Delhi High Court
Mohd. Shahid vs Mcd on 29 September, 2011
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4620/2011
Decided on 29th September, 2011
IN THE MATTER OF :
MOHD. SHAHID ..... Petitioner
Through: Mr. S.D. Ansari, Advocate with
petitioner in person.
versus
MCD ..... Respondent
Through: Mr. Mukesh Gupta and Ms. Manpreet
Kaur, Advocates with Mr. D.S. Kharab,
Health Inspector, MCD.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may Yes
be allowed to see the Judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
HIMA KOHLI, J. (Oral)
1. The present petition is filed by the petitioner praying inter alia
for quashing of the order dated 30.05.2011 passed by the Deputy Health
Officer, Sadar Paharganj Zone, MCD, revoking the health trade license
issued to the petitioner for running a Dhaba at shop No.8075, Ground
Floor, Main Road, Bara Hindu Rao, Delhi-110006. On a pointed query
posed to the counsel for the petitioner as to why the prayer clause to the
writ petition mentions shop No.8073-8075 as the subject shop, when the
health trade license had been granted by the respondent/MCD in respect
of shop No.8075 alone, he states that he confines the relief in the present
petition to shop No.8075 alone.
2. The case set up by the petitioner is that he has been running
a Dhaba in the name and style of "M/s Chicken Planet" on the ground
floor of premises No.8073-8075, Main Road, Bara Hindu Rao, Delhi, since
the year 1997, under a valid license issued by the respondent/MCD on
23.07.1998. The said license has been renewed from time to time, upto
31.03.2011. Thereafter, on account of complaints made by the
petitioner's brother, Mohd. Javed and his wife, who do not share a cordial
relationship with the petitioner and between whom civil and criminal
litigations are pending, the respondent/MCD served a notice to show
cause on 11.04.2011 upon the petitioner, asking him to show cause as to
why the health trade license issued to him for running the Dhaba, be not
revoked on ground of insanitary and unhygienic conditions prevalent
therein. The petitioner replied to the aforesaid show cause notice vide
letter dated 19.04.2011. After considering the reply of the petitioner, the
impugned revocation order dated 30.05.2011 was passed. Aggrieved by
the said revocation order, the petitioner has preferred the present
petition.
3. Learned counsel for the petitioner assails the impugned revocation
order dated 30.05.2011 on the ground that while the notice to show
cause had confined itself to insanitary and unhygienic conditions in which
the Dhaba was being operated as the ground for revocation of license,
however the order of revocation also states that the license was being
revoked on the ground that on inspection of the premises it was found
that the petitioner had carved out a mezzanine floor where the height of
the roof was found to be much less than 9ft, in respect of which, no
license had ever been granted by the respondent/MCD. He further states
that as per the terms and conditions of the license, the only penalty
provided for breach of terms of the license is a punishment by way of a
fine, but the license in itself cannot be revoked for the said breach.
Lastly, it is submitted that the respondent/MCD did not take into
consideration the letter dated 09.06.2011 addressed by the petitioner to
the Deputy Health Officer, MCD, wherein it was submitted that he had
demolished the mezzanine floor and dispensed with the sitting
arrangements therein and had increased the height of the roof to 12ft,
and that since the ground for revocation no longer existed, the order of
revocation be recalled.
4. Counsel for the respondent/MCD, however, opposes the
present petition and submits that the license initially granted to the
petitioner in the year 1998, was for the purpose of running a Dhaba, and
he was never granted any permission for having any sitting arrangements
inside the premises, which he states is apparent from a perusal of the
health trade license issued in respect of the premises in question.
However during the course of inspection, the officers of the
respondent/MCD found that sitting arrangements had been made at the
mezzanine floor in the premises having a height of the roof at much less
than 9 feet, and it was for such additional breach of conditions of the
license that the revocation order was passed. He further states that at the
time of the inspection, the premises was found to be in an insanitary and
unhygienic condition, as mentioned in the show cause notice dated
11.4.2011, which was the other ground based on which the license was
revoked.
