Delhi District Court
Delhi. In Case Titled B.L.Wadhera (Dr.) vs . Govt. Of Nct Of Delhi & Ors Cited As on 20 November, 2011
1
IN THE COURT OF SH.KISHOR KUMAR
METROPOLITAN MAGISTRATE02, (MUNICIPAL)
DWARKA COURTS:DELHI.
IN RE: CHALLAN NO.407400
CENTRAL ZONE
U/S 416/417/430 DMC ACT, 1957.
1. CHALLAN NO. : 407400
2. Date of Institution : 28.06.2011
3. Name of the accused, and
his parentage and residence : Ved Parkash, Proprietor
of M/s Aditya Furniture
situated at 658/1, Nai
Basti, Devali, Khanpur,
New Delhi
5. Date when judgment : 21.10.2011
was reserved
6. Date when Judgment : 18.11.2011
was pronounced
7. Offence Complained of : U/S 416/417/430 DMC ACT,
1957.
8. Plea of accused : Pleaded not guilty and
claimed trial.
CHALLAN NO.407400
M/s Aditya Furniture
2
9. Final Judgment : Convicted
JUDGEMENT
1. The accused as Proprietor of M/s Aditya Furniture at 658/1, Nai Basti, Devali, Khanpur, New Delhi was found running the trade of manufacturing of wooden furniture with 10 HP approximately at ground floor and first floor in non confirming area, without having any valid municipal license . Accordingly, the present challan was issued against the accused for the offence punishable u/s 416/417/430 of DMC Act.
2. The summons were issued, accused appeared,who has chosen to contest the present challan. Copy supplied. Accordingly, on the basis of material available on record, prima facie notice u/s 251 Cr.P.C for the offenses punishable u/s 416/417/430 of DMC Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the complainant/MCD has examined on record two witnesses namely Sh. Jagdish Lal, Factory Inspector and CW2 Sh.Nand Kishor, Assistant Law Officer/AMP.
CHALLAN NO.407400 M/s Aditya Furniture 3
4. On closer of the complainant evidence, statement of accused u/s 313 Cr.P.C was recorded wherein the accused denied the case of the complainant and had chosen to lead defence evidence, examined himself as DW1 as his own witness u/s 315 Cr.P.C.
5. I have heard Ld. AMP for the complainant MCD, Sh. P.K. Srivastva, Ld. Counsel for the accused and have carefully gone through the record.
6. It has been argued by Ld.AMP for the complainant/MCD that in view of the the documents placed and proved on record, duly exhibited during trial as well as the deposition of CWs recorded, the complainant /MCD has been successful in proving its case against the accused for the charged offences. The fact of accused having earlier been convicted and sentenced for the similar offence has himself been admitted by the accused, during his cross examination and, therefore, in the present case, the allegations being the same, accused deserves to be awarded maximum punishment along with the enhanced fine in view of the section 461 of DMC Act for repeated/continuous offence. The documents proved on record by the accused during his examination as DW1, itself go against the accused. It stands established on record that on the relevant date, time and place, the accused was found running the trade of manufacturing of wooden furniture at the given premises which is admittedly a non confirming CHALLAN NO.407400 M/s Aditya Furniture 4 area without having any valid municipal license.
7. Per contra, it is argued by Ld. Counsel for the accused that present challan has been falsely foisted upon the accused due to malice and for extraneous reasons. The challaning officer has not , at all , visited the spot. The accused had applied for grant of licence with the complainant/MCD in the year 1982 itself but the same was refused for the reasons that since the site in questions falls in rural village, no license could be granted. Therefore, for the omissions and commissions on the part of the complainant/MCD, the accused cannot be punished. So far as earlier challan is concerned, in which admittedly, the accused had been convicted and sentenced, the same cannot be construed as admission in the present case on the part of the accused. According to the principle of double jeopardize, the accused cannot be again condemned for the similar offence. Each and every case has to be decided in view of the particular facts and circumstances. The complainant /MCD has failed to prove its case beyond reasonable doubts. The land of the accused being in a village Lal Dora land, no license is required. Dismissal of the complaint and acquittal of the accused, consequently, is prayed for. During the course of arguments, photo copy of letter dated 16.3.09 issued by the complainant/MCD, Factory Licensing Department and another photo copy of letter dated 9.4.10, 2.08.10 have been filed on record by Ld. Counsel for accused submitting that it was the CHALLAN NO.407400 M/s Aditya Furniture 5 complainant/MCD itself who had restored the water and electricity services at the premises of the accused.
