ORDER
I have carefully gone through the aforesaid records placed before me, submissions made by the licensee and the aforesaid discussions, I, Dr Dev Raj, Municipal Health Officer, Municipal Corporation of Delhi, Town Hall, Delhi hereby by virtue of the powers vested in me under Section 421(2) and 423 of Dmc Act, 1957 order that your health/trade license issued to you as aforesaid for running the trade of restaurant in your premises namely M/S Pepsico Restaurants International ( India) Pvt Ltd (Earlier named M/S Kfc India Holding Pvt Ltd) at 20,
COMMUNITYCentre, New Friends Colony, New Delhi vide letter No. 1150/PA/DHO(PH)/95 dated 12.10.1995 is revoked/cancelled with immediate effect and also order you to close/stop the trade of restaurant forthwith. I also order that in case the trade of the aforesaid restaurant is not closed/stopped to my satisfaction, the restaurant shall be sealed at any time after 12 hours of issue of this order.'
(11) On Notice (II) no decision has been taken nor conveyed to the petitioner. At the time of hearing it was conceded on behalf of the respondents that the decision was yet to be taken.
(12) We have heard Mr. Kapil Sibal, Sr. Advocate assisted by Mr A.S. Chandhiok and Mr Hemant Sahai advocates for the petitioner and Mr. R.P. Bansal, Sr Advocate assisted by Shri S.K. Chachra, advocate for the respondents.
(13) The petitioner challenges the notice-I and the order of cancellation of license (Annexure-X) mainly on the following grounds, as urged before us, at the hearing :
(1)THATthe notice and the order of cancellation of license are vitiated by colourable exercise of power; the whole action is vitiated by malafides;
(2)THATthe Municipal Health Officer is not an officer competent to take action under Section 421(2) and Section 423 of the Act, the power to take action is vested only in the Commissioner;
(3)THATthe impugned order of cancellation of license is vitiated and deserves to be struck down in exercise of judicial review jurisdiction of the High Court inasmuch as this decision is one which a health officer acting reasonably could not have raved at. The decision is based on material either non- existent or irrelevant in the eye of law.
(14) We propose to deal with each of the contentions Serialtim. In the light of the challenges laid to the impugned action of the respondents and the contentions advanced at the bar, we formulate the questions arising for decision in the petition as under:
(1)WHETHER the action of the respondents is vitiated by malafides and hence the decision by Mho to issue impugned notices and the impugned order, amount to colourable exercise of power?
(2)WHETHER the Municipal Health Officer had no jurisdiction to issue notice and take decision under Section 421(2) and 423 of the Act, the power having been vested by law in the Municipal Commissioner?
(3)WHATis the scope of judicial review over the impugned action of the respondents; whether it can be said that a statutory authority acting reasonably could not have arrived at the decision of cancellation of the petitioner's license?
(4)WHETHER notice-II is open to judicial scrutiny and deserves to be struck down at this very stage? Question (1)
(15) What is `malafides' as understood in Administrative Law.
(16) Malafides or bad faith means dishonest intention or corrupt motive. In Jaichand Lal VS . State of West Bengal, : 1967CriLJ520 malafides in the context of exercise of statutory power has been so defined by their Lordships :
A malafide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended. In other words, the power conferred by the statute has been utilized for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy.
(17) The allegation of mala fides has to be proved. In Ep Royappa VS . Tamilnadu, : (1974)ILLJ172SC , their Lordships of the Supreme Court refused to declare the action malafide as 'suspicion could not take the place of proof' and 'proof needed here is high degree proof'. Burden of establishing malafides is very heavy on the person who alleges it. More serious the allegation, higher the degree of credibility of proof demanded by the Court. Malafides if not discernible from the impugned order, must be shown to exist either by direct evidence or clinching circumstantial evidence. In Barium Chemicals Ltd. VS . Company Law Board & Ors., : [1967]1SCR898 , their Lordships have appreciated the difficulty of proving an allegation as to bad faith or indirect motive or purpose except on clear proof thereof. In Rajender Rai VS . Uoi, : AIR1993SC1236 and in M.Sankaranarayanan Ias VS . State of Karnataka & Ors., : AIR1993SC763 , their Lordships have pointed out that inference as to malice must be based on factual matrix which cannot remain in the realm of insinuation, surmise, conjecture or vague suggestions. Suffice it to observe that difficulty of proof cannot dispense with necessity of proof.
