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2017 Supreme(Cal) 150
IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
Shirin Foods Limited & Anr. - Petitioners
Versus
Kolkata Municipal Corporation & Ors. - Respondents
W.P. No. 205 of 2017
Decided On : 11-05-2017
Advocate Appeared:
For the Petitioners: Mr. Anjan Bhattacharya
For the K.M.C. : Mr. Alok Ghosh
The judgment establishes the principle that the actions of the State or local bodies must be fair, non-arbitrary, and reasonable, and should not be discriminatory. It emphasizes the need for fairness and reasonableness in public procurement, and the importance of upholding Article 14 of the Constitution.
Headnote:
E-Tender - Modern Abattoir - KMC Act, 1980, APEDA Act - The judgment discusses the validity of clause 1.3(e) of the E-tender floated by the Kolkata Municipal Corporation (KMC) for the operation and maintenance of a modern abattoir. The court examines the authority of KMC to divide the maximum capacity of slaughtering for export and domestic purposes, and the power to grant license or permission for export of meat and meat products. The court holds that the clause is discriminatory and violative of Article 14 of the Constitution, and quashes and sets it aside.
Fact of the Case:
The Kolkata Municipal Corporation floated an E-Tender for the operation and maintenance of a modern abattoir. The petitioner challenged clause 1.3(e) of the E-tender as arbitrary and discriminatory, contending that it offends Article 14 of the Constitution. The Corporation had previously issued licenses for slaughtering buffaloes for domestic purposes and had faced legal challenges in this regard.
Finding of the Court:
The court found that the clause dividing the maximum capacity of slaughtering for export and domestic purposes was discriminatory and violative of Article 14 of the Constitution. It held that KMC had no authority to grant license or permission for export of meat and meat products, and that the clause was irrational and lacked reasonableness.
Issues: The main issue was the validity of clause 1.3(e) of the E-tender, and the authority of KMC to divide the capacity of the abattoir for export and domestic purposes.
Ratio Decidendi: The court's decision was based on the lack of authority of KMC to grant export licenses, the absence of provisions in relevant acts empowering the division of slaughterhouse capacity, and the discriminatory nature of the clause. It emphasized the need for fairness, non-arbitrariness, and reasonableness in the actions of the State or local bodies.
Final Decision: The court quashed and set aside clause 1.3(e) of the E-tender, and permitted the Corporation to float a new E-tender without the discriminatory clause. No costs were awarded.
Harish Tandon, J.
The Kolkata Municipal Corporation floated E-Tender inviting an application for operation and maintenance of the newly established modern abattoir for slaughter of the animal. Clause 1.3 (e) of the notice inviting E-tender mentioned that the abattoir complex will run in two shifts and the first shift will be dedicated to the authorised licensee of the Corporation to slaughter 400 animals upon payment of a slaughter charges fixed by the Corporation and meant for local consumption whereas the second shift will be operated by the bidders for private business/value addition or export of meat products. The successful bidder shall be handed over the abattoir complex upon execution of agreement for a period of 10 years on license/rental basis. The petitioner feels grieved by clause 1.3 (e) of the NIT being arbitrary, irrational and discriminatory and offends Article 14 of the Constitution of India. Principally, the NIT is challenged in the instant writ petition on the above ground.
2. The undisputed facts are that the Corporation established the modern abattoir for slaughter of the animals having a maximum capacity of 1200 slaughters per day. Since the Corporation finds difficulty in operating and maintaining and/or managing the said modern abattoir, it floated E-tender inviting application from various bidders to operate and maintain the same on a lease/rental basis and an agreement in this regard shall be executed in favour of the successful bidder.
3. Previously, the application of the petitioner company made to the Kolkata Municipal Corporation (KMC) was considered and was allowed permitting 200 slaughters of buffaloes per day in the said modern abattoir. The said licence was issued for the year 2012-13 stipulating that the slaughtering will commence only after the new abattoir start functioning and/or operating. The petitioner-company applied for renewal of the license for the year 2013-14 but the same was kept in abeyance which compelled the petitioner to move before the Court by filing W.P. 27729 (w) of 2014. The said modern abattoir became operational on and from 1st September, 2014 and the application filed by the petitioner company for renewal was disposed of by the K.M.C on 5th December, 2014 in terms of the order passed in the said writ petition.
4. The order reveals that the said license is granted only for domestic purposes which was challenged by the petitioner company in W.P. 4091 (w) of 2015 on various grounds including that the Corporation has no authority to restrict the right to carry on trade or business. The said writ petition was disposed of 6th October, 2016 holding that the KMC authority had no authority or power to restrict the manner in which the petitioner may deal with the buffalo meat, after slaughtering the buffalo in the said abattoir. The power to export the end product is vested with the Agricultural and Processed Food Products Export Development Authority (APEDA) Act. It was ultimately held that if the KMC have issued the license to the petitioner company, it is reasonably expected that it would issue the similar license for the future, if proper application is made provided the petitioner is found otherwise eligible.
5. The application of the petitioner company for issuance of the license or permission for the year 2016-17 was taken up by the Chief Municipal Health Officer, KMC and the permission was granted for slaughtering 15 buffaloes in a day in the said modern abattoir set up by the KMC. The said order was further challenged in W.P. 136 of 2017 which was disposed of on 13th April, 2017 with a categorical finding that the said impugned order does not suffer from any illegality and/or infirmity at least on a day when it is passed. It was observed that once the Co-ordinate Bench in an earlier writ petition did not interfere with the agreement entered into between the KMC and the other company who obtained license and permission from APEDA for export of the buffalo meat and t
