2023 Supreme(Online)(JHK) 9597

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 5175 of 2018

1. Jharkhand Quraish Panchayat and Shopkeeper Welfare Society, Ranchi, through its Joint Secretary, Md. Kazim Quraishi @ Moon Quraishi

2. Mohammad Perwez ….. Petitioners Versus

1. The State of Jharkhand

2. The Secretary, Urban Development Department, Government of Jharkhand, Ranchi

3. The Secretary-cum-Commissioner, Food Safety and Health Care, State of Jharkhand, Ranchi

4. Ranchi Municipal Corporation, Ranchi, through its Municipal Commissioner

5. M/s Arsh & Elham Livestock Exporters (AELE), Ranchi, through its partner/Director, Shri Shahbaz Ahamed

6. M/s Micro Transmission System (MTS), Greater Noida (U.P), through its authorised representative, Shri Shahbaz Ahamed ….. Respondents ----- CORAM HON’BLE MR. JUSTICE RAJESH SHANKAR -----

For the Petitioners: Mr. Indrajit Sinha Ms. Anjali Verma Mr. K. S. Nanda For Respondent Nos.1-3: Mr. Gaurav Raj, A.C to A.A.G-II For Respondent No.4: Mr. Prashant Kr. Singh For Respondent Nos.5-6: Mr. Praveen Chandra -----

24/19.07.2023

The present writ petition has been filed for quashing the public notice as

contained in Letter No. 638/Swa. dated 01.10.2018 (Annexure-7 to the writ petition) issued under the signature of the Municipal Commissioner, Ranchi Municipal Corporation (RMC), Ranchi [the respondent No.4] whereby all the mutton sellers carrying on their business within the municipal area of RMC have been directed to ensure slaughtering of animals (goat/sheep) for supply of mutton only at the Municipal Slaughter House situated at Kanke, Ranchi w.e.f.

18.10.2018 or to ensure getting hygienic mutton from five model mutton shops established by the RMC at fixed places specified in the said public notice and any mutton seller acting in contravention of the said public notice would be liable to be prosecuted in terms with Section 310(3) of the Jharkhand Municipal Act, 2011 (hereinafter referred to as ‘the Act, 2011’) as well as such unhygienic meat would be destroyed by forfeiting the same under Section 467 of the Act,

2011.

2. The factual background of the case as stated in the writ petition is that the members of the petitioner No.1 are engaged in the business of selling goat/sheep meat after obtaining registration certificate from the Food Safety and Standards Authority of India (FSSAI) and the Department of Health, Medical Education and Family Welfare, Government of Jharkhand as well as taking licences from the RMC.

3. The Principal Secretary, Department of Home, Prison & Disaster Management, Government of Jharkhand issued letter dated 27.03.2017 addressed to all the Deputy Commissioners, Superintendents of Police, Municipal Bodies/Notified Area Committees of all the districts of Jharkhand to ensure closure of illegal slaughter houses/Abattoirs and thereafter notices were issued to all the licensees of the mutton shops within the State of Jharkhand for closing their respective shops. Accordingly, all the members of the petitioner No.1 closed their shops. Subsequently, the Principal Secretary, Urban Development and Housing Department, Government of Jharkhand issued a letter on

28.07.2017 directing the Deputy Commissioners of all the districts of Jharkhand to issue licences/No Objection Certificates for slaughter houses/meat sellers under the provisions of Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 (hereinafter referred to as ‘the Regulations, 2011’) as per the guidelines issued vide Departmental Notification No. 170(16) dated 23.11.2015 by the Department of Health, Medical Education and Family Welfare, Government of Jharkhand.

4. Subsequently, a Single Window System was established through the ‘Pragya Kendra’ and the mutton shopkeepers and owners of slaughter houses were directed to register their shops by way of online application. A public notice/press release was also issued in different newspapers and through other modes directing the mutton shopkeepers and owners of slaughter houses for registration of their respective shops, if they were slaughtering goat, sheep and pig up to maximum of 10 in numbers as well as poultry birds up to maximum of 50 in numbers.

