*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th July, 2010.
+ W.P.(C) No.4547 /2010
%
DEVYANI INTERNATIONAL LIMITED ..... Petitioner
Through: Mr. Ravi Gupta, Sr. Advocate with Mr.
Rishi Kapoor, Mr. Paras Khattar,
Advocates.
Versus
MCD & ANOTHER ..... Respondents
Through: Ms. Mansi Gupta, Advocate for MCD.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner carrying on business in the name and style of "Pizza Hut" at Aggarwal Mall Shop No. 101, First Floor, Plot No. 3, Sector 5, Aashirwad Chowk, Dwarka by this writ petition seeks setting aside / quashing of the order dated 22nd June, 2010 of the Deputy Health Officer of the Public Health Department, Najafgarh Zone of the respondent no.1 MCD revoking the Health Trade License of the petitioner for the reason of violation of terms and conditions of the license. The petitioner was further W.P.(C)4547/2010 Page 1 of 5 directed to close the restaurant within three days from the receipt of the notice and threatened with further action otherwise.
2. The respondent no.1 MCD had prior thereto issued a show cause notice dated 23rd April, 2010 to the petitioner contending that the petitioner was operating the restaurant aforesaid with a seating capacity of more than 100 seats but with a licence of less than 50 seats; that the restaurant was being run under the most insanitary and un-hygienic condition prejudicial to public health. It was also contended that the petitioner had on an earlier occasion been prosecuted for the same but had not desisted. The petitioner was therefore called upon to show cause as to why its licence should not be revoked.
3. It appears that the petitioner submitted a reply dated 24th April, 2010 to the said show cause notice. However, the said reply has not been filed by the petitioner. In continuation of the said reply another reply dated 30th April, 2010 was given stating that at the time of inspection on 23 rd April, 2010 an official meeting of the petitioner was going on at the restaurant aforesaid and it was for this reason that it had appeared to the inspecting team of MCD that the seating capacity of the restaurant was more than 50. It was reiterated that the seating capacity of the restaurant was of 50 seats only. The petitioner also assured the respondent no.1 MCD that it will abide by the improvement instructions issued to it and had rectified the unhygienic W.P.(C)4547/2010 Page 2 of 5 conditions pointed out. The respondent no.1 MCD was also requested to re- inspect the premises.
4. Though show cause notice was issued and to which replies aforesaid were given but the order made after nearly two months of the said show cause notice contains neither any reference to the show cause notice nor to the replies thereto. The very purpose of giving a show cause notice is to enable the noticee to explain its stand to the person giving the notice and who if satisfied is expected to withdraw the notice and if not satisfied to pass further orders in pursuance to notice. Such order ought to contain reasons for not agreeing with the reply of the noticee. Not only has the duty to give reasons now become an ingredient of the principles of natural justice but when the action/order is subject to judicial review, in the absence of reasons this court is unable to fathom as to what prevailed in the mind of the authority passing the order. The order dated 22nd June, 2010 in the present case does not satisfy the said criteria. It is without any reason whatsoever. It does not even spell out as to which of the terms and conditions of the licence were violated.
5. The counsel for the respondent no.1 MCD appearing on advance notice also could not explain. In the circumstances rather than staying the operation of the said order and keeping the petition pending before this Court, it is deemed expedient to dispose of the petition by setting aside the W.P.(C)4547/2010 Page 3 of 5 order dated 22nd June, 2010 but with liberty to the respondent no.1 MCD to re-inspect the premises and if the petitioner is found to be in violation of any of the terms and conditions or laws, rules and regulations then to take action against the petitioner in accordance with law. Such a course of action is found to be more congenial to the maintenance of the requisite standards rather than permitting the petitioner to continue with its trade under the protection of the order of this Court.
6. While on the subject it must be mentioned that though it is the case of the petitioner that during the inspection on 23rd April, 2010 more persons than the capacity were found in the restaurant for the reason of a meeting being underway but even if that be so, this Court is of the opinion that it would still not entitle the petitioner to breach the prescribed seating capacity. The petitioner by obtaining a licence for use of the premises as a restaurant has taken the premises away from the domain of a private place and the restaurant is now in public domain. Example was given to the senior counsel for the petitioner of the booking of a restaurant for a private party. Merely because a private party is booked would not entitle the restaurant to exceed its licenced capacity. The petitioner has also not filed before this Court any proof of any such meeting being underway. No particulars whatsoever of the meeting have been given. The petitioner has not filed any record to show that during the time of the meeting no sales were effected to the patrons of the restaurant. Thus though defence/reply of the petitioner to W.P.(C)4547/2010 Page 4 of 5 the show cause notice is found to be shaky but for the reason of the defect in the order of the respondent no.1 MCD, the same has been set aside as aforesaid. It is however clarified that if in future the petitioner intends to use the restaurant for its own purpose, it shall notify the respondent no.1 MCD in advance of the same, else shall not be entitled to take such defence.
7. The petition therefore succeeds. The order dated 22nd June, 2010 of the respondent no.1 MCD is set aside/quashed as being without reasons and with liberty to the respondent no.1 MCD to if so entitled to take action against the petitioner in accordance with law. The petition is disposed of. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) 13th July, 2010 M..
W.P.(C)4547/2010 Page 5 of 5