\d'b‘eg HIGH COURT OF CHHATTISGARH AT BILASPUR [a APK W.P. {c} No.2157 OF 2007 PETITIONER Indian Broiler‘ Farm, Juni Ha’rr'i, Rajnandgaon. Vs RESPONDENTS Sfa’re of Chhaffisgar'h & ofhers. POST FOR ORDER ON 11-3-2008 :\ Sd/- Dhirendra Mishra I Judge Z W.P. [c] No‘2157 OF 2007 I le PETITIONER ndian Broir Farm, Juni Hafri, Rajnandgaon, A parfner'ship firm regis‘rered under the Indian Partnership Act, Through ifs Officer-in—Charge, Bilaspur Region, Mohsin Ali, s/o Late Shamsher Ali, Aged about 31 years, R/o Rajzndra Nagar, Bilaspur, Chhattisgarh. Vs M‘ kESPONDENTS 1. S’m’re of Chha‘r‘risgarh, Through fhe Secretary, Department of Urban Developmenf and Administrah’on, D.K.S. Bhuwan, Mon’rralayc, Raipur, Chha’r’risgurh. The DirecTor, Deparfmen‘r of Urban Developmenf and Adminisfrm‘ion, Sfa‘re of Chhatfisgarh, Raipur, Chha'r‘risgarh. The Collecfor, Disfric‘r: Rujnandgaon, Chh‘oftisgarh. The Sub Divisional Magis’rra're, Rajnandgaon, Chha‘Hisgarh. Municipal Corporafion, Rajnandgaon, Through i’rs Commissioner, Rajnandgaon, Chha’rtisgarh. The Commissioner, Municipal Corporation, Rajnandgaon, Chhaf’risgarh. The H'eal’rh Officer, Municipal Corporation, Rajnandgaon, Chha'h‘isgarh. Inspec’ror under fhe Chhafiisgarh Shops and Es‘rablishmen’rs Ac‘r, 1958, Rajnandgaon, Chhaf'risgarh. \ Preéanf: Mr. Rajeev Shrivas‘rava, Advocate. Mr. Bhaskar- Pyasi, Panel Lawyer. Mr'. Sonjay K Agarwal, Advocafe. For ihe pefi’rioner. For respondenf No.1 To 4 & 8. For responden'r No. 5 fo 7. ORDER (Passed on 11*“ March, zoos) Dhirendra Mishra, J 1. The petitioner by this petition under Article 226 of the Constitution of India has impugned the order of Annexure P-18 dated 27.12.2006 passed by respondent No.6-Commissioner, Municipal Corporation, Rajnandgaon whereby the application of HIGH COURT OF CHHATTISGARH AT BILA5PUR Page 2 of 9 /\ W The pe’rifioner' for gran? of license 1'0 sell dressed chicken for fhe year 2006—07 has been rejec’red. 2. Briefly stated caSe of 'rhe pe'ri’rioner- is ‘rha‘r The pe’rilioner is running a shop a‘r Juni Halri, Ward No.23, Rajnandgaon i.e. wifhin The municipal limifs of respondenf No.5-Municipal Corporafion, Rajnandgoon. The pefifioner‘ has been issued registrafion cerfifica're under ’rhe C.6. Shops (Si Es‘rablishmenf Ac’r, 1958 (for shorf ‘Acf of 1958') for doing The business of \broiler (species of chicken), which has been subsequenfly F renewed for fhe period up’ro 2009. Responden‘r No.5 vide Annexure P-5 gran‘red license 1’0 fhe pefifioner for selling dressed chicken of Juni Hafri, Rajnandgaon for a period 1.5.2004 fo 31.5.2005. They subsequenfly received fee for renewal of license vide Annexure P-7, however, vide nofice of Annexure P—8 dafed 18.8.2005 respondenf No.5 directed fhe pefi’rioner fo close fhe shop established for selling chicken. The pe’rifioner challenged fhe said order of Annexure P-8 before ’rhis Cour‘r and fhis Cour‘r vide inferim order dafed 31.8.2005 (Annexure P-9), passed in W.P. No.3964/05, sfayed The operaTion of order of Annexure P—8. However, The said ;peTiTion was dismissed on 9.11.2005 as having become ~\infrucTuous. L 3. During The pendency of The earlier wriT peTiTion, The peTiTioner submiTTed applicaTion daTed 16.2.2006 (Annexure P—11) before respondenT No.5 for issuing license To sell chicken. RespondenT No.5 submiTTed a memo before The CollecTor and Sub Divisional MagisTraTe of Rajnandgaon and pursuance Thereof The Sub Divisional MagisTraTe issued a show cause noTice To The peTiTioner under SecTion 133 of The Code of Criminal Procedure, 1973 (for shorT ‘Code'), however, The proceeding under SecTion 133 of The Code was filed and show cause noTice issued To The peTiTioner under SecTion 133 of The Code was rejecTed wiTh an > obServaTion ThaT The peTiTioner is regularly Taking care of Page 3 of 9 W ‘\ sani’ra‘rion and removal of garbage e’rc. and fur?her thaf The ma’r’rer' is pending before fhi‘s Cour'f. When respondenf No.5 failed to ‘l‘ake any ac’rion on The application davfed 16.2.2006, The pe’ri'rioner filed ye’r anO‘rher‘ pe‘l‘i‘rion‘bear‘ing