Abu Shama Ahmed and Anr v. The State of Assam and 6 Ors

ORDER Date : 11-08-2023 Heard Mr. A.F.N.U. Mollah, learned counsel for the petitioners; Mr. N.K. Dev Nath, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 1, 4 & 5; and Mr. S.R. Baruah, learned Junior Government Advocate, Assam for the respondent nos. 2, 3, 6 & 7.

¶2The projected case of the petitioners is that the petitioners are running a market named 'Bondihana Fancy Bazar' ['the Market', for short] on and from a parcel of land, which are private patta lands, measuring about 7 Bighas 4 Kathas 8 Lessas [07B-04K-08L] and covered by Dag nos. 1164 [old] & 269 [new] and Patta no. 38 [new], located in Village – Salmara Part–III, Athani Revenue Circle, District – Dhubri since 2009. According to the petitioners, the decision to run a private market over the said private patta lands was taken with the consent of the local people. In the Market, groceries as well as cattle are being traded. The private patta lands belong to one Anowar Hussain and Abdul Rashid respectively, who are the legal heirs of one Late Ator Ali Sheikh, the original pattadar of the parcel of land wherefrom the Market was being run. The petitioners are aggrieved by a notice dated

26.10.2021 issued by the In-Charge, Bondhihana Out Post, District – Dhubri. By serving the notice purportedly under Section 91, Code of Civil Procedure, 1908, the In-Charge, Bondhihaha Out Post had asked for permit/documents from the petitioners in respect of the Market. By the notice, petitioners have instructed to run the cattle market by obtaining permission for approval from the Jurisdictional District Commissioner and the Jurisdictional Superintendent of Police respectively. The petitioners have contended that after service of the notice, the petitioners have been prevented from running of the Market.

¶3Mr. Mollah, learned counsel for the petitioners has submitted that on being so prevented, a representation was submitted on behalf of the petitioners by the President, Birsing Jarua Anchalik Panchayat before the Deputy Commissioner, Dhubri on 15.07.2023 Page No. 4/7 requesting to accord approval/permission for sale and purchase of cattle in the Market for the greater interests of the local public.

¶4The State Legislative Assembly has enacted an Act, 'the Assam Cattle Preservation Act, 2021' ['the Act', for short]. The Act has been notified vide Notification no. PLB.78/2021/266 dated 22.11.2021 and the Act has been published in the Assam Gazette in its issue dated

25.11.2021. As per the Notification dated 22.11.2021, the State Government has appointed

22.11.2021 as the date on which the provisions of the Act shall come into force in the entire State of Assam. As per the Statement of Objects and Reasons, the Act has been enacted to include sufficient legal provisions to regulate the slaughter, consumption and transportation of cattle.

5.1. Section 3[a] of the Act has defined 'Animal Market' and 'Annual Market' means a market place or sale-yard or any other premises or place to which animals are brought from other places and offered or displayed for sale or auction and includes animal fairs and cattle pounds, as duly licensed or recognized under a State Act or any other law for the time being in force or any rules or regulations made hereunder. As per Section 3[d], 'Competent Authority' means the person or persons appointed in this behalf by the State Government by notification in the Official Gazette to exercise the powers and perform the functions of a competent authority under the Act or the rules made hereunder for such area or areas and for such period as may be specified in the notification.

5.2. Section 10 has contained the provision regarding regulation of Animal Market and the same reads as under :-

10.[1] Every Animal Market Committee of recognized animal markets shall issue proof of sale and purchase of animals in the prescribed format to the purchaser and maintain proper record for inspection by the competent authority. [2] If any animal market fails to comply with the provisions of this section and rules prescribed in this regard, the license or registration of such animal Page No. 5/7 market shall be cancelled and the person responsible for such non-compliance shall be barred from entering the market and fined, as may be prescribed, after providing the animal market committee or the person, as the case may be, an opportunity of being heard.

5.3. The Act has been further amended by the Assam Cattle Preservation [Amendment] Act, 2021 vide a Notification bearing no. LGL.83/2021/55 dated 28.01.2022 and the same has been published in the Assam Gazette in its issue dated 28.01.2022.

5.4. A set of rules, that is, the Assam Cattle Preservation Rules, 2022 ['the Rules', for short] have also been notified vide a Notification no. PLB.78/2021/406 dated 31.05.2022 and the Rules have been published in the Assam Gazette on 07.06.2022.

5.5. Rule 7[1] of the Rules has laid down that the Competent Authority as may be appointed by the State Government may issue Registration Certificate to the agency or farm for the purpose of trading of cattle, on receipt of application, for bonafide animal husbandry and agricultural purpose after being satisfied himself about the genuineness of the application as provided under sub-section [4] of Section 7 of the Act in Form as annexed to the Rules.

