Delhi District Court
Judge04 & Special Judge South East vs South Delhi Municipal Corporation on 7 March, 2017
IN THE COURT OF SH LOKESH KUMAR SHARMA ADDITIONAL SESSIONS
JUDGE04 & SPECIAL JUDGE SOUTH EAST
SAKET COURTS: NEW DELHI
CA48.17
1 M/s Red Wok Restaurant
Shop No. 13, Pumposh Market
Greater KailashI, New Delhi
2 Karamjeet Singh Puri
Owner
M/s Red Wok Restaurant
Shop No. 13, Pumposh Market
Greater KailashI, New Delhi
3 Ramchander Verma
Manager
M/s Red Wok Restaurant
Shop No. 13, Pumposh Market
Greater KailashI, New Delhi ....Appellants
Versus
South Delhi Municipal Corporation
Central Zone, Lajpat Nagar, New Delhi .....Respondent
Challan No. 126150
Ward No. 192
Central Zone, SDMC
U/s: 357/397/321/461 DMC Act
PS: Greater KailashI
Instituted on : 25.01.2017
Argued on : 07.03.2017
Decided on : 07.03.2017
AND
CA32.17
M/s Red Wok Restaurant,
through its owner Karamjit Singh Puri,
Shop No. 13, Pumposh Market
Greater KailashI, New Delhi ....Appellant
CA 48.17 & 32.17 M/s Red Wok Restaurant etc v. SDMC 1/7
Versus
South Delhi Municipal Corporation
Central Zone, Lajpat Nagar, New Delhi .....Respondent
Challan No. 126150
Ward No. 192
Central Zone, SDMC
U/s: 357/397/321/461 DMC Act
PS: Greater KailashI
Instituted on : 16.01.2017
Argued on : 07.03.2017
Decided on : 07.03.2017
JUDGMENT
1 Vide this common judgment I propose to dispose off the aforesaid two appeals arising out of Challan No. 126150, Ward No. 192, Central Zone, SDMC, PS:
Greater KailashI, preferred by the appellant(s) against the impugned order dated 15.12.2016 passed by the court of Sh. R P Jain, Special MM (Littering), SDMC, Central Zone, New Delhi.
2 Brief facts that had given rise to the filing of the present appeals are succinctly given as under:
On 7.10.2016, the officials of SD MCD had challaned the appellant M/s Red Wok Restaurant situated at Shop No. 13, Pumposh Market, Greater KailashI, New Delhi for the offences under sections 357 and 397 DMC Act, 1957, as it was found at the time of inspection that the said Chinese & Thai sea food Restaurant had encroached upon the MCD land by keeping trade articles which was causing hindrance in process of sanitation in the vicinity and hence the appellants were CA 48.17 & 32.17 M/s Red Wok Restaurant etc v. SDMC 2/7 directed to appear before the Ld. Spl. MM (Littering), SDMC on 8.10.2016. However, on 8.10.2016 none had appeared when the Ld. Spl. MM had issued summons for their appearance on 22.10.2016. On 22.10.2016 bailable warrants were issued against them for 9.12.2016. Again on 9.12.2016, when none had appeared on behalf of the appellants, the matter was adjourned to 15.12.2016, on which date a notice of accusation purported to be one under section 251 CrPC was allegedly served upon appellant Karamjeet Singh Puri alone, wherein it was recorded that appellant Karamjeet Singh Puri had pleaded guilty, but this notice does not bear his signatures at all, as is available on the judicial record of the trial court.
Upon his plea of guilt, Ld. Spl. MM (Littering) was pleased to convict him (appellant Karamjeet Singh Puri), alongwith other appellants, who were not even present before him under the aforesaid offences and had also imposed a fine of Rs.5000/ per appellant totaling to Rs.15,000/.
In the impugned order, it is also reflected that although appellant Kamarjeet Singh Puri, who was present alone before the Ld. Trial Court, had pleaded guilty, but he had also expressed his intention to contest the charge. This factual recording in the impugned order itself is very confusing and vague, as one can either plead guilty or can contest the charge in respect of the allegations levelled against him.
3 Be that as it may, aforesaid order was challenged by the appellants on several grounds: That attachment warrant issued dated 15.12.2016 issued by the Ld. Spl. MM (Littering) was bad in law as well as on facts because the Ld. Trial Court had failed CA 48.17 & 32.17 M/s Red Wok Restaurant etc v. SDMC 3/7 to appreciate the version of the appellants that sections 397, 357 and 321 of MCD Act were not attracted in the present case because there was no permanent fixture in the form of an iron stair case installed on public street and the appellants had not deposited any articles on the public street nor had caused any nuisance by accumulating any garbage/rubbish on a public way/place.
It was stated further that the Ld. Trial Court had passed the impugned order in a high headed manner without applying its judicious mind, without serving any prior notice upon the appellants and without giving them an opportunity to defend themselves and also without explaining the appellants that their plea of guilt would entail into their conviction and sentence.
