Jharkhand High Court
Manya Palace Through Its Proprietor ... vs Ranchi Municipal Corporation Through ... on 20 October, 2021
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2262 of 2021
1. Manya Palace through its proprietor namely, Abhishek Kumar,
Burdwan Compound, Lalpur, Ranchi
2. Paahi Palace through its proprietor namely, Vikash Lakra, Pirhitoli,
Near C.M.P. Camp, Lalpur, Ranchi
3. Geetanjali Banquet Hall through its partner namely, Binod Gope,
Harihar Singh Road, Morhabadi, Ranchi
4. Ashirwad Banquet Hall through its proprietor namely, Tarun Kumar
Mallick, Karamtoli, Ahirtoli, Lalpur, Ranchi
5. Chandragadh Bhawan through its proprietor namely, Jaswant
Pandey, Tagore Hill Road, Morhabadi, Lalpur, Ranchi
... ... Petitioners
Versus
1. Ranchi Municipal Corporation through its Chief Executive Officer,
Kutchery Road, Ranchi
2. The Deputy Municipal Commissioner, Ranchi Municipal Corporation,
Ranchi
3. The Sub-Divisional Officer, Sadar, Ranchi
4. The Officer-in-Charge, Lalpur Police Station, Ranchi
5. The Officer-in-Charge, Bariyatu Police Station, Ranchi
... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. Nilesh Kumar, Advocate For the Respondent Nos.1 & 2 : Mr. Prashant Kumar Singh, Advocate Mr. Shashank Shekhar, Advocate For the Respondent Nos.3 to 5 : Mr. Ashish Kr Thakur, AC to AAG-II
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Order No. 08 Dated: 20.10.2021 The present writ petition is taken up today through Video conferencing.
The present writ petition has been filed for quashing and setting aside letter no. 297 dated 24.06.2021 (Annexure-6 to the writ petition), whereby respondent no. 2 - the Deputy Municipal Commissioner, Ranchi Municipal Corporation, Ranchi has asked the respondent no. 3 - the Sub-Divisional Officer, Sadar, Ranchi to depute magistrate and adequate number of police force to seal the Banquet Halls/ Marriage Halls (the petitioners) [hereinafter referred to as "the said buildings"] at 11 am on 29.06.2021 on the ground that the same are being run without permission from the competent authority of the Ranchi Municipal Corporation (RMC).
2. The factual background of the case as stated in the writ 2 petition is that the petitioners are engaged in the business of running Banquet/Marriage Halls within the jurisdiction of RMC, the details of individual petitioners are as under:
(i) Manya Palace (Petitioner No.1) - This Banquet Hall is situated at Morhabadi area of Ranchi Town. It was earlier granted licence by RMC from 2016-2018 and later on, its application for grant of licence for subsequent years was pending before the authorities of RMC and lastly, as per the notice of the RMC, the proprietor of the petitioner no. 1 applied for online registration/grant of license in the office of RMC in the month of January 2021. The authorities of the RMC vide letter no. 03 dated 07.01.2021 intimated the proprietor of the petitioner no. 1 regarding the deficiency existing in the online application and asked him to upload approved building plan and the same was properly replied by the petitioner within time.
(ii) Paahi Palace (Petitioner No.2) - This Banquet Hall is situated at Morhabadi area of Ranchi Town. In view of the notice of the RMC, the proprietor of the petitioner no. 2- Banquet Hall applied for online registration/grant of licence in the office of RMC in the month of January 2021. The authorities of the RMC vide letter no. 03 dated 07.01.2021 intimated the proprietor of the petitioner - Banquet Hall regarding the deficiency existing in the online application and asked him to upload approved building plan and the same was properly replied by the petitioner within time.
(iii) Geetanjali Banquet Hall (Petitioner No.3) - This Banquet Hall is situated at Morhabadi area of Ranchi Town. In view of the notice of the RMC, the partner of the petitioner no. 3 applied for online registration/grant of licence in the office of RMC in the month of January 2021. The authorities of RMC vide letter no. 03 dated 07.01.2021 intimated the proprietor of the petitioner - Banquet Hall regarding the deficiency existing in the online application and asked him to upload approved building plan and the same was properly replied by the petitioner within time. However, again vide letter no. 28 dated 27.01.2021, the petitioner was issued notice for running the Banquet Hall illegally and was asked to submit online application for 3 grant of licence/registration.