8. According to the case of the complainant on 30.5.11, at about 5.20p.m the accused being proprietor of M/s Aditya Furniture , 658/1, Nai Basti, Devli, KhanPur was found running trade of manufacturing of wooden furniture with 10 H.P approximately electricity at ground floor and first floor in non confirming area without having any municipal license. CW1 , the challaning officer in his examination in chief has deposed on the same line. It is vehemently argued by the Ld. Counsel for the accused that the challaning officer had not visited the spot at the relevant date, time and place. To appreciate this argument of Ld.counsel for the accused, the cross examination of CW1 becomes relevant. After careful perusal of cross examination of CW1 , even no suggestion has been given to CW1 that he had not visited the spot. CW1 has deposed in cross examination that on 30.5.11 , he visited the premises in question alone and at the spot one Naresh Kumar met him at the time of inspection of the premises. There at the spot, the challaning officer waited for accused for half an hour. The challaning officer had asked Sh.Naresh Kumar whom he met at the spot to produce the documents but he failed to do so. Even said Naresh Kumar declined to provide the telephone number of accused. Therefore, the contention of Ld.Counsel for the accused that CW1 has not visited the premises on the relevant CHALLAN NO.407400 M/s Aditya Furniture 6 date, time and place is a farce and not believable.
9. CW2 Sh.Nand Kishor, the prosecuting officer of complainant/MCD has deposed that the challan Ex.CW1/1 was put up before him by the challaning officer.
10. The accused had examined himself as his own witness u/s 315 Cr.P.C and deposed that he is running the factory in question under the name and style of M/s Aditya Furniture at the given premises. He had applied for the license with the factory department of MCD on 22.10.82 and has proved on record the photo copy of his application as Ex.DW1/1. Thereafter, he received a letter/order dated 3.11.82 Ex.DW1/2 vide which, according to the accused , the complainant/MCD , Licensing Department declined license to the accused for the reason "site falls in rural area and no license can be granted there". According to the case of the accused , the factory premises are situated in Lal Dora. The photo copy of Lal Dora certificate issued by the office of SDM, Revenue Assistant is Ex. CW1/3.
11. The bone of contention of the accused is that having applied with the complainant/MCD for grant of factory license, the same having been declined for the reason "premises situated in the village no license can be granted", the CHALLAN NO.407400 M/s Aditya Furniture 7 accused is not at all, on any fault, and in fact , no license is required as per the reply of the MCD itself. DW1 has been cross examined by Ld.AMP for the complainant/MCD. During his cross examination, the accused DW1 has admitted that he is aware that municipal trade license is required for running the trade of manufacturing of wooden furniture. Further admitting that the said premises where he is running the trade of manufacturing of wooden furniture falls in non conforming area /lal dora. DW1 (accused) has also admitted during his cross examination that he had no valid license from the MCD, volunteering that same was not required as the factory premises is situated in rural area/lal dora. The accused is running the factory since 1982 and he is not having any license since therefrom. The fact of his earlier being convicted and sentenced for the similar offence vide challan No.395431 dated 4.09.09 having been fined of Rs.3000/ vide receipt No.632080 on 29.9.09 has also been admitted by the accused but accused deposed that he pleaded guilty by mistake. The accused admittedly has not challenged the said conviction and sentence, before any court of Law/forum.
12. A careful perusal of cross examination of DW1 does not confide that accused mistakenly pleaded guilty in the earlier challan. The accused had appeared before the court and pleaded guilty. He was explained the accusations and on the voluntary plea of guilty of the accused, the accused was convicted and CHALLAN NO.407400 M/s Aditya Furniture 8 sentenced in the earlier challan. At this stage of prosecution in the present second challan for the similar offence, the ground taken by the accused that earlier he had pleaded guilty due to mistake is not plausible and believable for the reason that accused had not anywhere challenged those proceedings before the appropriate forum. Pleading guilty mistakenly in the earlier challan as contended in the present challan, is an after thought.
13. Touching another aspect of the case of the complainant that accused was found running the trade in a nonconforming area, it becomes very relevant to distinguish what are these conforming, nonconfirming areas and particularly what is the Lal Dora land and also applicability of Delhi Municipal Act upon the it, whether in such locality MCD licence is needed or not.
