Judgment:
ORDER
A. Gopal Reddy, J.
1. These three writ petitions have been heard together since one and the same issue requires to be adjudicated and they are disposed of by this common judgment.
'Open Government is a contradiction in terms. You can be open, or you can have Government.'
2. Sir Humphrey Appleby's remark in the Yes Minister Series aptly describes the mind set underlying Hyderabad Municipal Corporation Policy. For over 50 years, secrecy has been the norm in the works of the Government and the transparency, the exception. Laws that licence secrecy are a colonial legacy and were adopted by totalitarian regimes to legitimize suppression of information about its functioning. Secrecy in public affairs is anathema to the very notion of democracy. Yet laws favouring governmental secrecy have dragged on for half a century after India became democratic republic.
3. In view of evolution of computer technology and United Nation Commission on International Trade Law adopted the Model Law on Electronic Commerce in 1996, India being a signatory to it has to revise its laws. The Model Law provides for equal legal treatment of users of electronic communication and paper based communication. Keeping in view of the need and to facilitate e-commerce and with a view to facilitate electronic governance, the Information Technology Act, 2000 (for short 'the Act') was enacted which will make the citizens interaction with the Governmental offices hassle free and which will provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as 'electronic commerce', which involve the use of alternatives to paper based methods of communication and storage of information, to facilitate electronic filling of documents with the Government agencies. As per Statement of Objects and reasons in enacting Information Technology Act, 2000 necessary amendments were made to the Indian Penal Code, the Indian Evidence Act, 1872, the Banker's Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for maters connected therewith followed by Freedom of Information Act, 2002, which is a step came as a breath of fresh air in otherwise cagey and inaccessible system.
4. In the light of above evolution of computer technology and to have more transparent in issuance of licence system, Government in G.O.Ms. No. 532, Finance & Planning Department accorded administrative sanction for implementation of the TWINS Pilot project, with the primary objective of providing various citizen services in a speedy and transparent manner, and subsequently, through G.O.Ms. No. 44, Information Technology and Communications Department, dated 15.10.2001 followed by G.O.Ms. No. 508, Municipal Administration, dated 15.11.2002, the Government also authorized the Municipal Corporation of Hyderabad to grant building permissions for proposed constructions for residential/commercial/Institutional use except Industrial use, at the option of the owners of the site abutting the roads irrespective of the usage envisaged in the master plan/zonal development plan subject to certain conditions.
5. Further in G.O.Ms. No. 85 (I.T. & C.D.), dated 26.5.2003, the Government of Andhra Pradesh undertook e-Government projects through e-seva centers by evolving a comprehensive and generic policy that permits rapid growth of electronic delivery of services, which includes services involving checking of documents, issue of certificates/licenses needing authentication etc., can be done at departmental outlets and/or e-Seva centers and to provide services in integrated manner through suitable technological and commercial arrangements between e-seva and A.P. Online service.
6. In the light of the above policy undertook by the Government, the Municipal Corporation of Hyderabad published a notification displaying the online services provided namely: search facility on Birth Verification, Death Verification, Trade License, Payments, Engineering Work Status, etc. on 9.2.2004. In the notification, FAQs on Trade Licenses have been notified how a trader can have his TIN (Trade Identification Number), which can be allotted for each trade licence and payment of fees in any of the 19 e-seva centers located at Hyderabad and Secunderabad.
