Abdul Rashid vs The Deputy Commissioner Darrang and Another

Ram Labhaya, J.—This is a petition under Article 226, Constitution of India for a writ in the nature of mandamus or any other suitable writ. Rule was issued calling on the opposite parties to show cause why appropriate relief be not granted.

The case of Abdul Rashid, Petitioner, is that he is an Indian citizen residing in Dhekiajuli town in the District of Darrang. He was a butcher by profession and was selling beef in his shop in Dhekiajuli Town since 24-4-1944. A permit was granted to him by the Deputy Commissioner, Darrang to carry on a butchery shop en or about 24-4-1944. The permit was renewed on 31-7-1951. A certified copy of this permit has been filed. By this permit No. 10/ 1951 the Petitioner was granted permission "to open a butchery shop dealing in beef at Dhekiajuli provided the slaughter was carried on in a place not within the public view but in a private place with great care." On 31st October the police of Dhekiajuli police station seized the aforesaid permit and ordered the Petitioner to close down the butchery shop with immediate effect.

The Petitioner applied for a copy of the order on the basis of which the permit was seized. No copy was given to him. But he was told that the permit had been cancelled by reason of the objections raised by a certain section of the population of Dhekiajuli. He applied to the Deputy Commissioner on the 3rd November and also on 13th November for a permit to carry on his business, undertaking at the same time to shift his shop to some place in his own lands or to such other site which may be approved. But his application dated 13th November was rejected. The Petitioner has urged, vide para 11 of his petition, that the orders cancelling Petitioner''s permit and denying him permission to reopen the shop in question amounted to a total denial of his fundamental right to carry on his business which is guaranteed by Article 19(1)(g). The orders in question have also been challenged as discriminatory in character and therefore offending against the Constitution on this score also. These orders appear to have been interpreted as debarring the Petitioner absolutely from running his shop in the area in question. The relief claimed is that the impugned orders be cancelled or recalled and the Respondents, the Deputy Commissioner and the Superintendent of Police be directed to forbear from giving effect to the orders refusing permission to the Petitioner to run a butchery shop.

It is noteworthy that the petition does not disclose that any orders were passed by the Superintendent of Police. No act of his is challenged. The order by which the permit that was issued in 1951 was recalled and the order rejecting the grant of fresh permit are both orders of the Deputy Commissioner. The S.S.P. had therefore no case to meet. No prerogative writ or any order of a like nature could be issued against him under Article 226.

The Deputy Commissioner has shown cause. He has stated that the Petitioner and his father had separate shops at Dhekiajuli Town. They were near the main road and in public view. Some people of the town complained against the slaughter of animals in public view and prayed for cancellation of permits or removal of shops to some more suitable locality. The medical authorities also were of the opinion that there should not be more than one shop in the town. In these circumstances he cancelled Petitioner''s permit by an executive order in order to prevent a possible breach of the peace and also to avoid danger to public health, safety, comfort and convenience. Petitioner''s father was permitted to continue on his shop at some more suitable place not in public view. He has not been able to find such a place. The question of granting a permit to him is still under consideration. He has justified his orders on the ground that the trade of the Petitioner was likely to interfere with health, comfort and convenience of the public generally. It was likely to disturb public tranquility by reason of the slaughter of cattle in public view at the place where the shop was situate.

The prayer in the petition is that the orders of the Deputy Commissioner be cancelled or recalled and that he should be further ordered not to give effect to his order refusing permission to the Petitioner to run his butchery shop. The grievance of the Petitioner is that the impugned orders contravened his fundamental right guaranteed to him by Article 19(1)(g). It appears to us that the petition is completely misconceived.

It is common ground that the Municipal Act does not apply to Dhekiajuli Town. The learned Counsel for the Petitioner and the learned Government Advocate are agreed that there is no law under which the Deputy Commissioner has the authority or is bound to issue a permit to anyone to run a butchery shop within the limits of Dhekiajuli Town under any circumstances. If the Deputy Commissioner has no such authority or obligation, there would be no corresponding right in the Petitioner to insist on a permit from the Deputy Commissioner for carrying on his trade.

