BAHADUR SINGH v. MUNICIPAL CORPORATION OF DELHI — 1972 DIGILAW 167 (DEL)

R. N. Aggarwal, J. ( 1 ) THIS writ petition has been filed by Rajasthan Golden Transport Company Private Ltd. , through its Managing Direcior,shri Bahadur Singh, praying inter alia that (a)awritofcertiorari be issued quashing the proceedings taken against the petitioner and his firm under Section 417 of Delhi Municipal Corporation Act pending in the courts of respondents No. 4 and 5 (b) a writ in the nature of mandamus be issued directing the respondents not to interfere in any manner with the lawful trade and activity of the petitioner in operating his transport company and for restraining the respondents from challenging the petitioner in future under Section 461 of the Delhi Municipal Corporation Act, (c) Section 417 of the Delhi Municipal Corporation Act be declared to be ultra vires of the Constitution and be struck down as violative of the fundamental right guaranteed in Articles 14 and 19 (1) (f) of the Constitution of India, and (d) pass any other order or orders as may be deemed fit and proper to meet the ends of justice. ( 2 ). The petitioner is a transport company and is carrying on the business of transporting goods by lorries to the various parts of India. The petitioner generally transports cloth bales, glass wares, heavy machinery pieces and other similar items. The petitioner has atransit shed at Delhi in the premises described as Mandir Bhaironji, Boulevard Road. The transit shed is used for the loading and unloading of goods. The goods which are to be delivered at Delhi are unloaded at Delhi and are sometimes stored in the shed till the consignees take delivery of the goods. Besides the petitioner, there are soms other transport companies which have their transit sheds in the premises Mandir Bhaironji and they are also using the transit sheds for their transport business. The case of the petitioner put briefly is that the respondents have in the Master plan demarcated the premises described as Mandir Bhaironji. Besides the petitioner, there are soms other transport companies which have their transit sheds in the premises Mandir Bhaironji and they are also using the transit sheds for their transport business. The case of the petitioner put briefly is that the respondents have in the Master plan demarcated the premises described as Mandir Bhaironji. Boulevared Road, for a green belt and with that end in view the respondents had demolished several constractions of Mandir Bhaironji and asked the Mahant to grow a forest on that piece of land, that the Mahant filed a writ petition in the Supreme Court which is pending in that Court and that the Supreme Court had granted a stay order restraining the respondents from interfering in any manner with the properties of the temple, that the respondents with a view to evict the petitioner and other tenants had started harassing them by challaning them indiscriminaiely under Section 417/461 of the Delhi Municipal Corporation Act (hereinafter called the Act), that the act of the respondents in challanging the petitioner and other transport companies is mala fide and amounts to interrering with the trade carried on by the petitioner and other transport compaines. The petitioner further pleaded that the respondents are, under the colour of enforeing the provisions of Section 417 of the Act, attempting to tax the trade of transportation of goods and this action of the respondents is an abase an misuse of the power. The petitioner submilted that Section 417 of the Act is ultra vires of the Constitution and is liable to be struck down as being violative of the petitioner s fundamental rights guaranted under Articles 14 and 19 (1) (f) of the Constitution of India. The petitioner pleaded that sub section (3) of Section 417 prescribing the scale of fees in respect of premises licensed under sub section (1) is liable to be struck down as being vague and conferring arbitrary and uncanalised power in the Corporation. The petitioner further pleaded that the challans instituted by the respondents against the petitioner and his company be quashed as invalid. ( 3 ). The respondents in their counter controverted the pleas of the petitioner. The petitioner further pleaded that the challans instituted by the respondents against the petitioner and his company be quashed as invalid. ( 3 ). The respondents in their counter controverted the pleas of the petitioner. The respondents pleaded that the petitioner had erected buildings to be used as godowns without municipal sanction and he was further utilising the godowns for storing goods without licence from the Corporation and that the prosection of the petitioner for violating the provisions of Section 417 of the Act is valid. The respondents pleaded that the petitioner is using the godowns for storing the goods and the forage of articles mentioned in