Delhi District Court
Mcd vs . Dheeraj Kumar on 30 January, 2014
IN THE COURT OF SH. GAJENDER SINGH NAGAR
MM(MUNICIPAL 01): KARKARDOOMA COURTS: DELHI
MCD Vs. Dheeraj Kumar
Challan No. 1156
U/s 417/397/461of DMC Act.
Zone Shahdara North Zone
Municipal Corporation of Delhi .............. Complainant
Versus
Dheeraj Kumar,
S/o Late Sh. Ghanshyam,
R/o D1/269, Street No.3,
Ashok Nagar, Delhi93 ............. Accused
Offence complained of U/s 417/397/461 DMC Act
Plea of accused Not guilty
Complaint filed on 03.04.2013
Final Arguments heard on 24.01.2014
Date of decision 30.01.2014
Decision Acquittal
J U D G M E N T
1. The case of the prosecution is that on 28.03.2013 at about 03:00 PM at B111, New Modern Shahdara, Delhi, the accused was found running the trade of catering in the name and style REWARDS without having Municipal Licence and under unhygienic condition, thus committed an offence punishable U/s 417/397/461 of DMC Act 1957.
Challan No. 1156 Page no.1 /7
2. Consequent to the filing of the challan, accused appeared in the court, pleaded not guilty and claimed trial. The prosecution in its support examined two witnesses Sh. K.K. Gupta, the challaning Inspector who proved the challan Ex. CW1/1 as CW1 and Sh. S.R. Dabi, Assistant Law Officer, Shahdara North Zone as CW2. Sh. K.K. Gupta, the concerned Inspector examined as CW1 had supported the prosecution case in verbatim. It is stated by him in his examination in chief that he is posted as Health Inspector in Shahdara North Zone since January 2010. On 28.03.2013 at 03:00 PM he reached at B111 New Modern Shahdara where he found that a Kitchen / catering work was running. Where he found a person who told him that the catering work is belong to Mr. Dhiraj Kumar who is also running the catering work at Ashok Nagar. On that he asked that person to call Mr. Dhiraj Kumar, on that he called Mr. Dhiraj Kumar telephonically. On that Mr. Dhiraj Kumar reached at the site, on that the inspector asked him to show the MCD licence if he had the same for running the Kitchen / catering work. He told him that he does not have Municipal licence for that work. Thereafter the inspector prepared the challan in question Ex. CW1/1 on the informations given by Mr. Dhiraj Kumar. The challan Ex. CW1/1 bears signature of the inspector at point A and signature of Mr. Dhiraj Kumar at point B. It is submitted by the inspector that thereafter he handedover the counter slip of the challan to Mr. Dhiraj Kumar and handedover the challan to the AMP for presenting the same before the Court. The inspector has mentioned the accused Dheeraj Kumar as Project Incharge in the challan and has also mentioned the name M/s REWARDS. Sh. S.R. Dabi, Assistant Law Officer, Shahdara North Zone (CW2) submitted that vide office order dated 18.08.1986(Mark Challan No. 1156 Page no.2 /7 A) he is empowered to present the challans before the court. No other complainant witness was examined and the complainant evidence was closed at request.
3. Thereafter statement of the accused was recorded under section 313 Cr. P.C, wherein he stated that they are running an NGO and they are not doing any trade as they can not do the same. Their NGO is a government recognized for all over India. They prepare food of Aanganwadi children,and also given training to Aanganwadi lady workers. It was also stated by the accused that he want to lead defence evidence.
4. The Accused examined Mr. Dinesh Aggarwal as DW1. In his cross examination it is submitted by the DW1 that he is the Vice President of NGO REWARDS, which is a non profitable organization. It is submitted by him that they have contracts from ICDS ( Integrated Child Development Scheme ) to make groups of women and childrens development. They make the groups for providing hygienic food to childrens and pregnant ladies enrolled with an Aanganwadi. He has order in this respect and he has also filed on record photocopy of the same as Ex. DW1/1 (collectively for 2 pages). An agreement Mark X1 was executed in respect of the same and the original of Mark X1 is lying with the department of ICDS. It is further submitted by him that ICDS officials visit their kitchen randomly to take samples and to inspect sanitation condition at their kitchens. It is further submitted by him that, in respect of food prepare by them they receive money from the government by way of cheque which is directly received by SHG (self help group). They have 15 self help groups. They have also filed copy of 13 of such groups collectively on record as Ex. DW1/2. Every group Challan No. 1156 Page no.3 /7 consist minimum 8 ladies. The cheque is receive from the government in the name of SHG. Their NGO receive only 10% of that amount from government. This 10% received by them for managing charges of groups. They do not keep profits, the money left with them after paying the expenses is utilized for social work like providing polio work, Silai Kadhai work etc. They do not sell the goods. They generally prepared Khichri, Dalia etc as per scheduled menu. They do not prepare anything out of the scheduled menu. The scheduled menu is prepared by the ICDS department. Their NGO is doing the service to the Nation since 2006. They prepare foods in fully hygienic and sanitation condition. No other defence witness was examined. Thereafter the matter was fixed for final arguments. I have heard both the parties and perused the file.
