Delhi High Court - Orders
Nazakat Hussain vs The Commissioner, South Delhi ... on 15 May, 2023
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8796/2019
NAZAKAT HUSSAIN ..... Petitioner
Through: None.
versus
THE COMMISSIONER, SOUTH DELHI MUNICIPAL
CORPORATION (SDMC) AND ORS. ..... Respondents
Through: Ms.Puja Kalra, Standing Counsel
with Mr.Virendra Singh, Advocate
for MCD.
Mr.Rishikesh Kumar, ASC, GNCTD
with Mr.Aditya Raj, Ms.Sheenu
Priya, Mr.Sudhir Kumar Shukla,
Mr.Muhammad Zaid, Ms.Roshini
Haldhar and Mr.Sudhir, Advocates
with SI Manish Tyagi, P.S.Jamia
Nagar.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 15.05.2023
1. Present none for the petitioner.
2. By way of present writ petition filed under Article 226 of the Constitution of India, the petitioner seeks the following reliefs:
"a) Issue a writ/order/directions, thereby directing the Respondents 1-3 to stop the illegal activities of cooking and selling of food items in the residential area in Property No. 78/6, 77/3& 78/3 Near Shadab Masjid, Batla House, Jamia Nagar, New Delhi, in a negligent and hazardous manner which is being carried out without any license or permission from the concerned authorities.
b) Issue a direction to the SDMC to demolish the illegally Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:16.05.2023 12:53:03 constructed fourth and fifth floor of the property No.78/4, Near Shadab Masjid, Batla House, Jamia Nagar, Delhi."
3. A Status Report has been placed on record behalf of respondent No.1/ MCD, which reads as under:
"2. It is submitted that the Petitioner is running a chemist shop at the property bearing No. H.No. 78/4, Ground Floor, Near Shahab Masjid, Batla House, Jamia Nagar, Delhi. The property is built upto five floors above the ground floor. The 1st, 2nd & 3rd floor of the property are owned by one Shehzad since 2017, who is the Respondent No. 4 herein. Thereafter he allegedly constructed the 4 th and the 5th Floor over and above the 3rd floor.
3. The Respondent No. 4 is running a biryani shop under the name of Salman Biryani Center. The shop at property bearing No H- 77/3, Batla House, Jamia Nagar, Delhi is used to prepare food. The property bearing No. H-78/6, Batla House, Jamia Nagar, Delhi is used to serve the prepare food. The property bearing No. H-78/4, Batla House, Jamia Nagar, Delhi is used for residential purpose by the Respondent No. 4 and shop of Petitioner is also situated in this property. The Respondent No. 4 has another shop at property bearing No. H-78/3, Batla House, Jamia Nagar, Delhi.
4. On enquiry, it was found that the opening of the Petitioner's medicine shop at the demised property has no obstruction. The Petitioner has grievances that the window and another opening of his shop has been closed but on enquiry it was found that Petitioner has only one shop in the property opening towards the road. There is a ground floor parking area behind the shop. None of the parties could produce any document to prove the claim at the parking area.
5. Further, the Respondent No. 4, failed to produce any sanctioned plan or any approval from any of the authorities regarding construction of the 4th & 5th floor of the building. On further enquiry, Respondent No. 4 also failed to produce any licence/permission received from the Respondent No.1 or any other authority to run the Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:16.05.2023 12:53:03 biryani center by cooking and serving the food to the people.
6. Accordingly, the Respondent No. 1 has been intimated about the construction of 4th and 5th floor at the demised property and also about the running of restaurant/eating house vide letter dated 16-12-
19. The copy of the letter dated 16-12-19 is marked, and annexed herewith as Annexure-A.
7. It is submitted that the Undersigned has not received any request from the Respondent No.1 for demolition of the demised property. The Answering Respondent undertakes to provide the requisite force, aid and assistance as and when a prior intimation is received from the Respondent No1."
4. Later, with respect to the allegation of cooking and selling of food, another Status Report came to be filed on behalf of respondent No.1/MCD, which reads as under:
"2. That in order to ascertain the status of the site in question i.e. No.78/6, 77/3 & 78/3 Near Shadab Masjid, Batla House, Jamia Nagar, New Delhi the concerned field staff/APHI of Health Department of Central Zone/ SDMC have inspected the same on 08/08/2019 and during the inspection it has been noticed / observed that trade of eating houses in the name and style of "Salman Biryani"
is running there without having any Municipal Trade License.