5.6. By a Notification bearing no. PLB.78/2021/411 dated 25.07.2022 and published in the Assam Gazette on 27.07.2022, the State Government has delegated the powers/functions under Section 10 of the Act to the District Magistrate or his authorized representative as the Designated Competent Authority.

¶6From the afore-stated provisions of the Act under Rules r/w Notification dated

25.07.2022, it is noticed that it is the District Magistrate or his authorized representative, who has the authority and jurisdiction to grant permission to operate an Animal Market upon due consideration.

¶7Both Mr. Dev Nath and Mr. Baruah, learned counsel for the official respondents have submitted that since the petitioners intend to run/operate a cattle Market in private patta Page No. 6/7 lands, they are required to submit proper application on behalf of the persons seeking to run the Market named Bondihana Fancy Bazar before the District Magistrate and the Competent Authority under the Act and the Rules. They have jointly submitted, in unison, that the writ petition can be disposed of with a direction to the authority to consider the prayer of the petitioners for running/operate a cattle market in the private patta lands in the event a proper application is submitted by the petitioners before him. Mr. Mollah, learned counsel for the petitioners has submitted that an application will be submitted by the petitioners before the District Magistrate and the Competent Authority under the Act and the Rules within the shortest possible time with the request to accord approval/permission in accordance to the provisions of the Acts and the Rules.

¶8Having regard to the provisions of the Act and the Rules r/w Notification dated

25.07.2022 and considering the submission that the petitioners will submit a proper application before the District Magistrate and the Competent authority under the Act and the Rules, this Court is of the considered view that instead of keeping this writ petition pending, the same can be disposed of with a direction to the respondent no. 2 to consider the application, if any, filed by the petitioners seeking approval/permission to run/operate a cattle Market in the private patta lands and after consideration of the same in terms of the provisions of the Act and the Rules, to dispose of the application containing the prayer to allow the petitioners to run/operate the cattle Market in private lands in accordance with law by passing a speaking order as expeditiously as possible, preferably within an outer limit of 4 [four] weeks from the date of submission of an application along with a certified copy of this order. It is accordingly directed. The District Magistrate and the Competent Authority may afford personal hearing to the petitioners and other stakeholders, if found necessary, and may call for report[s] from the Jurisdictional Superintendent of Police and other authorities, in order to arrive at the final decision. The order to be passed by the respondent no. 2 shall be communicated to the petitioners forthwith thereafter. It is, however, made clear that the District Magistrate and the Competent Authority shall consider the application on its own merits as this Court has not made any observation as regards the merit of the claim of the petitioners.

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¶9This order disposes of the writ petition.

JUDGE Comparing Assistant

PageoNo.o1/7 GAHC010170492023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/4557/2023o ABUoSHAMAoAHMEDoANDoANRo PRESIDENToOFoBONDIHANAoFANCYoBAZAR,oS/O-oLATEoROMJANoALI,o VILL.-oSALMARAoPART-III,oP.O.oBONDIHANA,oP.S.oFAKIRGANJ,oDIST.o DHUBRI,oASSAM,oPIN-o783349. 2:oABULoKALAMoAZAD oSECRETARY oBONDIHANAoFANCYoBAZAR oS/O-oFOYZALoHOQUE oVILL.-oSALMARAoPART-V oP.O.oBONDIHANA oP.S.oFAKIRGANJ oDIST.oDHUBRI oASSAM oPIN-o783349o VERSUSo THEoSTATEoOFoASSAMoANDo6oORSo REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM,o PANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT,oDISPUR,o GUWAHATI-6. 2:THEoDISTRICToCOMMISSIONER oDHUBRI oP.O. oP.S.oANDoDIST.oDHUBRI oASSAM oPIN-o783301. 3:THEoSUPERINTENDENToOFoPOLICE oSOUTHoSALMARAoMANKACHAR oHATSINGIMARI oP.O. Page No. 2/7 P.S. AND DIST. SOUTH SALMARA- MANKAHAR ASSAM PIN- 783135. 4:THE DHUBRI ZILLA PARISHAD REPRESENTED BY CHIEF EXECUTIVE OFFICER DHUBRI ZILLA PARISHAD DHUBRI ASSAM PIN- 783301. 5:THE BIRSING JARUA ANCHALIK PANCHAYAT REPRESENTED BY THE EXECUTIVE OFFICER BIRSING ANCHALIK PANCHAYAT P.O. BIRSING P.S. FAKIRGANJ DIST. DHUBRI ASSAM 6:THE CIRCLE OFFICER ATHANI REVENUE CIRCLE ATHANI P.O. BOGRIBARI P.S. GAURIPUR DIST. DHUBRI ASSAM PIN- 783349. 7:THE OFFICER-IN-CHARGE BONDIHANA POLICE OUT POST P.O. BONDIHANA P.S. FAKIRGANJ DIST. DHUBRI ASSAM PIN- 783349 Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : GA, ASSAM Page No. 3/7 BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY