IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07/02/2003
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
WRIT PETITION No. 1998 OF 2003
AND
W.P.M.P..NOS.2484 & 2485 OF 2003
Boman Irani,
S/o. M.B. Irani .. Petitioner
-Vs-
1. The Commissioner,
Corporation of Chennai,
Rippon Building,
Chennai 600 003.
2. The Asst Health Officer,
Corporation of Chennai,
Rippon Building,
Chennai 600 003. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus as stated therein.
For Petitioner : Mr. Ashok Menon for
M/s. Menon & Goklaney
Associates
For Respondents : Mr. P. Bagyalakshmi
:J U D G M E N T
This writ petition has been taken up for final disposal at the stage
of admission, on consent of the counsels appearing for the parties, as counter
affidavit has been filed and the matter is required to be disposed of at an
early date.
2. The petitioner is carrying on business in premises Old No.847 (
New No.848), Mount Road, Anna Salai, as a tenant under one Smt. Surya Bai.
In one portion, he is running a tea stall after obtaining licence from the
Corporation of Chennai. In other portion, the petitioner is carrying on a
beetlenut shop. The petitioner has alleged that certain litigations have been
pending between the petitioner and the landlady in different courts. It is
the case of the petitioner that on 14.1.2003 some officials of the respondent
Corporation came to the tea shop at about 1.00 P.M. and handedover two
notices dated 13.1.2003, one purporting to be under Section 379-A of The
Chennai City Municipal Corporation Act, (hereinafter referred to as the
Act), whereunder it was indicated that the petitioner was using the premises
without a license from the Commissioner as required under Section 279 of the
Act as the petitioner was called upon to stop trade within 24 hours of receipt
of the notice. The other notice purported to be a show cause notice and it is
extracted hereunder :-
. . . SHOW CAUSE NOTICE
Ref:- Notice issued Under Section 279 of
C.C.M.C. Act dt: 3.1.2003.
-:0:-
With reference to the above notice, since you have not complied with
the defects mentioned in the notice. Hence, your licence has been revoked by
the Commissioner, Corporation of Chennai for the Year 2002-2 003. . . .
It is further asserted that the premises wherein tea stall as well as
beetlenut shop were located was locked on 14.1.2003 at about 6.00 P.M. On the
basis of these allegations, the petitioner has filed the writ petition for
issuing a Writ of Certiorarified Mandamus to quash the communication dated
13.1.2003 revoking the license and further directing the respondents to open
the premises at Old No.847 (New No.848 ), Mount Road, Anna Salai, and to
permit the petitioner to continue the tea stall and beetlenut shop.
3. In the counter affidavit filed on behalf of the
respondents, it has been indicated that on 3.1.2003 the Divisional Sanitary
Inspector and the Assistant Health Officer, Zone-VI visited the premises and
found that the petitioner had violated the specific terms and conditions of
the trade license issued under Section 279 of the Act and notice No.1595 dated
3.1.2003 invoking Section 279 for rectifying the defects had been issued with
a view to keep the premises clean and tidy in the larger interest of the
general public. The petitioner had been given 7 days time to rectify the
defects.
A copy of such notice has been produced. In the back portion of the
notice, conditions violated by the petitioner have been indicated, which are
extracted hereunder :-
1. Food handlers Certificate for the workers should be produced.
2. Covered dust bin with polythene bag should be provided.
3. Licence fee for Trash should be paid at RD licence Branch.
4. Conservancy charges paid chalan copy should be produced.
4. In the reply affidavit filed by the petitioner it has been
stated that the purported notice issued under Section 279 of the Act was not
served on the petitioner or on any of the persons working in the shop. To
establish such assertion, the petitioner has produced a copy of the salary
register relating to the shop from the month of August, 2002 onwards
indicating the names of the employees and also showing their signatures in
token of receipt of their salary. It has been contended that the purported
signature on the notice produced by the respondents does not tally with any of
the employees indicated in such register.
5. The main contention of the petitioner is to the effect
that without serving any prior notice and without complying with the
principles of natural justice, the respondents have illegally sealed the
premises where the petitioner was carrying on his business. It has been
stated that such hasty action has been taken by the respondents at the behest
of the landlady, who wanted to evict the petitioner by any means.
6. Learned counsel for the petitioner has also stated that
the so called defects pointed out in the notice dated 3.1.2003 were either
non-existent or insignificant. He has further stated that even there are some
defects, the petitioner would cure those defects within a period of 10 days
from the date of re-opening of the shop.
