M/S Masha vs South Delhi Municipal ...
2013 Latest Caselaw 4774 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: October 12, 2013

+                         W.P. (C) No.6517/2013
       M/S MASHA                                           ..... Petitioner
                          Through      Mr.Rajshekhar Rao, Adv. with
                                       Mr.Subhiksh Vasudev and Mr.Srivats
                                       Kaushal, Advs.

                          Versus

       SOUTH DELHI MUNICIPAL CORPORATION          ..... Respondent
                    Through  Ms.Maninder Acharya, Sr. Adv. with
                             Ms.Biji Rajesh, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

C.M. No.14171-72/2013 (exemption) Exemption allowed, subject to just exceptions.

The applications are disposed of.

W.P.(C) No.6517/2013 & C.M. No.14170/2013 (for interim relief)

1. Issue notice. Counsel for the respondent accepts notice.

2. The Health Trade License was issued by the respondent on 27 th August, 2012 to the petitioner under Section 417/421 of the Delhi Municipal Act, 1957 for running eating house at 1st Floor of property No.9A, Village Hauz Khas, New Delhi. Thereafter the respondent issued show cause notice dated 6th December, 2012. The response was given by the petitioner to the said show cause notice on 17th December, 2012. The respondent even renewed the licence for further period till 31st March, 2014.

3. By communication dated 31st July, 2013 the Health Trade Licence was revoked. Thereafter, the petitioner challenged the said revocation letter by filing W.P.(C) No.5115/2013 before this Court. Since no immediate interim order was issued, the petitioner filed Letters Patent Appeal, being LPA No.636/2013. The Division Bench of this Court disposed of the appeal and the writ petition on 3rd September, 2013 by quashing the revocation letter dated 31st July, 2013 and directed the respondent to supply such material to the petitioner on the basis of which the respondent had issued the show cause notice dated 6th December, 2012.

4. After passing the order dated 3rd September, 2013 passed in LPA No.636/2013, the respondent by letter dated 5th September, 2013 had supplied the following documents:

i) Photocopy of the complaint dated 19.10.2012 filed by Mr.Sanjay Saraswat (3 pages, numbered as 78/c, 79/c and 80/c)

ii) Photocopy of the complaint dated 10.04.2013 filed by Sh.Iqbal Chauhan (1 page, numbered as 102/c).

iii) Photocopy of the reminder dated 11.07.2013 filed by Sh. Iqbal Chauhan (2 pages numbered as 15/c and 16/c)

iv) Photocopy of your Revocation letter dated 31.07.2013 (which now stands quashed)

v) Photocopy of the Report from Town Planning Department (1 page numbered as 4/N).

5. The petitioner filed the written reply to the show cause on 11th September, 2013. The personal hearing was conducted on 27th September, 2013 and on 4th October, 2013, the order was passed by the respondent

whereby the Health Trade Licence of the petitioner was revoked. The said order was received on 7th October, 2013 by the petitioner who has now filed the present writ petition.

6. As the roster Bench did not assemble the matter was sent to this Court which came up for hearing at 5:00 pm on 11th October, 2013. The same was adjourned for today. Today Mr. Rajshekhar Rao, Advocate appears on behalf of the petitioner and Ms.Maninder Acharya, Sr. Advocate appears on behalf of the respondent. Both the parties have made their rival submissions for some time.

7. As per the case of petitioner at the time of applying for the said Health Trade Licence, the petitioner submitted all the requisite documents with the respondent in support of commercial nature of the demised property which is situated in the Lal Dora area of Village Hauz Khas and forms part of Khasra No.624/278 and is located on the 20 feet wide main market road at Village Hauz Khas, which has been shown as „Commercial Street - South Zone‟ in the Master Plan Delhi 2021. In support of his submissions he referred to Annexure P-6.

8. Even as per respondent‟s own survey/re-verification report of notified streets, the demised property had been shown to be used for commercial purposes. The learned counsel for the petitioner has referred to survey/re- verification report of notified streets which is filed as Annexure P-7. Counsel states that after investing a huge amount on renovation and repairs in the first floor of the demised property, the petitioner started running the trade of eating house in the portion of property No.9A in July, 2012. The petitioner had also applied for the permissions from local Police, Excise Department, Department of Tourism, GNCT of Delhi for the said purpose.

The necessary documents with regard to permissions are filed as Annexure P-8.

The petitioner has also paid conversion charges and parking charges for the said portion of the demised property to the competent authority. The receipts issued by the respondent for payment of conversion charges and parking charges are attached as Annexure-9.

