Delhi High Court
Intekhab Ali & Ors vs The Commissioner, East Delhi ... on 2 July, 2018
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: January 05, 2018
Judgment delivered on: July 02, 2018
+ W.P.(C) 8963/2017, CM No. 36692/2017 (stay)
+ W.P.(C) 8143/2017, CM No. 4483/2018 (for refund of the excess
amount)
+ W.P.(C) 9016/2017, CM No. 36879/2017 (Ad interim direction)
+ W.P.(C) 7908/2017, CM No. 32679/2017 (Ad interim direction)
+ W.P.(C) 7930/2017, CM No. 32760/2017 (Ad interim direction)
+ W.P.(C) 9252/2017, CM No. 37799/2017 (stay)
INTEKHAB ALI & ORS
SH. RASHID
WALI MOHD. AND ORS.
MOHD. AHMED AND ORS.
INAMUL HAQ
MOHD. YAMIN
..... Petitioners
Through: Mr. Sanobar Ali, Adv.
Mr. Vijay Kasana, Adv. with Mr.
Manu Padalia, Adv.
versus
THE COMMISSIONER, EAST DELHI MUNICIPAL
CORPORATION
THE COMMISSIONER, EDMC AND ANR.
EAST DELHI MUNICIPAL CORPORATION
EAST DELHI MUNICIPAL CORPORATION
EAST DELHI MUNICIPAL CORPORATION
THE COMMISSIONER, EAST DELHI MUNICIPAL
CORPORATION
..... Respondents
Through: Ms. Shipra Shukla, Adv. for EDMC
Mr. Sidharth Joshi, Adv. for EDMC
Ms. Manisha Agrawal Narain, Adv.
with Dr. M.L. Sharma, Adv. for
EDMC
W.P.(C) No. 8963/2017 and connected matters Page 1 of 16
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
As these writ petitions involve identical issue (s), they are being
disposed of by this common order / judgment.
BRIEF FACTS
W.P.(C) 8963/2017
1. It is the case of the petitioners that they were operating meat
shops, selling buffalo halal meat. Petitioner No.1 was running two shops
for which veterinary licenses were issued by the Veterinary Department,
Shahdra North Zone, EDMC. His licenses were set to expire and
therefore, were to be renewed on March 31, 2009 and March 31, 2013
respectively. The licenses issued to petitioner Nos. 2, 3 and 4 were to be
renewed on March 31, 2006, March 31, 2013 and on March 31, 2014,
respectively.
2. Despite the aforementioned renewal dates, petitioner Nos.1 and
3 applied for renewal of their respective licences only on August 18,
2017 and petitioner No.2 applied for renewal on May 16, 2017 while
petitioner No.4 applied for renewal in the month of April or May of
2015. The said applications for renewal are stated to have contained all
necessary formalities to be complied with along with the necessary
documents.
3. It is stated that the meat shop policy was revised by EDMC on
January 01, 2016 vide office order dated March 30, 2016 which
superseded the erstwhile policy dated January 24, 2011, as revised on
September 02, 2011. According to the Policy, 2016, the license fee has
been increased from Rs.500/- to Rs.2400/-. The renewal fee has been
increased from Rs. 300/- per month to Rs.2400/- per month and the late
fee for renewal of license fee has been increased from Rs.100/- per
month after the expiry of grace period (three months) to Rs.1200/-
fortnightly.
4. The policy dated January 01, 2016 also required the applicants
to obtain an NOC from the concerned Municipal Councillor at the time
of grant of fresh license as well as renewal of meat shop license. The
said provision was challenged before this Court in the W.P. (C)
4881/2016 as being arbitrary, illegal and unreasonable. Vide order
dated May 31, 2016 corrected and released on August 27, 2016 the said
condition was quashed/struck down. In pursuance of said order the
respondent issued the consequent order revising the policy dated
January 01, 2016 only on March 06, 2017. Admittedly, during the
intervening period, the respondents had stopped renewing licenses and
accepting the renewal fee in support thereof.
