Momina Qureshi vs N.C.T. Of Delhi And Ors.
2000 Latest Caselaw 992 Del

ORDER

Manmohan Sarin, J.

1. Petitioner Momina Qureshi, a house-wife, with her family had been running a Dhaba, i.e. a small eating place at F-218, Lado Sarai, Mehrauli, New Delhi, since 1994. Petitioner was duly registered with the Municipal Corporation of Delhi, for running the trade of dhaba since 1994. The said registration was renewed on 17th May, 2000, upto 31-3-2001.

2. Petitioner was served with a show cause notice-cum-order bearing No. DHO/ HZ/2000/485 dated 30-6-2000, issued by respondent No. 2. The notice cum-order purported to reject the ad hoc registration granted to the petitioner for running the dhaba, on the following ground :

"Preparing buffalo's meat under insanitary condition."

Petitioner was also directed to close the trade within 3 days of receipt of the notice-cum-order, failing which action was proposed to be taken under the Delhi Municipal Corporation Act, for sealing of the premises without any further intimation. Petitioner, aggrieved by this order, filed the present writ petition.

3. Notice to show cause as to why rule nisi be not issued, was issued on 5-7-2000, returnable on 18-7-2000. While the writ petition was pending, the respondents proceeded further in the matter and issued an order dated 7-7-2000, for sealing of premises, under Section 423 of the Delhi Municipal Corporation Act, 1957. The above order attempts to add and improve on grounds stated in the show cause notice-cum-order by the following additional detail:

"Preparing buffalo's meat; opposite religious temple under insanitary conditions and without licence."

4. Respondent No. 2, Deputy Commissioner (South Zone) passed the sealing order under Section 423 of the Delhi Municipal Corporation Act, for sealing the premises on the ground that the same was being run in violation of Section 417 and 421 of the DMC Act, without licence. The license/registration having been rejected by the earlier show cause notice-cum-order dated 30-6-2000.

5. It is common ground between the parties that the premises were sealed on 8-7-2000. An application for further directions was also moved by the petitioner, which is pending. The respondents have filed their counter affidavit. The petitioner has also filed an additional affidavit as per the directions of the Court and filed a site plan showing the location of the petitioner's dhaba and the temple opposite. It is petitioner's case that Shri Sidh Nath Kali Temple was inaugurated on 22-1-1999, i.e. approximately after five years of running of the dhaba. The photograph of the plaque at the temple confirms the date of inauguration of the temple. Learned counsel for the petitioner also submitted that the temple is on DDA land. However, it is not necessary for the purposes of this writ petition to delve into the issue of temple being on DDA land. The respondents in their affidavit have averred that complaints had been received from the villagers and residents of the locality, alleging that the petitioner was selling raw and baked meat from the dhaba, located opposite the Maa Kali Temple. It may be noted that Maa Kali is the Primordial Mother Goddess of the Hindu tantriccult and is regarded as a warrior Goddess, traditionally worshipped with sacrifice and offerings of flesh and liquor. Learned counsel for the petitioner has stated before me that petitioner is only selling qpokedmeat and not raw meat, as alleged in the complaints filed against her.

6. Having noticed the factual matrix of the matter as above, the question that arises for consideration is whether the show cause notice-cum-order dated 30-6-2000 and sealing order dated 7-7-2000, are sustainable or liable to be quashed as prayed for by the petitioner?

7. Learned counsel for the petitioner, firstly, assailed the show cause notice-cum-order dated 30-6-2000 on the ground that though described as a show cause notice, it is, in fact, rejecting/terminating the petitioner's registration as dhaba. Learned counsel submitted that the licence of the petitioner could not be terminated except as per the procedure provided under Section 430 of the Delhi Municipal Corporation Act, which requires a person to be given an opportunity of showing cause against the said termination. In the instant case, registration of the petitioner was terminated by the impugned show cause notice-cum-order dated 30-6-2000 itself. Moreover, coming to the ground for termination, the ground given was "preparation of buffalo's meat in insanitary conditions". Here also, the notice did not specify or indicate the defects or describe as to what the insanitary conditions were. Petitioner was not notified as to what was lacking or what defects should be rectified.