7. Petitioner, which is a partnership firm, in W.P. Nos. 9051 and 14796 of 2004, in furtherance of its intent to carry out its business, desired to start a Specialty Cuisine Court combined with Rejuvenation Centre on Road No.59, Jubilee Hills, Hyderabad and accordingly, submitted an application to the Municipal Corporation of Hyderabad on 5.2.2004, by duly paying the required fee, for grant of permission to start the Specialty Cuisine Court at the above premises. Since the said application was not considered and disposed of, the petitioner filed a writ petition being W.P. No. 5486 of 2004, which was disposed of on 24.3.2004 directing the corporation authorities to dispose of the petitioner's application within a period of six weeks. By virtue of introduction of e-seva facility, the petitioner was allowed with TIN number and on the basis of TIN number, various authorities i.e. fire authorities, traffic authorities etc., stated to have visited the premises of the petitioner and granted no objection certificate and labour licence was also received by the petitioner on 5.5.2004. At that stage, One J. Rama Krishna Rao, one of the respondents in W.P. Nos. 9051 and 14796 of 2004 and petitioner in W.P. No. 8501 of 2004 earlier filed a writ petition being W.P. No. 6522 of 2004 questioning the proposed establishment of the restaurant in the residential zone and the same was disposed of on 6.4 .2004 with a direction to consider his objection in accordance with law. In pursuance of the above direction, the Municipal Corporation of Hyderabad, by proceedings dated 29.4.2004 directed the petitioner to show cause as to why the restaurant should not be closed. In the said proceedings, the request of the petitioner for grant of permission for running the restaurant was also rejected on the following two grounds:
'1. That the proposed Restaurant is located in purely residential area, where in under HMC Act 1955, eating establishments are not permissible.
2. The neighbours are complaining against the running of a Restaurant in Purely Residential area at Plot # 1149, Road#57, Jubilee Hills, Hyderabad, which will cause nuisance & disturbance to their private and peaceful life.'
8. Thereafter, the said Rama Krishna Rao has also filed the present W.P. No. 8501 of 2004, in which, this Court by order dated 30.4.2004 directed the Municipal Corporation of Hyderabad as hereunder:
'If no permission is obtained by the 5th respondent from the Municipal Corporation for establishing a restaurant, the corporation officials shall ensure that the same shall not be allowed to run until necessary permission is obtained.'
9. Questioning the show-cause notice dated 29.4.2004, writ petition No.9051 of 2004 is filed by the petitioner-firm and this Court while ordering notice before admission on 12.5.2004 directed the respondents therein not to interfere with the running of restaurant and rejuvenating center at Plot No.1149, Road No.57, Jubilee Hills, if it is otherwise in accordance with law. Subsequent to the said order, the Assistant Medical Officer of Health, M.C.H., issued the impugned notice dated 17.8.2004 directing the petitioner-firm to close the restaurant and other commercial activities within 24 hours on receipt of the notice, failing, the officials of Municipal Corporation would forcibly seize the material therein and would close the restaurant and other activities. Questioning the same, W.P. No. 14796 of 2004 is filed contending that the impugned order is passed merely relying upon the order passed by this Court in W.P. No. 9051 of 2004 dated 12.5.2004 without mentioning the contravention of any of the provisions of law or regulations that warrants closure of the restaurant. It is further contended that the impugned order dated 17.8.2004 is arbitrary and unjust since the same has been passed without any prior notice or affording any opportunity to explain the alleged contravention. Once the officials of the corporation have collected the licence fee of Rs.18,579/- and also allotted the TIN, ordering for closure of the restaurant stating no licence can be granted in favour of the petitioner-firm is arbitrary and illegal.
10. The Assistant Medical Officer of Health, Circle-V, Municipal Corporation of Hyderabad has filed a counter affidavit on behalf of Municipal Corporation of Hyderabad stating that the Municipal Corporation being a statutory authority to grant trade licence to the business establishments including restaurants, under the provisions of the H.M.C. Act, has not granted any written permission as per the provisions contained under Section 521 of the Hyderabad Municipal Corporation Act and regulations made thereunder. It is stated that in spite of the orders dated 29.4.2004, rejecting the request for grant of licence on the ground that running of a restaurant in the midst of residential locality cannot be permitted under the Rules framed by the M.C.H and to close the restaurant on 6-5-2004, the petitioner-firm was running the restaurant and hence, the closure notice dated 17.8.2004 was issued. While rejecting the request of the petitioner-firm for grant of licence on 29.4.2004, the petitioner-firm was called upon to close the restaurant within three days followed by order dated 6.5.2004 to close the restaurant within 24 hours. It is further stated that after introduction of e-seva facility by the Government of A.P., the corporation is allotting Trade Identification Numbers (TIN) to the traders facilitating the intending traders enabling them to pay their license fee and apply for license only and as per the provisions of Section 521 and Section 622 of the Hyderabad Municipal Corporation Act,1955 (for short 'the MCH Act'), the trader has to obtain written permission or license as required and no special permissions were granted to any trader after introduction of the e-seva services, disregarding the procedure contemplated under law. Mere allotment of TIN is not a valid permission and it is only for payment of license fee by the trader from e-seva center for the convenience of the general public. The question of granting of trade license is as per the provisions of the MCH and relevant regulations made thereunder. The closure notice dated 17.8.2004 issued to the petitioner is as per the provisions of the HMC Act and prior to that a show cause notice dated 29.4.2004 has been issued calling upon the petitioner-firm to explain the reasons why the restaurant should not be closed. Since the application of the petitioner-firm for grant of licence was already rejected by order dated 29.4.2004 and no written permission or licence is obtained, the petitioner-firm cannot be permitted to run the restaurant.
11. The petitioner-firm filed an elaborate reply-affidavit stating that Section 6 of the Act, 2000 empowers any Government and its agencies the usage of electronic records and digital signatures. On State Government introducing e-seva facility in the light of the powers conferred under Section 6 of the Act, the Municipal Corporation published notification displaying online services provided and the application of the petitioner was processed by granting TIN number which was notified on-line and on such notification necessary license fee was paid. In the letter addressed by the third respondent to the sitting Judge of the High Court reporting compliance dt. 30-4-2004, no where it is mentioned the rejection of the petitioner's application for grant of license. Under the e-seva procedural format, the Municipal Corporation of Hyderabad gave a clear go by to the bye-law 5(ii) of its byelaws and was accepting application forms without accompanying challan showing payment of the license fee. Therefore, right from the stage of making an application for trade license, the Municipal Corporation of Hyderabad is making use of e-seva facilities and it is not open for it to contend that fee can be collected only after grant of license.
12. Sri V. Pattabhi, learned counsel for the petitioner in WP Nos. 14796/2004 and 9051/2004 contends that once the license particulars are made available on website, license need not be in writing. He further contends that in the Act, it is nowhere prescribes written permission under Section 521 of the HMC Act. On issuance of G.O.Ms. No. 508 dt. 15-11-2002, legal recognition was given to the records maintained electronically and legal recognition to the process of authentication of electronic records by affixing digital signatures, which are not covered by Sec. 442 of the HMC Act. Once license is granted through e-seva, the same cannot be cancelled without issuing any show cause notice for such cancellation and without considering the explanation offered by the petitioner to the show cause notice dt. 29-4-2004. Having promised for grant of license by displaying the same on website by allotting TIN and having collected license fee, the respondent-Corporation is estopped from rejecting the license and for the said proposition, he relied upon a judgment of the Supreme Court in : [2004]269ITR97(SC) . Further in the interim order granted in WP No.9051/2004, it was directed not to interfere with the running of the restaurant if it is otherwise in accordance with law. Having received license fee and allotted TIN, it is not open for the respondent-Corporation to contend that running of the restaurant is without obtaining license and to order for its closure.
13. Opposing the claim of the petitioner, learned Standing Counsel for the respondent-Corporation contends that as per Bye-laws 3 to 7 of HMC Bye-laws for Regulation of Eating Houses and Hotels, 1973, the petitioner has to necessarily obtain license. Mere allotting TIN is not a valid permission; it was only issued for payment of license fee by the Trader through e-seva center for the convenience of the public. As per Regulation 6 of the Zoning Regulations under Appendix-C(1), the area is earmarked as residential zone and commercial establishments were not permitted. In spite of rejection of the request of the petitioner through show cause notice dt. 29-4-2004 calling upon the petitioner to close the restaurant through proceedings dt. 6-5-2004, the petitioner continues to run the restaurant, for which necessary closure notice was issued on 17-8-2004.
