Delhi High Court
Surender Kumar Vohra vs Commissioner, Municipal Corporation ... on 28 April, 1995
Equivalent citations: 1995IVAD(DELHI)935, 1995(33)DRJ443
Author: D.P. Wadhwa
Bench: D.P. Wadhwa
JUDGMENT D.P. Wadhwa, J.
(1) The petitioner is a tenant of basement in property bearing No. E-1 and E-2 (Mahajan House), New Delhi South Extension Part Ii, New Delhi, where he was running a restaurant by the name Safina Restaurant. He has filed this petition under Article 226 of the Constitution against the communication dated 15 April 1993 of the Municipal Corporation of Delhi (MCD) whereby the request of the petitioner for grant of registration certificate from health point of view to run floor shows (cabarets) at the said premises had been rejected and consequently the Deputy Commissioner of Police (Licensing) [for short 'DCP (Licensing)'] also did not grant any license to the petitioner to run floor shows (cabarets) under the provisions of the Regulations for Licensing & Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement, 1980, (for short 'the Regulations') which Regulations have been framed under the provisions of the Delhi Police Act, 1978. Because the Mcd did not grant no objection certificate to the petitioner, the Dcp (Licensing) by order dated 28 May 1993 refused to grant premises license in respect of the premises of the petitioner and license to hold floor shows at the premises under the Regulations and the application of the petitioner was accordingly rejected. The Dcp (Licensing) took note of the pendency of this writ petition and said that in case the petitioner succeeded therein he could again apply for a license. The petitioner was also told that he could file an appeal to the appellate authority against the order rejecting his prayer for grant of license by the Dcp (Licensing).
(2) Affidavit of the Dcp (Licensing) which is quite in detail shows different proceedings initiated by the petitioner for holding floor shows in his premises. It was for the first time in February 1982 that permission was applied for which was declined by the Dcp (Licensing) on 4 June 1982. Though there was no license with the petitioner for holing floor shows, the floor shows were held because of the writ petitions filed in this Court or civil suit filed in the Subordinate Court and stay obtained. It appears it was only on 14 January 1994, when the Supreme Court in a Special Leave Petition filed by M.C.D. against an interim order made in this petition observed that interim directions issued by this Court were not appropriate in the case, that the holding of floor shows stopped. We do not think it is necessary for us to go into the history of all the proceedings earlier held and we begin from the letter dated 15 April 1993 of the M.C.D. addressed to the Dcp (Licensing) with copy to the petitioner. This letter we may reproduce in extenso :- "NO.19:HD:SZ:SHO:93Dated: 15/4/93. To The D.C.P. (Licensing), Police Headquarters, I.P. Estate, New Delhi. Ref : Your D.O. letter No. 5925/DCP Lic. (Amst.) dated 18.3.93. Sub : Personal hearing in the matter of Cwp No. 2196/92 with Cm No.4184/92 regarding grant of Noc from health point of view to Safina Restaurant and Floor Show in the basement of E-1 & E-2, Ndse Part-II - and the decision thereof. Respected Sir, It is most humbly and respectfully submitted that the applicant/appellant Sh.Surinder Kumar Vohra, Sh.Rajinder Kumar Vohra along with their Counsel Sh.P.R. Monga were adequately heard on 3 occasions dated 5.3.93, 15.3.93 & 7.4.93 respectively. The request for grant of Noc from health point of view to run Safina Restaurant and Floor Shows at the basement of E-1 & E-2, Ndse Part-II has been rejected on the following grounds:- 1. That the land use of basement of premises No.E-1 & E-2, Ndse Part-II is specified under the sanctioned plan of Building Department, Mcd to be used as storage only. 2. As such the trade of running of cabaret Floor Shows in basement is not permitted under the Bldg.Bye-laws MCD/Master Plan. 3. At present there is no policy/amended policy for grant of health trade license for restaurant and floor show in basement. Hence the case of grant of Noc from health point of view by Health Department, Mcd stands rejected. You are, therefore, requested to take necessary action at your end. Also you are requested to kindly communicate our rejection to the applicant. We have already informed the appellant Sh.Surinder Kumar Vohra and his counsel in the hearing dated 7.4.93 that his case stands rejected on the above grounds. A copy of this letter is also being endorsed to the applicant/appellant Sh.Surinder Kumar Vohra and the Registrar of Delhi High Court in the matter of Sh.Surinder Kumar Vohra v/s. U.O.I. & others in the Cwp No. 2196/92. Faithfully yours, sd/- Zonal Health Officer/South Zone. Copy to: Sh. Surinder Kumar Vohra, E-1 & E-2, Ndse Part-II, New Delhi. "