14. The history goes back to 1996 when the Hon'ble Supreme Court for the first time took notice of industries being run in Delhi of noxious and hazardous nature on a public writ petition filed by Sh.M.C. Mehta cited as AIR 1996 SC 2231. The Hon'ble Supreme Court had directed for shifting of the industries out of Delhi making it habitable for its residents , and further directed different civic agencies and Govt. of Delhi, Commissioner of Industries UOI etc. to come out with a policy regarding making Delhi Environment friendly free of industrial waste, smog and other adversities of industries . The Govt. of NCT of Delhi had CHALLAN NO.407400 M/s Aditya Furniture 9 responded to the direction of Hon'ble Supreme Court and chalked out a plan/policy that where there is concentration of industries upto 70% or more, such areas were declared conformed/industrial areas and that where there was concentration of industries less than 70% , policy was formulated to shift such industries out of Delhi to turn such areas as residential/nonconfirming areas.
15. As usual as all we know that Govt. runs at its own pace, one file from one table to another table, made fond hungry of unnecessary notes, that in practicability , civic agencies as also the Govt. did not adhere to their commitment resultantly, matter again having been taken up by the Hon'ble Supreme Court in 2004. A stiff view was taken , and Govt./concerned authorities had to take coercive steps against the industries found running in , were started to be sealed as also Delhi in nonconforming/ residential areas their water and electricity connection snapped. Here at this juncture, it is very pertinent to note that the Hon'ble Supreme Court had directed of shifting/closure of only of those noxious and hazardous industries/units who had been running/functioning after 1.8.1990. Here, in the case in hand, the accused is running his factory since 1982 , and that too in a rural village/Lal Dora land (effect to be decided yet).
CHALLAN NO.407400 M/s Aditya Furniture 10
16. It is the case of the accused that since he is operating admittedly from a rural area/Lal Dora land since 1982, the provision of DMC Act are not applicable, hence no license needed . It has been stranously argued by Ld. Counsel for the accused that accused had applied with the complainant/MCD for grant of factory license in 1982, but the request was decided for the reasons " the site falls in Rural village and no license can be granted there" Ex.DW1/2.
The accused has examined himself as his own witness as DW1 u/s 315 Cr.P.C and has proved on record the Lal Dora Certificate as Ex.DW1/3 issued by Sub Divisional Magistrate/Revenue Assistant, New Delhi.
First of all, in view of all these circumstances, to decide the controversy, it is relevant to understand as to what is the Lal Dora Land and its effect:
17. The term Lal Dora was used in 1908. It is a name classification given to that part of the village land which is part of the village abadi. It was supposed to be used for agricultural purposes only. It is that part of the land which was supposed to have been an extension of the village habitation, where the villagers used to have their support system, live stock etc. In the olden days, these areas were marked by the land revenue department by tying a red thread , Lal dora in Hindi language was around it, to make a boundary to distinguish it from the agricultural land.
CHALLAN NO.407400 M/s Aditya Furniture 11
18. Statistics reveals that there are 362 villages in Delhi, out of which 135 are classified as urban villages , and 227 are classified as rural villages. Decades back, when the revenue settlement was undertaken for Delhi, for the first time, most of these villages were well defined and the population was enumerated within those boundaries. The land outside these Lal Dora lands was appraised for the purpose of land revenue, as agricultural land. Between 1908 and 1952 (when the consolidation exercise was taken up again), the population of these villages expended and the villages too had extended beyond the earlier defined boundaries. The new periphery were termed as PHIRNI and the areas between the earlier Lal Dora boundaries , and the PHIRNI was known as extended Lal Dora area.
19. In 1965, the Delhi Municipal Corporation issued a notification and the Govt. listed the lands under the lal dora classification within and on the out skirts of Delhi. It is contended by Ld.counsel for the accused that their land being fallen in Lal Dora, therefore, DMC Act for the purpose of requirement of licence for running a factory therein, is not needed.
20. On the other hand, Ld.AMP for the complainant/MCD has argued that Delhi Municipal Corporation Act 1957 is applicable to whole of Delhi. He has referred to section 1 sub section (2) of the DMC Act which reads as under: CHALLAN NO.407400 M/s Aditya Furniture 12 Section 1. Short Title, extent and commencement: (1) .......................................... (2) Except as otherwise provided in this Act, it extends only to Delhi
21. Ld.AMP for the complainant/MCD has also laid hand on section 2 sub section (10) of the DMC Act wherein Delhi has been defined "Delhi" means the entire area of the Union Territory of Delhi except New Delhi and Delhi cantonment.
