Delhi District Court
Gauri Shanker vs The State on 22 January, 2011
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 2.07.2008
Date of judgment reserved on : 02.12.2010
Date of decision : 22.01.2011
Criminal Appeal No. 50/2008
Gauri Shanker
S/o Late Sh.Jagdish Prasad
R/o 147/1, Nangli Poona,
Delhi. ..... Appellant
Versus
1. The State, and
2. Municipal Corporation of Delhi
Town Hall, Delhi
Through its Commissioner. ..... Respondents
J U D G M E N T :
Appellant Gauri Shanker son of Jagdish Prasad has been convicted by Ld MM, New Delhi for offence U/s 416 of the Delhi Municipal Corporation Act punishable U/s 461 of the Act. Present appeal questions legality of the conviction and sentence and the only ground urged and argued in this appeal was that since the factory in question was located and based in rural area of Delhi, there was no municipal licence required to be obtained for running the factory and this contention of the appellant duly proved by document Ex.DW2/1 was ignored from being considered by ld MM and thereby the conviction Page No. 2 judgment was an illegal and liable to be set aside. Both sides were heard on this point in this appeal. Though other grounds were pleaded in the appeal concerning the factual aspects of the case but then those were not pressed and the appeal was restricted in its arguments and contention on the above stated point.
Appellant Sh. Gauri Shanker was tried as a summons trial case with notice of offence given to him on 4/8/2004 to the effect that accused was found on 23/5/2003 running a dal mill with 20 KW electric power at 147/1 Nangli Poona, Delhi without having obtained a licence or prior permission from the Municipal Authorities and thereby contravened provisions of Section 416 & 417 of the DMC Act punishable U/s 461 of the Act. Accused claimed trial by pleading not guilty to offence and accused got recorded his plea as follows: '' I admit that I am running Dal Mill but I do not require any municipal licence so I claimed trial.'' Prosecution examined its factory licencing inspector Khajan Singh PW1 and then its AMP prosecution department Sh.H.K.Sharma as PW2. Witness Khajan Singh deposed in this trial that as a factory licence inspector employed in the concerned department of MCD during 2003, he visited property 147/1 Nangli Poona, Delhi on 23/5/2003 and found a Dal Mill was being run with 20 KW power in the ground floor of the premises and accused was running that mill. Accused was Page No. 3 present physically during this inspection. Witness asked accused to produce licence/permission for running that Dal Mill but accused failed. Wuitness then prepared challan/complaint bearing No.17430 and proved it as Ex.PW1/A. He further deposed that accused refused to countersign that challan and on the instructions of accused an employee Ramesh put signatures on that challan at point B. Finally challan was produced before the court for its prosecution by the AMP Sh. H.K.Sharma.
Defence prosecuted in the cross examination of the witness is that no ''trade licence'' was required to run Dal Mill. Other factual aspects of the deposition of the witness were questioned in the cross examination like putting a question to the witness as to how many storey that Dal Mill premises was and what kind of Dal was being grinded or how much quantity dal was found being stored. Nothing came in the cross examination about these facts to find veracity of the witness challenged. More over accused when served with the notice of offence in this trial had put up a plea that his Dal Mill being situated/located in rural area, no licence or permission was required. Accordingly defence was also put to the witness that no trade licence was required to run Dal Mill business if it was located in rural area and that defence is to be examined in light of the provisions of the Act. Witness however volunteered that on the date of the inspection Page No. 4 expression Lal Dora was no more in use in terms of the provisions of the Act. Witness denied suggestion if premises fell within lal dora limits and no licence under DMC Act was required to run that Dal Mill or that prosecution of accused was bad. PW2 proved the fact of filing of complaint in this case and his testimony has not been cross examined.
In his examination U/s 313 Cr P.C accused came out with an explanation that no permission was required from Commissioner MCD and he further pleaded that sanitary inspector was not empowered to carry out inspection and to prosecute the accused.
As seen above Ld MM found accused guilty and present appeal questions correctness of that conviction.
Ld counsel for the appellant Sh.Ashish Aggarwal argued that factory premises for the Dal Mill since was situated and located in rural area, in terms of resolution No.172(UB) passed by the Municipal Corporation of Delhi on 8/12/59, the factories being run in rural area (Lal Dora) were exempted from obtaining any licence/permission from the commissioner MCD, the said resolution has been quoted as below;
''Such portions of the rural areas as lie within the village abadis as defined in the revenue records (Lal Dora/FIrni) may be exempted from the provisions relating to licensing viz. Provisions of sections 408 and 417, provide that the exemptions will not apply to such establishments stated in the Eleventh Schedule as employ more than Page No. 5 ten persons.'' Ld counsel further argued that appellant applied for a licence in respect of his factory in question and received reply in the form of a letter which has been got proved by calling an official from the municipal corporation of Delhi and that letter is Ex.DW2/1.
