1. This is an application under Article 226 of the Constitution for a writ in the nature of mandamus directing the respondents to cancel or withdraw the notice dated 27-2-1950 served on the petitioners and also for an order for cancellation of the resolution dated 24-2-1950 passed by the respondents and for direction calling upon the respondents to forbear from giving effect to the said resolution and/or the said notice.
2. The petitioners are the owners of two beef shops in Ward No. 4 Charial, Budge Budge, to the District of 24-Parganas. The petitioner 3 is the nephew of the petitioners 1 and 2 and one of the said beef shops is stated to have come into existence 100 years ago. The area in which the shops are situated is an industrial area and it is stated that it is inhabited predominantly by Mahomedans. It is alleged that beef is one of the staple food of Mahomedans particularly the poorer section of that community and due to the persistent demands of the local people two other shops besides the two shops belonging to the petitioners came into existence about thirty years ago and have been in the locality ever since. The petitioners have been at all material times' holders of licences from the respondent Municipality granted under Section 370(1) of the Act for carrying on the said business of sale of beef and meat in the locality and at no point of time they contravened any of the terms or conditions of the licence in any way as to be a cause of annoyance or offence or danger to persons residing in or frequenting the immediate neighbourhood. In the middle of February 1950 one Pandit Ram Chandra Awasthi, an orthodox Up-country Brahmin was appointed Chairman of the said Municipality. At a meeting of the Commissioners of the Municipality held on 24-2-1950 a resolution was purported to be passed in the following terms:
'In view of the fact that due to indiscriminate slaughter depletion of cattle wealth -- the backbone of this country has become the order of the day and inasmuch as acute shortage of draught' animals and paucity in milk supply has brought in their wake, woes and miseries in abundance and because providing an adequate diet full of milk is one of the main factors in building up of a strong nation of healthy and happy inhabitants, resolved that with a view to increasing the yield of milk and cattle wealth and their progeny for the general economic uplift of the masses specially the agricultural produces of the country, the Municipal Slaughter House for slaughtering cow, bull, bullock, or buffaloes, be closed down with effect from 1-3-1950 and further resolved that no licence under Sections 408 and 418 be issued for slaughtering or for sale of beef or flesh of such animals within the municipal area, excepting on bona fide religious festivals and on ceremonial occasions.
'It is also resolved that the services of the watchman of Municipal Slaughter House be dispensed with from 1-3-1950 on payment of one month's salary in lieu of notice'.
3. On 27-2-1950 the petitioners were served with a notice under the signature of Mr. Awasthi, the Chairman of the Municipality to the following effect:
Shaikh Mongru Mia and others,
Beef Stall Holder, Trunk Road, Charial,
Dated, Budge Budge, 27-2-1950.
With a view to increase the supply of milk and cattle wealth and their progeny, the Commissioners of the Budge Budge Municipality in their special meeting held on 24-2-1950 have decided to close down the Municipal slaughter House and no licence for slaughtering or for sale of beef or flesh of buffaloes etc. will be issued henceforth. This will come into effect from 1-3-1950 which please note.
Chairman, Budge Budge Municipality.'
4. It is stated that the said resolution and the notice are ultra vires, illegal and mala fide, and constitute violation of the fundamental rights of the petitioners guaranteed under Article 19(1)(g), Constitution of India. It appears that after the service of the notice on the petitioners the latter made various representations to the various authorities, viz., the Additional District Magistrate, Alipore, 24 Parganas. The President of the District Minority Board, 24-Parganas, the Chairman of the Members of the Minority Commission, West Bengal and to other persons and also made representations to the respondents but neither the respondents nor the other authorities aforesaid had paid any heed to such representations and they have denied justice to the petitioners. The petitioners made various applications for renewal of the licences and the last of such applications was made on 22-2-1950. The respondents, however, had not entertained the said applications.
5. Mr. G.P. Kar, the learned counsel for the petitioners has referred me to Section 370(2), Bengal Municipal Act (15 of 1932) and has contended that the only grounds on which the grant or renewal of a licence can be withheld by the Municipality are those mentioned in that Section. The Municipality is a creature of statute and their powers and duties are confined within the four corners of the statute. The Municipality has no power to refuse or withhold a licence except for reasons expressly specified in the Section. Section 370(2) is as follows:
'A licence for any of the purposes mentioned in Sub-section (1) shall not be withheld unless the Commissioners at a meeting have reason to believe that the business which it is intended to establish or maintain would be a cause of annoyance, offence or danger to persons residing in or frequenting in the immediate neighbourhood or that the area should be for general reasons kept clear of the establishment of such business.'