5. Thereafter, the members of the petitioner No.1 including the petitioner

No.2 got Registration Certificates of their shops issued by the Food Safety Administration, Department of Health, Government of Jharkhand under Food Safety and Standards Act, 2006 (hereinafter referred to as ‘the Act, 2006’) as well as Clause 2.1.1(5) of the Regulations, 2011 and started carrying on their business/trade of slaughter/sale of mutton in their respective shops. However, the respondent No.4 issued a public notice dated 01.10.2018 directing all the mutton sellers to stop slaughtering of animals for sale of mutton in their respective shops and to sell the mutton only after getting their animals slaughtered in the Municipal Slaughter House established by RMC at Kanke, Ranchi or to ensure getting hygienic mutton from five model mutton shops established by the RMC at fixed places within the city of Ranchi.

6. Learned counsel for the petitioners submits that there are 112 registered shopkeepers engaged in the business of selling mutton in the market after slaughtering the goat/sheep in their respective shops. Section 3(1)(j) of the Act, 2006 defines the term ‘food’ and the product of slaughtering i.e. ‘meat’ comes within the said definition. Sub-section (1) of Section 31 of the Act, 2006 provides that no person shall commence or carry on any food business, except under a license. However, sub-section (2) of Section 31 carves out an exception to the said general rule by providing that nothing contained in Section 31(1) of the Act, 2006 shall apply to a petty food manufacturer who himself manufacturers or sells any article of food or a petty retailer, hawker, itinerant vendor, tiny food business operator etc., but they shall register themselves with such authority and in such manner as may be specified by regulations, without prejudice to the availability of safe and wholesome food for human consumption or affecting the interests of the consumers. In exercise of powers conferred under Section 92(2)(o) read with Section 31 of the Act, 2006, the Regulations, 2011 has been framed which inter alia provides for licensing and registration of Petty Food Manufacturers. The term ‘Petty Food Manufacturer’ has been defined in Clause 1.2(4) of the Regulations, 2011 which includes any food manufacturer whose slaughtering capacity is 02 large animals or 10 small animals or 50 poultry birds per day or less. Clause 2.1.1(2) provides that the petty food manufacturer shall follow the basic hygiene and safety requirements as provided in Part-I of Schedule 4 of the Regulations, 2011. Clause 2.1.1(4) provides that the registering authority shall grant registration only after being satisfied with the safety, hygiene and sanitary conditions of the premises, as contained in Part-II of Schedule 4. Admittedly, all the members of the petitioner association have applied and obtained registration certificates in terms with the Regulations,

2011.

7. Moreover, the Prevention of Cruelty to Animals (Slaughter House) Rules, 2001 [hereinafter referred to as ‘the Rules, 2001’] was framed with an aim to prevent the infliction of unnecessary pain or suffering on animals and to regulate proper functioning of slaughter houses. The term "Slaughter House" has been defined in Rule 2(c) of the Rules, 2001 which states that ‘slaughter house’ means a place where 10 or more than 10 animals are slaughtered per day and is duly licensed or recognized under a Central, State or Provincial Act or any rules or regulations made thereunder. The Rules, 2001 clearly restricts the slaughtering of any animal within a municipal area, except in a slaughter house running under a license issued by the concerned Municipal Authorities. Though the Rules, 2001 does not provide for the licensing procedure, yet it lays down certain conditions which are required to be satisfied to carry out slaughtering of animals in a slaughter house which has to be given effect to and implemented by a licensed slaughter house and so far as licensing of slaughter houses is concerned, it is governed by the Jharkhand Municipal Act, 2011 (hereinafter referred to as ‘the Act, 2011’).

