mumbai Municipal Corporation Act and such an application, if made, be disposed off within the period specified above, in accordance with law applicable to such an Animal. 17. For a period of eight weeks from today and to enable the Respondents to take necessary action on the pending application for issuance of licence, it is directed that the Petitioner shall not be prevented from carrying on his Horse trade from the subject premises if he has other licences and permissions. In the circumstances, however, there will be no order as to costs. 18. Needless to state that if an application of :12: Petitioner for issuance of licence is already rejected by the Respondents and but not on the ground that Cattle Act is applicable or for reasons set out in the order dated 24th November 2008, then, the Petitioner is at liberty to challenge the said orders of rejection in accordance with law. All contentions in that behalf are kept open. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)