5. It is also pertinent to note that vide order dated August 30, 2017,
this Court in W.P. (C) 7621/2017 directed that no late fee shall be
chargeable from the petitioners therein for the renewal of their
respective licenses for the period from April 01, 2016 to March 06, 2017
subject to payment of other dues as are permissible in law.
6. It is the petitioners case that when they applied for renewal, they
were informed about the enhancement in renewal fees and consequently
issued demand notices in terms of the policy dated January 01, 2016
applying the enhanced fee with effect from the date of expiry of their
respective licenses till the date of application, which has led to an
arbitrary and excessive amount being demanded.
7. It is stated that on August 14, 2017 without giving any show
cause notice, the respondent sealed the shop of the petitioner No.2. It is
contended that such action is in clear violation of the policy dated
January 01, 2016 wherein it is provided that if a license holder failed to
get his licences renewed within the grace period of three months the
concerned Deputy Director (VS) would issue a notice to the license
holder thereby asking him to get his license renewed within 15 days
from the date of issuance of said notice, failing which the concerned
shop would be sealed, only with the approval of Zonal Deputy
Commissioner.
8. The petitioners have further challenged the Policy, 2016 in as
much as the said policy was never presented in the House, or debated by
the elected councillors. It is also pointed out that the Respondent, while
revising the Policy, 2011, have not shown any basis for arriving at the
rates as contemplated by the Policy, 2016.
9. The respondent stated that all petitioners had submitted the
respective renewal applications, which have duly been processed, and
are only awaiting final approval subject to the petitioners depositing the
requisite fee/payment. It is further stated that the petitioners have been
running their respective meat shops without proper licenses, which have
already expired. Learned counsel for the respondent states that petitioner
No.3 had applied for renewal but had not submitted the required
documents and the late renewal fee as outstanding against the rest of the
petitioners is as follows:
Petitioner No.1 Rs.2,68,900/-
Petitioner No.2 Rs.3,63,400/-
Petitioner No.4 Rs.1,11,400/-
10. The learned counsel for the respondent contended that the
benefit of orders in W.P. (C) 7621/2017, whereby the respondent has
been directed to not charge late fee for renewal for the period
intervening from January 01, 2016 to March 06, 2017, cannot be granted
to the petitioners herein as the orders therein relate only to such
persons/applicants who had applied during the said period, and their
applications stood rejected or were not acted upon only on account of
the absence of NOC from local Councillor in their application, a
requirement which was later held to be bad in law, and therefore struck
down. She further contended that the petitioners, having failed to apply
for renewal for three or more years, cannot be considered under the old
policy and as such renewal fee has been demanded in terms of the policy
dated January 01, 2016.
11. It is the petitioners' contention that (a) late fee for the period of
January 01, 2016 to March 06, 2017 must not be charged, in terms of
orders in W.P. (C) 7621/2017; and (b) that in any case, the Policy dated
January 01, 2016 cannot be applied retrospectively, and as such, late fee,
if any, must be charged only in terms of the policy in effect at the
relevant time.
W.P. (C) 9252/2017, W.P. (C) 8143/2017
12. The facts with regard to these matters in this batch differ only to
the extent of dates of expiry of original licenses granted to the
petitioners, and those of consequent applications for renewal.
The relevant dates are as follows:
Matter Date of Expiry of Date of Application
License for Renewal
W.P. (C) 9252/2017 31.03.2014 12.04.2017
W.P. (C) 8143/2017 31.03.2013 05.04.2017
13. Additionally, the petitioner in W.P. (C) 8143/2017 is stated to
have fully paid up the amount of Rs. 1,42,900/-, as demanded by the
respondent consequent upon the Petitioner's application for renewal of
the said Veterinary License.
14. The respondent has stated in its status report that the petitioner's
license has been renewed, and the subject shop de-sealed. The petitioner
has therefore, filed CM 4483/18 for directions, seeking refund of the
excess license/renewal fee so deposited, thereby reiterating the
contention that the fees in terms of Policy, 2016 could not have been
charged retrospectively.
