Anwar Ahsan vs Municipal Corporation Of Delhi ...
2010 Latest Caselaw 5843 Del

    IN THE HIGH COURT OF DELHI AT NEW DELHI


                  W.P.(C) 13202/2009 & CM APPL 14363/2009


          ANWAR AHSAN                                       ..... Petitioner
                              Through Mr. G.M. Farooq, Advocate


                              versus

         MUNICIPAL CORPORATION OF DELHI
         AND ORS                                    ..... Respondents
                      Through Mr. Nirbhay Sharma, Advocate for Mr.
                      Anjum Javed, Advocate for R-2 along with
                      Inspector L.C. Yadav and SI Mahavir, PS Aman
                      Vihar.
                      Ms. Mansi Gupta, Advocate for R-1


          CORAM: JUSTICE S. MURALIDHAR

                               ORDER

% 22.12.2010

1. The Petitioner is aggrieved by an order dated 23rd October 2009 cancelling

his licence for a meat shop issued by the Municipal Corporation of Delhi

(„MCD‟).

2. The Petitioner states that after obtaining all clearances including the

verification report of the police, he was issued a licence by the MCD on 30th

September 2009. He was selling buffalo meat in the said shop under name and

style of M/s. Anwar Qureshi Halal Meat Shop. The Petitioner states that some

of the residents in the locality started harassing him and threatening him with

dire consequences if he did not close the meat shop. According to him, his

complaint to the concerned Police Station Prem Nagar went unheeded.

3. On 23rd October 2009 the impugned order was issued to the Petitioner by

the MCD revoking his licence purportedly on the recommendation of the

Station House Officer („SHO‟) of the Police Station („PS‟), Aman Vihar

citing "the apprehension of breach of peace, law and order problem in the area

due to existence of your buffalo meat shop."

4. Learned counsel for the Petitioner submitted that the impugned order was

passed without issuing any show cause notice to the Petitioner. It is submitted

that the grounds on which such recommendation for closure was made by the

SHO were also not disclosed to the Petitioner. The Petitioner was conducting

his business of selling meat in a lawful manner after a valid licence was

issued by the MCD in accordance with law. The licence could not have been

revoked without following the due process of law. It is submitted that the

impugned order violates the Petitioner‟s fundamental rights under Articles 19

and 21 of the Constitution.

5. In the affidavit filed by the MCD by way of reply it is admitted that a

licence was duly issued to the Petitioner on 10th October 2009. By a letter

dated 21st October 2009, the SHO Aman Vihar directed the Veterinary Officer

to cancel of the Petitioner‟s licence. The SHO‟s letter stated that the shop was

in an unauthorized colony having a mixed population of Hindus and Muslims.

It was claimed that several PCR calls as well as complaints had been received

against the shop. It was stated that there was an apprehension of breach of law

and order in the area and therefore, the Petitioner‟s licence should be

cancelled. A copy of the said letter dated 21st October 2009 of the SHO has

been enclosed with the affidavit.

6. Apart from the above report, the MCD refers to a letter dated 19 th October

2009 received from the Residents Welfare Association (Regd.), Block B,

Agar Nagar, Prem Nagar Kirari, Delhi demanding closure of the meat shop. It

is stated that there was another letter dated 21st October 2009 written by the

Muslim residents favouring the opening of the shop. The MCD concluded that

there was a "simmering dispute" between both the communities which might

lead to a law and order problem. It is submitted by the MCD that at the time

of issuance of the licence to him, the Petitioner had furnished an indemnity

bond expressing no objection to the revocation of the licence without notice

or assigning any reason. The Petitioner had also given an affidavit stating

therein that he would not hold MCD liable for any action against him. It is

submitted that since a no objection had to be obtained from the police

department for the opening of the meat shop, the letter dated 21st October

2009 by the SHO, Aman Vihar could not be ignored.

7. While directing notice to issue in this petition on 23rd November 2009, this

Court directed that it would be open to the Petitioner to apply for a licence to

operate from a different location and such application, when made, would be

processed immediately.

8. A status report was filed by the police in this case on 12th April 2010. The

only reason therein for recommending the revocation of Petitioner‟s licence is

that the Residents Welfare Association of Agar Nagar made a complaint to

the police, stating that "a lot of people gathered to protest against the sale of

buffalo/cow meat, and there was a lot of problem is locality after opening the

said meat shop and communal harmony was disturbed." Apprehending a law

and order situation the SHO had sent a letter to the MCD asking it to revoke

the licence. It is stated that after the closure of the Petitioner‟s meat shop, the

law and order situation in the area was normal.

9. The Petitioner in his rejoinder pointed out that mention of the words „cow

meat‟ in the status report of the police was uncalled for and was derogatory.

At no point in time was the Petitioner selling cow meat. His trade licence was

for selling buffalo meat. It is submitted that mention of „cow meat‟ has been

made intentionally to create tension in the community. It is pointed that on 4th

September 2009 there was a police verification after which the licence was

issued on 30th September 2009. There could not have been a drastic change in

the law and order situation within three weeks thereafter. It is denied that

there was any law and order situation which required revocation of the

Petitioner‟s licence.