(18) Though in the petition there is an averment that it was the political ideology of the party ruling in Delhi to which the petitioner's entry in Delhi, nay in the Country itself was itching as an eyesore, however, we do not find adequate factual matrix having been laid, much less satisfactorily demonstrated, so as to enable a court of law striking down the impugned action of the respondent as vitiated by malafides. The M.C.D. is a statutory autonomous body and Municipal Health Officer a statutory functionary in whom the law has reposed confidence to exercise the power to grant, cancel or revoke a license. In the absence of positive material, no finding on existence of malafides could be recorded in favor of the petitioner. Photo copies of several newspaper reports relatable to a period which is anterior to and also in close proximity with the impugned action of the respondents have been annexed with the petition so as to project currency of the flowing around popular conviction that the petitioner's license was likely, rather sure, to be cancelled leading to shutters down of the restaurant. There is no affidavit filed of makers of the newspaper reports. No cognizance can be taken of such newspaper reports and relief allowed on an averment made in the writ petition based on such reports ( See-Laxmi Raj Shetty vs State of Tamil Nadu, : 1988CriLJ1783 ; P.N. Dubey vs Uoi : AIR1989MP225 ).
(19) It was submitted in the alternative that an inference as to malafides is liable to be drawn in the facts and circumstances of the case looking to the hasty manner in which the Municipal Health Officer was acting, reflecting an effort at denying even a reasonable opportunity of defense to the petitioner that by itself being an intrinsic material available on record leading to an inference of malafides writ large. The notices required to show cause 'within 24 hours' of the issue thereof why the license be not cancelled 'within 24 hours'. Though the petitioner did file reply within the time limited by the notice he had sought for a reasonable margin of time for hearing but the Mho did not allow even a breathing time to the petitioner. The hearing took place on a public holiday and soon followed the decision which did not allow time enough to the petitioner to have recourse to law.
(20) We are not impressed. Much can be argued on both the sides. The Mho has offered his own justification in the impugned order stating that he was proceeding expeditiously in the interest of public health and safety. We do not think that an inference as to malafides can be drawn merely because the statutory authority was not inclined to go slow and afford the time desired by the petitioner. It would have been better if the Municipal Health Officer would have acceded to the demand of the petitioner to a reasonable extent and thereby denied the possibility of his being accused of acting with undue and unwanted haste or of a pre-determined action, but that by itself is not enough to infer malafides. An error of decision and a staggering step on processual path is not necessarily actuated by malafides.
(21) Obviously for the aforesaid legal position the learned counsel for the petitioner also has not seriously pressed this ground at the time of hearing.
(22) In any case, on the material available, it cannot be held that the Mho has exercised his power malafide or for extraneous reasons. It is held that there has been no colourable exercise of power. Question (2)
(23) Sections 421 and 423, dealing with license, its cancellation/suspension, power to stop use of premises in contravention of license and Section 491 dealing with delegation of functions of Commissioner provide as under :
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)THECommissioner 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.
423.Power of Commissioner to stop use of premises used in contravention of licenses: If the commissioner is of opinion that any eating house, lodging house, hotel, boarding house, teashop, coffee house, cafe, restaurant, refreshment room or other place where the public are admitted for repose or for consumption of any food or drink or where food is sold or prepared for sale or any theatre, circus, cinema house, dancing hall or similar other place of public resort, recreation or amusement is kept open without a license or otherwise than in conformity is kept open without a license or otherwise than in conformity with the terms of a license granted in respect thereof, he may stop the use of any such premises for any such purpose for a specified period by such means as he may consider necessary.
491.Power to delegate functions of Commissioner - The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any municipal officer or other municipal employee specified in the order.
(24) With the counter, copy of Notification No. F.4(2)/69-Law-Corp./7 dated 11.7.69 has been filed. The relevant part thereof reads as under :
'The powers conferred on me under the following sections of the Dmc Act, 1957 shall also be exercised by the Municipal Health Officer, to the full extent, subject to my control supervision and revision and that of the concerned Deputy Commissioner.
.....421,422,423.................. sd/- ( R.N.Chopra ) Commissioner Municipal Corporation of Delhi
(25) It is clear that in so far as the Act is concerned, it is the Commissioner in whom is vested the power conferred by Sections 421 and 423 of the Act. The Commissioner has delegated his powers/functions under Section 491. However, while so delegating the powers/functions, the Commissioner has added a rider to the delegation - 'subject to my control, supervision and revision and that of the concerned Deputy Commissioner.' It is submitted by Mr.Kapil Sibal, the learned senior counsel that in so far as power to grant a license is concerned it is an administrative function; it can be delegated, with or without riders. The power to cancel a license is a quasi judicial function. It could not have been delegated but for a specific provision in the Act. The provision is there but while delegating exercise of a quasi judicial function the Commissioner cannot do so by retaining in himself the power of control and/or to supervise. Such reservation vitiates the delegation, submitted the learned counsel. Reliance was placed on Bombay Municipal Corporation VS . Dhondu Narayan Chowdhary, : [1965]2SCR929.