On the basis of this letter Dcp (Licensing) by her order dated 28 May 1993 declined the request of the petitioner to hold floor shows. This was in exercise of power conferred upon her under regulations 110 and 235 of the Regulations. This order by the Dcp (Licensing) was passed after hearing the petitioner. 3.This petition was filed on 12 May 1993 and on the following day came up for admission. While issuing notice to show cause to the respondents as to why rule nisi be not issued, the court meanwhile stayed the operation of the letter dated 15 April 1993 of the Mcd to the Dcp (Licensing). On 14 October 1993 the court issued Rule D.B. and passed the following order on the application of the petitioner for interim relief :- "C.M.3880/93 Under the Delhi Building Bye Laws, 1983 clause 14.12.1, which deals with the basement, the construction of basement is allowed by the Authority in accordance with the land use and other provisions specified in the Master Plan. As far as the present premises are concerned, we are informed that the Master Plan provides that the land use is commercial. Under Clause 14.12.1.1 (vii) the basement is allowed to be used for office and commercial purpose provided it is air conditioned. It is not disputed by the respondents that the premises in question are air conditioned. As far as use of the premises for restaurant is concerned, learned counsel for the petitioner submitted that he is not seeking license under Section 421 of the Delhi Municipal Corporation Act because he does not intend to nor is he serving food or drinks and is restricting his application for license for cabaret show under Section 422. Under the circumstances, we see no reason why the respondent/Corporation should refuse a No Objection Certificate on this ground. We direct the respondent/Corporation to consider the application of the petitioner afresh and pass an order according to law within four days from today. Application stands disposed of. Let a copy of this order be given dusty to the learned counsel for the parties. "
(4) We may also note that against the order dated 28 May 1993 of the Dcp (Licensing) refusing to grant license to the petitioner to hold floor shows the petitioner filed yet another writ petition (No. 4645/93). On this petition without issuing any notice to the respondents who were respectively the Commissioner of Police, the Additional Commissioner of Police and the Dcp (Licensing), the court passed the following order on 14 October 1993 :- "CW.4645/93& Cm 7620/93 The only ground on which the respondent has refused to grant license to the petitioner is that the petitioner has not obtained No Objection Certificate from the Municipal Corporation of Delhi. In a separate writ petition filed by the petitioner being C.W.2404/93, we have directed the Corporation to pass appropriate orders as per the law within four days. If the Corporation grants such No Objection Certificate, the respondents are required to grant license. Appropriate orders in this regard will be passed by the respondents within two days of the application made by the petitioner. The writ petition is disposed of accordingly. Copy of the order be given dusty to counsel for the parties."
(5) RESPONDENT-MCD applied for modification of order dated 14 October 1993 stating that certain provisions of the building bye-laws and certain vital facts were not brought to the notice of this Court while giving interim directions. This application of the Mcd was, however, dismissed by order dated 27 October 1993 stating that the order dated 14 October 1993 was only an expression of prima facie view and the order was to operate only during pendency of the writ petition, and that as such there were no grounds for review. On 4 November 1993 this Court, on another application of the petitioner, passed the following order :- "C.M.8165/93 in Cw 2404/93 By order dated 14th October 1993 we had directed the respondent - Corporation to consider the application of the petitioner afresh and pass an order according to law within four days. Learned counsel for the respondent - Corporation submits that the matter is still under the consideration of the respondent. We fail to understand how the respondent is still under the process of considering the matter when by our order dated 14th October 1993 we had specifically directed that the order be passed afresh within four days. Now more than 18 days have passed since we passed ther order. The respondent has not complied with the order and a plea is made that because a review was filed, the delay has taken place. The review was dismissed on 27th October 1993. As such, we direct the respondent - Corporation to comply with our order of 14th October 1993 and pass an order within 24 hours. The application is disposed of. Let a copy of this order be given dusty to the learned counsel for the respondent- Corporation."
