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2019 DIGILAW 2747 (ALL)

Mufeed Ali v. State Of U. P.

2019-12-10

AJIT KUMAR, RAMESH SINHA

body2019
JUDGMENT : 1. Heard Sri Shashinandan, learned Senior Advocate assisted by Sri Vikas Budhwar, learned counsel for the petitioner, Sri Atul Tej Kulshrestha, learned counsel for the respondent Nos.3 and 4, Sri Arun Kumar Srivastava, learned Standing Counsel for respondent Nos.1 and 2 and perused the record. 2. By means of this petition under Article 226 of the Constitution of India the petitioner has questioned legality and propriety involved in the order dated 27.11.2019 whereby the petitioner's licence of the cattle fare/cattle market on his own land has come to be cancelled. He has accordingly, sought quashing of the order dated 27.11.2019 which has been filed as Annexure 7 to the writ petition. 3. Briefly stated facts of the case are that the petitioner having licence to run cattle market over his own land, was initially aggrieved against the notice dated 15.11.2019 whereby the running of the cattle market over the land of the petitioner was stopped on certain grounds regarding sanitation of the place over which the cattle market was being run and that too as a serious threat to the environment and the public at large. The petitioner rushed to this Court and this Court has, accordingly, passed an order on 21.11.2019 in Writ-C No.38021 of 2019 directing the respondent to consider the reply of the petitioner to get the spot inspection done of the place where the market was being run and that too in presence of the petitioner and thereafter take a decision by passing a reasoned and speaking order. It appears pursuant to the order dated 21.11.2019 the petitioner submitted his reply on 23.11.2019 and thereafter the District Magistrate constituted a five member Committee to get the inspection done of the place where the cattle market was being run by the petitioner. Some report was submitted on 26.11.2019 and consequential action has been taken on 27.11.2019 on the basis of report, which according to the order, recommended for action impugned as the cleanliness was not found to the satisfaction and as per norms under the Prevention of Cruelty to Animals Act, 1960 and also the Animal Market Rules framed thereunder and thus, the Upper Mukhya Adhikari, Zila Panchayat has come to exercise his power under Section 78-D of the 1961 Act, cancelling the licence of the petitioner. 4. 4. Assailing the order impugned dated 27.11.2019 it has been contended on behalf of the petitioner that the Prevention of Cruelty to Animals Act, 1960 is a Central Act under which the Animal Markets Rules, 2018 have been framed and the Acts provide under Section 38 to make rules for the purposes to carry out the object of the Act, and further it is argued that the Rules provide for constitution of a Committee. The Committee that has to be constituted necessarily includes District Magistrate, one of the representative of the State Animal Welfare Board and other members also including the Chairperson of the Zila Panchayat but in the present case the Committee that was constituted by the District Magistrate did not consist of those members as have been mentioned in Rule 3 of the 2018 Rules. It is further submitted that all the powers under the Rules are vested with the Committee constituted for the said purpose and it is on the basis of the recommendation of the Committee that a decision to be taken by the Board. Further while Committee recommends for a decision be taken in the matter, the Committee shall afford a reasonable opportunity to the aggrieved party to be heard vide Rule 16 after the inspection of the animal market is carried out and, therefore, it is argued that the order passed by the respondent dated 27.11.2019 and the procedure followed by him in passing the order has been de hors the provisions as contained under the Rules and the Act and, therefore, unsustainable. 5. Per contra, the argument advanced by learned counsel appearing for the respondents is that the power vests with the Chairman of the Kshetra Panchayat under Section 78-D of U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 for the grant of licence as well as cancellation thereof and therefore, the power has been exercised taking recourse to the said provision and, it cannot be said that the power exercised is de hors the provisions contained under any Rule or Act. 6. 6. Having heard learned counsel for the petitioner, learned counsel appearing for the respondents, learned Standing Counsel and their arguments advanced across the Bar and having perused the record, we find that the controversy revolves around the decision making process as prescribed procedure to be followed for action in cases where the cattle market is being run is found not being run properly in the sense that the cleanliness and other hygiene is not maintained on the spot, has been allegedly not followed. 