25.1In Bombay Municipal Corporation's case (supra), Section 68 of the Bombay Act provided for delegation of powers duties or functions of the Commissioner to be exercised performed or discharged under the Commissioner's Control and subject to his revision and of such conditions and limitations as he shall think fit to prescribe. The Commissioner delegated his power under Section 105-B which provided for power to evict person from Corporation's premises subject to Commissioner's satisfaction on certain events. This delegation was challenged.
25.2A learned judge of the Bombay High Court had taken the view that judicial or quasi-judicial power could not be so delegated that the control over the decision was kept by the Commissioner. The matter went in appeal to the Supreme Court.
25.3Their Lordships held :- @SUBPARA = 'It goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. In the present case the amendment of Section 68 by inclusion of delegation of the functions of the Commissioner under Sections 105B to 105E does indicate the intention that the judicial or quasi- judicial powers contained in Chapter Via were expressly intended to be delegated. To the delegation as such there can be no objection. What is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under 'the Commissioner's control' and 'subject to his revision'. These words are really appropriate to a delegation of administrative functions where the control may be deeper than in judicial matters. In respect of judicial or quasi-judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be exercised and so on and so forth. In other words, the administrative side of the delegate's duties was to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case. This is also the intention of Section 68 as interpreted in the contest of the several delegated powers. This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appealable as such. If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order of the Commissioner and the control envisaged both in Section 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cases and their disposal. No allegation has been made that the Commissioner intervened in the decision of the case or improperly influenced it. In these circumstances, the order impugned in the appeal cannot be sustained.'
25.4It is clear that their Lordships have upheld the delegation. The control and supervision retained by the Commissioner has been held confined to the administrative aspect of the power to be exercised by the delegate officer; the Commissioner could not exercise his retained power over the quasi-judicial aspect of the power delegated.
25.5An Administrative power can always be delegated; a judicial function may be delegated if there be power conferred expressly or by necessary implication to do so. (See Pradyat Kumar Bose : [1955]2SCR1331 ). In view of power to delegate having been conferred expressly on the Commissioner by Section 491 of the Act, no fault can be found with delegation.
25.6We are, thereforee, of the opinion that the challenge laid to the validity of delegation of power and the contention that the delegation was vitiated for the manner in which it has been made must fail. It is held that the Municipal Health Officer did have the power to grant license, to issue show cause notice and to take decision in the matter of cancellation of license.
25.7In passing we may note that delegation of powers by the Commissioner generally to Inspectors indicating the class of officers to whom Commissioner had delegated his powers under Section 491 of the Act was upheld as valid in Kesho Ram VS . Delhi Administration : 1974CriLJ814
(26) MR.R.P. Bansal, the learned senior advocate appearing for the respondents submitted forcefully that the petition of the nature as present one deserves to be dismissed at its very threshold in as much as the notices to show cause issued to the petitioner and the impugned order of cancellation of license passed by Municipal Health Officer are all actions taken within the scope of statutory authority conferred on him and the decision arrived at by him is not amenable to scrutiny by this Court as if it were a court of appeal. Strong reliance was placed in G.B. Mahajan & Ors. VS . The Jalgaon Municipal Council & Ors., : AIR1991SC1153 ; M/s.Shri Sitaram Sugar Co.Ltd. & Anr. VS . Union of India & Ors, : [1990]1SCR909 , Associated Provincial Picture Houses, Ltd. VS. Wednesbury Corporation 1947(2) All E.R.680 and a good number of other authorities. On principle their can hardly be any two opinions.
(27) We would first examine the nature of power exercised by the Municipal Health Officer, the principles of law governing the exercise of such power and the scope of judicial review or judicial control on the action of MHO. Then we would revert back to the facts of the case at hand.
(28) Sections 421 and 423 do not lay down any guidelines for the exercise of the statutory power vested thereby. None is to be found in the Rules or the Bye-laws. The matter is left to the realm of discretion. The legislature has reposed confidence in the Commissioner which in view of the delegation made stands vested in the Municipal Health Officer.
(29) What the law expects from such statutory functionary? How has he to exercise the discretionary power vested in him? 30. De Smith states in Judicial Review of Administrative Action (ibid, p.96):
DISCRETIONARY powers must be exercised for the purposes for which they were granted; relevant considerations must be taken into account and irrelevant considerations disregarded; they must be exercised in good faith and not arbitrarily or capriciously. If the repository of the power fails to comply with these requirements it acts ultra vires.
(31) In Mahesh Chander Vs . Regional Manager Upfc, : [1992]1SCR616 their Lordships have held :
EVERY wide power, the exercise of which has far-reaching repercussion, has inherent limitation on it. It should be exercised to effectuate the purpose of the Act. In legislations enacted for general benefit and common good the responsibility is far graver. It demands purposeful approach. The exercise of discretion should be objective, test of reasonableness is more strict. The public functionaries should be duty conscious rather than power charged. Its actions and decisions which touch the common man have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bonafide and in good faith merely because no personal gain or benefit to the person exercising discretion should be established. An action is mala fide if it is contrary to the purpose for which it was authorised to be exercised. Dishonesty in discharge of duty vitiates the action without anything more. An action is bad even without proof of motive or dishonesty, if the authority is found to have acted contrary to reason.