14. Sri D.Srinivas, learned counsel for the petitioner in WP No.8501/2004, fourth respondent in WP No.14796/2004 and third respondent in WP No.9051/2004 while adopting the arguments of the learned Standing Counsel for the respondent-Corporation contends that starting of a restaurant in the residential area causes much nuisance to the residents of the locality, which is prohibited, and Municipal Corporation cannot grant any licence in favour of the petitioner for running the restaurant and cannot be permitted to run such restaurant in the residential locality, which was rightly ordered for its closure by the respondent-Corporation.
15. In order to resolve the controversy, necessary statutory provisions have to be noticed:
Section 442 of the HMC Act prohibits that no person shall without written permission of the Commissioner to be used any building or any part of a building originally constructed or authorized to be used for human habitation as a Godown, Warehouse, Workshop, Workplace, Factory, Stable or Motor Garage. Section 521 of the HMC Act prohibits that no trader shall keep the articles in the premises in conformity with the terms and conditions of the license granted by the Commissioner as specified in Part-I, II, III and IV pf Schedule-P. Section 622 contemplates grant of licence and written permission with specified conditions etc., on which they are granted.
16. It is accepted by the Municipal Corporation about publication of notification displaying on-line services provided, namely, search facility on birth verification, death verification, trade license, payments, engineering work status etc., on 9-2-2004. On petitioner making application for Trade License, the same was processed and was displayed on the website under the caption Trade License Search. From displaying records from 61 to 80, under Trade License search 073-051-0075, First Venture Hospitality Services (Restaurant) was notified. Page I of the online service also shows the trade license details, which is of 12 digit number. On such allotting TIN, amount towards license fee was collected form the petitioner on 6-4-2004.
17. It is not in dispute the petitioner paid an amount of Rs.250/- along with application and only after such application is being processed TIN was allotted and necessary license fee was notified and collected. Further, it is accepted in the counter-affidavit of the respondent-Corporation that no special permissions were granted to any Trader after introduction of e-seva services, disregarding the procedure contemplated under law. In effect, in the notification, FAQs on Trade Licenses have been notified by the Municipal Corporation and necessary procedure has also been notified for allotting TIN and payment of fee in any of the 19 e-seva centers located at Hyderabad and Secunderabad. Fresh Trade Licence issued by the Manager of e-Seva clearly discloses that after 20 days Municipal Supervisor verified the petitioner's shop and calculated plinth area and allotted TIN number. Tin number shown in e-seva center amount paying and giving a receipt. Receipt only license for the year. In view of the same, the submission made by the learned counsel for the respondent-Corporation that license was not issued in required format and it cannot be treated as according permission to run the restaurant, cannot be accepted. Further, rejection of license does not arise for the simple reason application was processed and as per policy tin number was allotted and license fee was collected, which will amount to granting of license. A detailed explanation was submitted by the petitioner on 7-5-2004 to the show cause notice dt. 29-4-2004. No reasons were assigned in the impugned order nor discernible from the same that the explanation offered by the petitioner was considered. In view of the same, impugned orders dt. 6-5-2004 and 17-8-2004 are issued on a wrong premise that no license was granted to the petitioner, which is not only contrary to the policy displayed on the website on 9-2-2004 but also without considering the explanation offered by the petitioner. If the said license was granted in inadvertently or contrary to any of the provisions of the Act, necessary particulars have to be furnished, but under the garb of rejection of application, license cannot be cancelled once granted in favour of the petitioner. Accordingly, they are set-aside.
18. In the result, WP No.14796/2004 and 9051/2004 are allowed and WP No.8501/2004 is disposed of. There shall be no order as to costs.