(6) During the course of hearing of this petition Mr. Bhatia, learned counsel for the petitioner, brought to our notice a No Objection Certificate (NOC) dated 4 November 1993 issued by the Mcd and addressed to the Dcp (Licensing). This letter we may again reproduce :- "NO.677/HD/ZHO/22/93dated 4.11.1993. To The Dcp (Licensing), I.P.Estate, Ito, Police Hq, New Delhi. No Objection Certificate (Provisional) Dear Sir, With reference to the matter of Cwp 2404/93 and the orders of the Hon'ble High Court dated 14.10.1993, dismissal of review Petition of respondent Mcd in this matter dt. 27th October 93, and the judgment dt. 4.11.1993 on the basis of application filed by the petitioner vide C.MNo. 8165 the case of grant of Noc is to be finalised within 24 hrs w,e,f, 4,11,93. There is no option but to issue Noc from health point of view to avoid contempt of Hon'ble High Court dt. 4.11.1993. The No Objection Certificate from health point of view is hereby granted to Shri Surrender Kumar Vohra for running floor show (cabaret) at the basement of E-1 and E-2 of South Extension Part Ii with the direction that he will not serve food & run kitchen in the basement. This Noc is subject to the outcome of Special Leave Petition & final outcome of 2404 of 93, filed in the Hon'ble High Court. He will also have to abide by all the technical conditions and health bye laws imposed from time to time. The Noc is hereby granted with the prior administrative approval of worthy Addl. Commissioner (Water) dated 4 November 1993. Thereafter, Dcp (Licensing) is requested to kindly register the basement E-1 & E-2, Ndse Part Ii under entertainment/amusement regulation Act for running floor shows(Cabaret) as per the orders of the Hon'ble High Court dt. 4.11.93. Zonal Health Officer South Zone. Agreed by the petitioner. copy to Sh.S.K.Vohra, E1 & E2, basement South Extension Part Ii, New Delhi. "
On the basis of this Noc issued by the Mcd, Dcp (Licensing) granted provisional performance license dated 9 November 1993 to the petitioner in the following form :- "licenseNo.7/E/AR/Floor Shows/DCP-Lic. dated Delhi the 9.11.193. In exercise of the powers conferred by Rule 118 of the Regulations for Licensing and Controlling Places of Public Amusement (other than Cinemas) and performance for public Amusement, 1980 amended from time to time, license is hereby granted subject to the conditions and restrictions laid down in the aforesaid Regulations to Shri Surender Kumar Vohra, Prop. of Safina Restaurant, premises No. E-I & E-II, South Extension Part-II, New Delhi, authorising him to organise floor shows/cabaret shows at Safina Restaurant, situated at E-I & E-II South Extension Part- Ii, New Delhi, from 9.11.93 to 8.2.1994 at 6, 8 and 10 P.M. daily subject to nevertheless to suspension or revocation under the aforesaid Rules. Given under my hand and seal, this 9th day of November, 1993. sd/- D.C.P., Licensing, Delhi. Encls: i) Terms and conditions ii) Name and address of the performers. Note : This license is subject to the conditions that he will not serve food and run kitchen in the basement. He shall also have to abide by all the technical conditions and health bye-laws imposed from time to time by M.C.D. The license is however subject to outcome of Special Leave Petition and the final outcome of C.W. No. 2404/93 filed in the Hon'ble Supreme Court by the M.C.D."
(7) We have not reproduced the terms and conditions of the license and names of the performers which are part of this letter, being not relevant.
(8) After the Supreme Court set aside the order dated 14 October 1993, the M.C.D. addressed another letter dated 25 November 1993 to the Dcp (Licensing) bringing to her notice the setting aside of this Court's order and telling the Dcp (Licensing) that "in the light of these facts and circumstances, the provisional and conditional No Objection Certificate so granted become automatically infructuous" and that the Noc issued on 4 November 1993 stood withdrawn. Acting on this communication the Dcp (Licensing) by her order dated 30 November 1993 withdrew the provisional license by passing the following order :- "NOWTHEREFORE, I, Vimla Mehra, Deputy Commissioner of Police, Licensing, Delhi, after considering the facts that Zonal Health Officer, M.C.D. has withdrawn their No Objection Certificate granted vide his letter dated 4.11.93, do hereby cancel Provisional Performance license No.7/E/AR/Floor shows/DCP-Lic dated 9.11.93, Provisional Premises license No.7/D/Ar/Floor shows/D/Misc. dated 9.11.93 and Provisional Sale of tickets license No.7/F/AR/Floor shows/DCP-Lic dated 9.11.93 with immediate effect. "
(9) Mr. Bhatia, learned counsel for the petitioner submitted that the grounds given in the impugned letter dated 15 April 1993 of the Mcd refusing no objection certificate were irrelevant; that when on directions from this Court Mcd considered the grant of Noc from health point of view after due inspection granted to the petitioner the same would hold good now as well and that Mcd was estopped from raising the ground of misuser; that Mcd could not be allowed to raise the ground of storage purposes as the petitioner had been using the basement for restaurant for over 25 years when even the executive statutory power must be exercised within a reasonable time; that Mcd could not be permitted to raise the ground of misuser when other similarly situated properties (basements) were being permitted to be used for commercial purposes; that Mcd had provided levy of charges for misuser of basement and at best it was entitled to such surcharge and that this would be so under office order of 8 January 1986 of the MCD; that to say if basement was used for storage purposes it would not be counted for Far (floor area ratio) but while used for commercial purposes it would be so counted, was arbitrary, unreasonable and a restriction to carry on business and would be ultra vires Articles 14 and 19(1)(g) of the Constitution; and that the stand of the Mcd was malafide and unreasonable as it had been shifting its stands made on some false and misleading statements and instead of implementing the court order dated 14 October 1993 it sought review of that order. It was then submitted that Mcd singled out the petitioner for this treatment and that the letter of the landlord to the Mcd and the consequent refusal by the Mcd to grant Noc would show the motive of the officials of the Mcd and their nexus with the landlord. This last ground was mentioned to show that the impugned action of the Mcd was at the behest of the landlord. It may be noted that the landlord also filed an application to be imploded in this matter which application was dismissed. The landlord, it would appear