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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO . 2843 OF 2008
Nafis Ahmad and Anr. …… Appellants
Vs.
State of U.P. & Ors. …… Respondents
JUDGMENT
R.M . LODHA, J .
The appellants are in appeal, by special leave, against the
judgment and order dated December 12, 2007 passed by the Allahabad
High Court whereby the Division Bench of that Court quashed the licence
issued to them by respondent no. 2 – Zila Panchayat, Muzaffarnagar –
for holding private cattle market in Village Gujjarpur Taparana at Khasra
No. 2478 on Tuesdays for the period October 23, 2007 till March 31,
2008 and any subsequent order for the above purpose and directed the
Zila Panchayat, Muzaffarnagar to hear the present respondent nos. 3
and 4 and the present appellants and decide the matter afresh.
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2. The respondent nos. 3 and 4 are the owners of Khasra No. 637
situate in village Kheri Karamu Pargana, Tehsil Shamli, Distt.
Muzaffarnagar. They were granted licence by the Zila Panchayat,
Muzaffarnagar to hold private cattle market at the above place on
Tuesdays on payment of fixed fee. The licence issued to respondent
nos. 3 and 4 has been renewed year after year. For the period 2007-
2008, the licence given to these respondents was renewed from April 1,
2007 to March 31, 2008.
3. The appellants are owners of Khasra No. 2478 situate in
Village Gujjarpur Taparana, Tehsil Shamali, Distt. Muzaffarnagar. On
their application, they were given licence by the Zila Panchayat,
Muzaffarnagar to hold private cattle market in their land on every
Monday. The appellants wanted to hold the private cattle market on
Tuesdays instead of Mondays. As their request was not acceded to,
they filed a writ petition before the Allahabad High Court for a direction to
Zila Panchayat Muzaffarnagar to modify the licence and permit them to
hold the private cattle market on Tuesdays. The High Court vide its
order dated August 18, 2006 directed the appellants to make
representation to the competent authority and the competent authority
was directed to consider such representation in accordance with law.
4. The appellants accordingly made a representation before the
Collector, Muzaffarnagar but the said representation was rejected on
October 11, 2006. The appellants then filed another writ petition before
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the Allahabad High Court aggrieved by the order dated October 11, 2006
passed by the Collector. The High Court disposed of the writ petition on
February 14, 2007 by observing that the appellants may make
representation to Chairman, Zila Panchayat, Muzaffarnagar. The
appellants then made a representation to the Chairman, Zila Panchayat,
Muzaffarnagar. Their representation was allowed by the Chairman, Zila
Panchayat Muzaffarnagar on July 11, 2007 and the licence was issued to
them on October 23, 2007 permitting them to hold cattle market in their
land in Gujjarpur Taparana, Tehsil Shamali, Distt. Muzaffarnagar on
every Tuesday.
5. The respondent nos. 3 and 4 initially filed a suit seeking
permanent injunction against Zila Panchayat, Muzaffarnagar but after
some time filed a writ petition before the Allahabad High Court
challenging the order dated October 23, 2007 whereby Zila Panchayat,
Muzaffarnagar granted licence to the appellants permitting them to hold
private cattle market in their land on Tuesdays and the suit was
withdrawn. The impugned order has been passed in this writ petition.
6. Before the High Court, the question was whether there has
been a valid exercise of power on the part of Zila Panchayat,
Muzaffarnagar in passing order/granting licence dated October 23, 2007
to the appellants permitting them to hold private cattle on Tuesdays.
7. The principal submissions of the writ petitioners (respondents
no. 3 and 4 herein) before the High Court were twofold; one, as per bye-
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law 34 notified by Zila Panchayat Muzaffarnagar, called Zila Parishad,
Muzaffarnagar Pashu Pait Bye Laws framed under the provisions of U.P.
Kshetra Samiti and Zila Parishad Adhiniyam, 1961 ( Act No. 33 of 1961),
no cattle fair shall be held within 8 kms. from another cattle market.
According to writ petitioners, the distance between the land where they
have been granted licence to hold private cattle fair and the land of the
appellants where the appellants have been granted licence to hold
private cattle fair is less than 8 kms., precisely 5.043 kms. and,
therefore, the licence granted to the appellants was illegal and two,
Zila Panchayat, Muzaffarnagar before granting licence to the appellants
did not afford any opportunity of hearing to the writ petitioners although
they were vitally concerned in the matter.