5. The main defence of the accused is that though the food was being prepared at the spot but the same was prepared by members of self help group under a government contract to provide food to children and mothers enrolled with Aanganwadi. Hence, the NGO REWARDS which was providing facility to the self help groups and managing their accounts was not carrying on any trade, hence, were not required to take licence U/s 417 from MCD.
6. Provisions of law relevant for this case are : Section 417. Premises not to 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 licence granted by the Commissioner in this behalf, namely:
(a) any of the purposes specified in Part I of the Eleventh Schedule; Challan No. 1156 Page no.4 /7 As per part I of Eleventh Schedule eating house comes at entry no. 7.
7. Schedule 12 of DMC Act prescribed fine which can imposed for violation of Section 417, 421 and for offence of Nuisance U/s 397 etc.
8. In the present case most of the facts are not disputed.
9. The main defence raised by the accused is that the work of their NGO does not fall in to the definition of the term trade, hence, they are not require to take licence U/s 417 or 421 of DMC Act. It is further argued that the complainant could not prove that there were insanitary condition prevailing at the site. The defence of the accused is vehemently opposed on behalf of the MCD. It is contended on behalf of MCD that running a catering establishment will require licence U/s 417 & 421 of DMC Act. it is further contended that work of an NGO will amount to trade.
10. From the Scheme of DMC Act it is apparent that licence U/s 417 (1) is required for running a Trade as the eleventh Schedule annexed to Section 417 read as follows ' purposes for which premises may not be used without licence' > " Carrying out any of the following trades or operations connected with trades " > "7. Eating House or a Catering Establishment. Keeping of An". Thus its established that a licence is required for running a catering establishment only if the same is used for any trade.
11. Similarly Section 421 (1) also reads as follow:
No person shall, without or otherwise than in conformity with the terms of a licence granted by the Commissioner in the 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 Challan No. 1156 Page no.5 /7 place where food is sold or prepared for sale.
12. Thus if a person is doing catering not for the purpose of sale or trade then he is not required to take licence U/s 417 or 421 of DMC Act. Now the only question remains to be decided in the present case is whether the accused persons representing NGO REWARDS were carrying on the trade or not.
13. It is deposed by the defence witness that NGO REWARDS is managing 15 self help groups consisting minimum 8 ladies each under an agreement from ICDS. These self help groups have been given the responsibility to provide hygienic foods to children and pregnant ladies enrolled with Aanganwari. It is further submitted by the witness that in respect of the food prepared by self help group the money is directly received by the self help groups and the NGO REWARDS is entitled only to 10 % of that amount. This 10% is received for managing the groups. It is further submitted that the NGO or self help groups prepare the food only as per the schedule menu given by ICDS which generally consists of Khichri, Dalia etc. It is also submitted by the witness that their NGO has been granted permission by MCD to run from the residential areas ( the document in this respect is on record as Ex. DW1/5 ). The defence witness has filed on record copy of 13 self help groups managed by them. He has also filed on record the order received from ICDS in respect of the above stated project. Copy of the same is on record as Ex. DW1/1. Most of these facts are not disputed by the MCD. As per document Ex. DW1/1 it is stipulated that the self help groups through NGO REWARDS should supply nutritious foods on a no profit basis. Thus from the allotment letter of the government it is Challan No. 1156 Page no.6 /7 very much clear that the self help groups or the NGO managing them were not entitled to earn profits on the foods supplied. In this situation the work of the self help groups and NGO REWARDS can not be termed as a trade being devoid of any profit motive. Thus Section 417 or 421 of DMC Act will not attract on the working of the NGO in question.
14. The complainant has not placed on record any photograph to show the insanitary condition prevailing at the spot of the accused. PHI did not involved any public person to became witness of the challan. From these facts there appear a doubt in the version of prosecution that there were insanitary and unhygienic condition at the site.
15. Thus it can be safely concluded that the MCD has failed to prove that the catering work carried on by the NGO REWARDS represented by the accused was amounting to trade or that the accused was running the site in insanitary and unhygienic condition. In this situation the accused Dheeraj Kumar, S/o Late Sh. Ghanshyam, R/o D1/269, Street No.3, Ashok Nagar, Delhi--93 stands acquitted of the offence U/s 417/421/461 of DMC Act in respect of the challan no. 1156.
Announced in the open court
today i.e. 30.01.2014 (GAJENDER SINGH NAGAR)
MM:KKD:DELHI:30.01.2014
Containing 07 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:30.01.2014 Challan No. 1156 Page no.7 /7