from the affidavit of the Dcp (Licensing), had also filed a writ petition (No. 1537/93) in this Court against the Mcd and the petitioner alleging that the petitioner was running his restaurant and floor shows in the basement without license. We, however, do not find anything on the record to come to any conclusion that the action of the Mcd was in any way malafide or that officials of the Mcd acted in connivance with the landlord. We reject any allegation of malafide against the M.C.D. (10) M.C.D. submitted that as per the sanctioned plan of the property (Mahajan House) the basement could be used only for the purpose of storage and since the petitioner was using the basement for a purpose other than the purpose for which the same was allowed to be constructed and the plans sanctioned, the Noc had been rightly refused. It is also denied on that account that the basement could be used for commercial purposes if the same was air-conditioned. It was submitted that the license under Delhi Municipal Corporation Act was also required for holding floor shows and for running eating house (restaurant).
(11) We may, at this stage, set out relevant provisions of the Delhi Municipal Corporation Act, the building bye-laws. the Delhi Police Act and the Regulations :- The delhi Municipal Corporation Act, 1957: Section 333. Erection of building - (1) Every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye-laws made in this behalf. (2) Every such notice shall be accompanied by such documents and plans as may be so prescribed. Section 347. Restrictions on use of buildings - No person shall, without the written permission of the Commissioner, or otherwise than in conformity with the conditions, if any, of such permission - (a)use or permit to be used for human habitation any part of a building not originally erected or authorised to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and the bye-laws made thereunder; (b)change or allow the change of the use of any land or building; (c)convert or allow the conversion of one kind of tenement into another kind. Section 417. Premises not to be used for certain purpose without license. (1) No person shall use or permit to be used 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; xxxxxx [Entry 7 of the Eleventh Schedule - Part I: Eating house or a catering establishment. ....] Sec.421. Eating houses, etc. not to be used without license from the Commissioner - (1) No person shall, without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf, keep any eating house, lodging house, hotel, boarding house, tea shop, coffee house, cafe, restaurant, refreshment room or any place where the public are admitted for repose or for the consumption of any food or drink or any place where food is sold or prepared for sale. (2)The Commissioner may at any time cancel or suspend any license granted under sub-section (1) if he is of the opinion that the premises covered thereby are not kept in conformity with the conditions of such license or with the provisions of any bye-law made in this behalf, whether the license is prosecuted under this Act or not. Section 422. Licensing and control of theatres, circuses and places of public amusement - No person shall, without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf keep open any theatre, circus, cinema house, dancing hall or other similar place of public resort, recreation or amusement. Provided that noting in this section shall apply to private performances in any such place. Building BYE-LAWS: 2.36Floor Area Ratio (FAR) - The quotient obtained by dividing the total covered area (plinth area) on all floors multiplied by 100 by the area of the plot. roman (FAR) = roman (Total covered area of all floors times 100) over roman { { Plot Area } } 14.12.1. The construction of the basement shall be allowed by the Authority in accordance with the land use and other provisions specified under the Master Plan. 14.12.1.1.Where the use, set backs and coverage is not provided in the Master Plan provisions, the same shall be allowed to be constructed in the plot leaving mandatory set backs and can be put to any of the following uses : (i) storage of house-hold or other goods of non-flammable materials; (ii)dark room; (iii)strong rooms; bank cellars etc.; (iv)airconditioning equipment and other machines used for services and utilities of the building; (v)parking places and garages; (vi)stack rooms and libraries; and (vii)office or commercial purpose provided it is air-conditioned. Note : Uses of basement from 14.12.1.1(i) to (vi) shall not be reckoned for the purpose of Far whereas for uses in 14.12.1.1 (vii), the basement coverage shall be reckoned for the purpose of F.A.R. Delhi Police Act, 1978: Sec.2(k)"place of public amusement" means any place where music, singing, dancing or game or any other amusement, diversion, or recreation or the means of carrying on the same is provided, to which the public are admitted either on payment of money or with the intention that money may be collected from those admitted and includes a race course, circus, theatre, music hall, billiard or bagatelle room, gymnasium, fencing school, swimming pool or dancing hall; REGULATIONS: 108. Application for premises license - The application for a premises license shall be made to the Licensing Authority and shall contain a statement as to the nature and extent of the interest of the applicant in premises and shall also indicate the name or names of manager or managers nominated by the applicant, as required by Regulation 219 and also the names and addresses of the qualified electricians in charge of the electric installations, if any. The application shall be accompanied by the following documents - xxxxxx (5)A certificate from the Municipal Health Officer to the effect that there is no objection from the health point of view for the grant of license and that the applicant has complied with all directions given in that respect. 110.Power to refuse license ÿ- The Licensing Authority may refuse a premises license if the premises appear to it likely to cause obstruction, inconvenience, annoyance, risk, danger or damage to residents or passersby in the vicinity of the premises. 235. The Licensing Authority will have the right to refuse to issue/renew the license if it is satisfied that such performance is likely to cause obstruction, inconvenience, annoyance, risk danger or damage to the residents or passengers in the vicinity or if in the opinion of the Licensing Authority, the owner/manager/performer(s) is otherwise not a fit person and or is likely to use the premises for anti-social/illegal activities or there is likelihood of violation of the conditions of the license.
