Delhi District Court
North Delhi Municipal Corporation vs . The Delhi Flour Mills Company Ltd. 1/8 on 18 November, 2015
IN THE COURT OF SH. RAKESH KUMAR, MM TRAFFIC- CENTRAL, TIS
HAZARI COURTS, DELHI.
Challan No. 473907
Zone Sadar Pahar Ganj
Under Section 416/417 r/w section 461 of DMC Act.
North Delhi Municipal Corporation .............Complainant
Versus
1. Delhi Flour Mills Company Ltd. ................ Accused
2. Mohit Jain,
S/o Sh. R.P. Jain,
Director of Delhi Flour Mills Company Ltd.,
8381, Roshan Ara Road, Delhi-07, ....................Accused
3. Rasad Jain,
S/o Sh. Mohit Jain,
Director of Delhi Flour Mills Company Ltd.,
8381, Roshan Ara Road, Delhi-07, ....................Accused
Date of institution of the Challan : 24.11.2011
Date of decision : 18.11.2015
Final order : Convicted
Present: Sh. Umesh Gupta Ld. counsel for NDMC.
AR of the accused company R.S Yadav in person.
Accused Mohit Jain director in person.
Ld. Counsel Sh. Ujjwal Kumar for all the accused including
director Rasad Jain.
North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 1/8
JUDGMENT
1. By this judgment I shall dispose of the complaint case filed by North Delhi Municipal Corporation (herein after called as NDMC) against the The Delhi Flour Mills Company Ltd. (herein after called as 'The Company') which arose out of one challan/complaint issued by NDMC against the above said company on 04.11.2011 for running Flour Mill with load of 900KW approx without having valid municipal license. The allegation against The Delhi Flour Mill is that on 04.11.2011 the above said company was found running Flour Mill with load of 900 KW approx power without having valid municipal license. NDMC alleged that as the accused company was running Flour Mill without having municipal license and also using approximately 900 KW power as such accused company has violated the provision of section 416/417 of Delhi Municipal Corporation Act (herein after called DMC Act).
2. The above said complaint/challan was issued on 04.11.2011. The above said complaint/ challan was filed in the Court on 24.11.2011. The accused company was represented through AR namely R.S Yadav. Notice was framed against three directors of the above said company namely Mohit Jain, Rasad Jain and R.P. Jain respectively on 09.04.2012 and 19.07.2012. The notice of accusation was served upon the accused directors u/s 251 of Cr.P.C to which all the directors pleaded not guilty and claimed trial. Later on proceeding against RP Jain was abated as he had expired 08.11.2013.
3. At the very outset it is pertinent to note the admission, undisputed fact as well as defence of the accused company. The accused company had admitted that on the date of issuance of challan i.e. 04.11.2011 company had not having valid municipal License to run the above said Flour Mill. The accused company had also not disputed the issuance of complaint/challan against the above said Flour Mill for running Flour Mill. AR, R.S Yadav of the accused company categorically admitted in pursuance of court question u/s 165 of the Evidence Act ( vide ordersheet dt. 03.02.2015) that the abovesaid accused company was running without having municipal license on the date of issuance of challan and municipal license was expired North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 2/8 around 2002. Accused namely Mohit jain and Rasad Jain also admitted that abovesaid flour mill was running without having valid license on the date of issuance of challan as license of abovesaid flour mill was expired in the year 2001.
It is therefore clear from abovesaid categorical admission of accused company as well as directors of abovesaid Flour Mill that Challaning officer of the NDMC had issued challan against accused company on 04.11.2011 and on this very date of issuance of challan the abovesaid Flour Mill was running without having valid municipal license. The abovesaid accused company as well as directors did not dispute issuance of challan. The only defence raised by the accused was that the above said Flour Mill was running prior to 1916 and manufacturing wheat products primarily for the city of Delhi and the unit is a non polluting one and established with all legal sections and permission and also having a private railway siding which was granted to it in the year 1929 on the above stated address, hence, this unit was established much prior to commencement of DMC Act. He further submitted in his defence that when the Delhi Municipal Committee was formed in the year 1951 company got due license and license was renewed from time to time continuously till 1996. In the year 1996 the DMC unilaterally stopped renewing abovesaid factory license without any reason. Accused directors further submitted in their defence that in the year 1999 they again renewed the abvoesaid license with retrospective effect from 1996. Thereafter till 2001 they kept on renewing license but since 2001 when the abvoesaid license was expired NDMC had neither renewed the abvoesaid license nor issued the fresh one. Ld. counsel for accused vehemently argued that NDMC arbitrarily refused either to renew old license or to issue fresh one without assigning any reason despite several attempt on behalf of accused company to get renewed the license. On the basis of abvoesaid facts Ld. counsel for accused contended that as accused had put all sincere efforts and did what he could within his control either to get renew the license or to get issued the fresh license but NDMC had arbitrarily refused to issue/renew the license therefore it is not a fault on behalf of accused hence accused should not be held guilty for commission of offence u/s 416/417 of DMC Act as accused did not intend to commit aboavesaid offences.