(iv) Ashirwad Banquet Hall (Petitioner No.4) - This Banquet Hall is situated at Morhabadi area of the Ranchi Town. In view of the notice of RMC, the proprietor of the petitioner no. 4 - Banquet Hall applied for online registration/grant of licence in the office of RMC in the month of January 2021.
(v) Chandragadh Bhawan (Suvidha Banquet Hall) - Petitioner No.5 - This Banquet Hall is under construction and is situated in Morhabadi area of Ranchi Town. Since this Banquet Hall is not functioning at present, it has not applied for grant of online registration in the office of RMC.
3. The learned counsel for the petitioners submits that the petitioners were in the process of complying the objection/deficiency raised by the RMC towards their online applications, but to their utter surprise, they came to know from other sources regarding issuance of letter No. 297 dated 24.06.2021, whereby the respondent no. 2 asked the respondent no. 3 to depute magistrate and adequate number of police force to seal the said buildings at 11 a.m on 29.06.2021 alleging that the same were being run without permission of the competent authority of RMC. It is further submitted that letter dated 24.06.2021 is wholly illegal, arbitrary and contrary to the provisions of the Jharkhand Municipal Act, 2011 (hereinafter referred to as "the Act, 2011") and the Jharkhand Urban Area Dharamshala, Marriage Hall/Banquet Hall, Lodge and Hostel Construction and Licence Rules, 2013 (hereinafter referred to as "Rules, 2013") as the same has been issued by the authorities without informing the petitioners about the outcome of their online applications submitted in the office of RMC way back in the month of January 2021. It is also submitted that the said buildings remained closed since 23.03.2000 due to lockdown imposed by the government in the wake of COVID-19 pandemic and except for one or two months, the said marriage/banquet halls have again been closed since March 2021 and they are in acute financial crisis. The petitioners have never been served any final order by the RMC subsequent to their online 4 registration applications and during the lockdown period, when the said buildings and their offices were almost closed/inoperative from March 2020 to April 2021, the RMC most arbitrarily decided to seal the aforesaid premises. It is also submitted that once specific provision has been made in Rules, 2013 for grant of licence for a marriage hall/banquet hall/lodge/hostel, the respondent authorities cannot insist for submission of building plan as a condition for renewal and/or grant of licence to the petitioners and to that extent, the impugned order is wholly illegal and without jurisdiction. It is further submitted that the said buildings are already having adequate fire-fighting facility and close circuit TV/Camera etc. In addition to that, adequate security is also provided around the said buildings and there is sufficient space for parking of vehicles. It is also submitted that if illegal sealing of the said buildings takes place, the petitioners would suffer irreparable loss and injury as most of the employees have been residing in the premises of the said buildings and will come on road. The petitioners were issued temporary registration number after submitting online applications in the office of the RMC. Moreover, they are already having holding numbers and trade licences in favour of the said buildings and have also deposited user taxes in the office of RMC.
4. On the contrary, learned counsel for the respondent-RMC submits that the present writ petition is not maintainable in view of availability of alternative/efficacious remedy to the petitioners by filing an appeal under rule 14 of Rules, 2013. It is further submitted that the RMC is duly empowered under the Act, 2011 and Rules, 2013 to take any coercive action or to seal any Banquet/Marriage Hall operating without permission or fulfilling the requisite conditions as contained in the said Act and Rules. RMC is empowered under the Act, 2011 and Rules, 2013 particularly under Section 155(1)(b) read with Section 155(2) of the Act, 2011 to levy fine for committing nuisance and for violating any provision of the Act, 2011. It is also submitted that Section 155(1) of Act, 2011 read with the Rules, 2013 clearly manifests that all the marriage halls, banquet halls, lodges and hostels are mandatorily required to obtain licence from the 5 Municipal Authority before operating the same. Rule 13 of Rules, 2013 provides that if the licence is not obtained by such buildings within three months from the date of coming into force of the said Rules, then after lapse of said period, stern action has to be taken against all such buildings by declaring their operation as unauthorized for which the respondent no. 2 is the competent authority. It is further submitted that Section 466 of the Act, 2011 read with relevant provisions of the Rules, 2013 clearly stipulates that the Municipal Commissioner has power to stop the operation of the buildings running without a valid license with immediate effect.