(32) What is the scope of judicial review. Very recently in Tata Cellular VS . Union of India, : AIR1996SC11 , their Lordships have held :
'THE judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.
JUDICIAL review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself. It is thus different from an appeal. When hearing an appeal, the Court is concerned with the merits of the decision under appeal. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its own decision. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly the Court would interfere. It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.'
(33) In H.B. Gandhi, Excise & Taxation Officer-cum-Assessing Authority, Karnal & ors. VS . M/s.Gopinath & Sons & Ors. , their Lordships have held :
JUDICIAL review is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.
(34) Without multiplying the authorities suffice it to refer S. Ramachandra Raju VS . State of Orissa, : (1995)ILLJ1083SC ; State of U.P. VS . Maharaja Dharmander Prasad Singh etc., : [1989]1SCR176 ; M/s.Shiri Sitaram Sugar Company Ltd. & An. VS . Union of India & Ors., : [1990]1SCR909 .
(35) Still we would like to take a note of two more decision before reverting to the case at hand.
35.1In Ex.Naik Sardar Singh VS. Union of India & Ors. Air 1992 Sc 417, the following statement of law made by Lord Diplock in Civil Service Unions VS. Minister for Civil Service (1984) 3 All E.R. 935 was cited with approval :-
JUDICIAL review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety!
35.2In State of West Bengal VS . Atul Krishna Shaw & Anr. : AIR1990SC2205 , their Lordships have so stated the law (vide para 7) :- 'If the quasi-judicial tribunal had appreciated the evidence on record and recorded the findings of fact, those findings are binding on Supreme Court or the High Court. By process of judicial review they cannot appreciate the evidence and record their own findings of fact. If the findings are based on no evidence or based on conjectures or surmises and no reasonable man would on given facts and circumstances come to the conclusion reached by the quasi- judicial authority on the basis of the evidence on record, certainly the High Court would oversee whether the finding recorded by the authority is based on no evidence or beset with surmises or conjectures.'
(36) It was not disputed at the bar that an order made under Sections 421(2)/423 has to comply with principles of natural justice, and rightly so, for the law is well settled on it.
(37) In the context of observance of principles of natural justice, the distinction between administrative orders and orders passed in exercise of quasi-judicial power is obliterating fast. Even an administrative order entailing adverse civil consequences has to comply with rules of natural justice. In Shri D.K. Yadav VS . M/s.J.M.A. Industries Ltd. : (1993)IILLJ696SC , their Lordships of the Supreme Court have held :
'THE cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily affecting the rights of the concerned person.
IT is a fundamental rule of law that no decision must be taken which will affect her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice.'
(38) M/S.RAJ Restaurant & Anr. VS . Municipal Corporation of Delhi : AIR1982SC1550 is a direct authority for the proposition that the minimum principles of natural justice and opportunity to show cause must be complied with before taking a decision refusing the license or canceling or revoking the same under Section 421 of the Act; else it would be void. Law is legion on the point that such matters in the area of trade and commerce are governed by Audi Alteram Partem Rule (See North Bihar Agency VS . State of Bihar,, : AIR1981SC1758 ; State of Punjab VS . Ajudhia Nath, : [1981]3SCR686 ; Mahavir Prasad VS . State of U.P., : [1971]1SCR201 ; Sinha Govindji, Dy.Controller of Imports, (1962) 1 Scj 93; City Corner VS . Personal Assistant to Collector, : [1976]2SCR38 .
(39) De Smith's Judicial Review of Administrative Action (4th edition) states :
'A matter is usually held to be one of degree (and thereforee of fact) if it is one on which reasonable men may arrive at discrepant conclusions on the evidence before them.' (page 131)
'THE vaguer the statutory standard, the more closely does a determination that the facts found conform or do not conform to that standard approximate to an exercise of discretion and choice rather than a finding of fact. What are to the judges questions of fact and degree (as opposed to questions of law) are often to the layman matters of personal opinion. It does not follow, however, that either the judge or the layman will regard every determination of such a question as unassailable.'
