M.C.D v. Jaipur Golden Transport Co. P

S. RAVINDRA BHAT, J

NAJMI WAZIRI, J OCTOBER 01, 2013 VG

* IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 01.10.2013 MCD ..... Appellant Through: Ms. Amita Gupta, Advocate. versus Jaipur Golden Transport Co. ..... Respondent Through: Sh. Rahul Virdhani for Sh. Arya Girdhari, Advocate CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE S.RAVINDRA BHAT(Open Court) 1. This appeal, preferred by the MCD challenges the order of 5th September, 2005 allowing the respondent's writ petition. Briefly, the facts are that, the respondent (hereafter referred to as 'petitioner') is engaged in transportation of goods on interstate routes. Apparently, the MCD Inspector issued a challan against the petitioner for storing goods at Kishan Garh without possessing a municipal trade licence. This action, which was pursuant to a circular / office order dated 24th January, 1983 / 19th February, 1983 was challenged. The petitioner contended that the office order of 24th January, 1983 / 19th February, 1983 issued by MCD office had been preceded by an office order of 3rd October, 1977, which was quashed by this Court in its judgment and order dated 21.05.1980 in CW No. 1100/1979. It was submitted (by the petitioner) that the circular of 1983 merely revised rates for the 1977 circular without curing the defects noticed in the judgment in the CW No. 1100/1979, which had quashed the circular on the ground of lack of quid pro quo on part of the MCD to recover the charges. MCD in its counter- affidavit had argued before Ld. Single Judge that since the 1983 circular had not been quashed by this Court and since the said circular prohibited storing of goods without municipal trade licence, the actions of the petitioner in so storing its goods without a licence is in violation of the law. It was contended that petitioner had in fact applied for trade licences for 17 sites but submitted the applications in Karol Bagh zone, which Zone's applications were processed and the others were returned. 2. The Learned Single Judge, while allowing the writ petition, noticed the provisions of Section 417 of DMC Act as well as the observations in the order dated 21st May, 1980, which allowed CW No. 1100/1979. The said order had observed that in 1962, the Commissioner, MCD had mooted a proposal to license the trade of transporting of goods by trucks in Delhi inter alia since loading and unloading of the trucks was found to be generally done on public streets causing inconvenience to users of the roads and pavements. Though the proposal to licence the activity was mooted in 1962 itself, the MCD issued an office order incorporating the Commissioner's recommendation only on 30th April, 1976. The charges were revised by the 1977 circular, which were challenged in CW No. 1100/1979. The said challenge was on two grounds : (a) That the MCD cannot charge fees for transportation of goods by road, or the temporary storage that occurs during the same; and (b) for a license to be issuable upon payment of fees, there ought to be some element of quid pro quo which was alleged to be lacking in that case. 3. Ld. Single Judge after analyzing the facts and circumstances present before him and the previous judgment of this court in CW No. 1100/1979 disposed off the writ petition by the impugned judgment, observing as follows : "11. The first challenge failed in as much as it was held that decision of the Commissioner brought out public nuisance resulting due to the manner in which trade of transportation and temporary storage of goods was being effected. Second challenge succeeded on the plea of "quid pro quo". As a consequence thereof, the impugned orders issued by the Commissioner of the Corporation were quashed. 12. In view of the decision of this Court in CW NO. 1100/79, which decision has become final, I am afraid MCD cannot enforce the office order dated 24.1.1983/19.2.1983. 13. I am surprised that the MCD continues to act in defiance of the decision of the Court without rectifying the illegality found b