Delhi High Court
Mohd. Shakir vs Lt. Governor And Ors. on 6 August, 2002
Equivalent citations: AIR 2003 Delhi 42
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. The petition has been filed seeking a writ of
mandamus against the decision of the respondents in
revoking the license of the petitioner in terms of the
order dated 12.7.2002. The license was granted to the petitioner on 6.11.2001 under Section 415 of the Delhi Municipal Corporation Act, 1957(hereinafter referred to as the said Act ) .
2. Initially a decision was taken to revoke the
license on 11.3.2002 and the same was challenged by the
petitioner by filing writ petition No. 1986/2002. The
decision of the respondent was held not be in
accordance with law since no opportunity of hearing had
been granted to the petitioners.
3. As per the terms and conditions of the license
the petitioner made an application for renewal of the
license. The relevant clause is clause 10 of the terms
and conditions which is as under:-
"10. The licensee is informed that if he wants to renew the license, he will have to deposit license fee within one month from the close of current licensing period. If he fails to deposit the license fee with in one month he will have to pay license fee along with composition fee which will be determined by the Corporation from time to time. With regard to levy of composition fee, no .other information will be given."
4. On 7.6.2002 a notice was issued to the
petitioner that nuisance and health hazard was being
created prejudicial to the public health in violation of the terms and conditions of the license under Sections 415 and 397 of the said Act. It was stated in the said show cause notice that carcasses were hanging outside the shop being polluted with dust and flies; meat shop was also situated less than 100 meters from the religions place; shop was running under insanitary and unhygienic conditions; wire gauge fitted door and windows/glass doors were found open at the time of sale of meat; wash basin was not found and exhaust fans were also not found. The petitioner replied to the show cause notice denying the allegations in so far as other the aspects are concerned and stating that there was no restriction in running the shop within 100 meters of the place of worship.
5. After consideration of the show cause notice a
revocation order was passed on 12.7.2002 stating that
the license for running the business of buffalo meat
shop was given on the basis of the NOC issued by the Delhi Police and that during enquiries conducted by the Vigilance Department of the respondent corporation it was found that the shop was running at less than 100 meters of religious place/place of worship and the reply not being found satisfactory to the show cause notice., it wsa directed the petitioner should close the business with immediate effect.
6. Learned counsel for the petitioner contends that
in terms of the parameters of Section 430 of the said
Act a reasonable opportunity must be given to the
petitioner before making any order or suspension or
revocation. Learned counsel for the petitioner has
also referred to the terms and conditions of licenses
under Section 417 read with Section 430 of the Act
issued by the Additional Deputy Commissioner (Licencing)
on 31.2.1998 where clause 10 provides that in case no
action is taken on the renewal application by the
competent authority within 3 months from the date of
receipt of the application, the license shall be deemed
to be renewed.
7. Learned counsel for the petitioner has referred
to the judgment of the Supreme Court in Raj
Restaurant and Anr. v. MCD to contend that where a license is required obviously refusal to give license or cancellation or revocation of license would be visited with both civil and pecuniary consequences and as the business cannot be carried on without the license it would also affect the
livelihood of the person. In such a situation before
either refusing to renew the license or cancelling or
revoking the same the minimum principle of natural
justice of notice and opportunity to represent one's
case is a must Learned counsel for the petitioner
also relies upon the judgment of the Supreme Court in
State of U.P. and Ors. v. Daulat Ram Gupta 2002 AD (SC)
476 where it was held that there are two restrictions
on the power of the State Government or a licencing
authority while issuing a general or special direction:
firstly such directions should not be inconsistent with
statutory order and secondly such direction can be
issued only for purposes of giving effect to provisions
of the statutory order.
8. Learned counsel for the petitioner contends that
the termination of license of the petitioner cannot be
given effect to since there is no statutory order which
debars the petitioner from carrying on such business.
9. I have considered the submissions advanced by
learned counsel for the petitioner.
10. There can be no doubt on the proposition that a reasonable opportunity of being heard must be given to a license holder before a decision is taken for revocation/cancellation of the license. The rule of audi altrem partem must be followed and that is the ratio of the judgment of the Supreme Court in M/s. Raj Restaurant's case(supra). In fact it is on this very principle that CW No. 1986/2002 was allowed on 22.3.2002 in the case of the petitioner.
11. However, the facts on record now show that in
fact a show cause notice was issued to the petitioner
on 7.6.2002 to which the petitioner replied on
14.6.2002. The impugned order dated 12.7.2002 was
passed after the show cause notice dated 7.6.2002 as
also the letter dated 28.6.2002 for personal appearance
of the petitioner in the office of the licencing
authority. Thus the petitioner has been given a
reasonable opportunity of being heard.
12. In so far as the claim of the petitioner in
respect of the license is concerned, the license was
initially for a specified period of one year which was
capable of being renewed on an application being made
in advance. The petitioner made such application in
advance but a decision had been taken to revoke the
license. Thus there cannot be any question of
extension of license as a decision has been taken to
revoke the license and thus application of the
petitioner for renewal stands rejected. There cannot
be, in my considered view, an inherent right to get the
license renewed.
13. The reason given by the respondent for
revocation of the license is on account of the fact
that the shop is within the proximity of a religious
place of worship. This is in pursuance to a decision
taken by the Tehbazari Committee on 13.1.83 resulting
in a circular dated 29.1.83.
14. It is not necessary to go into the aspect
whether such minutes or decision have or do not have
statutory force, since certainly a policy decision has been taken. Since such policy decision is taken that licenses will not be given within a distance of 100 metres of the place of worship and the license period is expiring it is not mandated on the respondent corporation to renew the license contrary to such policy decision. The mere allegation that in certain other areas license has not been terminated can be of no avail to the petitioners in view of the policy decision.
15. In my considered view it is not appropriate to
issue any direction under Article 226 of the
Constitution of India mandating the respondent to renew
a license contrary to a policy decision taken in this
behalf.
16. In view of the aforesaid position I find no
merit in the writ petition and the same is dismissed
leaving the parties to bear their own costs. Needless
to say that the respondents should implement the policy
decision uniformly in other areas.
CM 8056/2002
17. Dismissed.
