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2020 DIGILAW 720 (AP)

Abrar Khan Pathan v. State of Andhra Pradesh

2020-11-17

D.V.S.S.SOMAYAJULU

body2020
ORDER : D.V.S.S. Somayajulu, J. 1. This writ petition has been filed for the following relief: "...to issue a writ order or direction one in the nature of Writ of Mandamus declaring the proceedings R.C. No. 258/2020/PH/AMOH-II dt. 06.07.2020 issued by the 2nd Respondent rejecting the application made the Petitioner for grant of trade license for operating the Beef Meat Shop made vide Application No. 42607-2020-QD dated 25.05.2020 and Application No. 72840-2020-DO dated 18.06.2020 as being illegal, arbitrary without jurisdiction in violation of Articles 14, 19(1)(g) and 21 of the Constitution of India and in violation of Sections 521 and 622 of GHMC Act, 1955 and in violation of principles of natural justice and consequently to set aside the proceedings RC. No. 258/2020/PH/AMOH-II dt. 06.07.2020 issued by the 2nd Respondent and to grant the permanent trade license to the Petitioner for operating the Beef Meat Shop." 2. This Court has heard Sri N. Ashwani Kumar, learned counsel for the petitioner and Sri S. Lakshminarayana Reddy learned standing counsel for respondent Nos. 2, 3 and 5 who are the main answering respondents. Counter-affidavit has been filed on behalf of respondent Nos. 2, 3 and 5. 3. The grievance of the petitioner before this Court is that the trade licence given to him for operating and running a beef meat shop was summarily rejected and that too for extraneous reasons. Petitioners counsel Sri Ashwani Kumar argues that licence is necessary from the respondents for carrying on the business. He points out that accordingly, the petitioner has applied to the Central Licencing Authority-respondent No. 4 which has issued a licence to him on 11.06.2020. Learned counsel points out that the period of validity of the said licence is from 11.06.2020 to 10.06.2023. It is his contention that the petitioner has also applied to the 2nd respondent for issuance of a trade licence since a trade can only be carried on within the municipal limits after obtaining the trade licence only. He points out that the trade licence was initially issued on 29.05.2020 and thereafter similar licence was also issued on 18.06.2020 in Roc. No. 72840/2020. It is his contention that while the licences are still pending, a closure notice was suddenly issued on 16.06.2020 to close down the trade since it is alleged that the petitioner did not obtain a proper licence and was causing a nuisance to his neighbours. No. 72840/2020. It is his contention that while the licences are still pending, a closure notice was suddenly issued on 16.06.2020 to close down the trade since it is alleged that the petitioner did not obtain a proper licence and was causing a nuisance to his neighbours. This was followed by an order, dated 06.07.2020 by which the request for granting of licence was rejected. 4. Learned counsel points out that neither under Section 622 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short 'the Act') or Section 521 of the Act, is there any necessity to obtain no objection certificate from neighbours of the property to carry on the business. It is also his contention that any Government Officer who is given the power to exercise discretion should exercise the same for valid reasons and should pass his order on tangible material. 5. In the case on hand, learned counsel points out that a licence was granted on 29.05.2020 and also on 18.06.2020. In the intermediate period, on 16.06.2020, a closure notice was given followed by the impugned order dated 06.07.2020 by which the business was directed to be closed. He also points out that the respondents have imposed conditions which are not as per law. Relying upon Hyderabad Potteries Private Limited v. Collector, Hyderabad District, 2001 (3) ALT 200 : 2001 ALT (Rev.) 235 : 2001 (3) ALD 600 and A.P. Bankers & Pawn Brokers' Association v. Municipal Corporation of Hyderabad, (2001) 3 SCC 646 : 2001 (3) ALT 2.4 (DN SC), learned counsel argues that the rejection of the licence and the direction to stop the business are totally wrong. He prays for an order as pleaded. 6. In reply to this, learned standing counsel states that the trade licences are issued are conditional trade licences and that a final licence had to be issued on payment of some fees, if necessary. He draws the attention of this Court to clause (6) of the Trade licence, which is filed to support his stand. Apart from that, learned standing counsel argues that any trade is subject to reasonable restrictions. He points out that the application submitted by the petitioner was examined. It was found to be dangerous to life and health and also a nuisance to the locality. Therefore, learned standing counsel submits that the same was cancelled. Apart from that, learned standing counsel argues that any trade is subject to reasonable restrictions. He points out that the application submitted by the petitioner was examined. It was found to be dangerous to life and health and also a nuisance to the locality. Therefore, learned standing counsel submits that the same was cancelled. He also argues that an objection was raised by the neighbours who complained that there was inconvenience caused because of the meat shop being located in the locality. Basing on the representation submitted by the neighbours, learned counsel submits that as there may be a chance of unhygienic conditions prevailing etc., the licence was cancelled. It is his contention that this is fully within the power of the Municipal Corporation and that it falls squarely within Section 521(1)(e)(2) of the Act. Learned standing counsel points out that relying on this sub-clause of Section 521 of the Act (which is also been highlighted in the order) the application was finally rejected. 