(page 131)
'A Tribunal which has made a findings of primary fact wholly unsupported by evidence, or which has drawn an inference wholly unsupported by any of the primary facts found by it, will be held to have erred in point of law.' (page 133)
'IF the drawing of an inference or the application of a statutory term is held or assumed to be a matter of fact (or fact and degree) for the 'tribunal' of first instance, a Court may still hold that the decision is erroneous in point of law if.........the inference or conclusion is one that no reasonable body of persons properly instructed in the law could arrive at (as where the evidence, including the tribunal's own expert knowledge, and primary facts point unmistakably to a different conclusion). If the formulation is slightly changed, and it is said that an error of law exists whenever the conclusion is one to which the competent authority cannot reasonably come on the evidence adduced, the scope of judicial review is potentially extended;'(P.137)
(40) To what extent the finding would remain a finding of fact within the exclusive domain of the authority and on what limit being crossed it would be vulnerable to the Judicial Review? Hwr Wade in Administrative Law (6th Edition) (PP 319-320) states :
'FINDINGS of fact are the domain where a deciding authority or tribunal can fairly expect to be master in its own house.'
'BUT the limit of this indulgence is reached where findings are based on no satisfactory evidence at all. It is one thing to weigh conflicting evidence which might justify a conclusion either way. It is another thing altogether to make insupportable findings. This is an abuse of power and may cause grave injustice. At this point, thereforee, a court is disposed to intervene.'
'NOevidence' does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as a whole, is not reasonably capable of supporting the findings; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. This `no evidence' principle clearly has something in common with the principle that perverse or unreasonable action is unauthorised and ultra vires.'
'TO find facts on no evidence is to err in law.'
(41) It, thereforee, follows that we would not interfere with the impugned order of the Municipal health Officer even if convinced of the possibility of a different conclusion being arrived at on
(42) In the light of the legal principles noticed hereinabove it is clear that the power conferred on Commissioner (delegated to Municipal Health Officer) to cancel a license is a quasi judicial power. It is coupled with a duty to act fairly in public interest. The power has to be exercised consistently with the principles of natural justice. The decision taken is open to judicial review on grounds of illegality, irrationality and procedural impropriety. If the decision be one which could not have been reasonably arrived at by a reasonable person it would be liable to be struck down.
(43) With the above said statement of law, we now revert to the facts of the case at hand.
44.1 As to the flies seen in the kitchen, the petitioner's case is that the respondent-MCD itself had certified the petitioner's premises were fly proof even before the license was granted. The premises have the best and most modern ultra violet pest traps and air curtains to ensure that flies and other insects do not enter into the restaurant premises. In the morning hours at the time of opening of restaurant the kitchen and its surrounding areas are 'aired' i.e. fresh air circulation is permitted. Modern equipment, installed in the restaurant, destroys any stray flies which may manage to enter the premises. All such arrangements have been fully functional and in use all along as they were at the time of the inspection. The presence of flies results from general standard of hygiene and climate in Delhi. In fact within 100 meters of the restaurant there is a municipal refuse bin which is rarely cleaned.44.2 The Inspector's report does not mention what was the density of flies; it was certainly not a swarm of flies. The Inspector was able to point out only two flies in the kitchen area which is in excess of 500sft.44.3 The above said averments made in the petition were also pleaded in the reply to the show cause notice- I filed by the petitioner.
(45) To the several pleas raised in the petition, we may now notice what the respondent-MCD has to say :
(I)THATthe health trade license was granted after having found the premises in conformity with health trade norms as laid down for the trade under Technical Instructions and Bye-laws for trade licenses. It is however denied that equipments installed in the kitchen etc. are of international quality and standards. It is stated that licensee was obliged to maintain all the requirements of the trade license and the bye-laws all the times during the subsistence of the license which the licensees failed to do so in the present case as is evident from the site inspection of Zonal Health Officer, Central Zone, Mcd and Health Inspector, Central zone in the presence of Shri Vikas Vij, Assistant Duty Manger.
(II)THEtrade waste from the restaurant was found lying immediately in close surrounding of back door of licensed premises namely M/s.KFC, 20, Community Centre, New Friends Colony in contravention of the license conditions. In reply to Sub-para (v) it is stated that there was certainly a lapse in maintenance/operation of the restaurant if flies were found at the time of Inspection The licensed premises should be flies-free all the times otherwise it could cause endanger to the health of public consuming the eatable of the aforesaid restaurant. In reply to sub-para (vi) it is submitted that density of flies cannot be measured by mere inspection. However, admittedly flies were found in the kitchen at the time of inspection. Claim of the petition in sub-para (vii) that it is maintaining international standards in operating and maintaining the restaurant and its facilities stands negated from the very fact that cleanliness required under the bye-laws could not be adhered to by the petitioner.'