Schedule 11, part II of the Act without a licence is punishable under Section 461 of the Act. The respondents further pleaded that the petitioner had made constructions without municipal sanction and in contravention of the Master Plan or the Zonal Plan and the prosecution launched against the persons concerned for the unauthorised constructions and the storage of goods without licence are legal. As regards the transport companies in other localites, namely, Sadar Bazar, Mori Gate, etc , the respondents pleaded that those areas are commercial areas and the transport companies had been doing their business in those areas before the Master Plan came into existence in 1962 and they hold licences for the storage of goods. The respondents pleaded that the petitioner and the other transport companies are being prosecuted not for carrying on business as transporters but for storage of the goods without licence. The respondents pleaded that some of the. transport companies had applied for licence but the licences were refused as they could not be permitted to store goods in those arreas. but they continued to store goods in spite of their petitions for the grant of licence had been rejected and, therefore, prosecutions had to be launched against them. The respondents pleaded that Sections 416 and 417 and. Schedule 11 of the Act had been enacted for the security of health and property of the residents of the town and the said provisions are legal. and constitutional ( 4 ). The undisputed facts which emerge from the pleadings of the parties are that the petitioner is a transport compay and is carrying on the business of transporting goods between the vorious parts of India. The petitioner has rented premises of Mandir Bhaironji at Boulevard Road, Delhi. and constitutional ( 4 ). The undisputed facts which emerge from the pleadings of the parties are that the petitioner is a transport compay and is carrying on the business of transporting goods between the vorious parts of India. The petitioner has rented premises of Mandir Bhaironji at Boulevard Road, Delhi. and is utilising those permises in its business of transportation of foods. The goods ale received and stored for carriage to places outside Delhi or goods are received from outside Delhi and are stored for delivery to the consignces in Delhi. The petitioner is dealing in the transportation of goods such as cloth bales, glass wares, heavy machinery pieces paints, chemicals, etc. The respondents in their counter maintained that the petitioner also transported gass cylinders but this was denied by the petitioner in his rejoinder. ( 5 ). In order to appreciate the contentions raised at the Bar, it will be useful to set out the provisions of Section 417 of the Act which read as :- "417. (1) No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely :- (a) any of the purposes specified in Part I of the Eleventh Schedule ; (b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance ; (e) keeping horses, cattle or other quadruped animals or birds for transportation, sale or hire or for sale of the produce thereof ; or (d) stroing any of the articles specified in Part II of the Eleventh Schedule exceptfor domestic use of any of those articles ; Provided that the Corporation may declare that premises in which the aggregate quantity of articles stored for sale does not exceed such quantity as may be prescribed by bye laws in respect of any such articles shall be exempted from the operation of clause (d ). (e) In Prescribing the terms of a licence granted under this section for the use of premises as mills or iron yards or for similar purposes the Commissioner may, when he thinks fit. require the licencesee to provide a space or passage within the premises for carts for loading and unloading purposes. (e) In Prescribing the terms of a licence granted under this section for the use of premises as mills or iron yards or for similar purposes the Commissioner may, when he thinks fit. require the licencesee to provide a space or passage within the premises for carts for loading and unloading purposes. (3) The Corporation shall fix a scale of fees to be paid in respect of premises licencsed under sub-section (1) ; Provided that no such fee shall exceed five hundred rupees. " ( 6 ). The counsel for the petitioner attacked the validity of Section 417 on the ground that it infringes the fundamental right of the petitioner to carry on his trade and is, therefore, violative of Article 19 of the Constitution of India. This contention in my view is wholly without substance. Article 19 (1) (g) guarntees to a citizen to practise any profession or to carry on any occupation, trade or business subject to the restrictions contained in clause (6) of this very Article. Clause (6) of Article 19 provides that nothing in sub-clause (g) shall prevent the State from making and law imposing in the