7. A close scrutiny of the Act of 1960 reveals that the scheme of Act clearly provides for such action to be preceded by a detailed procedure. The statements and objects of the Act of 1960 clearly disclose that since earlier provisions of the Act were only confined to only the urban areas within municipality limits, the legislature thought in its wisdom to enact a detailed law governing the field. Section 38 of the Act provides for rule making power of the Central Government and Section 41 provides for repeal of such provision if prevalent in any State relating to the subject matter of the Act, shall stand repealed within enforcement of the Provision of this Act of 1960. It is admitted to the parties that the Prevention of Cruelty to Animals Act, 1960 is the Central Law which is prevalent at this point of time and the State laws have come to be repeal by virtue of Section 41 of the Central Act. It is also not disputed to the parties that exercising the rule making power under Section 38 of the Central Act, Prevention of Cruelty to Animals in Animal Market Rules, 2018 (hereinafter referred to as the “Rule”) have come to be enforced w.e.f. 22.03.2018 with it's publication in the official gazette as prescribed for under Section 38 of the Central Act. From the close scrutiny of the relevant provisions of the Rule, we come to notice that an Cruelty to Animals Committee is sought to be constituted vide Rule 3 of the said Rule. Rule 3 of the Rule is reproduced hereunder: "3. Constitution of Prevention of Cruelty to Animals Committee- (1) There shall be a Prevention of Cruelty to Animals Committee in each district for the purpose of exercising the powers under these rules, to be constituted or designated by the concerned State Government. Rule 3 of the Rule is reproduced hereunder: "3. Constitution of Prevention of Cruelty to Animals Committee- (1) There shall be a Prevention of Cruelty to Animals Committee in each district for the purpose of exercising the powers under these rules, to be constituted or designated by the concerned State Government. (2) The Committee shall comprise of the following members:- (a) the District Magistrate; (b) one representative of the State Animal Welfare Board; (c) the Superintendent of Police of the district; (d) one representative of a local Non Governmental Organisation dealing with animal welfare; (e) one representative of the SPCA; (f) district veterinary officer, who shall be the Member Secretary; (g) chairperson of the Zilla Parishad or Autonomous Council, as the case may be; (h) chairman of the Municipality; or Panchayat at the district level; (i) the Committee may co-opt such other person, not exceeding three, with expertise in animal welfare, veterinary sciences, governance, and law enforcement. Provided that the State Government may designate any Committee set up by it or a district administration under it or a State Act or the rules or regulations made there under for the upkeep of animal markets, as the Prevention of Cruelty to Animals Committee for the enforcement of these rules. Provided further that the provisions of clauses (a) to (I) shall not apply in the case a Committee referred to in the first proviso. (3) A person who has been convicted under the Act shall be prohibited from being a member of the Committee." 8. From the perusal of the above provision it is quite explicit that a committee that is contemplated under the Rule shall consist of as many as nine members necessarily. The functions of the Committee have been provided under Rule 4. Rule 7 provides for the facilities that have to be maintained in the animal market to prevent cruelty to the animals and Rule 9 provides for certain practices which are rendered as prohibited practices, then Rule 14 provides for the inspection of the animal market. Rules 7, 9, 14, 15 and 16 lay down the procedure how the inspection has to be carried out. For the convenience these Sections are reproduced hereunder: "7. Rules 7, 9, 14, 15 and 16 lay down the procedure how the inspection has to be carried out. For the convenience these Sections are reproduced hereunder: "7. Facilities at animal markets to prevent cruelty to animals - (1) Every animal market shall ensure that the following facilities are available:- (i) water supply; (ii) lighting in areas where the markets function after sunset; (iii) feed storage area and feed supply; (iv) provisions for proper disposal of dead animals from the site; (v) provisions to ensure hygiene, proper disposal of manure and bio-waste. (2) The Committee shall, for reasons to be recorded in writing, determine the maximum holding capacity of every animal market. (3) specifications regarding the facilities mentioned in sub-rule (1) and the maximum holding capacity determined as per sub-rule (2), shall be intimated to each animal market by the Committee and prominently displayed at the animal market in such manner as the Committee may direct. 9. Prohibited practices - The following cruel and harmful practices shall be prohibited at animal markets, namely:- (a) animal identification methods such as hot branding and cold branding; (b) shearing of horns, bishoping in horses and ear cutting in buffaloes; (c) casting animals on hard ground without adequate bedding during farriery; (d) use of any hazardous chemicals on body parts of animals; (e) sealing teats of the udder using any material such as adhesive pats to prevent suckling; (f) forcefully drenching any fluids or liquids or using steroids or diuretics or antibiotics, other than prescribed by a veterinarian for the purpose of treatment; (g) use of any type of muzzle, that hurts, to prevent young animals from suckling or eating good; (h) injecting oxytocin into milch animals; (i) castration of animals by quacks or traditional healers; (j) nose-cutting or ear-slitting or cutting by knife or hot iron marking for identification purposes other than by a veterinarian; (k) tying rope around the penis of animal; or (l) any other prohibited practice as determined by the Committee, for reasons to be recorded in writing. Provided that Committee may, for reasons to be recorded in writing, relax any of the above practices as per local conditions. 