8. The Act, 2011 defines the term ‘slaughter house’ under Section 2(90) and it means any place used for the slaughter of cattle, sheep, goats, kids or pigs for the purpose of selling the flesh thereof as meat. Chapter 30 of the Act, 2011 deals with markets, commercial infrastructure and slaughter houses and under the said chapter, two kinds of slaughter houses are contemplated. Section 307 of the Act, 2011 provides that a slaughter house which belongs to or is maintained by the Municipality, shall be called a municipal slaughter house and all other slaughter houses shall be deemed to be private. Therefore, operation of a private slaughter house is also permitted subject to a license being obtained from the Municipality.

9. Section 310 of the Act, 2011 provides that the Municipality may fix places within the limits of the Municipality and grant licences for use of such places for the slaughter of animals for sale and when such premises are fixed, no person shall be allowed to slaughter any animal for sale at any other place. Section 315 of the Act, 2011 provides for framing of regulations for markets and slaughter houses. It gives the power to the Municipal Commissioner or the Executive Officer to frame regulations not inconsistent with any provision of this Act or of any regulation made thereunder for the time being in force with the approval of the Standing Committee. In order to give effect to the provisions of Section 310 of the Act, 2011, it has been provided under Sections 315 & 327 that the Municipality may make regulations for slaughter houses. In terms with Section 315, the Municipality is empowered to make regulations for achieving 5 purposes mentioned inter alia whereas under Section 327, the Municipality has the power to make regulations prescribing the conditions and circumstances as well as the areas or localities in respect of which licenses for use of any place as a slaughter house/market or shop for the sale of animals., meat or fish intended for human food may be granted, refused, suspended or withdrawn. The Act, 2006 and the Regulations, 2011 provide for registering of "petty food operators" which includes a person who slaughters 2 large animals, 10 small animals and 50 poultry birds per day or less whereas the Rules, 2001 deals with slaughter house which means a place where 10 or more than 10 animals are slaughtered per day and is duly licensed or recognized under a Central, State or Provincial Act or any rule or regulation made thereunder. Both the statutes operate in different fields and there appears to be no overlap.

10. The orders passed by the Hon’ble Supreme Court of India in the case of Laxmi Narain Modi Vs. Union of India & Ors. [W.P. (Civil) No. 309 of

2003] mandating implementation of the provisions of the Rules, 2001 and the same will not be attracted where less than 10 animals per day are slaughtered. The reliance placed thereupon by the respondent Nos. 5 & 6 is completely misconceived inasmuch as the members of the petitioner association have been carrying on the business of slaughtering and sale of less than 10 animals per day and are also registered under the Regulations, 2011.

11. On close scrutiny of the provisions of both the statutes, it would appear that there is no overlap on majority of the aspects and even if there is overlapping on certain aspects, the provisions of the Act, 2006 would prevail. The Act, 2006 does not provide for licensing or declaration of an area where slaughtering of animals can be carried out and such licensing and declaration has to be made under the Municipal law by framing a regulation providing the manner in which an application can be filed and an area can be declared to be fit for slaughtering. However, in absence of such regulations, the prohibition imposed by the statute cannot be given effect to.

12. It would be evident from the impugned letter dated 01.10.2018 that the RMC seeks to impose complete prohibition of slaughtering at any place other than a particular place fixed by the RMC which is ‘Municipal Slaughter House’ situated at Kanke, Ranchi. On harmonious reading of the Act, 2006, Regulations, 2011 and the Act, 2011, it would appear that a ‘petty food manufacturer’ is entitled to slaughter and sell meat and there cannot be complete and permanent prohibition on carrying on such trade and business. Total prohibition imposed through the impugned letter issued by the RMC not only violates the provisions of the Act, 2006 and the Act, 2011, but also infringes the fundamental right of the petitioners to carry on business in terms with Article 19(1)(g) of the Constitution of India as it is not possible for every meat shop owner to get the meat slaughtered in the slaughter house particularly when there is only one slaughter house established by the Ranchi Municipal Corporation at Kanke, Ranchi.