interest of general public reasonable restrictions on the exercise of the rights conferred by Article 19. Section 417 of the Act prohibits the useof any premises for any of the purposes mentioned in clauses (a) to (d) of subsection (1) without or otherwise than in conformily with the terms of a licence granted by the Commissioner in that behalf Section 419 gives power to the Commissioner to prevent use of premises in particular areas for purposes referred to in Section 417. Section 430 deals with licences and written permissions. Section 431 deals with powers of entry and inspection and it empowers the Commissioner to enter into or upon any land or building for the purposes of asceraming whether there is or has been on or in connection with the land or building, any contravention of this provisions of this Act or any bye-law made there under Part 1 of Schedule II prohibits the use of any premises for carrying out the tradrs or operations connected with the trades specified therein and Part II enumerates the articles which cannot be stored in any premises without a licence. The whole object underlying the enaciment of Section 417 (read with Schedule 11) is to prohibit the right of carrying on certain trades or storing of certain goods in any premises without licence from the Corporation. The purpose underlying the placing of these restrictions is to safeguard the life, health and property of the public. For instance, a person may like to store carbide of calcium Which is a highly inflammable substance in a premises located in the heart of the city. Such a storage may be harmful and dangerous to the life, health or property of the residents of that locality. Section 417 read with Part II, Schedule 11, prohibits the storage of carbide of calcium in any premises without a licence. Such a piece of legistation to my mind will be clearly saved by clause (6) of Article 19 of the Constitution of India and will be intra vires. The petitioner deals in the: transportation of cotton bales, glass wares, paints, chemicals, heavy machinery pieces, etc. and in the course of his business he has to storethese goods in the premises in question. Part II of Schedule 11 enumerates the articles which cannot be stored in any premises without a licence. Some of these items are : cotton in pressed bales or boras, cloth or clothes of cotton, wool, silk, art silk, etc. , chemicals, prints etc. It is clear that the petitioner is dealing in the storage of articles which cannot be stored in any premises without a licence. The Commissioner while granting or refusing the licence will have to take into consideration a number of circumstances, such as, the locality, the articles to be stored and the safeguards which may have to be taken in the granting of the licence. In my view, the restrictions imposed by Section 417 on the right of a person to use the premises for the purposes specified in clauses (a) to (d) of sub-section (1) are in the interest of general public and arc reasonable and not violative of Article 19. ( 7 ). Shri Balakrishnan next contended that Section 417 of the Act is ultra vires inasmuch as it vests absolute and arbitrary power in the Commissioner to act under the said provisions without laying down any guidelines or criteria for the exercise of the said power. I regret I am unable to accept this argument of the counsel. ( 7 ). Shri Balakrishnan next contended that Section 417 of the Act is ultra vires inasmuch as it vests absolute and arbitrary power in the Commissioner to act under the said provisions without laying down any guidelines or criteria for the exercise of the said power. I regret I am unable to accept this argument of the counsel. The Act was promulgated to consolidate and amend the law relating to the municipal governance of Delhi. By Section 41 of the Act, the Corporation was vested with the power to carry on the municipal governance. Section 42 enumerates the obligatory functions of the Corporation. Section 43 prescribes the discretionary functions of the Corporation. Clause Z (a) of section 43 gives power to the Corporation to take measures to promoted public safely, health, convenience or general welfare. Section 417 prohibits the use of any premises for any of the purposes mentioned in clauses (a) to (d) of sub-section (1) without or otherwise than in conformity with the terms of a licence granted by the Commissioner in that behalf. Section 419 gives power to the Commissioner to prevent use of premises in particular areas for purposes referred to in Section 417. Section 430 deals with licences and written permissions, Section 431 c eals with powers of entry and inspection and it empowers the Cornnissioner to enter into of upon any land or building for the purpose of ascertaining whether there is or has been on or in connection with the land or building any contravention of the provisions of this Act