5. It is further contended that the applications for grant of licence submitted by the petitioners were rejected due to non-submission of approved Building Plan being a condition precedent for grant of licence in view of the provisions of the Rules, 2013 and the said refusal to grant licence was duly communicated to the petitioners vide letter dated 07.01.2021. The petitioners were again communicated by the respondent no. 2 vide letter dated 27.01.2021 that their applications for grant of licence were rejected due to non-submission of sanctioned building plan. A general notice to the knowledge of all concerned being Notice No. 87 dated 13.02.2021 was also published in the local daily newspapers on 14.02.2021, whereby it was again made clear that the Marriage Halls, Banquet Halls, Lodges and Hostels were required to obtain licence, failing which appropriate action would be taken as per Act, 2011. A list of 83 Marriage Halls, Banquet Halls, Lodges and Hostels was prepared on due identification and their names were again published in the local daily newspapers on 24.03.2021 vide Notice No. 190 dated 23.03.2021 which included the names of the petitioners as well and it was made clear that those Marriage Halls, Banquet Halls, Lodges and Hostels were operational without obtaining licence from RMC and thus were asked to obtain the same, failing which coercive action would be taken against them. It is also submitted that even after providing ample opportunities, the petitioners did not respond to the said communication and as such the respondent no. 2 was constrained to take coercive action pursuant to rejection of their 6 online applications.
6. It is further contended that the system automatically generates temporary registration number in order to show submission of online application form and the said temporary registration number cannot be treated as a licence to run Marriage Halls, Banquet Halls, Lodges and Hostels. Section 436(2) of the Act, 2011 provides that payment of holding tax does not create right to run any unauthorized premises.
7. It is further contended by learned counsel for the respondent-RMC that all the petitioners were issued separate orders dated 22.06.2021 by the respondent no. 2 informing them that their unauthorized premises would be sealed on 29.06.2021 and the same were duly communicated to the petitioners on 26.06.2021 by the peon of Ranchi Municipal Corporation, however, it was reported by the peon that the petitioners refused to receive the said orders after reading the same. It is also submitted that in order to give effect to the orders dated 22.06.2021 passed by the respondent no. 2, the impugned letter dated 24.06.2021 has been issued to the respondent no. 3 asking to depute magistrate and police force to maintain law and order during the sealing process of the said buildings. It is further submitted that applications for licence were required to be processed within 30 days and non-issuance of licences within that period automatically led to rejection of licence applications. None of the petitioners possesses sanctioned maps of the respective structures and there is no concept of "temporary" or "permanent building" in the Act, 2011.
8. It is also submitted that imposition of tax is undertaken by RMC in discharge of its sovereign function under Article 12 of the Constitution of India and the powers under the relevant provisions of the Act, 2011, but imposition and realization of tax do not in any way make an illegal construction a legal one. The petitioners are under impression that payment of property tax will legalize their buildings, however, Section 436(2) clearly states that the levy of holding tax will not make any building legal.
