WP(C) 1961/2008 HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) This writ petition is directed against he order of cancellation of the p rovisional Trade License earlier issued to the petitioner. 2 The petitioner was issued with the provisional Trade License for runnin g the business in the name and style of ’M/S T.K. Enterprises, Islampur Road, Wa rd No.36 of Gauhati Municipal Corporation. The Trade License was issued for Scr ap & Ink Refilling . Although the copy of the Trade License has not been annexe d to the writ petition, the learned counsel, on being asked, has produced the co py of the same. The license was issued on 1.6.2005 and with time to time exten sion of the validity period, it stood extended up-to 31.3.2008. It appears that no further extension of the period of the license has been granted. 3. According to the petitioner, he is carrying on business of scrap materia ls on the basis of the aforesaid Trade License issued by the respondent-Corporat ion. By Annexure-’A’ notice dated 20.6.2007, the petitioner was asked to show c ause within 3 days as to why penal action should not be taken against him under the provisions of the Gauhati Municipal Corporation Act, 1971. The notice reads as follows :- No.GEF/319/2007/2 Date 20.06.07. To Sri Mayam Khan, Islampur, Guwahati. It this reported that, you have been running a business at Islampur which appear s to be in a residential area. You are also dumping dirts/polythene & other mate rials of unhygienic substance on the road in front of your business premises cau sing public nuisance. Dumping of such material in a residential area is not onl y causing public nuisance, but also paused as immediate danger of Fire hazards. Therefore, you are asked to show cause within 3 (three) days from the date of re ceipt of this notice, so as to why penal action should not be taken against you under the provisions of the G.M.C. Act, 1971l. Sd/- Illegible, Commissioner, GuwahatiMunicipal Corporation, Guwahati. 4. In response to the aforesaid notice, the petitioner submitted his reply on 25.6.2007 in which, he stated, inter alia, the following :- I am dealing with the business of selling old bottles like distill water bottle , saline bottle etc. and hence the question of dumping dirts and polythene etc. on the road does not arise 5. When the matter rested thus, the petitioner was issued with the Annexure -’C’ notice dated 7.8.2008. While the earlier Annexure-’A’ notice was issued un der the signature of the Commissioner of the Corporation, this time, the notice was issued by the Collector. The contents of the notice were the same as that o f the Annexure-’A’ notice quoted above. In reply to the second show cause notice , the petitioner repeated the same defence stating that he was dealing with the business of selling old bottles like distilled water bottle, saline bottle etc. 6. After the aforesaid two notices, the petitioner was issued with the Anne xure-’E’ notice dated 10.1.2008 asking him to show cause within 3 days as to wh y penal action should not be taken under Section 378 of the Act. On that occasi on also, the allegation was the same like that of the earlier two notices. 7. In reply to the aforesaid show cause notices, the petitioner by his Ann exure-’F reply dated 14.1.2008, contended that his business was on iron, carton s and paper but not polythene and plastic material. The photocopy of the Annexur e-’F’ reply also depicts the Municipality receipt bearing No.359824 dated 14.1.2 008, which according to the petitioner, accompanied the show cause reply. Howe ver, it is not discernible as to whether such receipt was in respect of the s how cause reply or in some other context. It is also not discernible as to wheth er any such receipt certifying the deposit of requisite fee is required even in case of submission of show cause reply. 8. When the matter rested thus, the Commissioner, GMC issued Annexure-’G’ l etter dated 25.2.2008 asking the petitioner to stop his business. On the basis of the materials available, the Commissioner was satisfied that the business w as being carried on in violation of the provisions of the Act and the byelaws. In the letter, it was mentioned that the petitioner did not submit any reply t o the show cause notice dated 10.1.2008. 9. After the aforesaid Annexure-’G’ letter dated 25.2.2008, the petitioner made Annexure-’H’ representation dated 7.3.2008. On that occasion, the petitio ner did not submit the same by depositing any fee, as was allegedly done while s ubmitting the Annexure-’F’ show cause reply on 14.1.2008. Be that as it may, in the representation, it was the contention of the petitioner that he had been doing business of plastic and scrape materials on the basis of the Trade License issued to him. He also conveyed the undertaking not to do any illegal business. By the said letter, the petitioner prayed for consideration of his case and no t to evict from the business premises. Thereafter, the Commissioner, GMC issued Annexure-’I’ impugned letter dated 7.5.2008 conveying the decision to cancel th e provisional license. The petitioner was further asked to shift his business o f storing and selling of old plastic bottles, bags, glass bottles from the premi ses in question within 15 days. It was at that point of time, the writ petition was filed. Presently, the petitioner is running business on the strength of the interim order passed. 