(12) Mr. Bhatia stressed that there could be no impediment for the Mcd to issue a Noc from the health point of view inasmuch when this Court passed interim order on 14 October 1993 such a certificate was issued on 4 November 1993 which was communicated to the Dcp (Licensing) with a copy to the petitioner. He said nothing had changed and a direction should, therefore, issue quashing the impugned communication dated 15 April 1993 with a mandamus to the Mcd to give Noc and forward the same to the Dcp (Licensing). We do not think any advantage can be drawn by the petitioner from the Noc given by the Mcd and communicated to the Dcp (Licensing) by its letter dated 4 November 1993. It appears to us that this Noc was issued as the authorities were under considerable pressure from this Court to comply with its interim order dated 14 October 1993 or face contempt proceedings. We have also reproduced an order of this Court dated 4 November 1993 requiring the respondent-MCD to comply with its order dated 14 October 1993 and pass an order within 24 hours. This was a rather unusual order issued by this Court. On that day itself the Zonal Health Officer, Mcd, addressed communication dated 4 November 1993 to the Dcp (Licensing) granting Noc from health point of view to the petitioner for running floor shows (cabarets) at the basement of the property in question with a rider that he would not serve food and run kitchen in the basement. It was mentioned that this Noc was subject to the outcome of the Special Leave Petition filed by the Mcd in the Supreme Court against the order dated 14 October 1993 and also subject to final outcome of this writ petition. The letter referred to the orders dated 14 October 1993 and 4 November 1993 and said that "on the basis of the application filed by the petitioner vide C.M.No. 8165 the case of grant of Noc is to be finalised within 24 hrs w.e.f. 4.11.93. There is no option but to issue Noc from health point of view to avoid contempt of Hon'ble High Court dt. 4.11.1993." It is apparent that the officer was quite terrified and issued Noc without having any time to apply his mind to the grant of Noc as per law. The order dated 14 October 1993 was also set aside by the Supreme Court by order dated 14 January 1994. In this view of the matter we reject the submission of the petitioner that since Mcd had already granted Noc the impugned communication dated 15 April 1993 be quashed on that ground. When the communication dated 4 November 1993 of Mcd was addressed to the Dcp (Licensing), as noted above, it was mentioned that the petitioner would not serve food or drinks to his customers. This was so as in the interim order dated 14 October 1993 the petitioner had submitted that he did not intend nor was he serving food or drinks and that he was restricting his application for license for cabaret show only under section 422 of the Dmc Act. This point was again pressed before us that the petitioner was not to serve any food or drinks to his customers during holding of floor shows. Perhaps, he expects the customers to bring their food and drinks with them. The petitioner does not want us to know even the facts of life. It is difficult to imagine the floor shows (cabarets) without there being food or drinks served. In Calcutta Municipal Corporation and others v. East India Hotels Limited and others, , the court was of the view that "dancing hall" was a place "where drinks and eatables are also invariably provided." Be that as it may, we leave this question at that.