(46) There can be no gainsaying that the statutory provisions and the conditions of the license having been enacted and provided in the interest of public health and safety, have to be so read and interpreted as to advance the purpose sought to be achieved. At the same time the material collected by way of evidence on which the decision of the Municipal Health Officer is based has to be read and interpreted strictly, in as much as the decision based thereon, if adverse to the licensee, is sure to entail adverse civil consequences, penal in nature, as the license would be liable to be cancelled and business of the petitioner brought to a closure. We cannot, thereforee, read the report of the Food Inspector liberally and assign to it a meaning wider than what it contains and conveys. We have to read the report of the Inspector as it is, without adding or subtracting anything therein or there from. It is the report (Annexure R-5) alone on which is founded the order canceling the license. The Municipal Health Officer had no other evidence or material available before him. We have to see, just as the Municipal Health Officer was obliged to see, if the Explanationn offered by the petitioner fits in the report of the Health Inspector or in other words whether the record of the observations made by the Health Inspector at the time of inspection and as contained in his report would enable the Municipal Health Officer discarding the Explanationn offered by the licensee. Having adopted such approach while arriving at findings of fact, the test to be applied would be - whether the Municipal Health Officer acting reasonably could have arrived at a conclusion that the conditions of the license were violated by the licensee. It is submitted by the learned counsel for the petitioner that while doing so the authority shall have to keep in view the realities of life, the nature of business forming subject matter of the license and the trade practice associated therewith. Avoiding a hypertechnical or hypersensitive approach, a reasonable and practical over all view of things shall have to be taken.
(47) During the course of hearing, the learned counsel for the respondents has categorically stated that the respondents' case was very specific; they were the condition No. 6 and 23 (reproduced in para 3 of the judgment) which were breached by the petitioner and the respondents confined their case only to the breach of these two conditions of license in support of the order canceling the license.
(48) Let us now analyze the conditions of the license. We shall keep in view the common knowledge, common experience and common sense relatable to every day life, the restaurant business and its consumers. It needs no evidence. Commonsense which is a luster of life's experiences, is often more dependable than the rival facts presented by warring litigants (Olga Tellis : AIR1986SC180 ). A judge is supposed to know the facts and realities of life. Under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. The illustrations mentioned in this Section are not exhaustive and other presumptions of a similar kind can be made. (S.Hardyala Singh, : AIR1984Delhi350 )
(49) Condition 6 consists of three clauses. It is not the Food Inspector's report nor the case of the respondents in their counter that the petitioner's premises and surroundings were not clean. The charge is that by allowing the trade waste to lie just in proximity of the back door of the restaurant the petitioner has failed in performing its obligation on 2 counts: (i) refuse or garbage has been allowed to remain about premises and surroundings; and (ii) it was not kept in a covered tub/receptacle of metal nor deposited into the municipal bin.
(50) In the very nature of restaurant business there cannot be incessant or continuous process of removal of refuse or garbage away from the premises. In an eating house there is bound to be a continuous out-flow of trade waste through out with the preparation of food and its consumption by the customers - both being ongoing processes. The trade waste must be collected and kept so covered and protected that it does not become a source of insanitation. Unfortunately, the Health Inspector's report does not precisely describe or set out the details of the conditions in which he had observed the trade waste 'lying'. Whether it was lying scattered or spilled? Whether it was lying in open or covered? Whether it was in a bin or receptacle or just on the floor? All these questions remain unanswered by reading the report of the Inspector. The Explanationn offered by the petitioner that the same was lying in sealed plastic refuse bags and was meant to be removed by the contractor arranged for its removal cannot be discarded.
50.1It is pertinent to note that the counter filed by the respondents is on the affidavit of Dr.Devraj, the MHO. The respondents have not filed the affidavit of the Health Inspector and/or the Zonal Health Officer, who had conducted the inspection. Had it been done the Court could have glanced through such affidavit/s to enlighten itself on points of obscurity.
50.2The inspection was carried out at a time close to the opening of the restaurant. It is neither the report of the Inspector nor the case of the respondents in the counter that the restaurant was functional at the time of inspection. This factual position was not disputed by the learned counsel for the respondents that at the time of hearing. If the trade waste was arranged to be removed at the time of the opening of the restaurant and before it became functional there would be nothing objectionable about it.
50.3We do not agree with the submission of the learned counsel for the respondents that condition 6 contemplates an arrangement for instantaneous and continuous process of removal of trade waste away from the premises in as much as the last part of the condition 6 itself contemplates the trade waste being stored in a covered tub and/or receptacle of metal, to be finally deposited into the municipal bin. The underlying object behind the condition is that the refuse or garbage should be so kept as may not emit a foul smell and permit flies and insects coming in contact with it - sitting on it and then flying away - as a possible source of spreading diseases and insanitation.