W.P. (C) 9016/2017, W.P. (C) 7908/2017, W.P. (C) 7930/2017
15. The relevant details of the licenses held by the Petitioners in
these matters are as follows:
Matter Date of Expiry of Date of Application
License for Renewal
Petitioner 1 - 29.06.2017
W.P. (C) 9016/2017
Petitioner 2 - 29.06.2017
Petitioner 3 - 30.06.2017
Petitioner 1 31.03.2015 31.05.2017
Petitioner 2 31.03.2015 31.05.2017
W.P. (C) 7908/2017
Petitioner 3 31.03.2015 17.4.2017
Petitioner 4 31.03.2015 26.05.2017
Petitioner 5 31.03.2015 26.05.2017
Petitioner 6 31.03.2013 27.03.2017
W.P. (C) 7930/2017 31.03.2006 11.04.2017
16. The factual matrix in these matters is largely the same as that in
the aforenoted matters.
17. The petitioners in these matters additionally stated that they had
approached the respondent with applications for renewal, but the same
were rejected or not taken on record on account of the missing NOC
from the local Councillor.
18. They further alleged that the respondent has adopted a pick and
choose policy while levying penalty. It is stated that the respondent has
allowed renewal of the licenses without demanding the renewal/late fee
in several cases.
19. It is a common contention raised by all petitioners that the
respondent could not have given retrospective effect to the Policy, 2016.
It is contended that as per the settled law, retrospective application to a
policy cannot be given until and unless specifically provided for in the
policy, and further, even if provided in the policy, the said provision
needs to derive its power from statutory provisions. It is further stated
that the Policy, 2016, flowing out of Delhi Municipal Corporation Act,
cannot be used to charge late fee/penalty with retrospective effect.
Reliance is placed on Sri Vijaylakshmi Rice Mills vs State of Andhra
Pradesh, AIR 1976 SC 1471, and Govinddas & Ors. Vs Income Tax
Officer & Anr., AIR 1977 SC 552, in furtherance of this contention.
20. It is further stated that the Office Order dated January 01, 2016
and subsequent order dated March 30, 2016 are executive orders and are
not legislative in nature. As per settled law, executive orders cannot
impose penalty retrospectively. Moreover, the said orders are not based
on any statute, and therefore they cannot be given retrospective effect.
21. The stand of the respondent corporation remain the same in all
the matters, reiterating that (a) the respective applications have been
processed, and are only awaiting the final payment of late renewal fee;
(b) the petitioners have been running their respective shops illegally,
despite expiry of their respective licenses; (c) the benefit of orders in
W.P. (C) 7621/2017 cannot be granted to such persons whose
applications for renewal were not rejected, or otherwise kept in
abeyance during the period impugned therein; and (d) the present
applications for renewal are to be governed only by the Policy dated
January 01, 2016, taking into account the entire period of default,
starting from the date of expiry of respective licenses. The respondents
have not, in any matter, responded as to the charge of illegal sealing of
the petitioners' shops.
22. The learned counsel for the parties, in their oral submissions
reiterate their respective stands in their pleadings.
23. The common question which arises for consideration in this
batch of writ petitions are the following:-
(1) Whether the renewal rates, and relevant late/penalty fees, as
envisaged by the Policy dated 01.01.2016 can be applied for the period
prior to the date of enforcement of the Policy; and
(2) Whether the petitioners herein can be granted the benefit of orders
in W.P. (C) 7621/2017, and therefore an exemption from paying
renewal/late fee for the period from 01.01.2016 to 06.03.2017 can be
granted to the petitioners herein.
24. The dates of the license, expiry of the license and the application
for renewals have already been referred to above.
25. From the above, it is noted that after the expiry of their
respective licenses, the petitioners herein have only applied for renewal
of their licenses on dates subsequent to January 01, 2016. It is also
noted, the grant of renewal of license for operating meat shops was
regulated by a Policy dated January 24, 2011 as revised on September
02, 2011. The features of the said Policy are as under:-
"Renewal of Licenses
License Validity Period:
1. One Year and valid up to 31st March of the
Financial Year
License Renewal Period and Late Fee Charges
1. Valid (non-expired) Licenses can be renewed from
the month of March to June without any late fee 93
months grace period will be given for renewal of license).