22. The Legislature in its wisdom had thought of welfare of the rural areas of Delhi. With this view, had brought on statute (DMC Act), section 507 of the Act. Said section is reproduced as under:
507. Special provisions as to rural areas Notwithstanding anything contained in the foregoing provisions of this Act,
(a) the Corporation with the previous approval of the (****) Government, may by notification in the Official Gazette, declare that any portion of the rural areas shall cease to be included therein and upon the issue of such notification that portion shall be included in and form part of the urban areas;
CHALLAN NO.407400
M/s Aditya Furniture
13
b) The Corporation with the previous
approval of the (****) Government , may, by
notification i the Official Gazette,
(i) exempt the rural areas or any portion thereof from such of the provisions of this Act as it deems fit,
(ii) levy taxes, rates, fees and other charges in the rural areas or any portion thereof at rates lower than those at which such taxes, rates fees and other charges are levied in the urban areas or exempt such areas or portion from any such tax,rate, fee or other charge.;
(c)the corporation shall pay a Gaon Sabha
(i) an mount equal to such portion of the proceeds of the tax on profession, trades, callings and employment, as and when that tax is levied in the Gaon Sabha area, and
(ii) an amount equal to such portion of the proceeds of the property taxes on lands nd buildings in that area as may from time to time be determined by the Corporation after deducting the cost of collection from such proceeds.
CHALLAN NO.407400 M/s Aditya Furniture 14 ExplanationIn this section the expressions "Gaon Sabha" and "Gaon Sabha area" have the same meanings as in Delhi Panchayat Raj Act1954 (Delhi Act 3 of 1955).
23. This section deals with the power of Corporation for making special provisions as to the rural areas in Delhi. It provides that notwithstanding anything contained in the forgoing provisions the corporation with the previous approval of the Government by notification in the official gazette, declare that any portion of the rural area shall cease to be included therein and upon the issue of such notification that portion shall be included in and form part of the urban areas and the corporation with the previous approval of the Government, may by notification exempt the rural areas or any portion thereof from such of the provisions of the said as it deems fit.
24. After meticulous research, I have been able to search out a notification issued by the complainant/MCD on 24.8.63 passed u/s 507 of DMC Act whereby certain rural areas of Delhi were declared as Urbanized areas for the purpose of Byelaws. The said notification dated 24.8.63 passed u/s 507 of DMC Act is very relevant in the instant case also. For the sake of convenience, the relevant portion of the said notification is reproduced hereunder: CHALLAN NO.407400 M/s Aditya Furniture 15 MUNICIPAL CORPORATION OF DELHI DELHI - the 24th August, 1963 No.21/17311: In exercise of the power conferred by subclause (b)(1) of Clause 3 of Section 507 of the Municipal Corporation Act, 1957 (66 of 11957), the Municipal Corporation of Delhi has with the previous approval of the Central Government exempted the rural areas from the provisions of the said Act mentioned in Column 2 of the Schedule given below in the extent given in column 4 of the said Schedule.
The said exemption shall be deemed to have
come into effect from the 19thday of the
November, 1959.
SCHEDULE
______________________________________________________________s S.No. Sections Brief Description Extent ______________________________________________________________
1. 323,333,334,335,336, Building Only such portions of the 342 and 347 Regulations Rural areas as lies within CHALLAN NO.407400 M/s Aditya Furniture 16 the village abadies as defined in revenue records provided that the exmption shall not apply to Factory, Warehouses, Cold Stores & Slaughter Houses.
25. Perusal of this notification under the heading 'extent' makes it explicitly clear that this notification is not applicable/exemption not allowed to factory, cold stores and slaughter houses. In the present case, admittedly the accused is running a factory from out of rural/Lal Dora Land.