8. The case record of the respondent-Corporation, produced by their counsel, has been perused to ascertain if there was any record of inspection of petitioner's dhaba and the insanitary conditions, if any, that were noted in such an inspection, which warranted issuance of the show cause notice-cum-order. Perusal of the file notings do not reveal any inspection or mention of insanitary conditions. Rather, the whole basis of issuance of the show cause notice-cum-order were some complaints received from some persons of the locality against the cooking and sale of buffalo meat. It were these complaints which culminated in the second order that was passed on 7-7-2000 under Section 423 of the Delhi Municipal Corporation Act. It is in this order that the ground of location of the dhaba being opposite religious temple was mentioned and added to the ground of cooking buffalo meat in insanitary conditions. The notings in the file of the Municipal Corporation reveal that action against the petitioner was to be taken as she was not willing to desist from serving cooked buffalo meat to her customers, alongwith other food items. There was no record of any insanitary conditions being observed.

9. This brings us to the question as to whether there is any prohibition or statutory bar in preparation and serving of buffalo meat. In this regard, provisions of Delhi Agricultural Cattle Prevention Act, 1994 may be noticed. The Act contains provisions prohibiting slaughter, sale purchase or disposal of agricultural cattle. The Act also prohibits possession of flesh of any slaughtered agricultural cattle. "Agricultural Cattle", is defined as animals specified in the Schedule to the Act. The Schedule names the following four categories of animals :

1. Cows of all ages;

2. Bulls;

3. Bulls for bullocks; and

4. Bullocks.

From the foregoing, it would be seen that buffalo does not fall within the definition of agricultural cattle. There is no prohibition on slaughter, possession or sale of buffalo meat in Delhi. Learned counsel for the petitioner submits that buffalo meat happens to be cheaper than that of lamb or goat meat, Petitioner's-dhaba is catering to the needs of the lower strata of the society. She cannot be deprived of carrying on her lawful vocation to earn her livelihood. There is no sanction at law for revocation/cancellation of the licence or registration of the dhaba on the ground of sale of buffalo meat. Accordingly, the consequential sealing of the premises also would be illegal.

10. The show cause notice dated 30-6-2000, though described as a show cause notice, was, in substance, an order which rejected the permission/registration granted earlier and had the effect of revoking the licence of the petitioner for running the dhaba. This revocation had been done without affording to the petitioner an opportunity to show cause against it and is in contravention to Section 430 of the Delhi Municipal Act. Petitioner had also not been given any opportunity to rectify any alleged insanitary 'conditions. Reference is invited to the decision of the Apex Court in Raj Restaurant v. M.C.D., , wherein the Apex Court has observed as under (para 5) :--

"Where, in order to carry on business a licence is required, obviously refusal to give licence or cancellation or revocation of licence would be visited with both civil and pecuniary consequences and as the business cannot be carried on without the licence it would also affect the livelihood of the person. In such a situation before either refusing to renew the licence or cancelling or revoking the same, the minimum principle of natural justice of notice and opportunity to represent one's case is a must. It is not disputed that no such opportunity was given before taking the decision not to renew the licence though it is admitted that for the reasons hereinbefore set out the licence was not renewed. Such a decision in violation of the minimum principle of natural justice would be void. Now, it is true that no specific order is made setting out the reasons for refusal to renew the licence. But the action taken of sealing the premises, for carrying on the business without a licence clearly implies that there was refusal to renew the licence and the reasons are not disclosed. And the action disclosing the decision being in violation of the principle of natural justice deserves to be quashed."

11. In the present case, the bogey of insanitary conditions was only a camouflage for the real cause, which were the complaints and protests from certain persons in the locality, who find the running of the dhaba opposite a religious temple offensive, though the latter has come up about five years after the establishment of the dhaba.

12. The second order of sealing dated 7-7-2000 was passed on the basis of running of business without licence, the same having been revoked by the earlier order. This order, again, is not sustainable. Complaints of residents or hurt religious sentiments are not the grounds which are available for passing an order under Sections 417, 421 and 423 of the Delhi Municipal Corporation Act. The action of the MCD authorities has been completely misdirected and based on totally extraneous factors. In case respondents have reservations on account of public sentiments or hurt religious feelings, it is open to them to take action in accordance with law if the same discloses any contravention or breach of law.

13. In view of the foregoing discussion, the petitioner is entitled to a writ of certiorari and mandamus. Let a writ of certiorari issue quashing the show cause notice bearing No. DHO/HZ/2000/485 dated 30-6-2000, issued by respondent No. 2, and the sealing order dated 7-7-2000. A writ of mandamus to also issue against the respondent No. 2 to desal the premises No. F-218, Lado Sarai, Mehrauli, New Delhi forthwith. Respondents are further directed not to interfere with the running of dhaba, except in accordance with law.