Anil Kumar Gupta vs Municipal Corporation of Delhi and Others

G.S. Sistani, J.

+WP(C)No.6725/2007

The present writ petition is, inter alia, directed against the order of the Dy. Health Officer, City Zone, Municipal Corporation of Delhi, dated 6.9.2007, revoking the trade license of the petitioner on the allegation that the petitioner had filed forged documents with regard to his status in his tenanted business premises. Notice in the present petition was issued as far back as on 12.9.2007. On an application filed by the petitioner seeking interim relief, this Court vide order dated 24.9.2007 stayed the effect and operation of the impugned order dated 6.9.2007, which stay continues till date.

Briefly stated, the facts in the instant case are that the petitioner has been doing the business of selling khoya, paneer and sweets from his tenanted premises bearing No. 470, Chandni Chowk, Delhi on a valid license since 1999. The license of the petitioner is stated to have been renewed from time to time. The last renewal granted to the petitioner is stated to have expired on 31.3.2007, pursuant whereof, the petitioner instituted proceedings for renewal of his license which are pending till date. The respondent no. 3, namely, the Dy. Health Officer, City Zone, Municipal Corporation of Delhi, vide show cause notice dated 22.12.2006, and later, vide reminder thereof dated 8.1.2007, sought an explanation from the petitioner as to why his license ought not be cancelled on account of false claims and documents. The petitioner vide reply dated 16.1.2007 clarified his status with respect to his tenanted business premises and filed the requisite documents in support thereof including rent receipts. However, the respondent no. 3 vide order dated 6.9.2006 revoked the license of the petitioner thereby leading to the present petition.

For felicity of reference, the impugned order dated 6.9.2007, filed alongwith the writ petition, is reproduced below:

No. DHO/City Zone/2007/0/592 Dated: 6.9.2007

To,

Sh. Anil Kumar Gupta,

M/s. Vishal Mava Bhandar,

470 (GF), Main Chandni Chowk,

Delhi - 110006

Subject: Revocation of trade license for running the trade of sale of Khoya, Paneer and Sweets at 470 (GF), Main Chandni Chowk, Delhi - 06.

This is to inform you that your trade license for running the trade of sale of khoya, paneer and sweets at premises no. 470, Chandni Chowk, Delhi - 06 has been revoked as per order of Addl. Commisioner (Health & Estt.) dated 31.8.2007.

You are hereby directed to close the trade immediately, failing which necessary action as per provision of DMC Act, 1957 will be initiated against you.

Dy. Health Officer

City Zone.

Learned counsel for the petitioner has assailed the impugned order dated 6.9.2007 primarily on the ground that it does not conform to the principles of natural justice. Albeit it is not disputed that a show cause notice was given to the petitioner to which he filed a reply and that the petitioner was afforded an opportunity of hearing, it is vehemently contended by learned counsel for the petitioner that the impugned order dated 6.9.2007 does not make good the reasons which compelled respondent no. 3 to revoke the trade license of the petitioner. Further, in order to vindicate the rights of the petitioner to run his business from his tenanted premises in question, learned counsel for the petitioner has drawn the attention of this Court to a judgment dated 4.8.2002 passed in Eviction Petition No. E 93/1995 entitled Madho Pershad Kapoor vs. Harbans Lal Mehra & Ors. wherein the Additional Rent Controller, whilst dismissing the petition, has held that the father of the present petitioner was a tenant in the subject premises.

Per contra, learned senior counsel for the respondent submits that the respondents have followed the principles of natural justice and it is only after considering the reply of the petitions that the impugned order dated 6.9.2007 has been passed.

I have heard learned counsel for both parties and perused the documents on record.

The principles determining the scope and extent of judicial review of administrative orders and decisions have been formulated, applied and re-iterated in a plethora of judgments. While I do not consider it necessary to delve upon all the said decisions, suffice it is recall the cardinal principle that judicial review, in essence, is aimed at the decision-making process and not the decision per se. To judge the validity of any administrative order or statutory discretion, normally the Wednesbury Test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the frame work of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the decision was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would, however, not go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor would the Court substitute its decision to that of the administrator. The scope of judicial review is thus limited to correcting the errors of law or procedural errors leading to injustice and violation of principles of natural justice.

In the present petition, the impugned order dated 6.9.2007 was passed in pursuance of the show cause notices dated 22.12.2006 and 6.1.2007 alleging that the petitioner had filed forged documents with regard to his status in his business premises. In response thereto, the petitioner filed his reply dated 16.1.2007 clarifying his status with respect to his tenanted business premises. The requisite documents in support thereof, including rent receipts, were also filed by the petitioner. Admittedly, the petitioner was also afforded a personal hearing in the matter by the respondent no. 3. However, the impugned order dated neither records the factum of the show cause notices dated 22.12.2006 and 8.1.2007 nor takes into consideration the reply dated 16.1.2007 of the petitioner or the submissions made by him the course of personal hearing.

The opacity inherent in the impugned order dated 6.9.2007 is further laid bare by the fact that it does not explain as to how and under what circumstances the order dated 31.8.2007 of the Addl. Commissioner (Health & Estt), on the basis whereof the said impugned order is stated to have been passed, came into existence. The petitioner, in fact, has alleged that he was not supplied with a copy of the order dated 31.8.2007. Perusal of the order dated 31.8.2007, filed alongwith the counter-affidavit of respondent no. 4, reveals that the said order was passed in pursuance of a complaint filed by Nisha Sharma to whom the previous landlord of the petitioner, namely, Madho Prasad Kapoor, had sold his property including the tenanted business premises of the petitioner. A copy the complaint filed by the said Nisha Sharma alleges that the petitioner had obtained his license by filing forged documents.

Without further going into the merits of the matter and notwithstanding the veracity of the decision to revoke the trade license of the petitioner, the respondent no. 3 ought not to have taken such decision without appreciating the reply dated 16.1.2007 of the petitioner and the documents filed in support thereof as also the submissions made by the petitioner in the personal hearing. It was especially incumbent upon respondent no. 3 to explain the antecedents of the order of the Addl. Commissioner (Health & Estt.) dated 31.8.2007 inasmuch as it was on the basis of the said order that the impugned order dated 6.9.2007 was ultimately passed against the petitioner.

In view thereof, I find the impugned order dated 6.9.2007 revoking the trade license of the petitioner to be manifestly a non-speaking order, grossly vitiated by procedural impropriety, and thus, liable to be quashed. Consequently, the present petition is allowed and the impugned order dated 6.9.2007 is quashed. Taking into consideration the reply dated 16.1.2007 filed by the petitioner as well as his submissions in the personal hearing afforded to him in pursuance of the show cause notices dated 22.12.2006 and 8.1.2007, the respondent no. 3 shall pass a speaking order explaining the reasons for his decision. Needless to say that the findings and observations of this Court in the present order shall be without prejudice to final decision that the respondents take after due compliance with the principles of natural justice. With the aforesaid directions, the present petition stands disposed off.