Delhi District Court
Agro Foods vs Municipal Commissioner Of Delhi on 9 September, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE-13: DELHI
RCA No.6/2009
1. Agro Foods
C-13, Okhla Industrial Area,
Phase-1, New Delhi - 110020
2. Sh. Ajay Beri
S/o Sh. K.K. Beri
R/o K-52, Jangpura Extension,
New Delhi-110014
........... Appellants
Versus
Municipal Commissioner of Delhi
Through Commissioner,
Town Hal, Delhi-110006
....... Respondent
Date of Institution: 24.10.2002
Arguments Heard on: 11.8.2009
Date of Decision: 9.9.2009
-: J U D G M E N T :-
This appeal is directed against the judgment/ decree of the Ld. Trial Court dated 1.10.2002 dismissing the suit filed by the plaintiff for perpetual injunction by way of which the appellant had sought to restrain the respondent -: 1 :- permanently from giving effect to the communication no. HD:SZ:ZHO:92/1905 dated 24.7.1992 and also for restraining the respondent from insisting for obtaining a trade license for the activities undertaken by the appellants. The appellant/ plaintiff before the Ld. Trial Court had further sought a restrain on the respondent from taking any action under the Delhi Municipal Corporation Act for not taking the trade license. The case of the appellants is that they are running a commercial unit set up in the conforming area provided by the DDA and are engaged in processing and preservation of meat and first products. According to the appellant their premises have been built up under the control and regulation of DDA and as per the DDA Building Bye- Laws and other rules and regulations of the DDA for which the DDA duly provided a completion certificate for the premises of the appellant no. 1 and appellant no.2 is its sole proprietor. It is pleaded that the appellants built up the commercial unit in the conforming area for the processing and preservation of meat and first products in 1989 and also got a license under the Cold Storage Order, 1980 from the -: 2 :- Ministry of Agriculture, Department of Rural Development which was initially provided for one chamber and was valid for meat and first products, frozen foods and vegetables and fruits. It is submitted that now the said license is validated for three chambers and continues to be valid for meat and fish products, frozen foods and vegetables and fruits and had been validated upto 31.7.1996. Thereafter, the appellants applied for grant of license for commercial activities undertaken by them in the year 1989 and the Municipal Corporation had asked them to get a No Objection Certificate from the Health Department of the MCD as a pre-condition. The appellants applied for the said No Objection Certificate which was required and the Health Department furnished the appellants vide letter No. HD/SZ/ZHO/90/20 dated 20.2.1990. On the basis of the aforesaid NOC the appellants got an industrial license under the DMC Act vide Code No.LEM/NDS/403/134 and License No. C05001 which was for Tinned fish, Fruits, Vegetable, meat, chicken, pork with frozen meat, fruit, vegetable, fish, pork except condensed/ skimmed and whole milk power without -: 3 :- slaughtering of animals. Pursuant to the said industrial license the appellants also got power load of 120 HP from the DESU only after which the appellants embarked upon the commercial venture in the year 1990. In the year 1991 an Inspector of the MCD visited the premises of the appellant and persuaded the manager of the appellant no. 1 to apply for and seek a trade license from. Not finding any reason to disbelieve the Inspector and for abundant caution, the Manager applied for trade license in June 1991. The Zonal Health Department vide their communication dated 21.2.1992 bearing no. HD:SZ:ZHO:92:1567 communicated to the appellant that it was reported to them that there were two frozen rooms built up within the premises which had not been shown in the completion certificate. The appellant in their reply dated 14.3.1992 communicated to the department that there was no deviation in the building plan and also clarified that these were internal partitions which were permitted without notice and building permit to the concerned authority i.e. DDA in accordance with the DDA Building Bye-Laws no. 6.4.1(j). The officers of the Municipal Corporation -: 4 :- challaned the appellants under Section 415/417 and 421 of the DMC Act, 1957 and required the appellant no. 2 to appear before the Municipal Magistrate on 29.4.1992. Being very perturbed the appellant no.2 went to the court of Municipal Magistrate but it was found that no challan had been filed and it was merely a hoax. It is pleaded that till date, the appellant no.2 has not been served with any summons/ challan/ warrants by any Magistrate but on 11.5.192 they received a communication bearing No.HD:SZ:ZHO:92:1705 communicating that in order to process their license case pending with their department, the appellants were required to clarify for putting up internal partition and construction of two rooms or else it would be presumed that they are not interested in getting the trade license and the case would be rejected. A detailed reply was sent by the appellants to the officers of the respondents Municipal Corporation informing that the appellants already had a valid license and they had only applied for a Trade License by way of abundant caution after being threatened by their Inspector for prosecution under Section 415 and 421 of the DMC Act. Thereafter, it -: 5 :- was communicated to the appellants that vide communication of the respondent dated 29.7.1992 their application for grant of license had been rejected. Further the appellants were asked to stop the trade immediately failing which a legal action would be initiated.