13. The impugned public notice will not only lead to monopoly in the trade of meat, but will also create uncertain market conditions of panic and chaos among the mutton sellers thereby adversely affecting their business interest particularly in the morning hours when there use to be huge demand and supply of meat. The respondents have not indicated any provision in the Act, 2011 under which a license can be obtained by the petitioners to carry on the business of slaughtering and sale of meat/mutton and as such it is impossible for the members of the petitioner No.1 to obtain any license for the said purpose. The law excuses non-performance of an impossible act. Until and unless regulations are framed by the Municipality in terms with Sections 315 & 327 of the Act, 2011, any person intending to carry on the business of slaughtering and sale of meat/mutton cannot be prohibited in terms with Section 310 merely on the ground that the Municipality has constructed a Municipal slaughter house. The Act, 2011 does not contemplate creation of a monopoly by the Municipality in its favour and if it is sought to be done, the same has to be struck down being unconstitutional.

14. It is further contended that generally the members of the petitioner No.1 open their shops for sale of mutton at around 6:30 A.M in the morning and most of the customers buy meat in the early morning hours. However, under the proposed system, the members of the petitioner No.1 will have to take the animals to the slaughter house, wait for their respective turn and after slaughtering of animals, the carcass will be returned after mandatorily keeping the same in deep freezer for approximately 2 hours. In any event, it is not possible for the members of the petitioner No.1 to predict as to what quantity of meat will be sold by them each day and if the meat obtained from the slaughter house is not sold, then they will have to necessarily keep the same in the deep freezer overnight or may be more than that. The position of supply of electricity in city of Ranchi is not good and thus one cannot depend on deep freezer to store meat even for one night. If there is erratic supply of electricity, the meat/mutton will get rotten which cannot be sold causing loss to the members of the society.

15. Per-contra, learned counsel for the respondent Nos. 5 & 6 submits that the petitioners are having licences either for mutton shop or for retail meat processing unit and the relevant statutes does not allow slaughtering of animals in shops, rather such activity can only be carried out in a designated slaughter house after satisfying all the required criteria for lawful operation and functioning of slaughter house. The Hon’ble Supreme Court in the case of Laxmi Narayan Modi (Supra) took note of the fact that many slaughter houses were being run without obtaining statutory consent and hence issued direction that all those unauthorized slaughter houses be closed down immediately and be not allowed to operate unless they obtain necessary licence as per the rules and regulations. It was further held that no licence should be granted to any of the slaughter houses which does not fulfill the conditions as per the Rules, 2001.

16. It is further submitted that there are three stages for vending meat i.e. slaughtering, processing and selling. Moreover, all the three stages are different from each other and the issue in question is concerned with the first stage of vending meat. However, the petitioners i.e. mutton sellers come into picture at the third stage of vending meat, who cannot seek privileges of first stage of vending meat. Rule 3 of the Rules, 2001 provides that the animals should not to be slaughtered, except in recognized or licensed houses.

17. It is also submitted that the members of the petitioner No.1 have no locus standi to file the present writ petition as they are the shop owners and not slaughter house owners. Moreover, the petitioners have alternative/efficacious remedy to represent the adjudicating officer under Section 68 of the Act, 2006 since Section 72 of the said Act ousts the jurisdiction of Civil Court in respect of any matter which an adjudicating officer or the Tribunal is empowered by or under the said Act to determine. The petitioners may also seek remedy by pursuing their cause before the Competition Commission of India under the Competition Act, 2002 (hereinafter referred to as ‘the Act, 2002’) since Section 61 of the said Act ousts the Civil Court jurisdiction with respect to monopoly. A long-standing practice which has been declared as illegal by the legislature and further upheld by the Hon’ble Supreme Court in the case of Laxmi Narain Modi (Supra) with a detailed direction for strict implementation of the laws relating to slaughtering of animals, the same cannot be allowed to continue only on the pretext of such long-continuing practice.