(13) Mr. Bhatia made reference to the office order dated 8 January 1986 issued by the Mcd claiming misuse charges in case of misuse in basement. On that basis he said that Noc could not have been refused as the Mcd at best could levy misuse charges. This argument was raised to counter the plea of the Mcd that the basement was meant for storage only and could not be used for either running a restaurant or holding floor shows (cabarets). But then misuse had to be regularised and that misuse charges were being recovered under the provisions of section 347 of the Dmc Act and Mcd reserved its right to launch any other proceedings under other provisions of the Act, Rules and bye-laws. Now misuser is a cognizable offence for purpose of investigation etc. (Sec.466A) and entails simple imprisonment which may extend to six months or fine which may extend to Rs.5000.00 or with both. We cannot issue a mandamus to the Mcd to grant Noc in respect of premises misuser of which is punishable under the law on the ground that the Mcd could also levy misuse charges. Another argument raised was that basement was being used for running restaurant for the past 25 years and the Mcd was estopped from raising the plea of misuser. The law on misuser has become very stringent after the amendment of the Dmc Act by the Amending Act of 1984. Then, as we have seen above, at least from 1982 the petitioner has been holding floor shows on the strength of court orders. There can also be no estoppel against the statutue. It was also submitted that basements in various other properties in the locality were being put to commercial use and the petitioner should not be singled out to deprive him of the user of the basement for commercial use as that would be violative of Article 14 of the Constitution. This argument again has no basis. If the user by the other occupant of the basement in the locality is unauthorised, that is no ground for the court to direct the Mcd to issue a Noc to the petitioner or hold the action of the Mcd arbitrary or discriminatory. Mr. Bhatia said the contention of the Mcd that if basement was used for storage it would not be counted for Far (floor area ratio) but if used for commercial purposes it would be so counted, was ex facie arbitrary and unreasonable restriction on the petitioner to carry on his business and was ultra vires Article 14 and 19(1)(g) of the Constitution. He said that there was no rationale behind such a plea raised by the MCD. Then it was submitted that the petitioner was not asking for any license either under section 421 or 422 of the Dmc Act, and that as to what would be the consequence of not obtaining a license under those provisions would be seen when the occasion would arise and that what the petitioner needed at this stage was a Noc only from the health point of view. It was submitted that the only law which put restrictions on the right of the petitioner to hold floor shows was regulation 108 of the Regulations and no other provision had to be looked into. Mr. Bhatia referred to various judgments to submit - (1) if any irrelevant ground is taken into consideration by the authority the order must be set aside; (2) the authority cannot improve upon the grounds given in rejecting the request of the petitioner and that it could not supplement the ground of rejection in any way; (3) Noc was required only for cabaret shows as the petitioner had given undertaking that he would not serve food and drinks; (4) for 25 years no action had been taken against the petitioner for commercial user of the basement and that all powers were to be exercised reasonably and within a reasonable period of time. Judicial powers could not be exercised infinite and so also the executive power. We may now briefly refer to these judgments.
(14) Mr. Bhatia referred to a decision of the House of Lords in Mayor & c., of Westminster v. London and North Western Railway Company, 1905 A.C. 426, to contend that a public authority could not exceed its statutory limit. In this judgment the court held : "It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably." These observations were followed by the Supreme Court.
(15) Another decision of the House of Lords in London County Council v. The Attorney - General and others, [1902] A.C. 165, was referred to. In this case it was held that a County Council incorporated under the Local Government Act, 1888, was a purely statutory body and its statutory powers to purchase and work tramways did not empower it to work omnibuses in connection with the tramways, the omnibus business not being incidental to the tramway business. Earl of Halsbury L.C. in his speech said : "MYLords, so far as the particular questions before us here are concerned, depending as they do upon the statute itself, with the utmost respect for the learned counsel, I think the contentions hardly admit of plausible statement. The power which is expressly given to the London County Council excludes from them, and to my mind is intended to exclude from them, that which did exist as a separate business under the earlier statute, and which was not intended, and obviously was not intended, to be conferred upon the London County Council. It appears to me to be, as I say, hardly susceptible of plausible statement to suggest that those words can possibly include this separate business."
(16) In Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi, and others, , the court held that when a statutory functionary made an order based on certain grounds, its validity must be judged by the reasons so mentioned and could not be supplemented by fresh reasons in the shape of affidavit or otherwise. Othewise, an order bad in the beginning might, by the time it came to court on account of a challenge, got validated by additional grounds later brought out. We do not think that is a case here, but we are of the view that in the exercise of powers under Article 226 of the Constitution when this Court finds that grant of relief to the petitioner would violate any other provision of law not considered by the authority but which is brought out in the course of hearing the court will not exercise its jurisdiction.
(17) In Mansaram v. S.P. Pathak and others, , which was a case under C.P. and Berar Letting of Houses and Rent Control Order, 1949, the court observed as under :- "BUT when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person who was in possession for 22 years as a tenant."
