Vinod Kumar vs Municipal Corporation Of Delhi ...
2005 Latest Caselaw 1455 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 1976

1. In these proceedings under Article 226 of the Constitution of India the relief claimed is for issuance of directions to the respondent (MCD), to issue or restore trade licenses for selling of nature of cooked food items including non-vegetarian food items at the Petitioner's premises.

Page 1977

2. The petitioner is carrying on business in premises at No. 599/36, Main Patel Road, New Delhi. His establishment, a Dhaba was registered with the Chief Inspector, Shop and Establishment on 16.3.1984. He applied for trade license under a special Registrat on Scheme, in 1994. Apparently, he was issued the necessary license. According to the averments in the petition, the license so issued was renewed annually. It is claimed that all the approvals were valid up to 31.12.2005. The petitioner avers that in 1986 a Mahavir Temple was constructed, near the vicinity of his establishment. Thereafter, some policy was issued, regulating grant of license and the approvals of a different categories of establishments. The petitioner claims to be ignorant of that p licy. That policy was assailed by some persons running establishments in the vicinity (WP(C) 5098/97), Ashok Kumar v. MCD. By order dated 16.12.2003, this Court disposed off the petition, inter alia, with the following directions :

"The ground for cancellation of the license, as stated in the impugned order, is the fact that the petitioner has been running a non-vegetarian Dhaba with meat products hanging outside. In the counter affidavit, it is stated that in terms of the policy decision of the respondent, standard meat shop should be at least 100 metres away from a place of worship. There is no challenge to the policy. In fact, the policy is such that really speaking there can be no grievance made in respect of the same."

A grievance has been made in the petition that there are other shops running within the radius of 100 metres and selling non-vegetarian food. I am of the considered view that the policy must be uniformally implemented and in so far as the grievance of t he petitioner is concerned of discrimination, directions are liable to be issued to the Respondent " Corporation, to forthwith take action in respect of whatever shops are selling non-vegetarian."

3. It is claimed that the petitioner was issued a show cause notice on 23.12.2003 to stop sale of non-vegetarian food. He replied to the notice on 13.1.2004 the petitioner relies upon a recent policy of the MCD dated 22.11.2004, issued after the judgment and order of this Court. That policy reads as follows :-

"Location of Meat Shop The meat shop/sale outlet should preferably be a unit of meat market located away from Vegetable, fish or other food markets and shall be free from undesirable odor, smoke, dust or other contaminants. Wherever the meat markets are not available, indiviual meat shop licenses can also be granted considering the above factors, which have a direct bearing on the hygiene of premises and health of consumers. The sale of meat in the city so as to fulfilll the requirement of non-vegetarian population should be a matter of hygiene and health. Therfore, it may not be linked with the location of shop to a particular distance from any religious place. Howeve , considering the sentiments of people visiting the religious places, the committee recommended that-

(a) for the purpose of granting the license to the meat shop, the minimum distance between the license meat shop and place of worship except Mashed should not be less than 50 meter;

Page 1978

(b) The condition of not less than 50 meters distance from Mashed will apply for the licensed pork shop only. -ª The condition of 100 meters, distance will apply in case premises is situated directly opposite of the entry gate of religious place of any community.

(d) The explanation of religious place, as contained under para No. 1.6(b) of the Public Notice of 2002-2003 from the Excise Commissioner, Govt. of NCT of Delhi, shall be adopted, which is as follows:

"For the purpose of Clause (b) above, a religious place would imply a religious place having a puce structure with a covered area of more than 400 square feet."

"For the purpose in case of licensed pork meat shop in context of area of religious place having a puce structure with a covered area should be 200 sq. ft. instead of 400 sq. ft. covered area."

All the meat shops located in the vicinity of religious places shall be fitted with black glass doors, which must be kept closed all the times except in case of entry or exit. It must be the responsibility of the meat shop owners to maintain a high sta dard of hygiene not only inside the shops but also in the way leading to the shops as far as any in sanitary conditions due to meat business for example, presence of blood, part of offal, meat scraps on road pavements or other adjoining places etc., are oncerned."

