Noor Mohammad v. Commissioner, MCD

2. The licence has been deniedto each of the petitioners on two grounds. Firstly, of the shops being located within 50 mtrs. of a religious place and secondly that the regularization of the shops in favour of each of the petitioners (who had acquii'ed the said shops onpurchase from the original 2/allottees) was after the approval of the licensing policy in accordance wherewith no Health Trade licence for selling meat/meat products is peraiitted within 50 mtrs. ofareligious place.

3. However while in the orders impugned in W.P.(C) No.379/2011 & W.P.(C) No.404/2011 it is recorded that the shop is at adistance of44 mtrs. and 48 mtrs. respectively, in the order in W.P.(C) No.375/2011 the distance between the shop No.111 and the religious place has been left blank.

4. It isthe contention ofthe counsel for the petitioners that each ofthe aforesaid three shops was at the time oforiginal allotment itself allotted for the sale of chicken, fish and meat while the other shops in the market were allotted for other trades. He has ftirther with reference to the proceedings of the meeting dated 15'*' July, 2010 ofa Committee constituted by MCD to examine the issue of licensing to meat shops at Sunder Nagri, Shahdara (North Zone) contended that shop No.Ill was not recorded to be within a distance of 50 mtrs. of the religious place. It is ftirther contended from the said proceedings that at the time ofinitial allotment ofthe shops in the year 1981, they were allotted expressly for sale ofmeat/meat products and that the religious place for the reasons whereoflicence has now been denied was found to be in encroachment of Government land and which has been 3/expanded in the year 2008-2009. It is argued that as per the Pohcy, the prohibition on account ofreligious place applies only where the ai'ea ofthe religious place is more than 400 sq. ft. while in the present case the area of the temple 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 ofthe Committee aforesaid is on the basis ofaletter ofaMLA ofthe area. There is no recording ofthe respondent MCD having reached its own decision in this regard.

6. The petitioners herein also impugn the reftisal of hcence to them on the ground that the size of the religious place is less than 400 sq. ft. and hence owing thereto licence cannot be denied to them.

7. The rules/poHcy regarding grant ofHealth 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 writ petitions are maintainable in view of the ahemative remedy available. It has not been pleaded by the petitioners that the said remedy is not efficacious. Rather it is fek by this Couit that since the decision would entail investigation into the size ofthe religious place, the 4/distance between the religious place and the shops, the effect of original allotment of shops being for sale ofmeat etc., the said inquiry can best be done in an appeal rather than in these proceedings.

8. The counsel for the petitioners has however contended that the availability ofalternative remedy is no bar to the maintainability ofthe writ petition. However the general rule is that the Court will ordinarily refrain from exercising writ jurisdiction when an alternative efficacious remedy is available. It is further found that notwithstanding similar pleas having been made by the petitioners in the earlier writ petitions aforesaid preferred 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 certiorari powers over the orders is not able to appreciate the facts. Itis therefore desii-able that at least the Director, Veterinaiy Services while exercising the appellate power will consider all the pleas of the petitioners as urged in these writ petitions. The petitioneis to place the complete paper book of the writ petitions before the Director, Veterinary Services along with their appeal and the Director, Veterinary Services while disposing ofthe appeals ofthe petitioners is directed to deal with each ofthe contentions ofthe petitioners and to give areasoned order thereon. 5/r

9. Save for the directions aforesaid, the petitions are dismissed as not maintainable with liberty to the petitioners to prefer an appeal before the Director, Veterinary Semces. The counsel for the petitioners expresses ui-gency. Subject to the appeal being preferred within seven days, the same bedecided onorbefore 15^'' March, 2011.

10. Needless to state that the petitioners if remain aggrieved shall have remedies in law. The petitions are disposed of No order as to costs. CM No.740/2011 in W.P.(0 No.375/2011, CM No.747/2011 in W.PiO No.379/2011 & CM No.788/2011 in W.P.(C) No.404/2011 (aU for exemption). Allowed, subject to just exceptions.

JANUARY 21,2011 pp.. 6/- RAJIV SAHAI ENDLAW,J