Noor Mohammad v. The Commissioner, MCD

1. Each of the three petitions is prefened against the separate but identical otdets, all dated 13'l' January, 2011 of the Veterinary Officer, Shahdara Q.{orttr) Zoneof the respondent MCD rejecting the applications of each of the petitioners for grant of Meat Trade licence with respect to shops No.lll, II[7] & 16 respectively in DDA Malket, Sunder Nagri, commonly known as Murga Mandi, Delhi. The said orders carne to be made.in pursuance to the t}'rit petitions earlier filed by each of the petitioners and lvhich wele disposed of on 8'l' December, 2010 with the direction to the Veterinary Officer to dispose of the applications for licence of each of the petitioners.

2. The licence has been denied to each of the petitioners on two grounds. Filstly, of the shops being located within 50 rntrs. of a religious place and secondly that the regularization of the shops in favoul of each of the petitioners (who had acquired the said shops on purchase fi'orn the original (\. (. <r 2/s allottees) was after the approval of the licensing policy in accordance wherewith no Heatth Trade licence for selling rneaVrneat products is pennitted within 50 rnt's. of a religious place.

3. However while in the orders irnpugned in W.P.(C) No.379l2011 & W.p.(C) No.404/2011 it is recorded that the shop is at a distance of 44 rntrs. and 48 rntrs. respectively, in the order in W.P.(C) No.375l2011 the distance between the shop No.111 and the religious place has been left blank.

4. It is the contention of the counsel for the petitioners that each of the aforesaid tlu'ee shops was at the time of original allof,nent itself allotted for the sale of chicken, fish and meat while the other shops in the market were allotted for other trades. He has fuither with reference to the proceedings of the rneeting datect' 15th July, 2010 of a Committee constituted by MCD to exarnine the issue of licensing to meat shops at Sunder Nagri, Shahdara (North Zone) contended that shop No.111 was not recorded to be within a distance of 50 mfis. of the religious place. It is firrther contended frorn the said proceedings that at the time of initiat allotnent of the shops in the yeat 1981, they were allotted expressly for sale of meaVrneat products and that the religious place for the reasons whereof licence has now been denied was found to be in encroachment of Governrnent land and which has been t-;l 3/t expanded in the year 2008-2009.It is argued that as per the Policy, the prohibition on account of religious place applies only where the area of the religious place is rnore than 400 sq. ft. while in the present case the area of the ternple for the reason whereof licence has been denied, is recorded as 365 sq. ft.

5. It is however found that the recording to the aforesaid effect in the proceedings of the Cornmittee aforesaid is on the basis of a letter of a MLA of the area. There is no recording of the respondent MCD having reached its own decision in this regard.

6. The petitioners herein also irnpugn the refusal of licence to ttrern on the ground that the size.of the religious place is less than 400 sq. ft' hnd hence owing thersto licence cannot be denied to them.

7. The rules/policy regalding grant of Health Trade licence provides for an appeal to the Director, Veterinary Services against the orders of the Veterinary Officer. It has as such been put to the counsel for the petitioners as to how these wlit petitions are rnaintainable in view of the alternative rernedy available. It has not been pleaded by the petitioners that the said remedy is not efficacious. Rather it is felt by this Court that since the decision would entail investigation into the size of the religious place, the (- !" rl 4/- ? distance between the religious place and the shops, the effect of original allonnent of shops being for sale of meat etc., the said incluily can best be done in an appeal rather than in these proceedings.

8. The counsel for the petitioners has however contended that the availability of alternative remedy is no bar to the maintainability of the writ petition. However the general rule is that the Court will ordinarily refi'ain fi.orn exercising writ jurisdiction when an alternative efficacious rernedy is available. It is further found that notwithstanding similar pleas having been made by the petitioners in the earlier writ petitions aforesaid prefened by them, the Veterinary Officer in the orders impugned in these petitions has not dealt with all the said aspects. Without the same, this Court.while exercising certidrari powers over the orders is not able to appreciate the facts. It is therefore desirable that at least the Director, Veterinary Services while exercising the appellate power will consider all the pleas of the petitioners as urged in these writ petitions. The petitioners to place the complete paper book of the writ petitions before the Director, Veterinary Services along with theil appeal and the Dilector, Veterinary Services while disposing of the appeals of the petitioners is directed to deal with each of the contentions of the petitioners and to give areasoned order thereon. r[1].)i. 'tl I J/- ? /L

9. Save for the directions aforesaid, the petitions are dismissed as not rnaintainable with liberty to the petitioners to prefer an appeal before the Director, Veterinary Services. The counsel for the petitioners expresses rugency. Subject to the appeal being prefened within seven days, the sarne be decided on or before 15tr'March,20II.

10. Needless to state that the petitioners if rernain aggrieved shall have remedies in law. The petitions are disposed of. No order as to costs. CM No.740l2011 in W.P.(C) No.375/2011" CM No.747l2011 in W.p.(C) No.379l2011 & CM No.788/2011 in W.p.(C) No.404/2011 (ail for exemption). Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW.J JANUARY 2I,2OII pp.. ?:q fl 6/- \