Akash Gupta vs Mcd
2012 Latest Caselaw 1323 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+           W.P.(C) 1044/2012 & C.M. No.2303/2012

                                      Date of Decision:27th February, 2012

IN THE MATTER OF:
AKASH GUPTA                               ..... Petitioner
                        Through : Ms. Geeta Luthra, Sr. Adv. with
                        Mr. Harish Malik, Adv.

                  versus

MCD                                      ..... Respondent

Through : Mr. Ajay Arora, Adv. with Mr. Anil Kumar Verma, L.I., City Zone

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

HIMA KOHLI, J (Oral)

1. The present writ petition is filed by the petitioner praying

inter alia for directions to the respondent/MCD to de-seal his tehbazari

site measuring 7'x5' bearing No.3486 situated at ITO Lane, Delhi.

2. Learned Senior Advocate appearing for the petitioner

states that the aforesaid tehbazari site had been mutated by the

respondent/MCD in the name of the petitioner on 15.4.2010. On

4.1.2012, the petitioner had obtained a licence from the Health

Department of the respondent/MCD for carrying out the business of

manufacturing and selling of edible items. On 3.2.2012,

respondent/MCD had issued a notice to show cause to the petitioner

calling upon him to state as to why the tehbazari site be not

sealed/cancelled by the respondent/MCD for violation of terms and

conditions of tehbazari.

3. There is some dispute between the parties as to the exact

violations pointed out by the respondent/MCD. While learned Senior

Advocate for the petitioner states that the violation as mentioned at

Sr. Nos.6 & 8 have been ticked by respondent/MCD in the notice to

show cause dated 3.2.2012, as per counsel for the respondent/MCD,

violations from Sr. Nos.6 to 8 have been ticked in the aforesaid notice

to show cause.

4. On 6.2.2012, a reply was filed by the petitioner to the

aforesaid notice to show cause. However, the present petition is

occasioned on account of the respondent/MCD having taken sealing

action in respect of the subject tehbazari site on the very next day,

i.e., on 7.2.2012.

5. On 22.2.2012, when the matter came up for hearing,

counsel for the respondent/MCD had sought time to obtain instructions

from his client. Today, he states that the terms and conditions of the

transfer of the tehbazari site in favour of the petitioner, as placed on

record as Annexure P-2, clearly stipulate that the petitioner will not

run any Dhaba at the site. Despite the same, the petitioner has been

found running a Dhaba from the site. He states that even as per the

documents placed on record by the petitioner himself, he is carrying

out a negative trade from the tehbazari site, which is impermissible.

He particularly draws the attention of this Court to the document

enclosed at page 23 of the writ petition, which is a photocopy of a

receipt issued by the Health Department, MCD, for "New Application

Process Fee"" submitted by the petitioner, wherein, under the head of

"Accounts", the trade name is shown as "Dhaba" and the number of

seats is shown as "18".

6. Learned Senior Advocate for the petitioner refutes the

aforesaid contention and submits that the petitioner is carrying out the

business of selling cooked edible items from the tehbazari site and is

only heating them before their sale and this cannot be termed as

cooking of edible items at the spot.

7. In view of the fact that there is a dispute between the

parties with regard to the number of violations of the terms and

conditions of tehbazari as pointed out by the respondent/MCD in its

notice to show cause dated 3.2.2012, and the inclusion of the violation

mentioned against Sr. No.7, which relates to the occupier found to be

in negative trade, which is of material consideration, it is deemed

appropriate to quash and set aside the impugned notice to show cause

dated 3.2.2012, while granting liberty to the respondent/MCD to issue

a fresh notice to show cause to the petitioner.

8. Counsel for the respondent/MCD states that needful shall

be done within one week. Immediately upon receipt of a fresh notice

to show cause, the petitioner shall be entitled to respond thereto

within the time as stipulated in the notice. An opportunity of hearing

shall be afforded to the petitioner. If the respondent/MCD is satisfied

with the submissions made by the petitioner that he has been

adhering to the terms and conditions imposed for running his business

at the tehbazari site, it shall pass appropriate orders in this regard

within one week from the date of granting a hearing to the petitioner,

under written intimation to him. Otherwise, while granting him some

reasonable time to make good the default as may be pointed out in

the order to be passed, the respondent/MCD shall not take any

coercive measures of sealing against the subject tehbazari site for a

period of one week from the date of passing of such an order. It is

further directed that the tehbazari site which is presently lying sealed,

shall be de-sealed by the respondent/MCD on or before 29.2.2012.

9. The petition is disposed of, along with the pending application.

A copy of this order be given dasti to the counsels for the

parties, under the signatures of the Private Secretary.

HIMA KOHLI, J FEBRUARY 27, 2012 sk/mk