(18) In The India Mica and Micanite Industries Ltd. v. The State of Bihar and others, , the appellant was a consumer of denatured spirit and had to pay fee for the license to possess denatured spirit. The court was concerned with the issue whether the fee levied was within the permissible limits and in other words whether there was sufficient quid pro quo for the levy in question. The court held as under :- "The requirement to take a license is prescribed to safeguard public interest and not as a source to gather revenue. What is made punishable is either a person's failure to take the required license or the breach of the conditions of the license. Otherwise there would be no sanction behind the rule requiring to take a license. Generally speaking by granting a license the State does not confer any privilege or benefit on any one. All that it does is to regulate a trade, business or profession in public interest."
(19) In Union of India v. Tarachand Gupta & Bros., , which was a case under the Imports and Exports (Control) Act, 1947, and the Sea Customs Act, 1878, the court made the following observations :- "THE words "a decision or order passed by an officer of Customs under this Act" used in Section 188 of the Sea Customs Act must mean a real and not a purported determination. A determination, which takes into consideration factors which the officer has no right to take into account, is no determination."
(20) In M/s. Tilokchand and Motichand and others v. H.B. Munshi and another, 1969 (1) Supreme Court Cases 110, the court was concerned with the question whether any limit of time at all could be imposed on petitions under Article 32 of the Constitution and whether the court would apply by analogy Articles of Indian Limitation Act appropriate to the facts of the case or any other limit. Hidayatullah, C.J., in his judgment gave acquisition to the law of limitation. By majority, it appeared, the court observed that on grounds of public policy the court applied the principle of res judicata to writ petitions under Article 32 and on like grounds the court acted on the analogy of the statutes of limitation in the exercise of its jurisdiction under Article 32.
(21) In Hukam Chand Shyam Lal v. Union of India and others, , the court observed as under :- "IT is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice. "
(22) In M/s. Motilal Padampat Sugar Mills Co.(P) Ltd. v. State of Uttar Pradesh and others, , the court expounded the principle of promissory estoppel. The question which has been squarely raised is how far the State is bound by the doctrine of promissory estoppel. This judgment was cited to contend that when the petitioner had undertaken not to serve food and drinks in the basement the Mcd could not withhold the grant of Noc for holding floor shows. There is nothing on the record to show that Mcd ever held out that in case the petitioner did not serve food and drinks in the basement Noc would be granted.
(23) It would be seen that apart from the Noc required from the municipal authorities under the Regulations, the petitioner is also to obtain in addition a license under section 422 of the Dmc Act. This section is a bar on any person to keep open any theatre, circus, cinema house, dancing hall, etc. without or otherwise than in conformity with the terms of the license granted by the Commissioner under that Act. This section is similar to section 443 of the Calcutta Municipal Act, 1951, which came to be interpreted by the Supreme Court in the case of Calcutta Municipal Corporation and others v. East India Hotels Limited and others, , where the court went to the extent of saying that restaurant run by the company is similar to the dancing hall and as such is a place of public amusement covered under the provisions of section 443 of that Act. In this case the argument of the company was that there was a dancing floor in the restaurant where the residents and other guests entertained themselves and that the entertainment was further provided by music including vocal music, and that cabaret shows were done of rare occasions like Christmas and New Year eve, etc. Admittedly, the petitioner in the present case has no license under section 422 of the Dmc Act and the argument that the petitioner may be liable to penalty etc. and could hold floor shows without there being any license under section 422 appears to be misconceived. Under section 333 of the Dmc Act, a person intending to erect a building is to give notice of such erection in the prescribed form to the Municipal Commissioner. The notice is to indicate the extent of construction which the person wishes to undertake and the use to which he would put the premises to. It is the contention of the Mcd that the plans in the case of the building E-1 and E-2, South Extension Part Ii (Mahajan House), were sanctioned where the basement was only for the purpose of storage. Under the building bye-law 14.12.1, a basement could be used only for the purpose permitted under the Master Plan. Under clause (vii) of bye-law 14.12.1.1, a basement could be used for office or commercial purposes provided it is air-conditioned. In the present case the basement is air- conditioned. But then there is a rider in the form of the note which prohibits the use of the basement for office or commercial purposes even if it is air-conditioned if the plans of the building had been sanctioned not taking into account the coverage of basement for the purpose of FAR. As to what would be the requirement of basement as contained in bye-law 14.12.2 we are not concerned at present. Building bye-law 2.3.6 defines FAR. The extent of construction permitted in a building, i.e., the area permitted to be constructed on a plot of land, is the Far which must be determined prior to the sanction and construction of the building. Appendix 'Q' to the building bye-laws contains provisions for penal action for violation of the provisions of the building bye-laws, the Master Plan or the Zonal Plan regulations. It would be seen that this Appendix 'Q' provides that any deviation from Far would not be compoundable and that building would have to be rectified by altering/demolishing at the risk and cost of the