79. The learned counsel for the petitioners, in reply to the submission of the learned counsel for the respondent-RMC, submits that the orders of rejection dated 22.06.2021 have never been communicated to them and for the first time, they came to know through the counter affidavit that their applications for licence have been rejected. It is further submitted that on perusal of letters dated 07.01.2021 and 27.01.2021, it would be evident that the same were issued only for information and queries from the petitioners to provide either building map or other documents which indicates that till the said date, the applications were not disposed of or even rejected. It is also submitted that on bare reading of orders dated 22.06.2021, it would be quite clear that all the petitioners except petitioner no. 5 have applied for licence with building maps either temporary or permanent. The petitioner nos. 3 and 4 are having only temporary construction whereas the buildings of the petitioner nos. 1, 2 and 5 have been constructed much earlier. It is further submitted that the respondents have failed to bring on record sufficient evidence in support of the claim that the impugned orders were served to the petitioners. It is also submitted that the orders dated 22.06.2021 have been passed against the principles of natural justice. Rule 6 of Rules, 2013 provides the procedure for grant of licence which has not been followed by the respondent no. 2 while disposing of the petitioners' applications. Admittedly, all the petitioners except the petitioner no. 5 have applied for licence, however, none of the Committees of the competent authority has considered the applications for grant of licences as per the different provisions of the Rules, 2013, rather has rejected the same in mechanical manner behind their back without following the mandatory procedure detailed in the said Rules. Moreover, the letter dated 24.06.2021 does not indicate that the same has been issued in view of the orders dated 22.06.2021. All the requirements for running Banquet Halls have been fulfilled by the petitioners and have applied for grant of licence with all relevant documents including the building plans.
10. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have made challenge to 8 the impugned letter no. 297 dated 24.06.2021 whereby the respondent no. 2 has requested the respondent no. 3 to depute magistrate and adequate police force to seal the petitioners' buildings.
11. The main argument of learned counsel for the petitioners is that the impugned letter is arbitrary and illegal as the petitioners' applications for grant of licence were kept pending for a long period of time and without deciding the same, the orders for sealing of the said buildings have been passed and consequently, the impugned letter no. 297 dated 24.06.2021 has been issued in violation of the principles of natural justice as the petitioners were not given any opportunity of hearing to explain their respective cases. It has also been contended that the petitioners were also not served the orders of sealing of the said buildings dated 22.06.2021.
12. On the contrary, learned counsel for the respondents has vehemently denied the said contention and has submitted that adequate opportunity was given to the petitioners by serving them letters dated 07.01.2021 and 27.01.2021 followed by reminders published in local daily newspaper on 14.02.2021 and 24.03.2021. Since the petitioners did not comply the direction given in the aforesaid letters, separate orders were passed on 22.06.2021 for sealing the said buildings of the petitioners.
13. To appreciate the aforesaid rival contentions, I have perused the record of the case. It appears that all the petitioners except petitioner no. 5 had applied for grant of licence and the same were kept pending by the respondent-RMC. In the meantime, vide letters dated 07.01.2021 and 27.01.2021, the petitioners were directed to submit maps of the buildings and the said notices were duly replied by them. Thereafter, notices dated 13.02.2021 and 23.03.2021 were also published in daily newspaper directing the petitioners and other banquet/marriage halls to obtain licence and finally separate orders for sealing of the said buildings were passed on 22.06.2021. The orders for sealing of the buildings of petitioner nos. 1 to 3 were passed on the ground that in spite of the notices 9 dated 07.01.2021 and 27.01.2021, they failed to obtain licence within the notice period and they did not have sanctioned building plan which was an essential requirement for grant of licence. The orders for sealing of the buildings of the petitioner nos. 4 and 5 were passed on the ground that in spite of the notice dated 27.01.2021 and the direction issued in the daily newspaper dated 08.12.2020 and 13.02.2021, they failed to obtain licence for their respective buildings.
14. The specific case of the petitioner no. 1 is that its buildings plan has already been sanctioned. As per the petitioner no. 5, its building map was already sanctioned and now the proprietor of the said building desires to run Banquet Hall in the name of "Suvidha", but due to renovation, he could not apply for licence earlier. The claim of the petitioner nos. 3 and 4 is that they have made temporary construction only and had applied for licence with the plan of temporary construction which does not require any formal sanction. It has been contended that if they were given opportunity of hearing, they would have met the queries of the concerned authority for grant of licence to run the banquet hall/marriage hall.
15. In the case of "Asha Sharma Vs. Chandigarh Administration & Ors." reported in (2011) 10 SCC 86, the Hon'ble Supreme Court held as under:
14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent.
Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even 10 if the determinative factors of the situations in question were identical. This uncertainty must be avoided.
16. In the case of "M.C. Mehta Vs. Union of India & Ors." reported in 2020 SCC On Line SC 648, the Hon'ble Supreme Court has held that the power of sealing of property carries adverse civil consequences. A person can be deprived of the property only by following a procedure in accordance with law.
17. In view of the aforesaid judicial pronouncements of the Hon'ble Supreme Court, I find some substance in the argument of the learned counsel for the petitioners that before taking decision for sealing of the said buildings, the petitioners were required to be given ample opportunity by way of personal hearing so as to enable them to explain the alleged violation that too when the applications for grant of licence were already submitted by them and in the meantime, they were granted temporary registration number. The petitioners have controverted both factual and legal plea raised by the respondents. Even if it is assumed that the respondents have the power to take the impugned action of sealing against the petitioners' buildings, they cannot be allowed to ignore the principles of natural justice as the petitioners have consequently been put to serious prejudice. The argument of the learned counsel for the respondents is that the application for grant of licence is required to be processed within 30 days and non-issuance of licence within the said period automatically leads to rejection of the application and as such there was no need to pass any order on the respective applications. The said argument also does not justify the impugned action of the respondents. I am of the view that since orders of sealing passed against the petitioners involve adverse civil consequences, the respondents were duty bound to adhere to the principles of natural justice which the administrative and quasi-judicial body are required to follow before taking prejudicial action against any person.
18. One of the contentions of the learned counsel for the respondents is that the present writ petition is not maintainable in view of alternative/efficacious remedy being available to the 11 petitioners by filing appeal before the Divisional Commissioner under rule 14 of the Rules, 2013.
19. In the case of "Commissioner of Income Tax & Ors. Vs. Chhabil Dass Agarwal" reported in (2014) 1 SCC 603, the Hon'ble Supreme Court has held that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is within the discretion of the High Court to grant relief under Article 226 despite existence of an alternative remedy. It has further been held that a writ court, in extraordinary circumstances, may exercise the power if it comes to a conclusion that there has been a breach of the principles of natural justice or due procedure required for taking decision has not been adopted.
20. Since in the present case, the contention of the petitioners is primarily with regard to violation of the principles of natural justice in passing the orders of sealing and thereby violating Article 300A of the constitution of India, I find it a fit case to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India in the interest of justice.
21. So far the claim of the petitioners that the orders of sealing of the said buildings dated 22.06.2021 have not been served to them, the respondents have denied the said claim and have stated that the orders dated 22.06.2021 were duly served to the petitioners through registered post and the personal service upon them could not be possible as they refused to receive the said orders. The service of the registered letters upon the petitioners has not sufficiently been proved by the respondents by filing acknowledgement receipts signed by the petitioners/their representatives. In support of the claim that the petitioners refused to receive the orders dated 22.06.2021, the respondents have brought on record a copy of peon book with the counter affidavit which reflects that on 26.06.2021, the petitioners had refused to receive the notice. It is, however, not clear from the said peon book as to whether the same was for service of orders dated 22.06.2021 12 or letter dated 24.06.2021. Since the said claim of the respondents has been denied by the petitioners, the same cannot be readily accepted, rather it requires due examination of the peon on the said issue, which cannot be done under a writ proceeding.
22. In view of the aforesaid discussion, this Court deems it appropriate to exercise extraordinary writ jurisdiction under Article 226 of the Constitution of India. Hence, without entering into the merit of the respective claims of the parties, the orders dated 22.06.2021 passed for sealing of the petitioners' buildings are quashed on the ground of procedural impropriety. Accordingly, consequential letter no. 297 dated 24.06.2021 is also quashed. The matter is remanded to the respondent no. 2 to initiate fresh proceeding against the petitioners by issuing notices to them and after providing due opportunity of hearing to their representative(s) to take appropriate informed decision in accordance with law within six weeks from the date of receipt/production of a copy of this order.
23. The writ petition is disposed of with aforesaid observation and direction.
(Rajesh Shankar, J.) Manish/AFR