It was also contended on behalf of the appellants that Ld. Trial Court had imposed the fine upon the appellants against the maximum nominal fine provided for the said offences under the Act itself and thus, the fine imposed by the Ld. Trial Court was highly exorbitant which was not sustainable under the law and hence the impugned order as passed by the Ld. Spl. MM (Littering) deserved to be set aside in appeal by this Court in the exercise of its appellate powers and jurisdiction. 4 I have heard Sh. Pankaj Kumar Aggarwal, Ld. Counsel for the appellants as well as Ld. Addl. PP Sh. Praveen Rahul and have examined the record of the Ld. Trial Court.
5 No doubt, the offence under section 321 DMC Act related to deposition of any things in the public street is punishable with a fine of Rs.100/ alone.
6 Similarly, an offence under section 357 of the Act, for accumulating CA 48.17 & 32.17 M/s Red Wok Restaurant etc v. SDMC 4/7
public street with rubbish and filth, is again punishable with fine of Rs.50/ and in case if this is kept for more than 24 hours, then, additional fine of Rs.10/ per day is also chargeable from the accused.
7 Similarly, for the offence under section 397 of the Act, commission of nuisance at a public place is again punishable with fine of Rs.50/, as provided in 12th Schedule appended to the said Act.
8 In the light of the aforesaid penal provisions, I have no hesitation in holding that installation of stair case, if any, would have at best, constituted an offence of encroachment, but could not have been considered as a nuisance, as defined in the books of statute, as nobody had ever made any complaint of any annoyance or nuisance being caused to him by such installation. 9 Hence, even if, the appellants had pleaded guilty to the charges, they could not have been fined more than Rs.200/ per appellant for commission of the alleged offences by them as there was no material before the Ld. Spl. MM that any alleged rubbish or filth had continued to remain at a public path for more than 24 hours inviting an extra penalty of Rs. 10/ per day.
10 Moreover, the absence of signatures on the charge in respect of appellants Ram Chander Verma (Manager of the restaurant), Karamjeet Singh Puri (owner of the restaurant) and an AR of the restaurant, categorically goes to show that without their signing the charge or pleading guilty to the same, the appellants were convicted by the Ld. Spl. MM (Littering) which further shows that observations made by the Ld. Spl. MM in the impugned order that the appellants had intended to contest the charge was correct but the impugned order of CA 48.17 & 32.17 M/s Red Wok Restaurant etc v. SDMC 5/7 conviction qua the appellants was passed by him in a very hasty criptive and mechanical manner without caring for the established norms and cannons of law in that regard.
11 Further the Ld. Spl. MM (Littering) had failed to appreciate and understand that from the very nature of the offences involved in the present case, all the appellants were to be tried summarily, as provided under section 260 CrPC. It was only in case of expression of an intention of the appellants to contest the allegations, then, the Ld. Spl. MM (Littering) should have resorted to the procedure provided for trial of a "summons case", as provided under section 262 CrPC. However, it appears that the Ld. Spl. MM (Littering) is/was ignorant of legal procedure to be adopted in such cases and he was not even familiar with the penalties to be imposed for violation of said offences after conviction of a person. 12 Not only the procedure adopted by the Ld. Spl. MM (Littering) was illegal, incorrect and against the settled principles of law and procedure but also the punishment awarded by him to the appellants herein was also wholly illegal, unjust and uncalled for.
13 From the perusal of the record of the Ld. Trial Court, it appears that the Ld. Spl. MM (Littering) is/was not maintaining a STR (register pertaining to summary trial cases) in his office/court to dispose of such petty challans issued by the SDMC, Central Zone, New Delhi and sent to his office for disposal as per law. Had it been so, then, the Ld. Spl. MM (Littering) must have mentioned the STR entry number in the impugned order, if the case was tried summarily by him.
14 Further, from the very language of the alleged notice purported to be CA 48.17 & 32.17 M/s Red Wok Restaurant etc v. SDMC 6/7
issued under section 251 CrPC, it appears that the Ld. Spl. MM (Littering) is/was not even aware of the fact that offences in question were triable in a summary manner and he had directly resorted to the procedure providing for trial in a summons case. This approach of the Ld. Spl. MM (Littering) is highly condemnable and cannot be sustained legally in any manner whatsoever. 15 In the light of the above discussion, both the aforesaid appeals are allowed and the impugned order dated 15.12.16 as passed by the Ld. Spl. MM (Littering), SDMC, New Delhi and all further proceedings arising there from are hereby set aside and quashed.
16 The Ld. Spl. MM (Littering) is directed to remain cautious in future and avoid commission of such illegalities in forthcoming matters. 17 Signed copy of the judgment be placed on record of CA No. 32/17. 18 TCR be sent back to the Ld. Trial Court through Ld. CMM (SE) with directions to Ld. CMM (SE) to conduct counseling and training sessions of all Spl. MMs (Littering) under his supervision and control so that Spl. MMs (Littering) get familiar with the correct procedure of law.
19 Appeal file be consigned to record room after completion of all other necessary formalities in this regard.
Announced in the open court on (LOKESH KUMAR SHARMA) 7th March, 2017 Additional Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi CA 48.17 & 32.17 M/s Red Wok Restaurant etc v. SDMC 7/7