7. This Court after examining both the learned counsel notices that there is no real dispute between the parties with regard to the facts of the case. The petitioner has tried to comply with the statutory requirements. He has obtained a licence from the 4th respondent and has also applied for a trade licence from the 2nd respondent which was granted. However, the petitioner was prevented from carrying on his business and was in fact directed to stop his business. Section 521(1) of the Act is the section on which both the learned counsel have placed reliance upon during the course of their argument. Section 521 of the Act starts with the words "except under and in conformity with the terms and conditions of a licence", no person shall carry on a trade. Para 4 of Schedule P of the Act, has been relied upon in the course of the submissions. In para 4, the carrying on of "beef meat shop" is not expressly prohibited. Apart from that, the conditions stipulated in the licence are mentioned in the trade licence itself. There are four conditions which are mentioned therein and none of these conditions actually refer to causing of nuisance to neighbours or obtaining consent of the neighbours. In para 4, the carrying on of "beef meat shop" is not expressly prohibited. Apart from that, the conditions stipulated in the licence are mentioned in the trade licence itself. There are four conditions which are mentioned therein and none of these conditions actually refer to causing of nuisance to neighbours or obtaining consent of the neighbours. Section 521(1)(e)(ii) deals with any trade or operation which in the opinion of the Commissioner is dangerous to life, health or property or is likely to create a nuisance. In the opinion of this Court, the Commissioner can come to such a conclusion that the trade is likely to cause danger to life, health or property or create a nuisance if there are tangible materials available to come to this conclusion. As rightly argued by the learned counsel for the petitioner, in A.P. Bankers & Pawn Brokers' Association, (2001) 3 SCC 646 : 2001 (3) ALT 2.4 (DN SC) (supra), while dealing with Section 521 of the Act, the Hon'ble Supreme Court has held that the opinion of the Commissioner should be based upon some relevant material. The Supreme Court also held that no material has been placed before it to show why and how Commissioner came to the conclusion that such a business is dangerous and likely to cause a nuisance. Again in para 12, it was held as follows: "...............Maintenance of cleanliness deciding location and regulating noise pollution would not fall within Section 521(1)(e)(ii). Also factually it has not been shown how cleanliness is ensured or location is being controlled by means of licence. There is also no explanation as to how and by what term, or condition noise pollution is sought to be regulated. In the receipt issued there is no regulation regarding noise pollution or location." 8. Similarly, in Hyderabad Potteries Private Limited, 2001 (3) ALT 200 : 2001 ALT (Rev) 235 (supra) also, the learned single Judge came to the conclusion that the Commissioner is required to make pragmatic assessment basing on the material before coming to any conclusion. 9. If the present case is examined against this backdrop of these two cases, it is clear that neither Section 622(4) of the Act nor Section 521(1) of the Act are strictly applicable. 9. If the present case is examined against this backdrop of these two cases, it is clear that neither Section 622(4) of the Act nor Section 521(1) of the Act are strictly applicable. Section 622(4) of the Act, deals with the discontinuation of use of a premises for which a business is being carried out without obtaining a licence or the business is being carried out in contravention of the terms of the licence. As mentioned earlier and as submitted by the learned counsel for the petitioner, neither the terms of the licence nor the provisions of the statute make it mandatory for a trader to obtain a notarized affidavit from the neighbours. Imposition of such a condition for cancellation of the licence is in the opinion of the Court contrary to the provisions of the statute. New restrictions or conditions cannot be imposed by the Officers when the statute does not provide for the same. 10. Even Section 521 of the Act deals with the formation of an opinion that the business is likely to cause danger to the life, health and property or it may result in a nuisance. Virtually, all over India and in majority of the cities, trade and selling of meat for human consumption is being carried out. Even in the city of Visakhapatnam, the petitioner has set up his business after obtaining permission from respondent Nos. 3 and 4. It is not clear as to how the Commissioner came to the conclusion that the said trade is dangerous to life, health and property or is creating a nuisance. In the absence of any tangible material to show that this trade is likely to cause such a dangerous situation, this Court holds that the respondents are not right in stopping the petitioner from carrying on his business. Time and again, the Courts have remarked that when statutory authorities are given the power, which may affect persons/trades etc, they should exercise the same for strong and clear reasons which can be seen from or are visible from the record. 11. In the case on hand, the materials do not disclose that the trade in the meat is likely to cause a danger to the life or is likely to cause a nuisance. It appears that the contesting respondents formed a merely subjective opinion and did not have real or tangible material to come to their conclusions. 11. In the case on hand, the materials do not disclose that the trade in the meat is likely to cause a danger to the life or is likely to cause a nuisance. It appears that the contesting respondents formed a merely subjective opinion and did not have real or tangible material to come to their conclusions. 12. For all these reasons, the impugned order dated 06.07.2020 is set aside and the writ petition is allowed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.