50.4Condition No. 6 does not prescribe any period or interval by the lapse of which or the frequency of time by which the refuse or garbage has to be removed from the premises and surroundings. The learned counsel for the petitioner has invited our attention to the provisions contained in Section 357 and 358 of the Act which under the Chapter entitled `Sanitation and Public Health - Conservancy and Sanitation' oblige the owner or occupier of 'any premises' to make provision for removal of rubbish filth etc. not beyond 24 hours. The Commissioner is empowered to cause scavenging and cleansing of any premises in filthy and unwholesome condition and recover expenses from the owner or occupier. Sections 357 and 358 are general provisions. In case of restaurants and eating houses a more rigorous provision as to cleaning can be made. But in the absence of any specific provision in the condition of the license, in our opinion, it would suffice if the owner or occupier has made such arrangement as would be reasonable in the facts and circumstances of the case and would fulfilll the purpose sought to be achieved by the condition in a reasonable and practical way.
50.5Placing reliance on certain Bye-laws the learned counsel for the respondents made a feeble attempt at supporting the plea of license condition having been breached by pointing out that an eating house is supposed to have garbage/refuse bins with covered lid, mechanically operated by pedal, which the petitioner was not having. We need not dwell upon this plea for it is neither the report of Health Inspector, nor mentioned in show cause notice, nor in the counter. Such a plea cannot be permitted to be raised for the first time at the bar.
50.6In our opinion a case of breach of condition 6 of the license is not made out from the facts contained in the inspection report.
(51) In condition 23 of the license provision for protection from dust and flies all the 24 hours has been made in relation to the articles of food and drinks exhibited for sale which have to be so protected and kept in clean utensils. It is not the case of the respondent that there were any articles of food and/or drink exhibited for sale when the flies were detected. We do not propose to enter into the controversy as to what was the exact or estimated number of flies found in the kitchen part of the restaurant. The learned counsel for the respondents is right in submitting that presence of flies is suggestive of unclean lines and insanitary condition, but we cannot forget that the restaurant was in the process of being opened. Before it could become functional if the flies were aired away or killed and the premises sanitized, we do not think that condition 6 or 23 of the license was breached.
(52) To sum up, we are of the opinion that on the material made available to the Municipal Health Officer read and tested in the light of the Explanationn offered by the petitioner, a finding as to breach of conditions of license could not have been reasonably arrived at. The Municipal Health Officer cannot be held to have been unjustified in issuing show cause notice based on the report of the Inspector. But a decision as to the license conditions having been breached could not have been arrived at in the light of the cause shown by the petitioner. The impugned order of the Municipal Health Officer cancelling the license of the petitioner, followed by a direction to close the restaurant cannot be sustained. Question (4)
(53) We have reproduced the contents of show cause notice-II in para 7 of this judgment. A perusal of the contents of the notice reveals that the grounds forming foundation for the proposed action of cancellation of license are :
'(I)USING/SELLINGmaterials unfit for human consumption in contravention of the license conditions as notified on the reverse of the trade license and Delhi Municipal Corporation regulation of hotel lodging houses and similar places bye-laws, 1964;
(II)THEuse of the food articles (samples whereof were taken) is not allowed under the Pfa Acts and Rules'. Copies of the three reports of Public Analyst were enclosed with the notice.
(54) At the bar, the learned counsel for the petitioner carried the Court through the contents of the three reports in his effort at demonstrating that opinions recorded by the Public Analyst were not correct on the facts found by her consequent to analysis and none of the three opinions recorded by her were enough to spell out the grounds set out in the notice. On the other hand, the learned counsel for the respondents vehemently supported the notice submitting that the contents of the three reports of the Public Analyst were enough to spell out that materials unfit for human consumption were being used/sold in the restaurant and food articles not allowed by Pfa Acts and Rules were being offered for sale and consumption at the restaurant. It was further submitted that the fact that the restaurant was using and selling such materials as were likely to be injurious to the health of the consumers was itself enough to sustain an action for cancellation of the petitioner's license. During the course of hearing both the learned counsel referred to several provisions of the Prevention of Food Adulteration Act and the Rules placing there own interpretation thereon. A number of extracts from books and journals have been annexed with the petition in support of the submission that the use of Sodium Aluminum Phosphate (SALP) was permissible without posing any hazard to the health and safety to the consumers and the same was not vocative of the provisions of the Pfa Act and Rules.
(55) In our opinion it would be premature to record any finding on the respective contentions so advanced before us by the learned counsel for the parties, though having heard them at length, we are inclined to form an opinion that the notice is vague and unspecific. During the course of hearing, Mr.R.P.Bansal, the learned senior advocate appearing for the respondents has stated before us that the respondents had no preconceived opinion on the issue and they were prepared to afford an open minded hearing to the petitioner wherein the petitioner should participate without any reservation or apprehension. To this offer, Mr.Kapil Sibal, the learned senior advocate appearing for the petitioner submitted that the petitioner not only had no objection but was only too willing to avail the opportunity of hearing but the difficulty is that what was being contended during the course of hearing, in support of the show cause notice- Ii was not reflected from its contents and if the respondents were likely to make out a case as projected now before the Court it would be only fair if they gave a specific and clear notice to the petitioner so that the petitioner would have a reasonable, just and fair opportunity of showing cause against and meeting the case which the petitioner is supposed to do.