The case of the appellant is that they are not indulging into Butcher's, Fish-Monger's and Polluter's trade and therefore, do not require any license under Section 415 of the DMC Act and since they are not using the premises as an eating house etc. therefore, the provisions of Section 421 of DMC Act also not applicable. It was further pleading that no live animals are brought to or butchered/ slaughtered in the premises of the appellants and only preserve and process the food items and do not indulge into sale. According to the appellants, they are only supplying the processes and preserved meat and other food items to Indian army and other institutions for which they already have the requisite license under the Cold Storage Order, 1980 from the Ministry of Agriculture, Department of Rural Development and also the -: 6 :- requisite industrial license under DMC Act and the approach of the officials of the respondent is arbitrarily and malafide.
The case of the respondent/ MCD is that the appellants do not have a license for running the trade in question and have not come to the court with clean hands. It is submitted that the appellants are required to have the trade license from the Municipal Corporation for processing meat, fish, frozen foods and vegetables etc. under Section 415, 417 & 421 of the DMC Act. According to the respondent, No Objection Certificate is pre-requisite for getting power load from AC (Factory) but it does not mean that the appellants could process the food without having the valid trade license or Health Department, MCD. It is also stated that the AC (Factories) has given power load for the trade and not the trade license which was communication to the appellants.
I have heard the submissions made before me. It is evident from the record that the counsel for the MCD had not been appearing before this court and only Sh. Sanjay Gupta, JLO has appearing alongwith Sh. Sanjay Sethi Standing Counsel for MCD. The respondents were also -: 7 :- granted opportunity to file the written synopsis of arguments despite which opportunity even the written synopsis have not been filed. I have gone through the trial court record, the material placed on record and the evidence adduced by the parties. It is evident that the appellants have examined two witnesses. The appellant no.2 Ajay Beri has examined himself as PW1 and Anil Mehra the brother in law of the Appellant no.2 has been examined as PW2. PW1 in his testimony deposed that the he got the building plan sanctioned and constructed the building as per the sanction plan. According to him, he had initially obtained an NOC from the Health Department on 20.2.1990 which NOC is Ex.PW1/1 and on the basis of the said NOC from the Health Department he got a MCD license copy of which is Ex.PW1/2 which has been renewed and was valid till 31.3.2003. He has very specifically testified that after getting the license from the MCD they started the cold storage for processing and preserving all kinds of food products, vegetables as well as non veg. (raw food) as well as processed food and there is no retail shop of food products -: 8 :- processing and preserving. He has further deposed that they do not have any restaurant or eating house and their activities are limited to processing and preserving of food products. According to PW1, they only require a license under Section 417 of the DMC Act and not under Section 415 of the DMC Act. He has stated that they are not importing any kind of meat products and also do not require any license under Section 421 of the DMC Act since they are not running a Tea House, Coffee House, Café etc. In his cross-examination he has denied that he requires a license under Section 420, 421 and 424 of the DMC Act and according to him there is no retail shop and only the provisions of Section 417 would be applicable to them. He has deposed that they already have a license under Section 417 of the DMC Act and do not required any other license. The sole witness examined by the respondent R.C. Khatana has admitted in his cross- examination that there is a technical instruction hand book for trade license. According to him, he is not aware as to under which Section of the DMC Act trade license is required for the Cold Storage but has admitted that the license which is -: 9 :- Ex.PW1/2 under Section 416/417 of the DMC Act has been given to the appellants. He has specifically stated that he did not inspect the premises and cannot say whether the meat is sold in the suit property or whether the same is used as an Eating House. No other witness has been examined.