owner. Thus, Far is an important rule in construction of the building which has to be strictly complied. It has been rightly pointed out that extent of construction of building is determined prior to its construction and extent of legally permissible limit determined at the time of sanction of the building plans. Thus, a person intending to construct a building must disclose to what use he would put the basement to. If he says that it would be for storage purposes, then the extent of basement would not be considered for Far and the owner can, thus, put an extra floor or increase the covered area in other parts of the building. If the basement has to be counted towards calculation of Far when it is to be used for office or commercial purposes, then the area constructed in the basement would have to be reduced from other floors. There are various factors for fixing the Far and it is not necessary for us to go into that for the purpose of the decision of the present writ petition. Mr. Jaitley, however, pointed out that the extent and kind of user of a building affect the life of the citizens and the occupants of the locality. He said if all the basements in the locality were permitted to put to commercial use they would affect the life of the ordinary residents as that would increase the population density and would have an adverse affect on all municipal facilities such as sewereage, open spaces, environment, etc. In our view Mcd is right in its submission that the effect of misuse of property for commercial purposes would affect the population density etc. as envisaged in the Master and Zonal Plans and could not be considered as "alien from health point of view of citizens." In the present case, the plans were sanctioned with basement only for storage purposes and cannot, thus, be used for any other purposes. We have already rejected the argument of the petitioner that since other basements in the area are being put to commercial use, petitioner had also right to use, rather misuse, the basement. In Chandigarh Administration & another v. Jagjit Singh and another etc., , the Supreme Court laid the following principles :- "Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favor of the petitioner on the plea discrimination. The order in favor of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favor of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent- authority to repeat the illegality or to pass another unwarranted order. The extra- ordinary and dictionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent- authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favor of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi- judicial power, we express no opinion. That can be dealt with when a proper case arises.)"
(24) This Court in M/s. Golden Hosiery Mills v. Delhi Development Authority and others, 1991 I Apex Decisions (Delhi) 1001, took the view that in case a few individuals or individual units were wrongly favored by the Delhi Development Authority, this Court could not compel it to repeat the same wrong doing in favor of the petitioner by recourse to Article 14 of the Constitution. There could not be a constitutional right to be illegally favored only because a few others were so favored. In A.N. Shervani and another v. Lt. Governor and others, 38 (1989) Delhi Law Times 357, this Court while considering the grant of license to guest house under the Regulations observed that where the building or part of it in which guest houses were running or unauthorised constructions or where the establishment violated the Regulations of the Mcd or Dda or Land and Development Office, the authorities should not allow the guest houses to be run unless the said requirements were complied with. The petitioner in the present case cannot claim any right to hold floor shows in the basement meant for storage only as per the sanctioned building plans.
(25) There cannot be any dispute with the proposition as laid in various judgments cited before us by Mr. Bhatia. But we do not think that the action of the Mcd is contrary to the law laid or expounded by these judgments. When the basement cannot be used for commercial or office purposes and could be used only for storage purposes, it is difficult to see how the authorities under the Dmc Act could grant no objection certificate from health point of view for holding of floor shows (cabarets) when the premises cannot be put to that use. In the circular issued by the Mcd (Health Department) dated 14 April 1991 giving instructions to the Zonal Health Officers for the grant of trade license it has been specifically mentioned that among other details it should be seen whether actual construction tallies with the sanctioned plans/no objection certificate and the unauthorised constructions, if any. The authorities are also to see the sanctioned plans as well as the completion certificate. If on the examination of these documents it is found that the premises can be used only for storage purposes, question of grant of no objection certificate from the health point of view would not arise. M.C.D. was, therefore, quite justified in declining to issue no objection certificate from health point of view to run Safina Restaurant and floor shows in the basement of E-1 & E-2 (Mahajan House), New Delhi South Extension Part Ii, New Delhi, on the ground that the land use of the basement of the premises as specified under the sanctioned plan of the building department could be only for storage purposes, and that the trade of running of cabarets and floor shows in the basement was not permitted under the building bye-laws of the M.C.D./Master Plan. This itself is quite a relevant consideration. As noted above, user of the basement for floor shows would entail penal action under the D.M.C. Act and the petitioner has also got no license either under section 421 or 422 of that Act. We are unable to agree to any of the grounds of challenge to the impugned action of the respondents. It is not a case where we should exercise our jurisdiction under Article 226 of the Constitution.
(26) This petition, therefore, has no merit. It is dismissed with costs. Counsel fee Rs.2,000.00 . Rule is discharged.