or any bye-la^s made (here under Section 59 of. the Act confers on the Commissioner the executive power for the purpose of carrying out the provisions of the Act. A perusal of Section 417 along with Schedule II will show that the object and principal underl- ying the said provisions is to empower the Commissioner to see that no premises are used for the purpases mentioned in clauses (a) to (d) which in the opinion of the Commissioner are dingerous to life, health or property or likely to creile a nuisance. The provisions of section 417 read with Schedule II embrance such a large number of trades and articles that it would bi impossible to prescribe before hand the tprms and conditions to be imposed in the matter of carrying oat of the irades specified in Parti of Schedule I I and storage of articles specified in Part II of Schedule II. Keeping in view the object and purpose underlying the provisions of section 417 it is obvious that the Commissioner has io exercise the power conferred upon him under section 41710 grant or refuse to grant licences in a manner which would eff"ctuate the said object and purpose. In my view, the provisions in sectian 417 itself provide sufficient guidance to the Commissioner in the exercise of power under section 417. This mat- ter came up for consideration in Mfi 0m Parkash Sehgat and Co. v. Mu- nicipal Coparation of Delhi^, (Civil Writ No 915 of 1969) decided on May 4, 1970 where Hon ble Mr. Justice T. V R. TUtachari held :- "section 417 prohibits the use of any premises for any of the purposes mentioned in clauses (a) to (d) ofsub-seetion (1) without or otherwise thin in conformity with the terms of a licence granted by the Commissioner in that behalf. A perusal of the provisions in the section shows thatthepolicy underlying the said provisions is to empower the Commissioner to see that no premises is used for any purpose which is dangerous to life, health or propsrty or likely to create a noilance. It is true thatclause (d) of sub-section (1) does not sptcifical y mention the grounds or reasons for which ihe Com- missioner may refuse to grant a licence for storing any of the articles specified in Part II of the Eleventh Schedule to the Act except for domestic use of any of those articles. But having regard to the aforesaid policy underlying the provisions in section 417 and the pur pose of the said provisions, it is obvioug that the Commissioner has lo exercise the power conferred upon him under section 417 to grant or refuse to grant a licence in a m inner which would effechiaic the said policy and purpose. But having regard to the aforesaid policy underlying the provisions in section 417 and the pur pose of the said provisions, it is obvioug that the Commissioner has lo exercise the power conferred upon him under section 417 to grant or refuse to grant a licence in a m inner which would effechiaic the said policy and purpose. The various articles enumerated in Part II of the Eleventh Schedule are of such a variegated nature that it may indeed be impossible to envisage and prescribe before hand the terms and conditions to be imposed in the matter of storing each of the said articles. The Commissioner will have to consider in each case the locality in which the premises is sitaate, the nature and quantity of the article which is sought to be stored in the said premises and the safeguards which may have to be insisted to be taken before the licence to store the article is granied, keeping in mind the policy and the purpose mentioned above. The said policy and purpose of avoi- dance of danger to life, health or property or creation of a nuisance are quiet clear ficm the provisions in section 417 itself, and they provide sufficient guidelines or criteria for the exercise of the power conferred by the section. The contention of the learned counsel tor the petitioner that the provisions in section 417 of the Act vest absolute and arbitrary authority in the respondent and are, therefore, ultra vires cannot be accepted "in another case Civil Writ 275/1970 (Parkash etc. v. The Delhi Municipal Corporation) decided by Shankar, J, on 10th March, 1971 a similar question arose with reference to Section 4. 