North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 3/8 Per contra on the abovesaid aspect Ld. counsel for NDMC submitted that accused should be held guilty for the abovesaid offence under section 416/417 of the DMC Act because as per admission of accused company itself accused company was running without having valid license on the date of issuance of challan. On this aspect it is submitted by Ld. counsel for NDMC that for constituting offence u/s 416/417 of Delhi Municipal Corporation Act only requirement is running of trade/ business/trade/factory/industry by accused without having previous written permission from commissioner of MCD or valid MCD license. He further submitted that the offence under section 416/417 of DMC Act is made out as soon as a person is found running trade/business/ factory mentioned in above said sections without having written permission or MCD license. He further submitted that at the time of adjudicating guilt or otherwise of accused u/s 416/417 of DMC Act this court has no jurisdiction to decide/ look into arbitrariness or fairness of procedure adopted by MCD is granting or refusing to grant license/ written permission or refusing to renew the license. He further submitted that if anybody is aggrieved against the decision of MCD to refuse/ renew license than proper remedy before him would be to approach High Court by filing writ petition or through other remedy available as per law but one cannot claim that he would continue to run trade/factory in violation of statuary provision for he thinks that the body responsible or authorize to issue license is arbitrarily refusing him to grant license. Ld. counsel for DMC further submitted that accused in the case in hand was found running flour mill without having valid MCD license and it is also clear from the admission of all the accused directors themselves that on the date of issuance of challan abvoesaid flour mill was running without having valid MCD license as license of abovesaid flour mill had expired on 2001 itself. Thereafter either no written permission or license was granted to run abovesaid flour mill. He further submitted that as accused was found running above said flour mill without having prior written permission and license as required u/s 416 and 417 of the DMC Act respectively therefore accused should be held guilty for the commission of offence u/s 416/417 of the DMC Act.
4. Ld. counsel for NDMC also submitted that if just for the sake of argument North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 4/8 contention of accused regarding arbitrariness of NDMC in granting or refusing to grant license is looked into then also argument of accused is devoid of any merit and substance for the reason that accused could not be granted license to run the abovesaid flour mill as it falls within nonconfirming area. Ld. counsel for NDMC submitted that according to master plan 2021 in Delhi specific areas are earmarked for carrying of industry and these areas are called confirming area. Apart from abovesaid confirming areas there are specific earmarked non confirming areas where carrying of specific industrial activity is permitted but abovesaid flour mill does not fall either in confirming areas or in specified earmarked non confirming areas where running of industry is permitted. Since above said flour mill neither fall within confirming areas nor within specified list of non confirming areas where industrial activity is permitted therefore the question of granting written permission or license to run industry in non confirming areas does not arise as NDMC cannot grant license, written permission or renew the license in violation of statutory provisions i.e. Master Plan-2021. For the abovesaid reason license to run industry cannot be renewed or written permission cannot be granted to the accused.
5. I have gone through the rival contention of both the sides. In the case in hand it is admitted by accused that abovesaid flour mill is running without having proper license since 2001. It is clear that for 10 years from 2001 till the date of issuance of challan i.e. 2011 abovesaid flour mill has been running without having valid license. The court is inclined to agree with the submission of Ld. counsel for NDMC that as accused was running abovesaid flour mill without having valid MCD license on the date of issuance of challan therefore all the ingredients of the offences under section 416 and 417 of the DMC Act respectively is attracted and offence against accused is made out. At this juncture court also deems pertinent to refer section 416 and 417 of the DMC Act respectively.
Section 416 of the DMC Act says that :- Factory, etc., not to be established without permission of the Commissioner;-
North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 5/8 (1). No person shall, without the previous permission in writing of the Commissioner, establish in any premises, or materially alter, enlarge or extend, any factory, workshop or trade premises in which it is intended to employ steam, electricity,water or other mechanical power.
(2). The Commissioner may refuse to give such permission, if he is of the opinion that the establishment, alteration, enlargement or extension of such factory, workshop or trade premises, in the proposed position would be objectionable by reason of the density of the population in the neighborhood thereof, or would be a nuisance to the inhabitants of the neighborhood.
6. It is clear from the above said section 416 of the DMC Act that for establishing trade/factory/ industry which intends to employ steam, electricity, water, or mechanical power previous permission in writing of commissioner is required.
Section 417of the DMC Act says that :- Premises not be used for certain purposes without licence.
(1) No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf, namely---
(a) any of the purposes specified in Part I of the Eleventh Schedule;
(b) Any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance;
(c) ..................................
(d) ....................................