W.P. (C) No.6610/06 for suifable direction To respondenT CorporaTion for' issuing license. However, The above peTiTion was also disposed of by This CourT vide order doTed 5.12.2006 (Annexure P-16) wiTh The obServoTion ThaT The peTiTioner may make an \appiicaTion wiTh requisiTe license fees and in Turn, The ,, \‘respondenT CorporaTion shall consider and decide The same, in accordance wiTh law. However, The applicaTion of Annexure P-17 daTed 14.12.2006 filed by The peTiTioner in pursuance of This CourT's order daTed 5.12.2006 was rejecTed by respondenT No.6 vide impugned order daTed 27.12.2006 (Annexure P-18). 4. RespondenTkNo.5 To 7 in Their reply and addiTionaI reply has sTaTed ThaT The peTiTioner has applied for granT of license To sell The dressed chicken aT Juni HaTri, Rajnandgaon from The shop in quesTion, which is siTuaTed aT Juni HaTri, The area meanT for residenTial/commercial uses. However, The earmarked area of Municipal CorporaTion is divided in Three parTs i.e. (a) Fish/meaT markeT area. (b) FruiTs markeT area. (c) VegeTable markeT area. The above division is conTinued for The lasT‘ 30 years even before The consTiTuTion of Municipal CorporaTion and The CorporaTion is sTricTly adhering To The aforesaid division of markeT areas and license To sell dressed and undressed chicken has been granTed only in The fish/meeT markeT area and for no oTher place. The peTiTioner is aT liberTy To make an applicaTion before The respondenT CorporaTion To sell dressed and undressed chicken aT fish/meaT markeT area, as shown by The corporaTion, 'and ThaT shall be considered in accordance wiTh law. AllegaTions of discriminaTion ThaT The peTiTioner is singleld, 1 Page 4 of 9 ouf, whereas, 20—25 ofher' persons are aiready selling chicken, mea1‘ & fish a’r other places, was denied and request for appoin’rmen’r of Commissioner was made for submission of inspecfion reporf ’ro demonsfrafe fhe fhings correcHy. 5. Considering The confradicfory sfafemenfs made by learned counsel for respecfive parfies, This Cour‘l' vide order dafed 23.8.2007 appoinfed Commissioner ’ro inspecf The loca‘rion and file a reporf after examining whether any person is selling 7‘ “dressed or undressed chicken outside the earmarked area for the said purpose. The Court Commissioner submitted his report on 19.9.2007 and recording his findings as under:— i. Authorities of Municipal Corporation have shown area map, however, no earmarked area for selling dressed and undressed chicken was mentioned in the map. ii. On visit to the market area with the representatives of both the sides, he found'that there was confined area for the purpose of selling undressed and dressed chicken. iii. Shop of the petitioner was not situated in the confined area. iv. Other shops of dressed and undressed chicken are also situated outside the confined area within the municipal limits. 6. Vide order dated 26.10.2007 the Commissioner was again directed to visit Municipal Corporation, Rajnandgaon and submit his report whether corporation is permitting sell of dressed 6i undressed chicken in other areas apart from the earmarked area and the Commissioner vide his Second report dated 19.11.2007 again reported that;- — Pa9e5of9 @ a) From perusal of the area map of Annexure C-Z i’r is clear ’rhaf no earmarked area 1‘0 sell dressad and undressed chicken is shown in ’rhe map. b) Wi’rhin the fish/mea’r marke’r area a slaughier‘ house, shops of dressed and undressed chicken are doing ’rheir business. c) Excepf ihe aforesaid round shaped marhef area for edible substances no such earmarked area is sifua‘l’ed There. Aforesaid markef area is surrounded by dense commercial and residenfial area where persons are engaged in running shops of general goods and shop of fhe pefifioner is sifuafed wifhin The surrounding denSe residenfial and commercial area. He also falked fo some of The inhabiTanTs and menTioned Their opinion. d) The peTiTioner submiTTed The lisT of oTher shops who are dealing in The business of dressed and undressed chicken and on verificaTion