Mool Chand vs Mcd And Anr
2011 Latest Caselaw 3491 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 7736/2011

%                                       Order delivered on: 24.07.2012

       MOOL CHAND                               ..... Petitioner
               Through:          Mr.Qayam-Ud-Din, Advocate

                    versus

       MCD AND ANR                               ..... Respondent
               Through:          Ms.Manjira Dasgupta for Mr.S. Trehan,

                                 Advocate for respondent, MCD

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (ORAL)

1. Rule. With the consent of counsel for the parties, the present petition is set down for final hearing and disposal.

2. As per the petition, the petitioner is a handicapped person (blind) and by letter dated 15.07.2002 respondent no.2 on behalf of respondent no.1 allotted a PCO booth measuring 7‟5‟ under the handicapped quota of Tehbazari Scheme. This PCO booth allotted was located at Savitri Cinema. On 18.11.2002 the physical possession of the PCO booth was handed over to the petitioner and he was asked to deposit the upto date Tehbazari fees along with security equivalent to three months‟ tehbazari fee, which was deposited on 31.03.2003. The

petitioner continued to run the aforesaid PCO booth till 30.05.2008 when respondent no.3 ordered shifting of the PCO booth from Savitri Cinema, G.K. -II, to B-7, L.S.C. Market on Nelson Mandela Marg, Near Apolo Clinic. Pursuant to the order of respondent no.3, petitioner shifted the said booth immediately to B-7, L.S.C. Market on Nelson Mandela Marg, Near Apolo Clinic. In the second week of February, 2009, the staff of the MCD asked the petitioner to close the PCO booth and he was also threatened in case the booth is not closed, he would be thrown out. Same threat was also extended to the petitioner on 25.02.2009, upon which the petitioner issued a legal notice to the MCD. Subsequently, facing the threat of illegal action, petitioner filed writ petition No.7721/2009, on account of technical reasons, WP(C) No.7721/2009 has been dismissed as withdrawn today, in which interim order was passed.

3. The main thrust of the argument of counsel for the petitioner is that respondents have sought to cancel the PCO booth without following any due process of law, as no show cause notice was given and even the communication dated 25.03.2009 is devoid of any reasons. In the communication of 25.03.2009 petitioner was informed that the PCO at site was cancelled due to administrative reasons.

4. Counsel for the petitioner submits that action of the respondent is unjustified, arbitrary and in complete violation of principles of natural justice. Counsel for petitioner also submits that no show cause was issued to the petitioner and the act of the respondents is discriminatory in nature, and has relied upon the photographs placed on record, to show that other kiosks have been allowed to carry on

their business at the same site, whereas petitioner has been served with cancellation notice on administrative reasons.

5. Counsel for respondents submits that the order of cancellation stands duly served on the petitioner and the PCO site was cancelled, due to administrative reasons and the petitioner would be allotted an alternate site.

6. Counsel for the petitioner submits that in case the PCO booth at B-7, L.S.C. Market on Belson Mandela Marg, Near Apolo Clinic, is removed, he would be left without any source of income. The order of cancellation reads as under:

                 " No.2159/AC/SZ/09                          Dated: 19/3/09

                 Sh.Moolchand
                 S/o.Sh.Sant Lal
                 D-I/468, Sultan Puri,
                 Delhi.

Sub: Cancellation of PCO site allotted at B-7, LSC on Nelson Mandela Marg

In continuation of this office letter No.1360/AC/SZ dated 30.5.08 wherein your PCO site was shifted from GK-II to B-7, LSC on Nelson Mandela Marg Apple Clinic, the same PCO site is hereby cancelled due to administrative reasons and you will be allotted alternate site.

You are directed to contact the Zonal Suptd., General Branch, South Zone for further action in this regard.

Administrative Officer (South Zone)"

7. Counsel for the petitioner submits that at this stage petitioner would be satisfied, if a direction is issued to the respondent not to remove him from the site without a show cause notice and an opportunity of hearing is granted to explain his case.

8. I have heard counsel for the parties. At this juncture it would be appropriate to refer to a decision of the Supreme Court in the case of Canara Bank and Others v. Debasis Das and Others, reported in (2003) 4 SCC 557, relevant portion of which reads:

"13. Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in

issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works 2 the principle was thus stated: (ER p. 420)

"[E]ven God himself did not pass sentence upon Adam before he was called upon to make his defence. „Adam‟ (says God), „where art thou? Hast thou not

eaten of the tree whereof, I commanded thee that thou shouldest not eat?‟ "

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."

9. It is noticed that vide allotment letter dated 15.07.2002 despatched vide No.CL&EC/ 1427/2002 /823 dated 16.7.2002, the respondent no.2 for and on behalf of respondent no.1 allotted a P.C.O. Booth measuring 7‟5‟ under Handicapped quota under the Tehbazari Scheme located at Savitri Cinema More in MCD Central Zone. Vide letter No.558/ AC /CZ/2002 dated 18.11.2002 the Asstt. Commissioner, MCD Central Zone had handed over the actual physical vacant possession of the aforesaid PCO Booth Tehbazari site to the petitioner and the petitioner was asked to deposit uptodate Tehbazari fees along with security equivalent to three months tehbazari fee, which was accordingly deposited by the petitioner upto 31.3.2003 w.e.f. 1.7.2002 and the petitioner accordingly continued to run the said PCO booth at the aforesaid site till 30.5.2008. Both the letters i.e. letter dated 15.07.2002 and 18.11.2002 have been filed on record. The said PCO of petitioner was shifted from Savitri More G.K. II to B-7, L.S.C. on Nelson Mandela Marg, near Apollo Clinic, allotted to him under the handicapped Quota, pursuant to the order of the Assistant Commissioner, MCD, South Zone, vide its order dated 30.05.2008 and the communication was also given to petitioner vide letter No.1360/AC /SZ/08 dated 30.05.2008 and petitioner took the physical possession of the said P.C.O. Booth measuring 7‟x5‟ at the aforesaid new site immediately at the spot and since then he has been carrying on his vocation and business therefrom. A copy of the said letter has been filed on record.

10. The aforesaid facts would show that petitioner was carrying on his business at the PCO booth based on allotment made by the respondents. The petitioner cannot be asked to vacate the PCO booth without following the due process of law. The order No.2159/AC/SZ/09 dated 19/25.03.2009 issued by the MCD is an unreasoned and cryptic order.

11. Applying the principles laid down by the Apex Court to the facts of this case, the present writ petition is allowed. Accordingly, order of cancellation dated 25.03.2009 stands quashed, however, it is clarified that respondent may issue a show cause notice to the petitioner and take action in accordance with law.

CM.No.17529/2011

12. In view of the order passed in the writ petition, application stands dismissed.

                                                           G.S.SISTANI, J
JULY       24, 2012
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