10. The respondents have filed their counter affidavit denying the contenti ons raised in the writ petition. It has been contended that there being statutor y remedy open to the petitioner by way of preferring appeal under Section 438 o f the Act, the writ petition is not maintainable. As regards the merit of the case, the respondents have stated that the writ petitioner under the garb of th e provisional Trade License issued to him, started and continued with the illeg al unhygienic, dangerous, hazardous, highly inflammable, toxic business of dump ing and sale of used plastic and polythene bags, bottles, glass bottles, medical waste like saline bottle etc in the residential area of Islampur, Guwahati. Ac cording to the respondents, the petitioner, while was carrying on business activ ities has also used the public road for the purpose of loading and unloading of the materials from the trucks, tempos etc. and also has dumped the abovementi oned materials on the public road causing immense public nuisance etc. 11. The respondents have justified their action towards cancellation of the provisional license and issuance of the direction to shift his business to some other non-residential area. 12. In Para-8 of the counter affidavit, the respondents have mentioned about carrying on spot verification/enquiry etc. Apart from annexing photographs of the business premises of the petitioner, the road in question etc. the respond ents have also annexed the reports of the spot verification in their additional affidavit. As per the medical report, there is unhygienic environment because of the business activities in the residential area as a result of which, there is danger in public health. As per the report of the departmental officer, the business premises of the petitioner has been causing unhygienic environment invi ting public nuisance. The report also reveals that there is also public complai nt and that there is every apprehension of fire hazard due to presence of inflam mable articles in the business premises of the petitioner. The report further reveals that the owner of the business premises was penalized for Rs.5,000/- o n 6.1.2007. The report also reveals the complaint by the public in the localit y that the running of the business by the petitioner is causing inconvenience t o them. 13. I have heard Mr. S. Kataki, learned counsel for the petitioner as well a s Mr. D. Saikia, learned Standing Counsel, Gauhati .Municipal .Corporation. 14. While Mr. Kataki, learned counsel referring to the aforementioned facts and documents, submits that the respondents themselves are not sure of the actu al position of the matter and has acted solely on the basis of the complaints lo dged by the purported local people, Mr. Saikia, learned counsel for the responde nt-Corporation submits that at the first instance, there was a mistake on the p art of the authority to issue the license to the petitioner to running the type of business in a residential area. According to him, since the business of the petitioner has been causing health hazard with the likelihood of causing fire e tc. due to piling explosive substance, the Corporation had no other alternative then to cancel the license with further direction to stop the business in the p urely residential area. 15. Mr. Kataki, learned counsel for the petitioner, upon a reference to Sect ion 378 of the GMC Act, 1971 submits that before cancellation of the Trade Lice nse, the petitioner ought to have been issued with the show cause notice giving him reasonable opportunity of being heard. He has also referred to a decision of the Apex Court reported in AIR 1982 SC 1550 (M/S Raj Restaurant v. Municipal Co rporation of Delhi). 16. I have considered the submissions made by the learned counsel for the pa rties and the materials on record. Section 378 of the Act empowers the Corporat ion to suspend or revoke any license or written permission granted under the Act on being satisfied under certain condition. As per the proviso to Section 378 ( 3) of the Act, before making any order of suspension or revocation, reasonable o pportunity should be afforded to the grantee of the license or the written permi ssion, to show cause as to why it should not be suspended or revoked. Further re quirement of the proviso is to record the brief statement of reasons for suspens ion or revocation of the license in the order. 17. In the aforesaid decision, in M/S Raj Restaurant, the Apex Court noticin g the fact that there was violation of the principles of natural justice in the matter of refusal to renew the license observed that such a course of action wou ld visit the person concerned with civil and pecuniary consequences and as the b usiness cannot be carried on without the license, it would also affect the livel ihood of the person. It was observed that in such a situation before, either ref using to renew the license or canceling or revoking the same, minimum principles of natural justice of notice and opportunity to represent one’s case is a must. 18. In the instant case, what we find is that the petitioner was first issu ed with the notice to show cause as to why penal action should not be taken agai nst him. As per the notice, he was guilty of dumping dirts/polythene and other materials of unhygienic substances on the road in front of his business premises causing public resent. In reply to the show cause notice, at the first instance , the petitioner contended that he was only dealing with distilled water bottle, saline bottle etc and thus, the question of dumping dirts and polythene etc. o n the road did not arise. 19. Per contra, the aforesaid stand of the petitioner, in his subsequent re ply, he stated that he was dealing with the iron, carton and paper but not poly thene and plastic materials. In his further reply, he stated that he was dealing with the plastic scrap materials. 