Counsel submitted that its own stand by Municipal Corporation in this letter is that no licence was being provided by the corporation if premises fell within rural village abadi (Lal Dora) provided the number of workers did not exceed 10 in accordance with resolution number 172 UB of November 1959. Ld counsel argued that prosecution in such circumstances was misconceived and conviction was illegal, liable to be set aside.
On the other hand it has been argued from prosecution side that there is no illegality in the conviction. I have appreciated contentions and taken scrutiny of the material on the file as well relevant provisions of DMC Act.
Question arises if no licence from municipal corporation was required to run Dal Mill factory if it was based and situated in rural area of Delhi? Having taken close scrutiny of the provisions of DMC Act and having taken scrutiny of the resolution number 172(UB) dated 8/12/1959. I am of the considered view that answer has to be in negative.
Page No. 6
Section 416 of the DMC Act where under appellant has been convicted provides that no person shall without previous permission in writing of the Commissioner establish in any premises .... any factory, workshop or trade premises in which it is intended to employ steam, electricity, water or other mechanical power. Section 507 relates to special provisions as to rural areas. It confers power and jurisdiction upon the corporation to declare any portion of rural areas to cease to be included in such rural area and that part of the rural area then shall form a part of urban area. Corporation has to issue a notification in official gazette with the previous approval of the Government for that exercise. Clause (b) further provides that the corporation with previous approval of the Government by notification in the official gazette may, exempt the rural areas or any portion thereof from such of the provisions of this Act as it deems fit, The resolution in question being referred to by Ld counsel as Ex.DW1/A appears to have been an exercise by resorting to the above said provision. Question arise if this resolution Ex.DW1/A satisfies the requirements of the provision of Section 507. The corporation has to issue a notification in official gazette with the prior approval of the government if any area of rural/village abadi was to be exempted from certain provisions of the Act. A look at Ex.DW1/A shows that it was merely a resolution passed by Municipal Corporation. It fails to satisfy Page No. 7 the requirements of Section 507 until an official gazette notification had been issued pursuant to such a resolution passed with the prior approval of the Government. Appellant thereby cannot rely upon this document to prosecute his defence that no licence was required to run a dal mill even if it was being run on electricity power. Even otherwise the resolution in question Ex.DW1/A by its clause 3 related to exemption of such portions of the rural areas as lie within village abadis sought to be exempted from the provisions of the DMC Act which related to licensing viz provisions of Sections 408 & 417. Section 408 deals with conditions for grant of licence for a private market and Section 417 deals with certain premises not to be used in a particular trade as provided in the schedule of the Act and a licence is required to run such a trade. None of these provisions deal with a factory where it is required to be run on electricity power. In the present case if dal mill was found being run on electricity power then it being covered under the provisions of Section 416 of DMC Act, even resolution Ex.DW1/A cannot come to the rescue of the appellant as the said factory was not to be covered by the provisions of Section 408 or 417 of the Act. In the similar way any such document Ex.DW2/1 was not relevant at all on the issue. It could be none of the business of any authority/official of the Delhi Municipal Corporation to declare or state that no licence was required to run a dal mill factory on electricity power even if based in Page No. 8 rural area. Conveniently the subject as referred to in this letter Ex.DW2/A mentions ''grant of licence for trade'' of dal and flour mill even 7 ½ HPM, suggesting as if only a trade and dal or flour was to be conducted. Any how no official or authority of the MCD could have granted any such exemption whereby provisions of Section 416 of Act were to be ignored/breached.
Ld MM in the conviction judgment has also referred to master plan 2001 whereby such rural areas even have been categorised as confirming or non confirming area for funning a factory. Any how in the present case where defence sought to be prosecuted on the basis of documents Ex.DW1/A or Ex.DW2/1 is found unsustainable, there is no illegality in the conviction. It may be observed that prosecution in this case based upon ''a challan chit'' proved as Ex.DW1/a was to sketchy and vague, just mentioning that dal mill found being run with 20 KWWO without valid municipal licence at GF but then this being a case where it was not a contest that electricity power was being used to run this factory, its satisfied the ingredients of Section 416 of the Act. Conviction cannot be interfered , appeal is dismissed.
Announced in the Open (J. R. ARYAN)
court on 22/01/2011. ADDITIONAL SESSIONS JUDGE
NEW DELHI.