14. Provided that Committee may, for reasons to be recorded in writing, relax any of the above practices as per local conditions. 14. Powers of State Board to authorise inspection- For the purpose of ensuring compliance with these rules, the State Board, may authorise any of its officers in writing to inspect any animal market and submit a report to the State Board and the Committee for further action and any officer so authorised may- (a) enter at reasonable times to inspect the animal market; (b) require any person to produce any record kept by him with respect to the said market. (c) take photographic and video proof of cruelty to animals. 15. Inspection of animal markets-(1) The Committee shall cause regular inspections of animal markets in tis jurisdiction to be made by authorised officials, as may be required. (2) Every such inspection shall be followed by an inspection report, to be scrutinised by the Committee to recommend future action. (3) The Committee may remove from the animal market, any animal, if it has rason to believe that the animal is being treated cruelly at an animal market, and the animal to seized shall be kept in the custody of the local SPCA or an animal welfare organisation recognised by the Board. 16. Action for non-compliance-If any animal market fails to comply with these rules, the Committee may recommend to the authority invested by law to licence or register an animal market in a State or Union Territory- (a) for cancellation of licence or registration of such animal market; (b) for imposition of a bar on any person from entering an animal market, if non-compliance is owing to any act or omission by him for such time period as may, for reasons to be recorded in writing, be determined by the Committee. Provided that no such recommendation shall be made without giving the animal market, in respect of which, or person, in respect of whom, such recommendation is being made, an opportunity of being heard." 9. Provided that no such recommendation shall be made without giving the animal market, in respect of which, or person, in respect of whom, such recommendation is being made, an opportunity of being heard." 9. From the bare reading of the aforesaid provisions it is clearly revealed that the legislature has intended that it is the Committee which is vested with detailed power as provided under the Rules and, therefore, the Committee has to inspect the site where the animal market is being run and if the Committee finds anything wrong in terms of Rule 7 and Rule 9 of the Rules then the Committee shall prepare report for that purpose and shall also make recommendation to the authority who is vested by law to issue license or to cancel the same. However, any such recommendation before the Committee made the proviso to Rule 16 clearly stipulates that the such aggrieved person shall be given an opportunity to be heard in the matter. 10. Thus, applying the above Act and the Rules we find that the Committee as had been constituted by District Magistrate was completely de hors the rules prescribed and therefore, the constitution of the Committee was per se illegal and cannot result in any recommendation legally enforceable. If the committee is to be constituted as contemplated under the law then the constitution of the Committee has to be in consonance with the provisions contained under Rules 3. Besides that, the Committee while making a recommendation has to apply its mind by conducting such inspection as contemplated and to also record findings regarding non-compliance of the norms as contained under Rule 7 or commission of any prohibited practice as prescribed for under Rule 9. We find that the District Magistrate in the present case though, has discussed the inspection report but it is nowhere discussed as to what was the inspection report submitted and whether the petitioner had been offered any opportunity to explain his conduct by the Committee before making such recommendation because the provisions as already quoted above prescribed for such opportunity of hearing to be afforded to the petitioner by the committee itself. Here we are also reminded of the judgment of the Apex Court in Deepak Babaria and another Vs. Here we are also reminded of the judgment of the Apex Court in Deepak Babaria and another Vs. State of Gujarat and others, (2014) 3 SCC 502 wherein the Court has held that when a thing is required to be done in a particular manner the same shall be done in that manner alone. 11. In such view of the matter, therefore, we are of the clear opinion that in the present case not only the procedure as prescribed for has not been followed but even the rule of natural justice has come to be violated which has been duly incorporated under Rule 16 of the Rules of 2018 and therefore, the order impugned dated 27.11.2019 cannot be sustained in law and deserves to be set aside and the same is accordingly, set aside, However, it is left open for the District Magistrate to initiate a fresh proceeding but strictly in accordance with law as per 1960 Act and the Rules framed thereunder of 2018 as have been discussed herein above in this judgment. 12. The writ petition thus stands allowed as above.