4. In these circumstances, it is stated that the respondent-MCD ought to restore a regular trade license for selling all nature of cooked food. The petitioner claims that his Dhaba/ eating place is at a distance more than 60 metres and does not face the religious Institution directly.

5. The respondent-MCD in its counter affidavit stated that in compliance with the previous orders of the Court, show cause notice was issued and the petitioner was restrained from carrying on sale of non-vegetarian food items. It is also stated that the etitioners' existing registration was never revoked since he had undertaken to restrict business for the sale of vegetarian food only.

6. The MCD states that the policy with regard to non-vegetarian food of raw food products was modified and the minimum distance was reduced to 50 metres if the shop was not situated directly in front of the religious place. If it is so located, the distance should be more than 100 metres.

7. CM NO. 5967/2005 has been filed seeking impleadment in these proceedings. It is on behalf of Shri Ashok Kumar who was the petitioner in the previous proceeding that led to the order of this Court dated 23.12.2003. The said applicant has alleged violat on of the Court's orders. He has also relied upon the order of the learned Single Judge dated 3.2.2005, regarding submissions of the parties including the stand of the MCD that a subsequent decision was taken. The Court had required the MCD to support its stand in view of the previous directions of the Court.

8. Learned counsel reiterated the averments in the petition and submitted that now with the change in policy of MCD, there is no impediment to grant Page 1979 of a trade license that allows the sale of non-vegetarian cooked food items. It is submitted that the embargo or prohibition contained in the previous order although underlined by the Court in its judgment, does not in any way come in due compliance of the fresh policy. Learned counsel also submitted that the previous order never prohibited the change of policy.

9. Mr. Birbal, learned senior counsel appearing on behalf of the respondent submitted that there has been a change of the policy of the MCD. He has stated that no one has a vested right to claim licenses as a matter of right. All that the MCD can be required to do is to examine the issue in order to find out whether the petitioner's claim would fall within the four corners of the policy.

10. Learned counsel for the applicant/ impleading party submitted that the order of this Court is sought to be defeated by the directions claimed in these proceedings. He relied upon the previous order dated 6.12.2003 which had enjoined MCD to treat all p reasons in a non-discriminatory manner. He submitted that the MCD has not complied with those directions and stated that contempt proceedings being CP NO. 531/2004 are pending. In those proceedings the Court had doubted the competence of the MCD to change the policy.

11. I am of the opinion that in the absence of a challenge to the changed policy, the petitioner's case for issue of license for sale of all cooked food including non-vegetarian cooked food has to be considered on its merits. Undoubtedly, as per the previous policy such establishments which were located within 100 metres from the vicinity of a religious place could not be issued licenses for sale of non-vegetarian cooked food. The petitioner's establishment has been functioning since 1984. However, s per the averments in the petition, the religious Institution came into existence in the year 1986. Having regard to all these circumstances and also the allegations of the petitioner that his establishment is not located directly in front of the place of worship but is away and at 60 metres distance, I am of the view that the respondent" MCD ought to consider his application for issue of appropriate license and pass necessary order, in view of its changed policy.

12. As far as the allegations of the impleading the applicant are concerned, there is no substantive challenge to the changed policy. Moreover, more all that the previous order directed was uniform implementation of the existing policy. It no where restricted or inhibited the MCD to stick to one policy alone; indeed in terms of Section 420 of the Delhi Municipal Corporation Act it is always open to the MCD to formulate, review, modify or alter its existing policies having regard to the exigencies of the situation and the peculiar circumstances of the case. Policy making is never a static process and cannot be interpreted in the light of what was interpreted by the Court at one point of time. Judgments cannot be construed as an inhibition on the power o the executive authority such as the MCD, to exercise its powers bonafide.

13. In the light of the foregoing discussion, the petition is allowed to the extent that the MCD is directed to examine the petitioner's application and issue the necessary license claimed if his case falls within the parameters of the new policy. The CD shall make necessary orders within four weeks from today. No costs.