18. Article 19(1)(g) of the Constitution of India is subject to reasonable restriction as provided under Article 19(5). There is no complete prohibition of slaughter of animals, rather vide impugned notice dated 01.10.2018, the respondent No.4 has only informed the public at large to have their animals slaughtered as per statutory norms by persuading the intending persons dealing in the business of selling meat/mutton to follow the law which has been made by taking care of citizen’s health to provide hygienic meat/mutton for consumption as well as taking note of environmental impact by ensuring proper disposal of the waste which comes out of slaughter house. It has also been ensured that the animals going to be slaughtered should bear least amount of pain which comes under the ambit of reasonable restriction. The apprehension of the members of the petitioner No.1 that on implementation of the impugned notice, they will be unemployed, lacks any basis as they are only required to get their animals slaughtered in the recognized slaughter house of the RMC for supplying mutton by paying a minimal service charge and then to sell the meat which will be procured from the slaughter house. The members of the petitioner

No.1 being the registered mutton shop owners are duty bound to keep deep freezers in their shops also ensuring uninterrupted power supply in order to maintain the quality and freshness of meat.

19. It is further emphasized that every right has a collateral duty attached to it and as such right to profess business of mutton comes with a duty to ensure keeping of deep freezer with proper electric supply. The logistic inefficiency on the part of the members of the petitioner No.1 cannot be a ground to allow them to operate illegal business of slaughtering of animals as well as selling of meat in their mutton shops in contravention of the various statutory provisions operating in the field and the direction of the Hon’ble Supreme Court of India as the same will amount to extending benefit of its own wrong to a person which is not legally permissible. Moreover, Part-IV of the Schedule-4 and Regulation

2.1.2(5) of the Regulations, 2011 provides for the basic requirements (safety, sanitary and hygiene) of slaughter houses/food business operators engaged in manufacture, processing, storing and selling of meat and meat products as well as procedure which needs to be followed before and during slaughtering to ensure humane slaughtering of animals. Any violation of the said provisions may amount to inflicting unnecessary pain and suffering as it is the right of animals to receive proper treatment before slaughtering coupled with the fact that they should not be slaughtered in presence of other animals and there is mandatory requirement of stunning them before slaughtering by inducing unconsciousness through various methods which needs to be strictly adhered to as the said process can avoid and minimize reactions of fear and anxiety as well as pain, suffering and distress in the concerned animals.

20. Learned counsel appearing on behalf of the respondent-RMC submits that Section 310 of the Act, 2011 empowers the Municipality to fix places and further to grant licenses for use of such places for slaughtering of animals for sale. It further provides that no person shall be allowed to slaughter animals for sale at any other place than the one fixed by the Municipality. In compliance of the said provision, a public notice was published in the local newspaper prohibiting open slaughtering of animals. An advanced slaughter house established by the RMC at Kanke, Ranchi is operational since 04.07.2018 which is a place designated for slaughtering of animals to supply meat/mutton as mandated in the Act, 2011. Slaughtering of animals is done at the said slaughter house in a scientific and hygienic manner which prevents contamination of meat. There is a veterinary doctor at the slaughter house who examines the concerned animals before slaughtering thereby ensuring that no sick or unhealthy animal is slaughtered. Open slaughtering of animals is also against the public sentiments as also the method applied in open slaughtering amounts to cruelty. The RMC does not intend to restrict the mutton sellers from running their business/livelihood, rather to merely persuade them to ensure that henceforth no open slaughtering should take place. There are studies which do prove that meat kept in non- chilled condition after slaughtering leads to bacterial growth thereby contaminating the meat, which makes it unhealthy for human consumption. The meat sellers have not been given licenses to slaughter animals and hence they cannot slaughter animals at any open place other than the fixed/designated slaughter house. A regulation, namely, Ranchi Municipal Corporation Regulation for Municipal License for Slaughter House, 2017 [hereinafter referred to as ‘the Regulation, 2017’] was also drafted under Section 592 of the Act, 2011 and sent to the State Government for its approval and publication in the official gazette under Section 594(1) of the Act, 2011.