The Deputy Commissioner has tried to justify his recalling or cancellation of the permit of 1951 on certain grounds. The learned Government Advocate does not consider it necessary to justify his orders on that basis. His case is that there was no duty cast on him by law to issue any such permit for running a butchery shop. The permit of 1951 was issued without any authority. Its cancellation and the subsequent refusal to issue any permit do not contravene or infringe any legal right of the Petitioner. We think the contention put forward by the learned Government Advocate has great force and ought to prevail. The prayer is for a writ of mandamus or a writ of a like nature. The petition is directed against two specified orders. Before a mandamus can issue the Petitioner must show that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought. The learned Counsel for the Petitioner has not been able even to contend that the Deputy Commissioner is under any legal obligation to issue a permit of the kind that the Petitioner desires. If the Deputy Commissioner has got no legal obligation to issue the permit sought for, no mandamus from this Court can issue to him ordering him to do what he is not bound under the law to do. No writ of the nature applied for therefore can issue to the Deputy. Commissioner also.

In paragraph 4 of the petition it was alleged that police of Dhekiajuli not only seized Petitioner''s permit No. 10/1951 but also ordered him to close down the butchery shop with immediate effect. The allegation is beautifully vague. It is not stated who was responsible for ordering the Petitioner to close down the said butchery shop. The identity of the public servant who is alleged to have given the verbal order to close the butchery shop has not been disclosed. The police of Dhekiajuli is a body of public servants. All of them could not be responsible for the verbal order imputed to them. The public servants who got the permit from the Petitioner are not before us. The allegations made against them cannot be admitted or denied by the opposite parties. It is not alleged that the opposite parties to the petition ordered an absolute closure of the shop with immediate effect. No such order has been brought to our notice even from the records. The non-joinder of the public servants alleged to have verbally ordered the closure of the shop makes it impossible for us to determine whether any order of the nature alleged was given and if so in what terms. Nor can any writ be issued against public servants who are not before the court.

The difficulty does not end there. Assuming that some Constable when recovering the cancelled permit from the Petitioner told him to close the shop the Petitioner would not be justified in invoking the extraordinary jurisdiction of this Court under Article 226, Prerogative writs and orders of like nature under Article 226 may issue where there is a serious infringement of a legal right and the aggrieved party has no other suitable and effective legal remedy available to him. The powers of the Court under this Article cannot be utilised as a substitute for ordinary remedies. The remedy provided by Article 226 may be availed of only where ordinary legal process cannot give adequate and prompt relief. This would not be the case here. The public servant concerned may not have meant to give an order. It may not have been an unqualified direction. In any case the Petitioner could well afford to wait till there was some more tangible or perceptible attempt at interference with any legal right of his say by a legal process. Even in that case he could apply for a prerogative writ only on Showing that no other suitable or effective remedy was (sic) in the circumstances of the case.

Mr. Ahmed has relied in support of his contention on-- Rashid Ahmed Vs. The Municipal Board, Kairana, In my view this authority does not assist the Petitioner. Das J. who delivered the judgment of their Lordships of the Supreme Court observed at page 164 (paragraph 4) as follows:

In short, the Petitioner''s business has been wholly stopped and he is being prosecuted for alleged breach of the bye-laws.

The decision was given on these facts. It is clearly distinguishable. The Petitioner before us wants a mandamus to enforce his demand for a permit which the Deputy Commissioner has no authority to issue. He is not alleged to have ordered the closure of the shop also.

The points raised by the learned Counsel have all been dealt with above. No case has been made out for the issue of a prerogative writ sought for against the opposite parties. The petition therefore must fail and is dismissed with costs. Hearing fee Rs. 100/-

A certificate for appeal to the Supreme Court under Article 132 of the Constitution is prayed for by the Petitioner and is refused.

Sarjoo Prosad, C.J.

I agree.