8. On the other hand, on behalf of the appellants (respondent nos.
3 and 4 before the High Court), it was submitted that (1) writ petition was
not maintainable; (2) the order dated October 23, 2007 was appealable
under U.P. Kshetra Samiti and Zila Parishad Adhiniyam, 1961 ( Act No.
33 of 1961); and (3) having regard to the scheme of bye-law 34 the
relevant distance between the cattle markets is the distance by way of
road and not the aerial distance and seen thus the distance between
their land where they have been granted licence to hold cattle market fair
and the land of respondents nos. 3 and 4 is 9.25 kms.
9. The High Court overruled the objections raised by the
appellants with regard to the maintainability of writ petition and the
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availability of alternative remedy by way of appeal against the
order/licence dated October 23, 2007 granted to the appellants. The
High Court then proceeded to consider the merit of the matter as follows:
“So far as the merit is concerned, the petitioner’s licence
for cattle market to be held on Tuesday of the week was
granted from 1st April, 2007 which is going to expire on
31st March, 2008. Previously, the cattle market of the
private respondent/s was running in some other day
which was by way of consideration of representation on
30th August, 2007, directed to continue also on Tuesday
and ultimately the license was issued in their favour to
hold cattle market on every Tuesday from 23rd October,
2007. Therefore, during the period of license in favour of
petitioners for the period of the private respondents were
accommodated.
Learned counsel for the petitioners contended
before this Court, that as per the Government Order
there should not be any second cattle market within the
radius of 8 kilometers from the existing market/s. In
support of his case, Mr. Khanna argued before this
Court that as he is already within the area of 5.043
kilometers on the basis of report (Annexure-9 to the writ
petition) being dated 13th September, 2007, however, the
respondents have contradicted this report with a further
report dated 26th September 2007 by saying that aerial
distance might be 5.043 kilometers but not the road
distance. Mr. Krishna Mohan, learned counsel
appearing for respondent no. 2 contended before this
Court that in this context the byelaws will be considered
reasonably. Cattle cannot move on the basis of the
aerial distance but by way of road so the road distance is
to be appropriate to take into consideration as a distance
between the cattle markets. Mr. Khanna stated before
this Court that the dictionary meaning of ‘distance
Webster Dictionary of Law is “the degree or amount of
separation between two points, lines, surface, or objects
in geometrical space measured along the shortest path
joining them”. He also contended that in absence of
meaning of distance, the General Clauses Act, 1897 will
be followed and, therefore, if we go by Section 11 of the
said General Clauses Act, the distance could be aerial
distance between the two markets.
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However, let us consider the submissions of Mr.
Anurag Khanna and Mr. Krishna Mohan as to what was
the cause of granting such license to the private
respondents in spite of existence of the license in favour
of the petitioners. Learned counsel for the respondent
No. 2 submitted that the petitioners are holding their
cattle market in their own land whereas the respondents
were allowed to hold cattle market in the land given by
the Gram Panchayat. He further submitted that if
somebody holds cattle market in his own land, nominal
charge will be obtained by the Panchayat, they will be
able to earn more revenue. Therefore, the respondent
was allowed and granted license for the purpose.
Further, as per several orders of this High Court in the
writ petitions, the respondents’ contention were
considered and the appropriate orders were passed.
On query, we have come to know that the
petitioners were not the parties to any of the writ
petitions in which such orders were passed”.
10. The High Court then held that the interest of the writ
petitioners (respondent nos. 3 and 4 herein) cannot be ignored and
since the order/licence dated October 23, 2007 has been passed
infringing the rights of the writ petitioners, the said order cannot be
sustained. The operative portion of the High Court order reads as
follows:-
“Therefore, their interest cannot be ignored nor equitable
justice say so. Therefore, we are of the view that the order
impugned and any further order in connection thereto
infringing the rights of the petitioners cannot be sustained
without due consideration of the cause by giving
reasonable opportunity of hearing to all the concerned and
come to a decision once more. Therefore, such order is
quashed. Accordingly, the concerned respondent is
directed to consider and decide the matter positively within
one month from the date of communication of the order
after affording fullest opportunity of hearing to all the
concerned parties. For the purpose of effective
adjudication, a copy of the writ petition alongwith its
annexure and the affidavits filed herein along with
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annexure can be treated to be part and parcel of the
consideration. However, passing of this order will not in
any way affect holding market by the petitioners where they
are continuing, as per the license till the last date of
license, i.e. 31st March, 2008 or till the date of
communication of the order to be passed by the authority
whichever is earlier”.
11. This Court on January 25, 2008 issued notice on the special
leave petition and stayed the order of the High Court in the meantime.
