JUDGMENT
Pradeep Nandrajog, J.
1. Prayer made is to quash office order dated 24.1.1983/19.2.1983 and to issue a declaration that the respondents has no power to impose license fee on storage of goods in transit by the petitioner. Prohibition is sought to restrain the respondents fromprosecuting the petitioner before the Municipal Magistrate for storing goods in transit without obtaining a municipal license.
2. Petitioner is engaged in the business of transportation of goods on inter-state routes. It maintains a godown at Kishan Garh. Inspector of the MCD filed a challan against the petitioner for storing goods at Kishan Garh without having a municipal trade license.
3. According to the petitioner, the office order dated 24.1.1983/19.2.1983 was preceded with an office order dated 3.10.1977. The same was quashed by this Court vide judgment and order dated 21.5.1980 in CW No. 1100/1979. Petitioner states that the circular dated 24.1.1983/19.2.1983 revised the license fee in modification of the earlier circular. Since earlier circular was quashed, circular dated 24.1.1983/19.2.1983 has no legs to stand on.
4. As per the counter affidavit filed, MCD states that the circular dated 10.1.1983 has not been quashed and accordingly petitioner is liable to be prosecuted for storing goods without obtaining municipal trade license. It is stated in the counter affidavit that the petitioner applied for a municipal trade license for 17 sites but submitted the applications in the Karol Bagh Zone. The two applications pertaining to Karol Bagh Zone were processed. Others were returned to the petitioner with a directionthat the same be submitted in the concerned zone. It is stated that the applications pertaining to Karol Bagh Zone were processed and were rejected vide order dated 30.4.2004
5. Section 417 of the DMC Act reads as under :
“Premises not to be used for certain purposes without license
(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 license 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;
(c) keeping horses, cattle or other quardruped animals or birds for transportation, sale or hire or for sale of the produce thereof; or
(d) storing any of the articles specified in Part II of the Eleventh Schedule except for domestic use of any 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).
(2) In prescribing the terms of a license granted under the section for the use of premises as mills or iron yards or for similar purposes the Commissioner may, when he thinks fit, require the licensee to provide a space or passage within the premises forcarts for loading and unloading purposes.
(3) The Corporation shall fix a scale of fees to be paid in respect of premises licensed under Sub–section (I):
Provided that no such fee shall exceed five hundred rupees.
6. A perusal of Clause (b) of Sub-section 1 of Section 417 shows that it empowers the Commissioner to mandate a license for the purposes of carrying on any trade which is, in the opinion of the Commissioner is dangerous to life, health or property or likely to create nuisance.
7. A perusal of the decision dated 21.5.1980 of this Court in CW No. 1100/1979 shows that on 18.10.1962, Commissioner MCD mooted a proposal to license the trade of transporting goods by trucks in Delhi because loading and unloading of trucks was found to be generally done on public streets causing extreme inconvenience to the users of the roads and pavements. Secondly, constant plying of trucks on narrow roads in the walled city was causing public nuisance. Thirdly, flow of normal traffic was obstructed.
Fourthly, most transporters were found stocking goods on pavements in front of their offices and godowns and; Fifthly, normal goods were found intermixed with inflammable goods. It was noted by the Commissioner that a fire broke out in the godown of a tansport company on 26.6.1969 which took a toll of 17 lives. This required regulation of transportation trade. It was opined that resort should be made to Clause (b) of Sub–Section 1 of Section 417 of the DMC Act.
8. In view of the note of the Commissioner, MCD issued an office order on 30.4.1976 notifying the decision of the Corporation that pertaining to 56 items including transportation and storage thereof, which items were not specified in the 11 Schedule to the Act, license would be required.
9. license fee was revised from time to time. When challenge was made to the decision of the Corporation, license fee was fixed at Rs. 375/- for conforming areas and Rs. 500/- for non-conforming areas.
10. Challenge to the action of the Corporation was on two principal accounts. The first was that temporary storage during transportation was neither dangerous to life, health or property nor was it a nuisance and, therefore, power under Clause (b) of Sub-section 1 of Section 417 could not be exercised. Second challenge was on the ground that levy of fee was illegal for want of ‘quid pro quo’.
11. The first challenge failed in as much as it was held that decision of the Commissioner brought out public nuisance resulting due to the manner in which trade of transportation and temporary storage of goods was being effected. Second challenge succeeded on the plea of ‘quid pro quo’. As a consequence thereof, the impugned orders issued by the Commissioner of the Corporation were quashed.
12. In view of the decision of this Court in CW No. 1100/79, which decision has become final, I am afraid MCD cannot enforce the office order dated 24.1.1983/19.2.1983.
13. I am surprised that the MCD continues to act in defiance of the decision of this Court without rectifying the illegality found by this Court. Nothing prevents the MCD from removing the illegality found, namely, lack of ‘quid pro quo’ in levying feewhile rendering no services. MCD can regulate the trade by charging nominal amount as processing fee for considering grant of license or not. Be that as it may, I am not to advise the corporation. The Corporation has a team of legal advisors. I expecthem to put their heads together and guide the Corporation.
14. The impugned office order is accordingly quashed. As a consequence thereof, the challan filed against the petitioner before the Municipal Magistrate is also quashed.
15. However, that would not bring the curtains down for the reason in a public interest litigation being W.P.(C) No. 5239/2002, Division Bench of this Court had issued certain directions pertaining to transporters who have got their office at Roshanara Road. My present decision would not affect the directions issued by the Division Bench, which I note pertains to offices maintained by transporters at Roshanara Road.
16. No costs.