10. This Court, on a perusal of the pleadings, directed on 16th December 2010

the production of the records by the police "containing the assessment of the

law and order situation purportedly created by the running of the Petitioner‟s

licenced meat shop."

11. Pursuant to the above order the police records as contained in the file have

been produced. A perusal of the records show that on 4th September 2009

there was a verification report by the Police Station Aman Vihar stating that

"there is no problem of law and order point. No worship place is located near

the shop of applicant." On the basis of the above police report, the Petitioner

was granted a licence on 30th September 2009.

12. It appears that on 14th September 2009 one Mr. Satya Narayan Singh gave

a written complaint alleging that the Petitioner had encouraged the people in

the locality to convert to another religion. A copy of the said complaint

addressed to the MCD, was sent to the Police and other authorities. There was

also a handwritten complaint signed by 75 residents of the Residents Welfare

Association, Agar Nagar, B-Block, Delhi.

13. A D.D. entry was recorded on 3rd October 2009 at Police Station Aman

Vihar, Delhi citing the complaint of Mr. Satya Narayan Singh that a piece of

buffalo meat was thrown in his compound. The complaint was investigated

and found to be unsubstantiated. Nobody was found responsible for throwing

the piece of meat.

14. Apart from the above documents, there is the order of the MCD dated 23rd

October 2009 revoking the trade licence. A report dated 27th December 2009

of the police states that during an inquiry conducted by them it was found that

the meat shop was closed and there was no communal tension. Therefore, the

complaint dated 14th September 2009 was recommended to be closed.

15. Despite this Court directing in its order dated 16 th December 2010 that the

police file containing assessment of law and order situation brought about by

the Petitioner‟s licened meat shop should be produced, the record produced

before this Court contains no such assessment by the police.

16. What is strange is that the letter dated 21st October 2009 of Inspector

Rajbir Singh Phogat, a copy of which has been enclosed as Annexure R-1 to

the short counter affidavit dated 21st December 2009 of the MCD is also not

in the file produced before this Court. In any event, the status report does not

refer to the complaint letter dated 14th September 2009 of Mr. Satya Narayan

Singh or the hand written complaint of 75 residents of Agar Nagar, B-Block

and there is nothing to indicate that any proper enquiry was conducted by

questioning the signatories of the said representation. It appears that the police

never called the Petitioner herein and asked any question. Admittedly, there

was no show cause notice issued to the Petitioner prior to the revocation of his

trade licence. No valid explanation has been forthcoming from the MCD for

this.

17. It appears to this Court that the revocation of a licence issued in

accordance with law by the MCD after the police verification is indeed a

serious matter. On mere complaints by certain residents opposed to running a

meat shop in the area, a unilateral order revoking a licence could not have

been passed by the MCD without observing the basic requirements of natural

justice. In the first place a proper enquiry ought to have been conducted by

the police on the compliant made by the residents. This was not done in the

instant case. Secondly, the status report filed in this Court that there was a

protest against the sale of „cow meat‟ is not substantiated at all. There is

nothing in the file to indicate that the police went to the Petitioner‟s shop to

find out if the meat being sold there was anything other than buffalo meat.

When dealing with a sensitive issue which may have implications for

communal harmony, the police ought to have acted with greater responsibility

and made a proper enquiry. The allegations made by the local residents

against the Petitioner remained unsubstantiated. To straightway recommend

to the MCD the closure of the Petitioner‟s meat shop and revoke his licence

was an extreme step taken by the police, which was accepted by the MCD.

Apart from being violative of principles of natural justice, the measure was

arbitrary, unreasonable and disproportionate.

18. It is the primary duty of the police to deal with law and order. It is only

upon an inability to deal with such a situation should resort be had to other

extreme measures including the closure of meat shop for the running of which

licence has been issued in accordance with law. The assessment of law and

order situation has to be done by the police in a responsible manner. Even if

the police apprehends a law and order situation, it should make every effort to

mediate between the persons in conflict. The police should try and bring

about a situation where the misgivings of the parties are satisfactorily

addressed. Without there being any actual occurrence of any unpleasant

incident, and without some modicum of an enquiry, it would be unsafe to

jump to a conclusion on mere apprehension, that there is going to be a law

and order problem, and take the extreme measure of closing a validly licenced

business. In any event, such an extreme step ought not to have been taken

without offering the licence holder an opportunity of being heard, after

furnishing to him the material on the basis of which the extreme measure is

proposed. In the instant case, none of the above `due process‟ steps were

taken.

19. For all the above reasons, this Court sets aside the order dated 23rd

October 2009 issued by the MCD revoking the Petitioner‟s licence. The

Petitioner shall be permitted by the MCD to resume business at his licenced

meat shop forthwith. The SHO, Police Station Aman Vihar, Delhi is directed

to ensure that proper protection is given to the Petitioner to run his meat shop

peacefully and without interference from the local residents. This protection

should be extended for a period of four weeks from today and thereafter,

reviewed depending on the assessment by the police of the prevailing

situation.

20. The petition and the pending application are disposed of.

S. MURALIDHAR, J.

DECEMBER 22, 2010 rk