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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 7

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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 ‘दरूी’; 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 bye-

law 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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