0 of the Act which provided that no person shall, without or otherwise, than in conformity with the terms of a licence granted to him by the Commissioner expose for sale in any place any article whatsoever. It was contended in that case that sections 420 and 321 of the Act conferred unguided and unbridled powers on the Commissioner to grant or refuse the licence envisaged in section 420 and the permission referred to in section 321; but the contention was rejected on the grourd that the preamble of the Act and the relevant provisions thereof furnish sufficient guidlines I am in complete agreement with the view s expressed in the authorities cited above. the contention of the counsel that section 417 of the Act is ultra vires for it confers absolute and arbitrary power in the Commissioner is rejected. Shri Balakrishnan next contended that section 417 (3) of the Act confers unguided and uncontrolled power on the Corporation in the matter of fixation of fees to be paid in respect of the premises to belicensed under sab-section (1) This argument also cannot be accepted section 417 (3) provides:- "the Corporation shall fix a scale of fees to be paid in respect of premises licensed under sub section (1) :- Provided that no such fee shall exceed five hundred rupees. "section 417 read with Parts I and II of Schedule 11 deals with a number of trades and articles and, therefore, it had become necessary to give some discretion to the Corporation in fixing the fee. The fees for licences for different items of storage and trades have been fixed by the Corporation The maximam fee prescribed under section 417 (1) (d) does not exceed Rs. 25. 00 per annum. The argument of the counsel that the Corporation had been given anunrestricted and unguided power of fixing licence fee is without substance. ( 8 ). Shri Balakrishnan next contended that the combined operation of section 14 of the Delhi Development Act and sections 417. and 461 of the Delhi Municipal Corporation Act result in arbitrary and unreasonable classification and has subjected the petitioner to a hostile discrimination I find myself unable to agree in this contention of the counsel. The Delhi Development Act was enacted to provide a planned development ot Delhi. The achieve this object, the Act provided for the preparation of a Master Plan which would divide Delhi into various zones for the purposes of development and indicate the manner in which the land in each zone is proposed to be used. The respondents have pleaded that the premises in dispute are being used for purposes which are in contravention of the Master Plan or the Zonal Development Plan. There appears to be nothing unreasonable or arbitrary in the provisions of the Delhi Development Act. Any action taken or proposed to be taken against the petitioner under the Delhi Development Act cannot be called mala fide. ( 9 ). There appears to be nothing unreasonable or arbitrary in the provisions of the Delhi Development Act. Any action taken or proposed to be taken against the petitioner under the Delhi Development Act cannot be called mala fide. ( 9 ). Shri Balakrishnan next contended that the action taken by the respondents in enforcing the provisions of section 417 is mala fide and the whole object is to tax the trade of transporation of goods. I am unable to accept this contention of the counsel There is nothing on the record to worrant any such conclusion. Section 417 read with Paris I and II of Schedule II clearly provides that no person shall use or permit to be used any premises for any of the purposes mentioned in clauses (a) to (d) without or otherwise than in conformity with the terms of a licence granted by the cornmissiuner. The petitioner is using the premises in question for purposes falling in clause (d) without a licence. I have earlier held that the provisions of section 417 are legal and valid. In my view, the payment of any fee for obtaining the licence under section 417 cannot be said to be a tax on the trade of transporation of goods. ( 10 ). Another contention of the petitioner is that be is not utilising the premises for storing the goods and, therefore, the challans instituteded by respondent No. 1 against the petitioner in the Courts of respondents 5 and 5, are without jurisdiction and should be quashed. Another argument raised in this respect is that the petitioner has not made any unauthorised construction and the challans instituted against him for unauthorised constructions are also illegal. The fact whether the premises are used by the petitioner for storage of goods and whether he bad made unauthorised constructions are disputed questions of fact and in my view, cannot be gone into in this petition The petitioner can raise these defence before the courts where the challans are pending and it will be for those courts to give their findings on the material placed before them. In case the petitioner raises constructions or stores goods in violation of the provisions contained in the Municipal Corporation Act, the Corporation has a right to prosecute the petitioner for offences committed by him and this Court in its writ jurisdiction has no right to interfere with the prosecution that may be launched against the petitioner in respect of the offences committed by him under the Delhi Municipal Corporation Act or any other Act. ( 11 ). For the foregoing reasons, I find no substance in the petition and it if dismissed with costs. The counsel fee is fixed at Rs 300. 00. ( 12 ). This order will also dispose of Writ Petitioner No. 790/69 to 800/69, and No. 1068/69.