I have gone through the relevant provisions of the DMC Act. The short dispute before this court is whether for the purposes of processing and preserving the vegetable as well as non-vegetable items, any trade license would be required. It is not disputed that the appellants are already having a license under Section 417 of the DMC Act. Firstly the respondent has not placed on record any material to show that the appellants had been running an eating house, lodging house, hotel, boarding house, tea shop, coffee house, café, restaurant, refreshment room etc. in the premises requiring a license under Section 421 of the DMC Act. It is also not the case of the respondent that an eating house is being run in the premises and therefore, under these circumstances, no license under Section 421 of the DMC Act is required. Secondly in so far as the provisions of Section 417 of DMC Act are -: 10 :- concerned it provides that the premises cannot be used for certain purposes without a license. Admittedly in case of godown a license is required from the Municipal Corporation since the building is used for storing articles specified in para 2 of Schedule 11 for commercial purposes. Thirdly it is an admitted case that the appellants have a license under the Cold Storage order 1980 but the case of the Municipal Corporation is that apart from the aforesaid the appellants require a specific Trade License from them. Fourthly it is also not disputed that the appellants are having a valid license for processing and preserving of tinned fish, fruits, vegetables, meat, chicken, pork with frozen meat, fish, chicken pork except condensed/ skimmed and whole milk powder without slaughtering of animals. Copy of the said license has been placed on record which shows that this is a license under Section 416 and 417 (1) of the DMC Act where day and night permission has been granted, which license is Ex.PW1/2.
-: 11 :-
The officials of the Municipal Corporation are insisting upon a Trade License under Section 415 of the DMC Act. There is nothing on record to show that any trade of a butcher, fish-monger, poulterer or importer of flesh intended for human consumption is being carried out in the premises in question. The testimony of the witness of the appellant have gone unrebutted and the Municipal Corporation has not been able to place on record any evidence to show that any such activity is being conducted in the premises.
However, the proviso to Section 415 of the DMC Act specifically provides that no license shall be required for any place used for the sale or storage of preserved flesh or flesh contained in airtight or hermetically sealed receptacles meaning thereby that it is only in cases where the sale or storage is of preserved flesh or fish containing in airtight or hermetically sealed receptacles that the license shall not be required but in all cases where the trade in respect of fish, poultry or flesh intended for human consumption is being carried out a Trade License would be required irrespective of -: 12 :- the fact whether the slaughtering of animals is carried out in the premises or not. It is an admitted case of the appellants that processing of the items are being conducted in the premises only after which they are preserved. Therefore, under these circumstances, the processing and preserving of these items which constitutes a trade would require a trade license. In so far as the license under Section 416 and 417 (1) of DMC Act is concerned the said license are applicable to the premises and provided that in order to use the premises for purposes of storage a License under Section 417 of the DMC Act would be required and in case of altering and enlarging of a factory etc. where electricity, water, steam or other mechanical power is required to be used, permission of the Commissioner would be required. Therefore, the provisions of Section 415 and 416/417 of DMC Act operate in different fields. Section 415 of DMC Act is directed towards a trade whereas Sections 416/417 of DMC Act is directed towards a premises. No doubt the appellants have the license under Section 416/417 of DMC Act for use the premises for storage purposes yet in order to carryout the -: 13 :- trade of processing and preserving they would require another license under Section 415 of the DMC Act. In view of the aforesaid discussion, I find no infirmity or irregularity in the judgment/ decree of the Ld. Trial Court dated 1.10.2002 which is hereby upheld. Appeal is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. Trial Court record be sent back alongwith the copy of this order. Appeal file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 9.9.2009 Addl. District Judge: Delhi -: 14 :- Agro Food & Anrs. Vs. MCD RCA No.6/2009 9.9.2009
Present: Mrs. Kanwal Jeet Kaur, advocate for the appellant.
Sh. Sanjay Gupta, JLO for the MCD.
Vide my separate detailed order dictated and announced in the open court but not yet typed, the appeal is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. Trial Court record be sent back alongwith the copy of the detailed order. Appeal file be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 9.9.2009 -: 15 :-