2. Expired Licenses renewed after 30th June and
within 1 year from date of expiry of license.
Late fee Charges Rs.100/- per month will be collected.
3. Expired Licenses renewed after 1 year
Late Fee Charges will be double the Annual License Fee
for every expired year + Rs.100/- per month for part
months, if any (i.e Late Fee = License Fee x 2 x No of
year = 100 X part months), if any
Documents to be submitted for Renewal of Veterinary
Trade License
Document Description
Photocopy of license
Photocopy of last renewal receipt
Processing fee receipt
Identify Proof
Medical certificate for sputum and X-ray chest for T.B. stool for
worms and for bacteria, E. colo, salmonella, shigella and vibrio
cholera
No dues certificates from property tax department MCD
Rental Agreement with Rent Receipts in case of Tenant
Any other document required by MCD
Surrender of Veterinary Trade Licenses
Licenses can be surrendered only after clearing all the
license dues, if any. In other words, applicants can file
the applications for surrender of license only after
clearing renewal dues if any
Charges associated with Surrender of Veterinary Trade
Licenses
Application/Processing Fees- Rs.250 + Rs.5.00 (onwards
transaction charges will be collected at the time of
Submission of Application Form for Surrender of
Veterinary Trade License."
26. The said Policy has been superseded by orders issued on January
1, 2016 and March 06, 2017. In terms of Office Order dated March 30,
2016, the respondents have revised the license fee for Veterinary Trade
License. The features of the Policy, 2016 differ from the Policy, 2011
for the purpose of these petitions only to the extent of the
license/renewal fee, as set forth by Office order dated March 30, 2016,
is as under:-
Description of License Revised fee as approved by the
Corporation vide Resolution No.
168 dated 25.02.2016
Meat Shop License
1. Fee for grant of New License 1. Rs.2,400/-
2. Renewal fee 2. Rs.2,400/-
3. Late Fee 3. Rs.1,200/- fortnightly (15 days)
after expiry of grace period.
4. Processing fee for grant
license
4. Rs.300/-
27. The grievance of the petitioners is also that the respondents are
claiming the late renewal fee on the basis of the Policy of the year 2016
even for the period prior to coming into force of the said Policy. It is
also their case that pursuant to order dated May 31, 2016, corrected and
released on August 27, 2016 in W.P.(C) No. 4881/2016, wherein this
Court had struck down the stipulation in the Policy, 2016 requiring all
applications for licenses to be accompanied by an NOC from the
concerned Municipal Councillor, the respondent issued the revised
Policy only on March 06, 2017. The petitioners herein therefore seek
benefit of order dated August 30, 2017 in W.P.(C) No. 7621/2017,
wherein relief had been granted to the petitioners therein inasmuch as
they were granted exemption from paying application/license fee for the
intervening period from January 01, 2016 to March 06, 2017, during
which the respondent had admittedly stopped renewing licenses or
accepting renewal fee in support thereof, due to absence of NOC from
concerned councilors, and subsequently the challenge to said stipulation
in aforenoted writ petition.
28. Further, it is contended that the Policy, 2016 is applicable
prospectively, and that there is no provision contained therein allowing
retrospective application. In other words, any late fee demanded for the
period prior to coming into force of Policy, 2016, i.e January 01, 2016,
must be in terms of the erstwhile policy in force, i.e the Policy, 2011.
29. Having noted the relevant provisions of 2011 Policy, it is seen
that the registration charges/processing fee/license fee are prescribed as
`500/-, `250/- and `750/- respectively. Insofar as renewal of license is
concerned, the license validity period is one year and valid up to 31st
March of the financial year. The license can be renewed from the month
of March to June without any late fee. The expired license renewed
after 30th June within one year from the date of expiry of license, a late
fee charge of `100 per month will be collected. The Policy also
contemplate late fee charges shall be double the annual license fee for
every expired year.
