Rajesh Sarju Yadav And 8 Ors vs The Municipal Corporation Of ...
2017 Latest Caselaw 5207 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION


                         WRIT PETITION No. 2165 of 2015


Rajesh Sarju Yadav alias Rajesh Singh
& 8 Ors.                                                     ... Petitioners
           Versus
The Municipal Corporation of Gr. Bombay                      ... Respondents
& Ors.


                          CORAM   :   A. S. OKA &
                                      SMT. VIBHA KANKANWADI, J. J.

DATE ON WHICH THE JUDGMENT IS RESERVED: 21/07/2017
DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 28/07/2017

JUDGMENT (PER VIBHA KANKANWADI, J)

1] Rule. The learned Counsel appearing for the Respondents waives service. Considering the narrow controversy involved, the petition is taken up for final disposal.

2] A show cause notice was served on the Petitioners by the Respondent/ Municipal Corporation on 8th June 2015. The Petitioners are holding licence u/s. 313-A of the Mumbai Municipal Corporation Act, 1888 (in short the "said Act") for carrying on business in a stall admeasuring 1 meter x 1 meter situated at Fashion Market, opposite Bombay Gymkhana, M. G. Road, Mumbai. The licence has been granted to the Petitioners to carry on business named in their respective licences.

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It was alleged in the notices that when the stalls of the Petitioners were inspected, they were not found. Some Petitioners had not paid the up-to- date licence fees. It is also alleged that the Petitioners were found using excess area and certain articles were found to kept hanging outside the stall.

3] The Petitioners have replied to the said notice on 9th June 2015 pointing out that at the time of inspection, their representative was present in the stall. They had undertaken to pay the up-to-date licence fee. Some have accepted that the articles were hanging at their business premises. They have tendered apology and assured that they will not commit such mistake again.

4] After having heard the learned Counsel appearing for the parties, we find that the explanation given in the reply to the show cause notice has not been considered by the Assistant Commissioner, 'A' Ward. He has brushed aside the said reply by merely observing that the contents therein are noted and are not at all acceptable and satisfactory. He has cancelled the licences issued to the Petitioners and directed them to vacate the premises by his order dated 16th June, 2015.

5] The Petitioners have tendered undertakings on oath 8 th June 2017, 12th June 2017, and 14th June 2017 respectively, in which they have undertaken to remain confined the permitted area and have undertaken not to increase the size of their respective stalls. They have also undertaken not to display and keep articles hanging outside the permitted area/ stall. We accept the said undertakings.

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6                   The   impugned   orders   dated   16-06-2015   show   non-

application of mind as no reasons have been assigned as to why the contentions raised in the reply have been rejected. There was an explanation given by the Petitioners for their alleged acts, which is not considered in the impugned orders.

7 Hence, the impugned orders deserve to be set aside. Accordingly, we pass the following order:-

ORDER

(i) The impugned orders dated 16th June 2015 in respect of all the Petitioners are hereby set aside;

(ii) We direct the Petitioners to appear before the Assistant Commissioner, 'A' Ward, Mumbai Municipal Corporation, on 04th August 2017 at 11.00 a. m. It will be open for the Petitioners to produce additional documents on that day;

(iii) After giving an opportunity of being heard to the Petitioners, the Assistant Commissioner, 'A' Ward, shall pass appropriate order in accordance with law on the show cause notice dated 8th June, 2015 within a period of two months from 31st July 2017;

(iv) The orders passed by Assistant Commissioner, 'A'Ward be communicated to the respective Petitioners;

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  (v)       In case the orders be adverse to the Petitioners, the ad-

interim relief granted in this case shall continue for a period of 4 weeks from the date of communication of the orders to the respective Petitioners;

(vi) All the contentions of the parties on merits are kept open;

(vii) The undertakings of the Petitioners are hereby accepted;

(viii) We make it clear that if the Assistant Commissioner, 'A' Ward, Municipal Corporation, finds that any of the Petitioners has committed any breach of the undertaking, he will be entitled to revoke the licence of the concerned Petitioner;

(ix) The petition is disposed of in the above terms.

(SMT. VIBHA KANKANWADI, J)                                     (A. S. OKA, J)