6. It is clear from the wordings of the resolution and the wordings of the notice dated 27-2-50 that the reasons for closing down the Slaughter House and for not renewing or issuing the licence are not those specified in the Section. The Municipality has taken into consideration extraneous matters in passing the resolution and in issuing the notice complained of and has thus exceeded its jurisdiction or powers conferred by the statute. Neither the resolution nor the notice is warranted by the terms of the statute. Under Section 370(2) it is incumbent upon the Commissioners to grant the licence unless the grounds on which the licence may be withheld and which are specified in the Section, exist in any particular case.
7. The learned advocate appearing for the respondents relies on Article 48 of the Constitution which is as follows:
'The State shall endeavour to organise Agriculture and Animal Husbandry on modern and scientific lines and shall in particular take steps for preserving and improving the products and prohibiting the slaughter of cows and calves and other milch and draught cattle.'
8. He points out that the word 'State' in this Article includes the local Authority such as the respondent Municipality and reference is made for this purpose to Articles 36 and 12 of the Constitution. It is argued on behalf of the respondents relying on these Articles that the resolution passed by the Municipality was a valid one and was within the competence of the commissioners to pass it. It may be noted that Article 48 is one of the directive principles of State policy. These are only fundamental principles for the governance of the country and they are not enforceable by any Court but such principles are to be applied in making laws of the State (Article 37). There has been no law enacted for general closing down, of the slaughter houses or forbidding the carrying on of the business of sale of beef in the State or in the Indian Union. The Bengal Municipal Act is an existing law which has continued in force even after the commencement of the Constitution. The Commissioners of the respondent Municipality must act within the four corners of this statute and they cannot travel beyond the statute and take shelter under Article 48 for the purpose of justifying the resolution or the notice complained of in this application.
9. In my view the petitioners have made out a case for interference by this Court in respect of the acts complained of.
10. It is contended by the learned advocate for the respondent Municipality that the petitioners had an alternative remedy by way of an appeal to the Provincial Government under Section 531 of the Act and in the circumstances the petitioners cannot be allowed to have recourse to this extraordinary remedy under Article 226. It is argued that if the petitioners had appealed under Section 531 the Provincial Government could have granted the petitioners complete and adequate relief by virtue of the controlling powers vested in the Government under Sections 548 and 549 of the Act read with the said Section 531.
11. It is well settled that the existence of an alternative remedy does not operate as an absolute bar to the grant of prerogative writs, under the extraordinary jurisdiction of the Court. It is true that the Court will as a general rule and in the exercise of its discretion refuse a writ of mandamus when there is alternative specific remedy at law which is not less convenient, beneficial and effective. It has no doubt been held that if a right of an appeal is provided by any statute, that may exclude the remedy by writ of mandamus; but it is a matter to be considered on the facts and circumstances of each case whether such remedy by way of appeal will be an adequate remedy for the redress of the petitioners' grievance: --'Rashid Ahmed v. Municipal Board Kairana', : 1SCR566 .
12. In order that the petitioners can avail of Section 531 of the Act there must be a definite order refusing a licence required under the Act, The resolution of 24th February and the notice dated 27th February served on the petitioners cannot be considered as a definite order refusing a licence within the meaning of Section 531 of the Act. These are in the nature of general determinations and not an order or decision in respect of any particular application for grant or renewal of licences. In fact no order has been passed in respect of the applications made for renewal by the petitioners. Moreover the resolution and the notice embody decisions which are outside the ambit of the Act. As pointed out in --'Motilal v. Govt. of State of Uttar Pradesh', : AIR1951All257 (F.B.) Paras 33, 160 and 161 and --'Bhagat Transport Service Ltd. v. State' of Himachal Pradesh', , unless the order to be appealed against is an order made under the Act no question of preferring an appeal does or can arise. In my view the petitioners are not precluded by reason of the remedy of appeal contained in Section 531 of the Act from applying to this Court for directions under Article 226 of the Constitution.
13. It was contended by the learned counsel for the petitioners that the resolution and the notice are mala fide. I do not think that the petitioners have on the facts of this case sufficiently made out a case of mala fide. The conflicting affidavits which have been filed in these proceedings do not justify me in coming to the conclusion that the conduct of the respondent Municipality in passing the resolution or issuing the notice complained of is tainted with want of good faith,
14. In the result the petition succeeds and the rule is made absolute. The resolution dated 24-2-1950 and the notice dated 27-2-1950 are cancelled and the respondents are directed to forbear from giving effect to the resolution and/or the said notice, and they are further directed to determine the applications of the petitioners for renewal of license according to law. There will be no orders as to costs.