Subsequently leave was granted and the interim order has been
continued which continues till date.
12. We have heard Mr. Naushad Ahmad Khan learned counsel for
the appellants, and Mr. Triloki Nath Razdan learned counsel for the
respondent nos. 3 and 4.
13. Learned counsel for the appellants argued, which was also
argued before the High Court, that bye-law 34 of the Bye Laws should
be reasonably construed. Cattle cannot be transported by air; they
move from one place to the other on surface and, therefore, the road
distance is appropriate and bye-law 34 should be construed by holding
that the road distance between two cattle markets must not be less
than 8 kilometers by giving appropriate meaning to the word ‘distance’.
He referred to Section 11 of the General Clauses Act, 1897. Learned
counsel relied upon a decision of the Kerala High Court in Dr. M.
Hassainar Haji v. The Tehsildar, Taliparamba and ors1. and a decision
of Madras High Court in P.G. Murugesan v. The Assistant
1 AIR 1994 Kerala. 139
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Commissioner (Excise) Coimbatore2. He also relied upon the decision of
this Court in Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Limited
and Anr3. in support of the proposition that policy cannot be changed
by the High Court by interpretation of provisions of law.
14. On the other hand, Mr. Triloki Nath Razdan, learned counsel
for the respondent nos. 3 and 4 stoutly defended the order of the High
Court. He relied upon a decision of the Bombay High Court in St.
Philomena Convent High School, Nashik v. Union of India and Ors.
(Writ Petition No. 4734 of 2004) and a decision of the Andhra Pradesh
High Court in Gorle Ramu V. Commissioner of Prohibition4 to explain
the meaning of word ‘distance’.
15. Bye-law 34 is in Hindi. The respondent No. 2 – Zila Panchayat,
Muzaffarnagar in their counter affidavit before the High Court quoted the
said bye-law which reads as follows:-
“Kisi Pashu Paith Ke esthal Se 8. K.M. Ke Bhitar Koi Annya
Pashu Paith Ayojit Nahi Ki Jai Sakti. Esa Upniyam Ke Lagu
Hone Se Purwa Ayojit Pashu Paitho Par Yah Pratibandh
Lagu Nahi Hoga. Yadi Uska Licence Esa Naye Upniyam
Hone Se 6 Month Purva 34 Ke Gazette Se Prakashan
Prapta Kar Liya Gaya Hai”.
16. The English translation of the bye-law 34 (Annexure P1)
placed by the appellants reads as under:-
“No other cattle fair shall be held within 8 kms from
another cattle market. These bye laws shall not be
applicable to the cattle markets being held when it came in
2 1998 (2) CTC 661
3 (2011) 1 SCC 640
4 2002 (6) ALD 233
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force. Provided that the said license has been notified
within six months prior to the gazette of 34”.
17. The word ‘distance’ does not occur in the English translation
of bye-law 34 placed by the appellants on record. The Hindi version of
bye-law 34 quoted by the respondent No. 2 in their counter affidavit
before the High Court does not have the word ‘दूरी’; it contains the word
‘भीतर’. The authentic version of bye-law 34 of the Bye-Laws has not
been placed before us. In this view of the matter we do not think it is
appropriate for us to place any interpretation on the language of byelaw
34 when the High Court has sent the matter back to Zila
Panchayat, Muzaffarnagar for deciding the matter afresh after giving
reasonable opportunity of hearing to all concerned.
18. We have carefully perused the judgment and order of the
High Court and we find that High Court has not placed any construction
on the language of bye-law 34. The contention of the learned counsel
for the appellants that the High Court has placed an erroneous
interpretation on the language of bye-law 34 is wholly misplaced and
unfounded. The High Court has noted the arguments of the parties but
has not given any interpretation on the language of bye-law 34. The
High Court cannot be said to be in error in adopting the course by
sending the matter back to Zila Panchayat, Muzaffarnagar as impugned
order/licence to the appellants was granted on October 23, 2007
without hearing the respondent nos. 3 and 4.
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19. In view of the above, Civil Appeal has no merit and is
dismissed with no order as to costs. The respondent no. 2 – Zila
Panchayat, Muzaffarnagar shall now act as per the order of the High
Court dated December 12, 2007. Time given by the High Court to
respondent no. 2 for hearing and disposal shall stand extended by
three months from the date of receipt of the copy of this order.
…………………….. J.
(R.M. Lodha)
………………………J.
(Anil R. Dave)
NEW DELHI.
JULY 26, 2012.
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