he found ThaT The persons menTioned in The lisT are doing The business wiThin The municipal limiTs. He has also annexed phoTographs of some of The shops menTioned in The lisfr. Even dressed and undressed chicken are being sold by number of hawkers wiThin The municipal limiTs. The CorporaTion on iTs parT informed ThaT no license was issued To The sellers of dressed and undressed chicken ouT of The said earmarked area and The persons, who are doing The business of dressed and undressed chicken ouTside The earmarked area, have been served wiTh a noTice To sTop The business wiThin 24 hours, sudden inspecTion are also conducTed of Their shops and edibles arTicles are seized. 7. Learned counsel for The peTiTioner submiTs ThaT The peTiTioner is in The said business for The lasT more Than 25 years and The peTiTioner has obTained license for doing broiler business under i Page . 6 of 9 r57 fhe Ac‘r of 1958. License has been renewed from time fo Time and currem‘ly if is valid upfo fhe year 2009. The sfand of fhe responden’r Corpora’rion fha'r ’rhere is an earmarked area for doing The business of meo’r & mu'h‘on is, on The face of fhe record, incorrect No documen’r has been filed by fhe respondenT-Corpora‘rion 10 show fha’r any area has been nofified as 'fish/mea’r marke‘r’. The Cour’r Commissioner has ca’regoricaHy given his reporf Thof ’rhe au'rhorifies of Municipal Corporation acould noT show any documenT in which any area is earmarked for fhe above purpose. On The conTrary, from The CourT Commissioner‘s reporT iT is clear ThaT aparT from confined area where slaughTer house, fish markeT and dreSSed 6i undressad chicken shops are siTuaTed, oTher shops are exisTing wiThin The municipal corporaTion area and They are also doing The business of selling of dressed and undressed chicken. Even slaughTer house, fish markeT and chicken shops are IocaTed amidsT dense commercial and residenTial localiTy. He furTher argued ThaT sfand of The CorporaTion ThaT There is earmarked area for The said purpose has been furTher conTradicTed, as The CorporaTion had been issuing license To The peTiTioner for conducTing The V above business and The license was also renewed from Time To Time even afTer 31.5.2005. Whole exercise againsT The peTiTioner is iniTiaTed on accoun‘r of poliTical consideraTion. Proceeding under SecTion 133 of The Code has aISO been dropped wiTh The observaTion ThaT The peTiTioner is observing uTmosT hygiene and cleanliness in The area. On The oTher hand, learned counsel for The respondenT Nos.5 To 7 conTended ThaT The peTiTioner cannoT claim issuance of licenSe as a maTTer of righT. His applicaTion for granT of license was rejecTed as sell of dressed and undressed chicken is noT permissible beyond The earmarked area. The CourT Commissioner has menTioned ThaT meaT markeT, fish markeT and dressed & undressed chicken shops are being carried‘ognmfrom a confined d Page 7 of 9 place and whosever‘ is doing The above business ou’r of ’rhe earmarked area are no’r being granfed license by fhe respondent corpora’rion, o‘n The contrary, The respondenf Corpora‘rion had issued no‘rice to fhOSe perSons and had also seized fheir ar‘ricies offer sudden inspeciion. 9. I have heard learned counsel for 'rhe par’ries. . From fhe documenfs available on record if is seen fhaf ’rhe shop of fhe pe‘li’rioner is regisfered under ’rhe Firms 6i _. »»$ocie‘lies Acf (Annexure'P—é) and ‘rhe above regisfra‘rion has been renewed upto 2009. The Health Officer, Municipal Corporation, Rajnandgaon issued license to the petitioner on 30.6.2004 (Annexure P-5) for a period upto 1.5.2005 and thereafter renewal fee of Rs.50/— was also received by the respondent corporation on 23.5.2005 vide Annexure P-7. On the application of the respondent Corporation, the Sub Divisional Magistrate, Rajnandgaon passed a conditional order dated 26.11.2005 under Section 133 of the Code directing the petitioner to remove the nuisance, however, the said proceeding has been dropped with an inference that the petitioner is regularly removing the garbage and) filth etc. and is maintaining hygiene. 