(2)....................................
(3).....................................
It is also clear from section 417 of DMC Act that for using any premises for the purpose mentioned in clause (a), (b), (c) of section 417 (i) of the DMC Act license is required. Accused in this case has been using premises as a flour mill for grinding corn which falls under Schedule Eleventh, Part I, Entry no. 4 of DMC Act for North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 6/8 which license is required.
7. At this juncture it is also relevant to refer section 430 (4) of the DMC Act which says that when the period for which license or written permission was granted had expired, the grantee shall for all purpose of this act or any by-law made thereunder be deemed to be without a license or written permission until the license or written permission is renewed. In the case in hand accused license to run his flour mill was expired in 2001 and therefore it is clear that for all the purpose accused is deemed to be running his flour mill without having written permission or license. Since accused is running above said flour mill without having previous written permission or license as license of abovesaid flour mill had expired before the issuance of challan therefore offences under section 416 of the DMC Act is clearly attracted against the accused. Accused is also found to be using premises for the purpose mentioned in Schedule Eleventh, Part I, Entry no. 4 of DMC Act without having valid license therefore offence under section 417 of the DMC Act is also made out.
The court is also inclined to agree with the submission of Ld. counsel for NDMC that as abovesaid flour mill neither falls within confirming area nor within earmarked non confirming area where industrial activity is permitted and therefore NDMC had sufficient reason to refuse renewal of old license or for the issuance of fresh license.
8. As far as submission of accused that NDMC had arbitrarily refused to renew or grant new license is concerned Court is of view that accused is at liberty to approach before appropriate authority and use appropriate remedy if accused thinks that the action of NDMC smacks of arbitrariness but this court is of view that accused cannot claim to run unceasingly abovesaid flour mill without having proper MCD license. Apart from this court is also of view that NDMC had shown sufficient reason to refuse renewal of license by contending that as accused flour mill falls within non confirming area and therefore license could not be renewed for running a flour mill in non confirming area.
9. As herein above discussed on the date of issuance of challan the abovesaid flour mill was found running without having previous written permission of North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 7/8 commissioner NDMC therefore accused Company as well as accused directors namely Mohit Jain and Rasad Jain are held guilty and convicted for commission of offence u/s 416 of the DMC Act.
10. As herein above also discussed on the date of issuance of challan accused was also found running abovesaid flour mill without having valid municipal license therefore accused company as well as accused directors namely Mohit Jain and Rasad Jain are also held guilty and convicted for the offence u/s 417 of the DMC Act.
11. Let the accused be heard on the quantum of sentence. Copy of judgment be given free of cost to the convict.
(RAKESH KUMAR)
Judgment pronounced in open court. MM Traffic-Central,
18.11.2015
North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 8/8
Challan No. 473907
Zone Sadar Pahar Ganj
North DMC Vs. Delhi Flour Mills Company Ltd.
18.11.2015
Present: Sh. Umesh Gupta Ld. counsel for NDMC.
AR of the accused company R.S Yadav in person.
Convict Mohit Jain director of Delhi Flour Mill in person.
Ld. Counsel Sh. Ujjwal Kumar for all the convict including director Rasad Jain for Delhi Flour Mill.
I have heard the convict as well as Ld. counsel for NDMC on the point of sentence. Ld. counsel for NDMC pleaded strict punishment be passed against all the convict persons as they are running factory without having MCD license. It is submitted by Ld. counsel for convict stated that convict is first time offender and prayed for a lenient view. He further submitted that onvict company was running the flour mill in impression that they would get license for running the abovesaid flour mill in future.
Heard.
In the case in hand convict was found running flour mill without having valid municipal license. It was also established beyond doubt that license for running flour mill by the convict was expired in the year 2001. It is clear that convict was running abovesaid flour mill without having a license for ten years. It is certainly an aggravating factor. Convict were very well aware about this fact that they have been running factory without having a valid municipal license.
Considering all the above said facts and circumstances convict company is sentenced to pay fine of Rs. 5000/- for the commission of offence u/s 416 of the DMC Act. Convict company is also sentenced to pay fine of Rs. 1000/- for the commission of offence u/s 417 of the DMC Act.
North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 9/8 Both convict directors namely Mohit Jain and Rasad Jain are sentenced to pay fine of Rs. 5000/- each for the commission of offence u/s 416 of the DMC Act. Both the convict directors namely Mohit Jain and Rasad Jain are also sentenced to pay fine of Rs. 1000/- each for the commission of offence u/s 417 of the DMC Act.
Fine paid.
All the bonds executed by convict stands canceled. File be consigned to the record room after due completion. Pronounced in the open court.
(Rakesh Kumar) MM Traffic-Central,Delhi 18.11.2015 North Delhi Municipal Corporation Vs. The Delhi Flour Mills Company Ltd. 10/8