7. Notice dated 13.1.2003, which has already been extracted,
purports to be a show cause notice as the heading itself indicates. However,
in the body of the notice it has been indicated that the petitioner had not
complied with the defects mentioned in the earlier notice dated 3.1.2003.
Hence, your licence has been revoked by the Commissioner, Corporation of
Chennai for the Year 2002-2003. In the counter affidavit filed on behalf of
the respondents though it has been indicated that Notice No.1595 dated
3.1.2003 was issued, there is no specific assertion anywhere that such a
notice had been served. Though there is a signature in the backside of the
notice, no date has been put under the said signature and the signature does
not tally with any of the names or signatures as indicated in the salary
register. Hence, it is doubtful as to whether actually such a notice dated
3.1.20 03 had been served on the petitioner or any of his employees.
8. Even assuming that such a notice had been served, the
purported notice is to the following effect :-
. . . As you are running Tea Stall in the above premises contrary
to the conditions of licence issued, under Section 279 of the Chennai City
Municipal Corporation Act IV of 1919, you are required to comply with the
requirements specified on the reverse within 7 days from the date of receipt
of this letter failing which prosecution will be launched against you.
Please also note that under section 379-A of the Act steps will be
taken to prevent you from continuing to use this place as such.
9. The notice indicates that on failure of the noticee to
comply with the requirements on the reverse within 7 days, prosecution would
be launched. It is further indicated that steps would be taken under Section
379-A to prevent the noticee from continuing to use the place as such. There
is nothing indicated anywhere that the respondent No.1 was contemplating to
revoke the licence already issued to the petitioner.
10. Section 279(2) empowers the Commissioner to cancel or
suspend any licence if he is of opinion that the premises covered thereby are
not kept in conformity with the conditions of such licence or with the
provisions of any by-law made under section 349 relating to such premises
whether or not the licensee is prosecuted under this Act. Even though this
provision does not specifically provide for giving any opportunity, since the
question of cancellation of licence is involved and such cancellation would
have the effect of depriving a person, his right to carry on business and even
the means of his livelihood, it is evident that such power of cancellation has
to be exercised after compliance with the principles of natural justice. In
the purported notice dated 3.1.2003 it has not been indicated that which
condition of the licence had been violated nor regarding any violation of any
by-law under Section 349. The notice merely indicates that the person would
be prosecuted. As seen from Section 349(2), the question of launching the
prosecution for violation is different from the right to cancel. Even without
launching a prosecution, licence can be cancelled and where prosecution is
launched and a person is penalised, yet the licence need not be cancelled.
The power to prosecute and power to cancel are independent of each other.
Merely because it was indicated in the notice that prosecution would be
launched, it would not put the licensee on notice regarding the proposal to
cancel the licence.
11. In the present case, the subsequent notice dated
13.1.2003, which purports to revoke the licence, must be held to be illegal
and without jurisdiction since the principles of natural justice had been
violated and even the impugned notice dated 13.1.2003 as the heading shows it
purports to be a show cause notice. Even otherwise assuming that notice dated
3.1.2003 had been served and it is a valid notice on the basis of which
licence had been cancelled, the violated conditions seem to be very
insignificant and there was no justification to proceed in such a hot-haste
manner.
12. The other notice purports to be under Section 379-A,
wherein it has been stated that the person is carrying on business without any
licence. Since the cancellation of the licence is found to be illegal and
arbitrary, the consequential notice under Section 379-A must be quashed.
13. It is also seen that for carrying on business in beetle
nut, no licence was necessary. Even assuming that there was some violation in
the conditions of the licence in running the tea stall, there was no
justification to prevent the petitioner from carrying on his business in
beetle nut for which no licence was required.
14. For the aforesaid reasons, the writ petition is allowed
and the two notices/orders dated 3.1.2003 and 13.1.2003 are quashed. Since
the premises has been sealed by the respondents, they are directed to open the
premises and permit the petitioner to carry on his business. This order may
be complied with within a period of three days from the date of receipt of the
order. No costs. Consequently, the connected miscellaneous petitions are
closed.
Index : Yes
Internet : Yes
dpk
To
1. The Commissioner,
Corporation of Chennai,
Rippon Building,
Chennai 600 003.
2. The Asst Health Officer,
Corporation of Chennai,
Rippon Building,
Chennai 600 003.