5. In the course of proceedings on 02.09.2011, as the counsel
for the petitioner asserted that as on date, there did not exist any
mezzanine floor in the premises in question, the petitioner and the officer
of the respondent/MCD, who were present in Court, were directed to
proceed to the premises in question straightway and conduct an
inspection thereof. The parties were also directed to be accompanied by
a photographer for photographs of the premises to be taken including that
of the mezzanine floor, if any. Thereafter, the officer of the
respondent/MCD was called upon to submit a report by way of an affidavit
within one week from the date of inspection and the matter was
adjourned to 13.09.2011. On 13.09.2011, counsel for the
respondent/MCD stated that the Health Inspector, who was present in
Court on 02.09.2011, had proceeded to the shop from the Court
straightway, however the petitioner had failed to turn up. It was further
stated that the petitioner did not render any co-operation to the officer of
the respondent/MCD to enable him to take photographs of the premises
and in fact, the officer was obstructed from performing the inspection as
directed by the court. Though a report, as directed, was not submitted by
the respondent/MCD, two photographs taken at the spot on 02.09.2011
were handed over. The first photograph showed a number of tyres piled
up at one side of the entrance of the shop, thus making it impossible for
anyone to enter and inspect the same from within. The second
photograph showed two shutters outside the subject premises and when
standing on the road facing the same, it could be seen that a pile of tyres
was stacked in front of the shutter in the left portion of the premises,
whereas part of the premises on the right side appeared to be vacant.
6. In view of the submission made on behalf of the
respondent/MCD that the Health Inspector was not permitted access to
the shop, the SHO of the area was directed to render assistance to the
respondent/MCD to carry out inspection of the subject premises by
removing any obstruction/hindrance in that regard. Thereafter, a status
report dated 26.09.2011 was filed by the respondent/MCD, wherein it is
stated that the premises was re-inspected on 14.09.2011, on which date
the petitioner was again not found present at the premises. It is stated
that photographs were taken from within the premises and on the said
date, it was found that the mezzanine floor had been removed and
further, that the floor level of the premises was about 2½ feet below the
road level and to enter the shop, one had to take three steps down for
reaching the ground floor level of the shop. It is stated that on the
earlier date when inspection was conducted on 02.09.2011, the petitioner
had intentionally stacked tyres in front of his premises to hide the fact
that a mezzanine floor still existed in the premises. It is further urged that
had the mezzanine floor been removed by the petitioner prior to
02.09.2011, as had been claimed by the petitioner before this court on
the said date, then he would have also ensured that the floor level of the
premises was raised to the height of the road, however the same had not
been done even till 14.9.2011, clearly belying the assertion made by the
counsel for the petitioner on 02.09.2011. A perusal of the photographs
enclosed with the status report shows that there was a staircase built in
the premises, which was leading up to an upper floor of the shop. This is
quite apparent from the marks of the steps alongside the wall, on which
the electricity meters have been fixed. Further, it is apparent by digging
the floor level of the premises and bringing it down by a couple of feet, a
mezzanine floor had been carved out, which fact is also apparent from the
existence of iron girders supporting the mezzanine floor and installed on
both sides of the wall and a part of the shop have been removed by
soldering them out but the remnants are still visible in the photographs,
as they lie embedded in the walls.
7. It was the contention of the counsel for the petitioner that
there were two distinct portions of shop No.8075 and while standing on
the road facing the shops, the shop on the left side having a separate
shutter, was being used for a number of years by another brother of the
petitioner, namely Mohd. Aziz to run the business of sale of tyres and that
only the right side portion of the premises having a separate shutter was
being used by the petitioner for running a Dhaba and further, that the
health trade license had been granted by the respondent/MCD only in
respect of the right side of the shop. However, he concedes that there is
nothing placed on record to establish that the respondent/MCD had
granted the license only in respect of a part of the shop and not the whole
of the shop. This fact is also borne out from a perusal of the license
issued by the respondent/MCD and placed on record as Annexure-A,
which mentions the shop bearing No.8075 and not a part of the premises.
8. The aforesaid contention of the petitioner is further belied by
three photographs of the shop handed over by the counsel for the
respondent/MCD, which he states were taken by the Health Inspector,
when the shop of the petitioner was inspected and challaned on 6.6.2011.
Counsel for the respondent/MCD hands over the carbon duplicate of the
challan book No.350301 to 350350, which shows that vide challan
No.350349 issued on 06.06.2011, the premises of the petitioner was
challaned under Sections 417 and 397 of the DMC Act, by observing that
the petitioner was found continuing to run the Dhaba without a municipal
license and under insanitary and unhygienic conditions, even after the
revocation of license vide order dated 30.5.2011. In the photographs, it
can be seen that the entire premises was one shop with only a pillar in
the center. On the left side of the ground floor were stairs, which once
taken would lead to the mezzanine floor carved out of the left side portion
of the subject premises. The photographs also reveal that there was no
internal partition wall dividing the premises into two portions and that the
ground floor of both sides of the shop was below the level of the road.