21. Learned counsel for the respondent-State of Jharkhand contends that the respondent No.4 had submitted the draft proposal of the Regulations, 2017 to the Urban Development and Housing Department, Government of Jharkhand which was sent to the Department of Law and Justice, Government of Jharkhand for vetting whereupon the said department has opined that the provision of the Act, 2006 will prevail over the power of the RMC to frame regulation. It has been further opined that Food Safety and Standards Authority of India, a statutory body established under the Ministry of Health & Family Welfare, Government of India has already made the Regulations, 2011 in exercise of the power conferred under Section 92 of the Act, 2006 and in the said Regulations, the construction and operation of slaughter house is also described.

22. In view of Section 89 of the Act, 2006, the provisions of the said Act have overriding effect over all other food related laws. As per the opinion of the Department of Law & Justice, Government of Jharkhand, the Urban Development and Housing Department, Government of Jharkhand as well as Urban Local Bodies working under it, are not competent to frame the Regulations, 2017 in accordance with the Act, 2011. Moreover, a State Level Slaughter House Committee was constituted in view of the order passed by the Hon’ble Supreme Court in the case of Laxmi Narayan Modi (Supra) in the meeting dated 07.08.2018 held under the Chairmanship of the Secretary, Urban Development and Housing Department, Government of Jharkhand wherein it was resolved that the direction of the Hon’ble Supreme Court would be complied by the Department of Health, Medical Education and Family Welfare, Government of Jharkhand. The role of local authority is only to issue ‘No Objection Certificate’ to the slaughter house operators before grant of license as stated in Clause A(1.1) of Part-IV (specific hygienic and sanitary practices to be followed by food business operators engaged in manufacture, processing, storing and selling of meat and meat products) of Schedule-4 of the Regulations, 2011 and to that effect letter No. 1604 dated 11.05.2022 has been issued by the Urban Development and Housing Department, Government of Jharkhand to all the Municipal Authorities/Urban Local Bodies.

23. Heard learned counsel for the parties and perused the relevant materials available on record. The members of the petitioner No.1 are aggrieved with the impugned public notice issued vide letter dated 01.10.2018 whereby the respondent No.4 has informed the mutton sellers including the members of the petitioner No.1 carrying on their business within the jurisdiction of Ranchi Municipal Corporation, Ranchi to ensure that slaughtering of animals for supplying mutton is done only at the Municipal Slaughter House situated at Kanke, Ranchi or to get hygienic mutton from the five model mutton shops constructed at fixed places by the RMC.

24. Learned counsel appearing on behalf of the respondent Nos. 5 & 6 has also raised the question of maintainability of the writ petition by submitting that the petitioners have alternative/efficacious remedy before the Competition Commission of India under the Competition Act, 2002 as Section 61 of the said Act ousts the jurisdiction of Civil Court with respect to the issues of monopoly. It is further contended that Section 72 of the Act, 2006 also ousts the jurisdiction of Civil Court to entertain any suit or proceeding with respect to any matter of food safety for which an Adjudicating Officer or Food Safety Appellate Tribunal is empowered by the Act, 2006 to determine the same. Hence, considering the nature of issue raised by the petitioners, it needs to be adjudicated by the Adjudicating Officer under Section 68 of the Act, 2006.

25. To appreciate the said contention of learned counsel for the respondent Nos. 5 & 6, it would be relevant to refer the judgment of the Hon’ble Supreme Court rendered in the case of M.P. State Agro Industries Development Corpn. Ltd. & Anr. Vs. Jahan Khan reported in (2007) 10 SCC 88 wherein it has been held as under:

“12. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC

1], Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] , State of H.P. v. Gujarat Ambuja Cement Ltd. [(2005) SCC

499] and Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd. [(2005) 8 SCC 242]”

26. In the case of Radha Krishan Industries Vs. State of Himachal Pradesh & Ors. reported in (2021) 6 SCC 771 , the Hon’ble Supreme Court has held thus:

“27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.

27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.

27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the