IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1186 of 2012 In SPECIAL CIVIL APPLICATION No. 12397 of 2012 With CIVIL APPLICATION No. 10800 of 2012 In LETTERS PATENT APPEAL No. 1186 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= Whether Reporters of Local Papers may be allowed 1 to see the judgment ?
2 To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy 3 of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the 4 constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge 5 ?
========================================================= CHIEF OFFICER - Appellant(s) Versus ANVARHUSEIN GULAMNABI BULEKHA & 10 - Respondent(s) ========================================================= Appearance :
MS JIRGA D JHAVERI for Appellant(s) : 1 MR MANOJ SHRIMALI FOR Respondents No. 1-6 MS NISHA M THAKORE, AGP for Respondents No.7-11 ========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 18/09/2012 ORAL JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. As a pure question of law as to interpretation of a Notification is the subject matter of Appeal, instead of hearing the application for stay, we have decided to hear the Appeal itself.
2. This Appeal is at the instance of Vapi Nagarpalika – Respondent No.3 in the Original Writ Application and is directed against the interim order passed by the learned Single Judge dated September 18, 2012 by which His Lordship stayed the operation, implementation and execution of the impugned notices dated 5/9/2012 and 6/9/2012 respectively issued by the Appellant Nagarpalika to the extent that the notice shall not be enforced in so far as sale of chicken and fish is concerned. The learned Single Judge, however, clarified that the petitioners shall not slaughter or cut chicken or fish but are permitted to only sell chicken and fish.
3. The present appeal arises in the backdrop of the following factual situation.
The appellant Vapi Nagarpalika issued a Public Notice dated September 6, 2012 by and through its Chief Officer informing one and all residing within the limits of Vapi Nagarpalika and engaged in the business of running a slaughter house, selling fish, meat and flesh that they shall keep the slaughter houses closed from 12/9/2012 to 19/9/2012 and there shall not be any sale of fish, meat and flesh during the said period due to the Jain festival, which is popularly known as ‘Paryushan’. The impugned notice dated 6/9/2012 issued by the Appellant Nagarpalika is on the basis of instructions issued by the State Government dated 17/8/2012 in its Urban Development & Urban Housing Department whereby all Municipal Commissioners as well as Nagarpalikas were asked to ensure that from 12/9/2012 to 19/9/2012 there shall not be any sale, or slaughter of animals, more particularly selling fish, flesh or mutton. This notice dated 6/9/2012 came to be challenged by the writ petitioner substantially on the ground that he is engaged in the business of selling of chicken and not the meat or flesh of any other animals or bird. The learned Single Judge, after hearing the respective parties and after considering the meaning of the word 'meat' figuring in the notice took the view that chicken would not be covered within the meaning of ‘Maas’. The learned Single Judge also took the view that the impugned notices imposes restriction of sale only on “Maas”, “Machchhi”, and “mutton” and not so far as sale of chicken and fish is concerned.
4. The learned Single Judge took the view that sale of chicken would not be covered by the impugned notices. Accordingly, by way of interim relief, the learned Single Judge ordered that the impugned notices shall remain stayed from its operation, implementation and execution in so far as it relates to sale of chicken and fish are concerned. However, the learned Single Judge clarified that the petitioner shall not slaughter or cut chicken or fish, but it shall be open for the petitioner to sell the same.
5. Ms.Jirga Jhaveri, the learned counsel appearing for the appellant-Nagarpalika submitted that the notice which has been issued by the Nagarpalika is based on the instructions issued by the State Government and the State Government while issuing such instructions, has relied upon the decision of the Apex Court delivered in the case of Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat & others reported in (2008) 5 SCC -33. According to Ms.Jhaveri, in the case of Hinsa Virodhak Sangh (Supra.), the Hon’ble Supreme Court has held that while determining the reasonable restriction on the right to trade or to carry on any business, the Court should consider not only the factors of the restriction such as the duration and extent but also the circumstances and the manner in which the imposition has been authorized. According to Ms.Jhaveri in Hinsa Virodhak (Supra) the challenge was to the resolution passed by the Ahmedabad Municipal Corporation imposing such a ban of slaughtering of animals and sale of flesh or meat during the period of the festival of Paryushan like in the present case and such ban which was imposed by Ahmedabad Municipal Corporation was held to be valid by the Supreme Court on the ground that closure of the slaughter houses was only for 9 days and not for a considerable period of time. Ms.Jhaveri also submitted that the Supreme Court has held that the restriction was reasonable and during those 9 days, such activity may not be undertaken to respect the religious feelings and sentiments of the Jain Community. According to Ms.Jhaveri notice issued by the Nagarpalika could not be termed as illegal or invalid. Ms.Jhaveri also submitted that it is the avowed object with which such notice has been issued deserves to be considered. Ms.Jhaveri also submitted that if the technical meaning of the word “meat” as adopted by the learned Single Judge is accepted then it will frustrate the very object with which the notice has been issued. According to Ms.Jhaveri, the learned Single Judge has granted relief of the nature which would tantamount to granting final relief in the matter and, therefore, Ms.Jhaveri prayed that the interim order passed by the learned Single Judge deserves to be quashed and set aside.