20. From the above, it will be seen that the petitioner has taken different stand in the show cause replies. The provisional license was granted to him for scrap and ink refilling. There is no dispute that the petitioner is not engage d in ink refilling but is engaged in dealing with plastic materials. If in th e process, either permanently or temporarily, tends to encroach upon the public road causing public inconvenience, the authority is within its competence and j urisdiction to take action in the matter. As per the enquiry report, the petiti oner is running the business in most unhygienic manner and there is also likeli hood of causing fire due to the presence of highly inflammable materials. 21. The business in which the petitioner is engaged appears to be not at all conducive to be carried on in a residential area. It is the bounden duty of th e Municipal Corporation to maintain hygienic condition in the residential area. The Corporation has itself admitted that there was mistake in issuing the prov isional license to the petitioner for running the business from a residential ar ea. Some of the photocopies annexed to the counter affidavit speaks of unhygien ic condition of the business premises. Such type of business naturally requires loading and unloading of the material. The roads in the residential area are na rrow compared to the main roads. Such loading and unloading of the materials to and from the trucks, tempos etc. naturally causes public inconvenience. It is al so dangerous to deal with the inflammable material in a residential area for whi ch proper safety and security is a pre-condition. 22. The license of the petitioner has not been renewed beyond 31.3.2008. By the show cause notice, he was asked to show cause as to why penal action shoul d not be taken for dumping the dirts/polythene and other materials of unhygienic substances on the road in front of the business premises. The different stand o f the petitioner regarding the business material has been noted above. However, the learned counsel for the petitioner submits that there is no deviation in res pect of the dealing with the scraps for which the license was granted. According to him, the respondents have not cancelled the license on that ground but have cancelled the same only on the aforesaid grounds. He submits that ever since, t he notices were issued to him, the petitioner has taken extra care to see that t here is no public inconvenience and nuisance. As regards the presence of the i nflammable materials, the learned counsel for the petitioner has disputed the same. 23. The stand of the respondents in their counter affidavit, although justif ies their action towards cancellation of the provisional trade license and the direction to the petitioner to shift his business of storing and selling old pl astic bottle etc., but the petitioner was not asked to show cause as to why his license should not be cancelled which is the requirement of Section 378 of the A ct. The aforesaid decision of the Apex Court also supports the case of the pet itioner. However, Mr. Saikia, learned Standing Counsel, GMC submits that when the facts speak for itself and the petitioner was provided with the reasonable opportunity to have his say in the matter by way of submitting the show cause reply to the show cause notice issued to him, mere non-mentioning of the conseq uences of cancellation of the license cannot be said to be violation of the prov isions of Section 378 of the Act. 24. The license has not been renewed beyond 31.3.2008. This Court by order dated 23.5.2008 while staying the impugned order dated 7.5.2008 provided that th e petitioner should not create any obstructions on Islampur Road Ward No.36 from which he runs business of scrap. 25. In view of the above, this writ petition is disposed of providing that t he respondent-Corporation may by appropriate notice spell out the discrepancies in running the business by the petitioner and as to the effect of such business being run from the residential area. It will be open for the petitioner to respo nd to the show cause not ice by filing appropriate reply so as to persuade the C orporation to take a different view of the matter. Once the show cause notice i s furnished and reply thereto is received, the authority will pass appropriate o rder by either renewing the license or canceling the same. Needless to say that the order passed should be a speaking one detailing the reasons towards either r enewal or cancellation of the license. 26. With the above direction, the writ petition is disposed of. Since the m atter is to be decided afresh consistently with the observation made above, the impugned order dated 20.6.2007---------may not be given effect to till such time the final speaking order is passed subject however, with the condition that t he petitioner shall not in any way deal with any substance and/or material other than scrap for which the license was granted. Under no circumstances, he will obstruct the road by dumping the dirts. The loading and unloading activities sh ould be carried out at night after 10 P.M. Any violation of these conditions, wo uld be a valid ground for the Corporation to cancel the license. 27. It is expected that the authorities of the GMC will take the decision in the matter without any delay after observing all the necessary y formalities . 28. Writ petition is disposed of leaving the parties to bear their own costs .