Mcd vs Jaipur Golden Transport Co
2013 Latest Caselaw 4543 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                               Decided on: 01.10.2013
       LPA 2505/2005

       MCD                                          ..... Appellant
                              Through: Ms. Amita Gupta, Advocate.

                              versus

       Jaipur Golden Transport Co.                     ..... Respondent

Through: Sh. Rahul Virdhani for Sh. Arya Girdhari, Advocate

CORAM:

       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE NAJMI WAZIRI

%      MR. JUSTICE S.RAVINDRA BHAT(Open Court)

1. This appeal, preferred by the MCD challenges the order of 5th September, 2005

allowing the respondent's writ petition. Briefly, the facts are that, the respondent

(hereafter referred to as 'petitioner') is engaged in transportation of goods on interstate

routes. Apparently, the MCD Inspector issued a challan against the petitioner for storing

goods at Kishan Garh without possessing a municipal trade licence. This action, which

was pursuant to a circular / office order dated 24th January, 1983 / 19th February, 1983

was challenged. The petitioner contended that the office order of 24th January, 1983 / 19th

February, 1983 issued by MCD office had been preceded by an office order of 3 rd

October, 1977, which was quashed by this Court in its judgment and order dated

21.05.1980 in CW No. 1100/1979. It was submitted (by the petitioner) that the circular

of 1983 merely revised rates for the 1977 circular without curing the defects noticed in

the judgment in the CW No. 1100/1979, which had quashed the circular on the ground of

lack of quid pro quo on part of the MCD to recover the charges. MCD in its counter-

affidavit had argued before Ld. Single Judge that since the 1983 circular had not been

quashed by this Court and since the said circular prohibited storing of goods without

municipal trade licence, the actions of the petitioner in so storing its goods without a

licence is in violation of the law. It was contended that petitioner had in fact applied for

trade licences for 17 sites but submitted the applications in Karol Bagh zone, which

Zone's applications were processed and the others were returned.

2. The Learned Single Judge, while allowing the writ petition, noticed the provisions

of Section 417 of DMC Act as well as the observations in the order dated 21st May, 1980,

which allowed CW No. 1100/1979. The said order had observed that in 1962, the

Commissioner, MCD had mooted a proposal to license the trade of transporting of goods

by trucks in Delhi inter alia since loading and unloading of the trucks was found to be

generally done on public streets causing inconvenience to users of the roads and

pavements. Though the proposal to licence the activity was mooted in 1962 itself, the

MCD issued an office order incorporating the Commissioner's recommendation only on

30th April, 1976. The charges were revised by the 1977 circular, which were challenged in

CW No. 1100/1979. The said challenge was on two grounds : (a) That the MCD cannot

charge fees for transportation of goods by road, or the temporary storage that occurs

during the same; and (b) for a license to be issuable upon payment of fees, there ought to

be some element of quid pro quo which was alleged to be lacking in that case.

3. Ld. Single Judge after analyzing the facts and circumstances present before him

and the previous judgment of this court in CW No. 1100/1979 disposed off the writ

petition by the impugned judgment, observing as follows :

"11. The first challenge failed in as much as it was held that decision of the Commissioner brought out public nuisance resulting due to the manner in which

trade of transportation and temporary storage of goods was being effected. Second challenge succeeded on the plea of „quid pro quo‟. As a consequence thereof, the impugned orders issued by the Commissioner of the Corporation were quashed.

12. In view of the decision of this Court in CW NO. 1100/79, which decision has become final, I am afraid MCD cannot enforce the office order dated 24.1.1983/19.2.1983.

13. I am surprised that the MCD continues to act in defiance of the decision of the Court without rectifying the illegality found by the Court. Nothing prevents the MCD from removing the illegality found, namely, lack of „quid pro quo‟ in levying fee while rendering no services. MCD can regulate the trade by charging nominal amount as processing fee for considering grant of license or not. Be that as it may, I am not to advise the Corporation. The Corporation has a team of legal advisors. I expect them to put their heads together and guide the Corporation.

14. The impugned office order is accordingly quashed. As a consequence thereof, the challan filed against the petitioner before the Municipal Magistrate is also quashed.

15. However, that would not bring the curtains down for the reasons in a public interest litigation being W.P.(C) NO. 5239/2002. Division Bench of this Court had issued certain directions pertaining to transporters who have got their office at Roshnara Rroad. My present decision would not affect the directions issued by the Division Bench, which I note pertains to offices maintained by transporters at Roshnara Road."

4. It is argued by the MCD that Single Judge wrongly appreciated the order in CWP

NO. 1100/1979 and concluded that there was no quid pro quo in support of the impugned

1983 circular. It argued that the Ld. Single Judge failed to consider any of the

submissions of the parties or to make any reference to the overall conspectus of facts in

the petition. It is submitted that office order of 24.01.1983 / 19.01.1983 which has not

been quashed by this Court in any proceedings, is hence binding on all persons including

the petitioner. In view thereof, it is submitted, the petitioner had acted in an illegal

manner by storing goods in the residential area without license therefor. Consequently,

submitted the Ld. Counsel for MCD, the challans were issued to the petitioner under the

1983 circular which was valid, subsisting and in force at the relevant period of time and

hence cannot be found fault with.

5. This Court having considered the submission of the MCD as well as grounds

urged in support of the appeal notices that the relevant provisions of law, as well as the

circumstances as existed at the time of the earlier circular impugned in CW No.

1100/1979 remain unchanged. In view thereof, the Single Judge is right in holding that

the office order / circular of 1983 could not have bettered the previous circular or order in

as much as neither the Act nor any rule granted any power to or authorized the MCD to

so grant licenses upon payment of charges. This Court is of the further opinion that by no

stretch of imagination can the transient unloading of goods whilst in transit, (as in the

present case) be regarded as amounting to 'storage'. Furthermore, this Court notices that

the prosecution initiated in the present case, which is based on the impugned office order /

circular, although ordered by the MCD, is not supported by any provisions of the Act. In

the absence of any such authorization, this Court finds no reason to differ from the

impugned order or its reasoning.

The appeal, being devoid of merits, is dismissed.

S. RAVINDRA BHAT, J

NAJMI WAZIRI, J OCTOBER 01, 2013 VG