6. On the other hand, Mr.Manoj Shrimali, learned counsel appearing for the original writ-applicant, vehemently submitted that the learned Single Judge has not committed any error, much less an error of law in passing the interim order warranting any interference at the hands of this Court in this appeal. Mr.Shrimali submitted that taking into consideration the words figuring in the notice, it is very clear that the notice dated 6/9/2012 is conspicuously silent in so far as the restriction of sale of chicken is concerned. Mr.Shrimali laid emphases on the words 'Maas', 'Machchhi' and Mutton. According to Mr.Shrimali 'Maas' would not include flesh of chicken and, therefore, there should not be any restriction on the sale of chicken. Mr.Shrimali therefore, urged to dismiss the Appeal of the appellant Nagarpalika.
7. Ms.Nisha M. Thakore, the learned AGP appearing for the respondent nos.7 to 11 has supported the case of the appellant Nagarpalika and adopted all the submissions canvassed by Ms.Jirga Jhaveri, learned Counsel appearing for the appellant Nagarpalika.
8. After hearing the learned counsel for the parties and after going through the materials on record, we are of the view that the prima facie finding recorded by the learned Single Judge that sale of fish does not come within the purview of the notification is not at all tenable. It is apparent that the word, Machchhi (fish) has figured within the scope of notification. Thus, there was no justification of excluding fish from the operation of the said notification.
9. So far as chicken is concerned, in our opinion, having regard to the purpose for which such notification has been issued, namely, to respect the feeling of Jain community, too much technical meaning as adopted by the learned Single Judge cannot be approved. Apart from the aforesaid fact, in our opinion, while granting the interim order till the disposal of the writ-application, the learned Single Judge did not follow the well-accepted principles which are required to be followed in considering such application. We have already pointed-out that no prima facie case has been made out for excluding fish from the operation of the notification. Similarly, having regard to the occasion for which such notification has been issued, the other finding that chicken does not come within the purview of 'Maas' is also not tenable. Therefore, in our view, the petitioner has failed to prove even prima facie case for the purpose of excluding chicken and fish from the operation of the notification. Even if we assume for the sake of argument that prima- facie case has been made out so far as the chicken is concerned, the balance of convenience and inconvenience is in favour of refusing the prayer for injunction. If ultimately, the writ-application fails, at that point of time, the interim order would also be vacated, but the purpose of notification i.e. to pay respect to the feeling of Jain community will be totally frustrated.
Therefore, in view of the decision of the Supreme Court in the case of Hinsa Virodhak Sangh (Supra) there being no violation of any of the rights of the petitioner for this limited period of 9 days, in our opinion, the learned Single Judge should not have granted interim order of injunction.
10. We are also not impressed by the submission of the learned advocate for the petitioner that a prima facie case has been made out in view of the fact that notification is not supported by other formalities required under the Municipal law. It appears that the main Special Civil Application is yet to be decided on merits and at this stage, unless full-fledged opportunity is given to the Municipal authority, such question cannot be decided and the learned Single Judge has also not gone into that question before filing of regular affidavit by the Municipality.
11. We, therefore, set aside the order impugned and hold that in the case before us the petitioner failed to prove any prima facie case to have exclusion of chicken and fish from the operation of the notification.
12. The appeal is thus, allowed. The order impugned is set aside. In the facts and circumstances, there will be, however, no order as to costs.
13. We make it clear that the observations made in this order are of prima facie nature for the purpose of disposal of this appeal preferred against grant of interim order and it is needless to mention that such observation will not be binding upon the learned Single Judge at the time of final disposal of the writ-application.
In view of disposal of the appeal itself, the connected civil application is disposed of accordingly.
(BHASKAR BHATTACHARYA, CJ.) (J. B. PARDIWALA,J.) zakir/-