30. Having noted the difference in the charges/fee in the Policies of
2011 and 2016, apparently the grievance of the petitioners against the
claim of the respondent of a higher amount for renewal of licenses, is
appealing. But whether the impugned action can be set aside on that
ground alone, is the moot question. The answer has to be "No" and the
same has to be seen and decided whether the renewal rates and relevant
late/penalty fee in terms of orders dated January 01, 2016 and March 30,
2016, would govern the applications for renewals, prior to January 01,
2016.
31. The submission of the petitioners in support of their contention
is that the renewal rates and relevant late/penalty fee as contemplated in
the office order dated March 30, 2016 cannot be given retrospective
effect. Such a plea needs to be accepted for the simple reason that the
office orders dated January 01, 2016 and March 30, 2016 clearly
stipulate that the revised fee/penalty shall come into force with
immediate effect. So, post January 01, 2016 the grant of license
including renewal of license shall be on the terms of the office order
dated January 01, 2016 and in terms of fee prescribed in office order
dated March 30, 2016. In other words, the same shall have a
prospective effect.
32. The concern of the respondent is that the petitioners have,
even after the expiry of their licenses, continued to operate the buffalo
halal meat shops without renewal.
33. The concern may be justified. The petitioners after expiry of
their licenses were running the meat shops, for a considerably long
period of time. They cannot take advantage of their own wrong, of
running the meat shops without seeking renewal at the appropriate time
resulting in loss of revenue to the respondent. There should be some
consequence of not seeking renewal. To balance the equities, it shall be
appropriate that the license fee / late fee etc. for the period prior to
January 1, 2016 is computed as per the rates prevailing then, in terms of
policy of 2011 and the same shall be paid, with interest @ 12% per
annum, from the dates, the amount (s) became payable.
33. If on the basis of the computation made above, it is found that in
a given case the petitioner has deposited the renewal charges (W.P.(C)
No.8143/2017) which are in excess, the same shall be refunded to the
said petitioner.
34. One of the issues raised in the petitions is that for the period
between January 01, 2016 and March 06, 2017, the petitioners should be
exempted for renewal/late fee based on the order of the Court dated
August 30, 2017 in W.P.(C) 7621/2016. The plea of the ld. Counsel for
the respondent Corporation is that, the petitioners cannot be granted the
benefit of the order, as the same relate to such persons / petitioners who
had applied during the said period and their applications stood rejected
or were not acted upon only on account of absence of NOC from local
councilor. This plea is not appealing. A perusal of the order dated
August 30, 2017 would reveal that in the said case also, this Court was
dealing with facts where the petitioners therein had applied in April -
May, 2017, like the petitioners herein. The order relied upon, has not
been set aside. At least nothing has been shown in that regard. So it
follows, the petitioners are also entitled to the benefit as granted to the
petitioners therein, that for renewal of the licenses of the petitioners
w.e.f April 1, 2016 till the expiry of the grace period as is permissible,
from the date of issuance of office order dated March 6, 2017 no late fee
shall be chargeable from the petitioners for the renewal of their licenses,
subject to the petitioners making payment of other dues as are
permissible as per law or byelaws of the respondent.
35. On payment of the demanded amount, the follow up action shall
be taken by the respondent Corporation which shall include de-sealing
of the shops. The directions shall be implemented within a period of
two months of receipt of the order. The writ petitions are disposed of,
on the above terms. No costs.
CM No. 4483/2018 (for refund of the excess amount) in W.P.(C)
8143/2017
In view of the order passed in the writ petition, no further orders
are required to be passed in the present application.
CM No. 36692/2017 (stay) in W.P.(C) 8963/2017
CM No. 36879/2017 (Ad interim direction) in W.P.(C) 9016/2017
CM No. 32679/2017 (Ad interim direction) in W.P.(C) 7908/2017
CM No. 32760/2017 (Ad interim direction) in W.P.(C) 7930/2017
CM No. 37799/2017 (stay) in W.P.(C) 9252/2017
In view of the order passed in the writ petitions, the applications
have become infructuous.
V. KAMESWAR RAO, J
JULY 02, 2018/ak
