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2002 DIGILAW 1070 (DEL)

MOHAMMAD SHAKIR v. LIEUTENANT GOVERNOR DELHI

2002-08-06

SANJAY KISHAN KAUL

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SANJAY KISHAN KAUL ( 1 ) THE petition has been filed seeking a writ of mandamus against the decision of the respondents in revoking the licence of the petitioner in terms of the order dated 12. 7. 2002. The licence was granted to the petitioner on 6. 11. 2001 under section 415 of the Delhi municipal Corporation Act, 1957 (hereinafter REFERRED TO as the said Act ). ( 2 ) INITIALLY a decision was taken to revoke the licence on 11. 3. 2002 and the same was challenged by the petitioner by filing writ petition No. 1986/2002. The decision of the respondent was held not be in accordance with law since no opportunity of hearing had been granted to the petitioners. ( 3 ) AS per the terms and conditions of the licence the petitioner made an application for renewal of the licence. The relevant clause is clause 10 of the terms and conditions which is as under:- "10. The licensee is informed that if he wants to renew the licence, he will have to deposit licence fee within one month from the close of current licensing period. If he fails to deposit the licence fee with in one month he will have to pay licence fee along with composition fee which will be determined by the Corporation from time to time. With regard to levy of composition fee, no other information will be given. " ( 4 ) ON 7. 6. 2002 a notice was issued to the petitioner that nuisance and health hazard was being created prejudicial to the public health in violation of the terms and conditions of the licence under section 415 and 397 of the said Act. It was stated in the said show cause notice that carcasses were hanging outside the shop being polluted with dust and flies; meat shop was also situated less than 100 meters from the religions place; shop was running under insanitary and unhygienic conditions; wire gauge fitted door and windows/glass doors were found open at the time of sale of meat; wash basin was not found and exhaust fans were also not found. The petitioner replied to the show cause notice denying the allegations in so far as other the aspects are concerned and stating that there was no restriction in running the shop within 100 meters of the place of worship. The petitioner replied to the show cause notice denying the allegations in so far as other the aspects are concerned and stating that there was no restriction in running the shop within 100 meters of the place of worship. ( 5 ) AFTER consideration of the show cause notice a revocation order was passed on 12-7. 2002 stating that the licence for running the business of buffalo meat shop was given on the basis of the NOC issued by the delhi Police and that during enquiries conducted by the vigilance Department of the respondent corporation it was found that the shop was running at less than 100 meters of religious place/place of worship and the reply not being found satisfactory to the show cause notice, it was directed the petitioner should close the business with immediate effect. ( 6 ) LEARNED counsel for the petitioner contends that in terms of the parameters of section 430 of the said act a reasonable opportunity must be given to the petitioner before making any order or suspension or revocation. Learned counsel for the petitioner has also REFERRED TO the terms and conditions of licences under section 417 read with section 430 of the Act issued by the Additional Deputy Commissioner (Licencing) on 31. 2. 1998 where clause 10 provides that in case no action is taken on the renewal application by the competent authority within 3 months from the date of receipt of the application, the licence shall be deemed to be renewed. ( 7 ) LEARNED counsel for the petitioner has referred to the judgment of the Supreme Court in M/s. Raj restaurant and another vs. MCD AIR 1982 SC 1550 to contend that where a licence is required obviously refusal to give licence or cancellation or revocation of licence would be visited with both civil and pecuniary consequences and as the business cannot be carried on without the licence it would also affect the livelihood of the person. In such a situation before either refusing to renew the licence or cancelling or revoking the same the minimum principle of natural justice of notice and opportunity to represent one s case is a must. In such a situation before either refusing to renew the licence or cancelling or revoking the same the minimum principle of natural justice of notice and opportunity to represent one s case is a must. Learned counsel for the petitioner also relies upon the Judgment of the Supreme Court in state of U. P. and Ors vs. Daulat Ram Gupta 2002 AD (SC) 476 where it was held that there are two restrictions on the power of the State Government or a licencing authority while issuing a general or special direction; firstly such directions should not be inconsistent with statutory order and secondly such direction can be issued only for purposes of giving effect to provisions of the statutory order. ( 8 ) LEARNED counsel for the petitioner contends that the termination of licence of the petitioner cannot be given effect to since there is no statutory order which debars the petitioner from carrying on such business. ( 9 ) I have considered the submissions advanced by learned counsel for the petitioner. ( 10 ) THERE can be no doubt on the proposition that a reasonable opportunity of being heard must be given to a licence holder before a decision is taken for revocation/cancellation of the licence. The rule of audi alfcrem partem must be followed and that is the ratio of the judgment of the Supreme Court in M/s. Raj restaurant s case (supra ). In fact it is on this very principle that CW No. 1986/2002 was allowed on 22. 3. 2002 in the case of the petitioner. ( 11 ) HOWEVER, the facts on record now show that in fact a show cause notice was issued to the petitioner on 7. 6. 2002 to which the petitioner replied on 14. 6. 2002. The impugned order dated 12. 7. 2002 was passed after the show cause notice dated 7. 6. 2002 as also the letter dated 28. 6. 2002 for personal appearance of the petitioner in the office of the licencing authority. Thus the petitioner has been given a reasonable opportunity of being heard. ( 12 ) IN so far as the claim of the petitioner in respect of the licence is concerned, the licence was initially for a specified period of one year which was capable of being renewed on an application being made in advance. Thus the petitioner has been given a reasonable opportunity of being heard. ( 12 ) IN so far as the claim of the petitioner in respect of the licence is concerned, the licence was initially for a specified period of one year which was capable of being renewed on an application being made in advance. The petitioner made such application in advance but a decision had been taken to revoke the licence. Thus there cannot be any question of extension of licence as a decision has been taken to revoke the licence and thus application of the petitioner for renewal stands rejected. There cannot be, in my considered view, an inherent right to get the licence renewed. ( 13 ) THE reason given by the respondent for revocation of the licence is on account of the fact that the shop is within the proximity of a religious place of worship. This is in pursuance to a decision taken by the Tehbazari Committee on 13. 1. 83 resulting in a circular dated 29. 1. 83. ( 14 ) IT is not necessary to go into the aspect whether such minutes or decision have or do not have statutory force, since certainly a policy decision has been taken. Since such policy decision is taken that licences will not be given within a distance of 100 metres of the place of worship and the licence period is expiring it is not mandated on the respondent corporation to renew the licence contrary to such policy decision. The mere allegation that in certain other areas licence has not been terminated can be of no avail to the petitioners in view of the policy decision. ( 15 ) IN my considered view it is not appropriate to issue any direction under Article 226 of the constitution of India mandating the respondent to renew a licence contrary to a policy decision taken in this behalf. ( 16 ) IN view of the aforesaid position I find no merit in the writ petition and the same is dismissed leaving the parties to bear their own costs. Needless to say that the respondents should implement the policy decision uniformly in other areas. ( 17 )