1131;,Application of the petitioner for grant of licenSe (Annexure P- 17) has been rejected by respondent No.6 vide impugned order on the ground that:- a) License for sell of chicken and meat was not granted on the application of the petitioner dated 19.5.2005 because of objections of inhabitants and wayfarers of the locality. b) Though shop of the petitioneris located in the market area, hOWever, the earmarked area is divided into three parts i.e. (i) fish/meat market area; (ii) fruit area; 6i (ii) vegetable market area. The shop is located in dense Page 8 of 9 residential area, which is siTuaTed oufside of The earmarked area, and SecTion 255 (1) of The Municipal .Cor‘por‘a‘rion AC1“, 1956 specifically provides fha‘r no person shall sell animals, mea’r or fish from ou'iside The earmarked area wi‘rhoui permission of ’rhe Commissioner. c) License has been issued To the broiler firm of fhe pefi’rioner for a period of five years from 2005-2009. There is no bye—laws reguia’ring business of poulfry under Seci‘ion 256 (e) of 1‘he Municipal Corpora'l‘ion Ac’r, 1956 and Taking info considerafion fhe above fac’rs fhe license is nof being issued fo The peTiTioner for sale of dressed chicken. License under The AcT of 1958 for five years commencing from 2005-2009 shall deem To be canceled afTer six monThs of The passing The order or new bye- laws framed under SecTion 256 (e) 6i (f)‘comes inTo force, whichever is earlier. 12. RespondenT-Municipal CorporaTion has no? filed any documenT To show ThaT The corporaTion by any resolufion, regulaTion or bye—laws has earmarked any specific area for The purpose of fish/meuT markeT wifhin fhe limiTs of municipal area. On The conTrary, on The applicaTion of The peTiTioner under RighT To InformaTion AcT, 2005 The informafion regarding The deTails of‘earmarked area for dreSSed & undressed chicken was noT furnished. From fhe reporT of fhe CourT Commissioner also iT is clear ThaT There was no map available wiTh The respondenf corporaTion wherein parTicular area of corporaTion has been earmarked for The above purpose. The facT ThaT The peTifioner was granTed license for selling dressed (Si undressed chicken from The shop in quesTion vide Annexure P-5 and renewal fee was also obTained vide Annexure P-7 goes fo show ThaT The license To sell dressed & undressed chicken was being issued beyond The alleged earmarked area. toshanl- Page 9 of 9 . AfTer careful examinaTion of The Commissioner's reporT iT is observed That number of o’rher' persons aparf from The presen'r pe'rifioner' are pursuing their business and Trading in dressed 6i undressed chicken in The various par’rs of The respondenT- Municipal CorporaTion area and in These circumsTances The grounds Taken by respondenT No.6 for rejecTing The applicaTion of The peTiTioner for granT of license is noT born ouT from The documenTs available on record. Refusal To give license would visiT civil and pecuniary consequences To The ~peTiTioner, as The business cannoT be carried on wiThouT license, and iT would also affecT The livelihood of The peTiTioner. 14. Since This CourT has already held ThaT The reasons assigned for refusal of The license are noT made ouT from The documenTs available on record, Therefore, in The considered opinion of This CourT The order of Annexure P—18 daTed 27.12.2006 whereby The applicaTion of The peTiTioner for granT of license To sell dressed and undressed chicken has been rejecTed cannoT be susTained and The same deserves To be quashed. ’. In The resulT, The peTiTion is allowed, impugned order daTed 27.12.2006 (Annexure P-18) is hereby quashed and The respondenTs are direcTed To consider and decide The applicaTion of The peTiTioner for granT of license To sell dressed and undressed chicken from The shop in quesTion afresh in accordance wiTh law afTer giving opporTuniTy of hearing To The peTiTioner and keeping in view The observaTions made in This order. 16. No order as To cosTs. Judge /\ Sdl— l Mishra Dhirend‘a "