26. Our Hon'ble Delhi High Court have had occasion also to deal with above said notification along with various other notifications issued by the complainant/MCD from time to time u/s 507 DMC Act relating to the rural areas of Delhi. In case titled B.L.Wadhera (Dr.) Vs. Govt. of NCT of Delhi & Ors cited as 2004 VIII AD (Delhi) 75, it has been held that "It is also required to be borne in mind that provisions contained in Section 346 are made applicable even in lal dora or abadi areas. The CHALLAN NO.407400 M/s Aditya Furniture 17 notification has not exempted the rural areas from the provision of Section 346 of the DMC Act and therefore even in these areas completion certificate will be required by any one whoever is erecting a building. Intentions of the Legislature is very clear that the person may erect a building according to byelaws and he must get a completion certificate before occupying a building. May be that looking to the area in those days which were used for the purpose of agricultural operations the State Government granted exemption from certain provisions only and not all and in view of this wherever building is erected in the area under jurisdiction of DMC Act on is bound to apply to Commissioner under Section 346 of the Act before occupying a building . Section 346 contemplates that every person who employs a licensed architect or engineer or a person approved by the commissioner to design or erect a building or execute any work shall within one month after the completion of the erection of the building or execution of the work give a notice in writing of such completion accompanied by a certificate in the prescribed byelaws made in this behalf . Reading this provision there is no escape from saving that the completion certificate is required".
CHALLAN NO.407400 M/s Aditya Furniture 18
27. After going through the relevant portion and also the observation of Hon"ble High Court of Delhi in B.L Wadhera (supra) case, it is made clear that the exemption shall not apply to factories , ware house, Cold stores and Slaughter house. Even by going with the analogy as laid down by Hon"ble High Court in the above referred case inference can be drawn that factory being run in a Lal Dora abadi/deh is not exempted particularly section 416/417/430 of DMC Act.
28. Similarly the Hon'ble High court of Delhi in case titled Municipal Corporation of Delhi Vs. Dalmia Dairy Industries Ltd. and Anr. 32 (1987) Delhi Law times 390 had the occasion to deal with section 507 (b) (i) . In this case, the Hon'ble High Court had gone to the extent of holding that being unable to agree with the Govt. that the notification dated 24.8.63 only applies to the village abadies as defined in the revenue records (FIRNI) which were in existence at the time when the notification dated 24.8.63 was gazetted and it does not applied to the extended village abadi. The Hon'ble High court opined that the notification dated 24.8.63 is CHALLAN NO.407400 M/s Aditya Furniture 19 of a general nature and it applies to all the rural areas as lie within the village abadies as defined in the revenue records. The court declined to give the notification dated 24.8.63 a restricted meaning and held that the said notification applies to the extended village abadies as well.
29. In view of the above law laid down by the superior courts, I am of the considered opinion that accused cannot claim of any relaxation/impunity on the ground that his premises/factory running from out of Lal Dora/Rural area, license u/s 416 and 417 DMC Act is not required.
30. With increasing nuisance of Industrialization within Delhi, Delhi Master Plan 2021 has been promulgated by concerned authority/Govt. where under it has been provisioned that no industry shall run in any part of Delhi without having licence issued by the concerned authority after fulfilling required formalities in that regard.
31. Further the case of the accused is itself belied by him by his own documents filed during the course of arguments i.e a letter dated 16.03.09 addressed to the Chief Executive officer BRPL, BSES Bhawan, Nehru Place, New Delhi and CHALLAN NO.407400 M/s Aditya Furniture 20 the Chief Executive officer, Delhi Jal Board , Varunalaya , Jhandewalan, Delhi, written by Administrative officer , Factory licensing department/MCD. In the said letter, the administrative officer of complainant/MCD had requested the CEO's of BSES and DJB to disconnect the power and water connection to the factory of accused as the same was found to be running unauthorizedly manufacturing / trading of furniture. In counter to the above letter dated 16.03.09, the accused has corresponded with the SecretarycumCommissioner of industries, Govt. of NCT of Delhi and also Administrative Officer, Factory Licensing department, MCD requesting for restoration of water and electricity connection. The said letter bears no date. Be that as it may, these correspondences reflect that DMC Act is applicable to the premises of the accused irrespective whether same fall in rural/lal dora land. The judgement i.e Sport Plaza & Ors. Vs. MCD and Anr., relied upon by Ld. Counsel for the accused has no application to the facts and circumstances of the present case.
32. It is noticed that over a period of time with increasing of population of Delhi, the rural areas have lost their real purpose and industrial/commercial activities have been taking place by leaps and bounds. Therefore, saying that a factory being run from out of rural area/lal dora land does not fit in today's change scenario of Delhi. The term Lal dora applies to both rural and urban villages , the thin dividing line has vanished over the period of time , and prime areas of Delhi CHALLAN NO.407400 M/s Aditya Furniture 21 today though still classified as Lal Dora operate commercial and high end residential areas.