3. That consequently noticing the same the health department of Central Zone SDMC prosecuted the owner/occupier by issuing the challans u/s 417/421 and 397. The copy of the challans as issued in this regard are annexed herewith as Annexure-A ( Colly).
4. That further besides above, upon noticing on 09/08/2019, that the aforementioned trade is still running the necessary show notice for taking suitable legal action /sealing action under the DMC Act, has been issued vide bearing No. DHO/CNZ/2019/D-755 dated 13/08/2019. The copy of show cause notice in this regard is annexed as Annexure -B. Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:16.05.2023 12:53:03
5. That in response to the said show cause notice the owner/ occupier / noticee of the alleged eating houses submitted the reply / affidavit stating/ undertaking therein that the said trade activity has been closed. The copy of reply along with affidavit are annexed herewith as Annexure -C (Colly).
6. That further in order to ascertain the latest status of the site in question i.e. No. 78/6, 77/3 & 78/3 Near Shadab Masjid , Batla House, Jamia Nagar , New Delhi, the concerned area field staff / APHI of Health Department of Central Zone / SDMC have again inspected the properties in question on 27/02/2020 and during the inspection it has been noticed / observed that the alleged trade activity is still running at site. Noticing the same the owner / occupiers has again been prosecuted by issuing challan u/s 417/397 of DMC Act, 1957. The copy of challans as issued are annexed as Annexed -D(Colly)."
5. Ms.Puja Kalra, learned Standing Counsel, MCD has handed over a copy of the Status Report stated to have been filed, however, same is not on record. In so far as unauthorised construction is concerned, she submits that needful action is now scheduled to be taken on 31.05.2023. In so far as cooking and selling of food is concerned, relevant excerpts of the Status Report read as under:
"2. That a trade of Eating House in the Name and style of M/s Salman Biryani is running at 78/6, Batla House Near Shadab Masjid New Delhi.
3. That the area Public Health Inspector has inspected the site on dated 12.05.2023 and reported that Mr.Shehzad is running the trade of Eating House with 30 seats without Municipal Health Trade License. A prosecution action has been taken vide challan no. 33419 dated 12.05.2023 against Mr. Shehzad. A show cause notice was also issued to the trader vide D-250 dated 13/5/3023. Copy of the show Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:16.05.2023 12:53:03 cause notice dated 13.05.2023 alongwith challan dated 12.05.2023 are annexed herewith as ANNEXURE-A.
4. That one more trade of a Kitchen was found running with a preparation of Biryani and other eatable food items at 77/3, Batla House, near Shadab Masjid, New Delhi. Area Public Health Inspector has inspected the site on dated 12.05.2023 and reported that Mr. Shehzad is running the trade of a kitchen preparing Biryani and other eatable food items without Municipal Health Trade License. A prosecution action has been taken vide challan no. 33420 dated 12.05.2023 against Mr. Shehzad. A Show cause notice was also issued to the trader vide D-249 dated 13/5/3023.Copy of the show cause notice dated 13.05.2023 alongwith challan dated 12.05.2023 are annexed herewith as ANNEXURE-B.
5. That third trade was found running for preparing and selling of seekh kababs and other eatable food items at 78/3 Batla House, near Shadab Masjid, New Delhi. A prosecution action has been taken vide challan no. 33421 dated 12.05.2023 against Mr. Shehzad. A Show cause notice was also issued to the trader vide D-251 dated 13/5/3023.Copy of the show cause notice dated 13.05.2023 alongwith challan dated 12.05.2023 are annexed herewith as ANNEXURE-C.
6. That the copy of chit challans and show cause notices are attached herewith. It is my true statement. It is also pertinent to mention here that necessary action will be taken by the Public Health Department against unlicensed eating house."
6. Learned Standing Counsel, MCD submits that needful action with respect to the unauthorised concerned as well as unauthorised cooking and selling of food would be taken expeditiously and in accordance with law.
7. Mr.Aditya Raj, learned counsel appearing for respondent Nos.2 and 3 and, on instructions from SI Manish Tyagi, PS Jamia Nagar, New Delhi, submits that SHO, P.S. Jamia Nagar, New Delhi shall provide all necessary assistance as and when asked for by respondent No.1/MCD.
Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:16.05.2023 12:53:03
8. Considering the aforesaid submissions, the present petition is disposed of with a direction that respondents/MCD would take requisite action expeditiously in accordance with law, preferably within a period of four months from today after putting due notice to the owner/occupier of the subject property who shall also be at liberty to avail remedy as available under law.
MANOJ KUMAR OHRI, J MAY 15, 2023/v Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:16.05.2023 12:53:03