The third photograph taken is that of the mezzanine floor carved out of a
part of the premises where sitting arrangements had been made by the
petitioner.
9. The present case once examined in the light of the aforesaid
documents clearly establishes the fact that when the petitioner submitted
the letter dated 09.06.2011 to the respondent/MCD and stated inter alia
that he had demolished the mezzanine floor and dispensed with the
sitting arrangements, the same was a false averment as the mezzanine
floor of the shop appeared to still have been in place till as late as on
02.09.2011. It is in this context that the absence of the petitioner on
02.09.2011 from the spot, even after being directed to proceed with the
Health Inspector from the Court itself to inspect the shop, has to be
treated as deliberate and a willful intent to mislead the court.
Furthermore, no explanation has been forthcoming from the petitioner to
justify his absence on the said date. The intent of the petitioner is further
amplified by the fact that on 02.09.2011, a huge pile of tyres were found
stacked up in front of the left side portion of the premises, which could
only be for the purpose of obstructing the access of the MCD Health
Inspector so that he would not be able to carry out the inspection of the
premises as directed by this Court. It is only after that, having got
sufficient time between 2.09.2011 and the next date of hearing, i.e.,
13.09.2011, that the petitioner got activated and took steps to remove
the mezzanine floor. However, the evidence of the existence of the said
mezzanine floor at the shop and the lingering remnants of the mezzanine
floor could not be completely wiped away and have been brought out
clearly in the photographs taken of the shop on 6.9.2011, and thereafter,
on 14.09.2011.
10. The second argument of the counsel for the petitioner that the
show cause notice having been issued on account of insanitary and
unhygienic conditions at the site, the respondent/MCD could not have
revoked the license of the petitioner for any additional ground, is not
tenable. A perusal of the impugned revocation order dated 30.05.2011
reveals that the Deputy Health Officer mentioned having heard the
petitioner and thereafter having carried out an inspection of the premises,
and it was during the said inspection that it was found that the petitioner
had created a mezzanine floor in his premises, contrary to the terms of
the license issued to him. The order further states that in the inspection it
was also found that the premises continued to remain in an insanitary and
unhygienic condition, causing nuisance and health hazard to the public.
Based on both these grounds, the revocation order was passed by the
respondent/MCD and this court finds no fault with the same.
11. The submission of the counsel for the petitioner that the
provisions of Section 430 of the DMC Act could not have been invoked by
the respondent/MCD in the given facts and circumstances, and at best the
only punishment that could have been imposed on him was by way of a
fine for breach of terms, as per Clause 24 of the license is also devoid of
merits. A perusal of Section 430 of the DMC Act shows that the
respondent/MCD is empowered to suspend/revoke a health trade license
issued by it to a party upon being satisfied, amongst other grounds, that
the conditions imposed under the license have been evaded by the
grantee. The aforesaid provision of the DMC Act would override any
clause/term mentioned in the license itself. In the present case, the
petitioner was granted the license for running a Dhaba, but by carving out
a mezzanine floor from within the subject premises without obtaining any
prior consent of the respondent/MCD and in effect, converting the Dhaba
into a mini restaurant by making sitting arrangements on the mezzanine
floor amounts to a major breach of the terms of the license, for which
contravention, the provisions of Section 430 of the DMC Act were rightly
invoked.
12. In light of the fact that the assertion made by the petitioner,
in his representation dated 09.06.2011 addressed to the
respondent/MCD, that he had demolished the mezzanine floor and
dispensed with the sitting arrangements stands belied, this Court is
compelled to observe that the petitioner has approached this Court with
unclean hands and has deliberately concealed material facts including the
fact that even on the date of filing of the present petition, there existed a
mezzanine floor in the subject premises for which the respondent/MCD
had never issued a license. Further, the challan dated 06.06.2011 issued
to the petitioner reveals that despite the revocation order having been
passed by the respondent/MCD on 30.05.2011, the petitioner not only
continued to illegally run the Dhaba, he also maintained the sitting
arrangements on the mezzanine floor, which is apparent from a perusal of
the photographs taken by the respondent/MCD and produced in Court.
Taking into consideration the fact that the petitioner has with willful intent
tried to mislead this court as also the respondent/MCD, the present
petition is dismissed with costs of `10,000/- payable by the petitioner to
the respondent/MCD within two weeks.
(HIMA KOHLI)
SEPTEMBER 29, 2011 JUDGE
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