(56) A prior notice is one of the contents of the Audi Alteram Partem Rule. De Smith in Judicial Review of Administrative Action (4th edition P.196) states :
'NATURAL justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position :
(A)TOmake representations on their own behalf; or
(B)TOappear at a hearing or inquiry (if one is to be held); and
(C)EFFECTIVELYto prepare their own case and to answer the case(if any) they have to meet.'
Obviously, the purpose of issuing a prior notice would not be served if it does not afford an opportunity of making an effective representation affording an effective opportunity of making representation, preparing his own case and answering the case which he has to meet.
(57) In Board of Technical Education, U.P. & ors. VS . Dhanwantri Kumar and Ors., : AIR1991SC271 , the notice to show cause served on the petitioners was so vague and imprecise that they could not have effectively defended themselves in the enquiry and hence the notice was held to be invalid, violating the rules of natural justice. The conclusion so recorded by the High Court was up held by the Supreme Court.
57.1In M/s.North Bihar Agency & Ors. VS . The State of Bihar & Ors., : AIR1981SC1758 , the aspect of the matter leading to cancellation of the license was not mentioned in the show cause notice served on the licensee and so the action of cancellation was held to be vitiated.
57.2In J.M.A. Industries Ltd. & Anr. VS . Union of India & Anr., : AIR1980Delhi200 , a Division Bench of Delhi High Court has held :- 'The administrative authorities exercising powers under statutory provisions should realize that whether they are issuing a show cause notice why a certain action should not be taken or are communicating the reasons for decisions, it is not sufficient merely to recite the language of the statutory provisions but it is also necessary that the actual facts on which action is proposed to be taken or on which the decision is based should also be indicated.'
57.3In M/s.Kumar Keshridas, Indore VS . Divisional Engineer, Telephones (Admn), Indore & Anr. : AIR1984MP158 show cause notice was held to be vitiated as it suffered from vice of ambiguity.
57.4In Charandas Malhotra VS . Assistant Collector of Customs & Suprintendent Preventive Service and others, : AIR1968Cal28 also the Division Bench has held a notice which was vague and unspecific, did not give a reasonable opportunity of defending oneself.
(58) In the case at hand the notice is accompanied by photo copies of the three reports of Public Analyst where upon it is based. The contents of the reports are suggestive of the material sought to be used against the petitioner. Still the notice does not set out the view taken by the Municipal Health Officer of the reports of the Public Analyst. It is expected that the reports of the Public Analyst having been placed before the Municipal Health Officer he would first apply his mind to the contents thereof. He would then formulate a prima facie opinion as to which of the conditions of license and/or provisions of the Act/Rules/Bye-laws was violated. It is only when he has formulated that opinion he would take a decision on issuing notice. The notice would then indicate the condition(s) of the license and/or the relevant provision(s) which in the opinion of the Municipal Health Officer has (have) been offended by the petitioner so that the petitioner has an opportunity of meeting a specific case.
(59) We are aware of the limitation on the exercise of our writ jurisdiction. Ordinarily the High Court would not entertain a writ petition against a mere show cause notice except in the case of patent lack of jurisdiction in the authority issuing the notice or violation of principles of natural justice. The High Court would leave such a hasty petitioner to pursue the remedy of showing cause against the notice raising all his contentions for the consideration of the statutory authority and then approaching the High Court in the event of the result going against him. In the case at hand, the impugned show cause notice-II has come to be subjected to our scrutiny in the peculiar facts and circumstances of this case. Two notices to show cause were simultaneously issued to the petitioner. He filed replies to the both. On one, the action has been taken leading to cancellation of license and decision on the other is yet to be taken. The validity of the show cause notice-II has been brought under challenge more or less mixed with a similar challenge to show cause notice-I and the decision based thereon. In that context, the parties have been heard on their respective contentions touching the sustainability on judicial anvil of show cause notice-II and we have also expressed our opinion thereon.
(60) Conclusion : To sum up, we are of the opinion that the delegation of the Commissioner's powers under Section 421 and 423 of the Act made under Section 491 of the Act to the Municipal Health Officer vide Notification dated 11/7/69 is legal and valid. The Municipal Health Officer in issuing the impugned show cause notices to the petitioner and passing the order of cancellation of license has acted intravires. The impugned action of the respondents is not vitiated by malafides nor can be said to have proceeded on extraneous considerations. However, the impugned order of cancellation of license dated 11.11.95 cannot withstand the test of judicial scrutiny as the decision to cancel the license could not have been reasonably arrived at on the material available before the Municipal Health Officer. The same is liable to be quashed. Show cause notice-II also deserves to be set aside with liberty to the respondents to serve afresh consistently with the observations made hereinabove.