Bhagwan Das And Anr. vs The Municipal Corporation Of ...
1995 Latest Caselaw 639 Del

JUDGMENT

D.P. Wadhwa, J.

(1) By this petition under Article 226 of the Constitution the two petitioners having valid license granted under Section 421 of the Delhi Municipal Corporation Act, 1957 (for short 'the Act') seek a writ, order or direction quashing the public notice dated 29 May 1995 issued by the Commissioner, Municipal Corporation of Delhi (M.C.D.), in exercise of powers conferred upon him under Section 383 of the Act. By this public notice the Municipal Commissioner prohibited the sale of sugar cane juice in the entire jurisdiction of M.C.D. In this public notice it was also mentioned that any person contravening this order shall be liable to prosecution under the law and that that order was to remain in operation for four months w.e.f. I June 1995. Petitioners say that the impugned order is violative of their fundamental right to carry on their business of selling sugar cane juice and that the prohibition imposed by the impugned order is illegal and has to be struck down.

(2) In similar circumstances last year also the Municipal Commissioner issued a public notice on 12 April 1994 under Section 383 of the Act prohibiting the sale of sugar cane juice in the entire jurisdiction of M.C.D. This public notice was subject-matter of challenge in this Court by both the petitioners in Civil Writ Petition No. 1775 of 1994 which was decided on 26 May 1994. A Bench of this Court by that judgment struck down the public notice dated 12 April 1994 and issued the following directions:- "It is made clear that this order would not come in the way of the respondent Corporation carrying out a survey and conducting scientific investigation or research as expeditiously as possible to find out if sugar cane juice extracted and offered for sale in Delhi is infected with foecal coli or any other infection or is in any manner unfit for human consumption. The respondent must also, in association with the experts, arrive at a finding whether regulation in the manner of extracting the sugar cane juice and offering it for sale also by setting up conditions as to the place where it can be extracted and offered for sale can serve the purpose or whether nothing short of prohibition would only do so. Not only the respondent would be free to do so, this Court would rather expect them to act and act with expedition, but not without care and caution if only there be a genuine necessity of exercising the power contemplated by Section 383 of the Act." It is submitted that without following the above directions and without any application of mind again the impugned public notice has been issued for the present year as well.

(3) We issued notice to show cause as to why rule nisi be not issued and in answer thereto the respondent-MCD filed its counter-affidavit. Thereafter, we issued Rule D.B. and heard Mr. Mukul Rohtagi, Senior Advocate, instructed by Mr. Sandeep Sethi, Advocate for the petitioners and Ms. Madhu Tewatia for the M.C.D.

(4) In justification of the impugned public notice the respondent-MCD has referred to its nothings on the file which are also dated 29 May, 1995 on which date the impugned public notice has been issued. In these nothings which appear to be the basis for issuing the impugned public notice reference has been made to the six samples of sugar cane juice taken in the year 1993 which were found to be unfit for humane consumption. There are no particulars from where and when these six samples were taken in the year 1993. Then it is mentioned that the Zonal Health Officers had been directed to stop 'lying'(?) sugar cane juice crushers and yet they were facing difficulty in removing the sugar cane crushers from inside the shops and kiosks. It was also mentioned that few old licensees were also creating problem in removing the sugar cane crushers. Then reference has been made to cases of gastro-enterIT is and cholera which are stated to be on increase this year and it was stated that there was likelihood of their spread on higher scale and that the M.C.D. was required to take all preventive measures to ensure further spread of those diseases. If we refer to those details, there have been 7,571 cases of gastro-enterities and there has been one death on that account, and from cholera the number of cases up to 25 May 1995 are reported at 230 but there has not been any death on that account. Thereafter, it is mentioned that the Commissioner might be requested to issue public notice under Section 383 of the Act to ban sale of sugar cane juice for the period ending 30 September, 1995 and also to order that the seized sugar cane crushers during the banned period be not released till the ban was over. Thereafter, without more we find the impugned public notice has been issued.

(5) Mr. Rohtegi points out that there was no ground to impose the total ban on whole of the area within the jurisdiction of the M.C.D. and that no such ban has been made in the area falling under the N.D.M.C. His further submission is that there has not been any ban on the sale of cut fruits, or other juices, or unbottled soft drinks, or ice balls ('golas') sprinkled with sweetened juices or open ice creams and such other items. He queried had could it be the case of the M.C.D. that only because of the sugar cane juice that there was spread of gastro-enterities and cholera in all parts of Delhi. In the earlier judgment referred to above the Bench had noted that it was not known whether it was the sugar cane juice alone which could spread the apprehended dangerous diseases or there was other causes such as contaminated water, etc., which could also be a likely source of apprehended outbreak of the diseases and blame could not squarely be laid at the doors of the sugar cane crushers. Similar, we find, is the position in the present case as well. It has been pointed out that when licenses under Section 421 are issued to the petitioners stringent conditions are imposed to keep their respective places in most .hygienic manner. If there is any contravention of any of those conditions the license could have been cancelled. No such action has been taken against any of the petitioners.

(6) In the earlier petition notice was taken of various judgments of the Supreme Court on the question of reasonable restriction imposed under Clause (6) of Article 19 of the Constitution with reference to fundamental right guaranteed under Article 19(l)(g) of the Constitution. We need not, therefore, refer to those very judgments all over again. We are not examining in this case the question if in the case of epidemic any notice is required to be issued to the holders of licenses if those could be cancelled or not. In the present case, however, it is clear that the action in the public notice depriving the petitioners of their right to sell sugar cane juice is not legal and the impugned public notice in so far as it applies to the petitioners who are having valid licenses under Section 421 of the Act must be held to be invalid. This petition is, therefore, allowed. Rule is made absolute. There Will be no order as to costs.