9. Counsel for the petitioner states that despite of renewal of the licence, the respondent issued a show cause notice dated 6th December, 2012 thereby calling upon the petitioner to show cause as to why the said Health Trade Licence be not revoked in view of various complaints, with regard to premises being used by the respondent by the petitioner was not situated on the commercial stretch of the main road of the village, received by the respondent. Thereafter, the petitioner filed the reply dated 17 th December, 2012 and no intimation was sent by the respondent to the petitioner. In due process, the said Health Trade Licence was renewed by the respondent by its order dated 17th May, 2013 for further period upto 31st March, 2014. The renewal certificate is filed as Annexure P-10. Counsel for the petitioner states in the said communication there was no condition mentioned that it is renewed subject to the Chief Town Planner‟s Report.

10. Counsel for the petitioner states the impugned order is not passed on the basis of the complaints received by the respondent. It was passed on the basis of the report of Chief Town Planner‟s Reprot dated 25th July, 2013.

11. Learned counsel for the respondent admits that no doubt the licence was renewed upto 31st March, 2014 and even before granting the licence in the year 2012, all the formalities including the survey was conducted. Annexures P-6 and P-7 are not denied. She fairly conceded that the license

ought not to have been issued. It was issued due to error but the same could be cured by the respondent in case the respondent found that there is a violation of terms in granting the licence. The counsel says that after issuance of renewal license it was found on the basis of the complaints and report dated 25th July, 2013 as per development plan, the impugned premises i.e. site in question falls in the residential plot and is not a commercial plot. Even when the licence was issued there was noting on the file that the same is renewed subject to the confirmation by the Town Planning Department regarding the commercial sites.

12. On the other hand, learned counsel for the petitioner has denied the submissions of the learned counsel for the respondent. Counsel states that the property in question i.e. 9A is a one unit property which is admittedly commercial as per the report filed as Annexure P-7. It is a first floor rented property which was taken from its owner Sh.Daya Nand Gochhwal HUF. He is one of the sons of late Sh.Ram Singh and karta of Daya Nand Gochhwal HUF. Copy of the mutation order dated 7th March, 2012 of the demised property in favour of the petitioner‟s landlord is attached as Annexure 3. Latest site plan of the demised property which is certified by the Architectural Consultant registered with MCD is also attached as Annexure P-4. The Health Trade Licence which was issued by the respondent on 27th August, 2012 is filed as Annexure P-5.

13. The next submission of the learned counsel for the petitioner is that one of the complaint was filed by the landlord of the petitioner against Sh.Sailender Singh @ Monty before Lokayukta, Delhi, who has passed the strictures against the local authorities for not carrying out demarcation proceedings in respect of various properties in village Hauz Khas.

Sh.Sailender Singh @ Monty is the main accused in the said complaint and he happens to be the Chairmain of Health Committee of the South Delhi Municipal Corporation and against him many cases for corruption and serious nature are pending. Thus, in order to settle his score, he is filing the complaint before the respondent infact the action taken by the respondent is at the instance of Sailender Singh @ Monty.

14. The petitioner has also challenged the report dated 25 th July, 2013 issued by the Chief Town Planner‟s Report in grounds B, C, D and F of the grounds of the present petition.

15. Counsel states that huge repairs/renovations and investment is made as well as before granting the licence the respondent itself has done the survey/re-verification of notified streets, as per which the demised property had been shown to be used for commercial purposes and necessary permissions were obtained from various authorities, conversion charges were paid and coupled with the fact that the said licence was issued with the open eyes by the respondent and even the same was renewed and in the said communication there was no condition that it is renewed subject to the Chief Town Planner‟s Report. He states that in case the operation of the impugned order dated 4th October, 2013 is not stayed, the petitioner will suffer irreparable loss and injury. Counsel further states that the said eating house has continued for more than 15 months and no prejudice would be caused to the respondent if the same may continue till the next date of hearing when the matter will be considered after filing of the counter affidavit by the respondent.

16. Counsel for the petitioner has also referred to the decision of this Court in the case of Deepak Choudhary vs. Union of India (UOI) and Ors.,

being CW No.3982/2001, decided on 30th October, 2003 passed by Hon‟ble Mr.Justice Badar Durrez Ahmed in which it has been held that "It is clear that while granting the licence, the respondents were conscious of the provisions contained in the said manual and despite that they have specifically excluded this portion. The only conclusion would be that the petitioner would not be prohibited to run auto parts business in the premises in question. But he could do so only subject to the laws and bye-laws of the local bodies concerned. In this particular case the petitioner has obtained the permission and license of the Municipal Corporation of Delhi for running the business of sale of auto parts. That being the case, it cannot, by any stretch of imagination, be held that the petitioner was in breach of clause (x) of the license dated 16.1.1996."

17. Without deciding anything on merit of the case, however, considering the overall facts and circumstances of the case as well as material placed on record, till the next date of hearing the operation of the impugned order dated 4th October, 2013 is stayed in view of prima facie case is made out by the petitioner.

18. Counter affidavit be filed within two weeks. List on 31st October, 2013 before the roster Bench.

19. Dasti under the signatures of the Private Secretary.

(MANMOHAN SINGH) JUDGE OCTOBER 12, 2013