33. The accused has been challaned u/s 416/417/430 DMC Act for running a factory without having any license from complainant /MCD for ready reference, section 416 of DMC Act is reproduced here under: 416 Factory, etc not to be established without permission of Commissioner:
(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 permission in which it is intended to employ steam, electricity, water or other mechanical power.
(2)........
Therefore, for attracting the above provisions, following ingredients are required to be fulfilled.
(i). That accused was running any factory, workshop or trade;
(ii). Without written permission of the
Commissioner and
CHALLAN NO.407400
M/s Aditya Furniture
22
(iii). By using steam, electricity, water
or other mechanical power.
34. In view of the above ingredients of section 416 of DMC Act , the cross examination of CW1 (challaning officer) and that of own deposition of the accused u/s 315 of Cr.P.C is very relevant. During the course of cross examination of CW1 , the witness has volunteered that the accused was found running his factory in non conforming area. Adverting back to the deposition of the accused led under section 315 Cr.P.C, the accused has deposed that he is running the factory under the name and style of Aditya furnitures as its sole proprietor at premises No.658/1, village Devli, New Delhi . During cross examination of DW1 by Ld. AMP for the complainant/MCD, the accused again admitted that he is running the trade of manufacturing of wooden furnitures in the name and style of Aditya furnitures as its sole proprietor at premises No.658/1, village Devli, New Delhi with 10 H.P of electricity power at ground floor and first floor of the said premises, again deposing that he is the proprietor of the said factory. Accused has taken a very meek defence that official or inspector of MCD never visited his factory at Devli before filing of the challan in the court at any point of time. I find this defence of the accused as an after thought having no iota of truth in view of the fact that accused was found running his factory at the abovesaid premises with 10 H.P approximately and the said fact having been admitted by the accused during his cross examination by Ld.AMP for the complainant/MCD wherein the accused has CHALLAN NO.407400 M/s Aditya Furniture 23 deposed that he is running his factory with 10 H.P of electricity power at ground floor and first floor of the said premises. Had the challaning officer not visited the premises of the accused on the relevant date , time and place, he would not have mentioned in the challan that accused was found running his factory in a non confirming area with 10 HP of electricity.
35. Ld. AMP for the complainant/MCD has submitted that premises of the accused are well within the ambit of factory and has referred to section 2 (17) of DMC Act defining the meaning of Factory as following: Section 2(17) " factory" means a factory as defined in the Factories Act, 1948 ( 63 of 1948).
Therefore, help is lent from section 2 (m) of Factories Act, 1948 for the purpose of defining the meaning of Factory, reading as under:
"Section 2 (m) "Factory" as defined under the Factories Act, 1948 means any premises including the precincts thereof:
(i) Whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on ,or CHALLAN NO.407400 M/s Aditya Furniture 24
(ii) Whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, or but does not include a mine subject to the operation of (the Mines Act, 1952), (a mobile unit belonging to the armed forces of the union, a railway running shed or a hotel, restaurant or eating place);
(Explanation I For computing the number of workers for the purposes of this clause all the workers in (different groups and relays) in a day shall be taken into account ;) (Explanation II For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises of part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof;)"
36. In view of the above provision of Law definingfactory and also the deposition of DW1 accused as his own witness u/s 315 Cr.P.C wherein he has deposed on oath that he is running a factory since 1982 of manufacturing wooden furniture, the complainant/MCD has been able to successfully prove on record that CHALLAN NO.407400 M/s Aditya Furniture 25 the accused is running factory.
37. The accused has also been challaned as also notice under section 251 Cr.P.C framed against the accused for the offence punishable u/s 417 DMC Act for using premises for certain purposes without license. For the sake of ready reference section 417 DMC Act is quoted as under: 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;
(b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance;
(c) keeping horses, cattle or other quadruped animals or birds for transportation, sale or hire or for sale of the produce thereof; or
(d) storing any of the articles specified in Part II of the Eleventh Schedule except for domestic use of any CHALLAN NO.407400 M/s Aditya Furniture 26 of those articles:
38. According to the above provision of law the premises are not to be used for certain purposes without licence. The certain purposes find mention in part I & II of 11th Schedule. It has been argued by Ld.AMP for the complainant/MCD that the business activity/factory of the accused do find mention in Schedule 11 part 1 (2) manufacturing, parching, packing, pressing, cleaning, cleansigns , boiling, melting, grinding, or preparing by any process whatever any of the following articles (1) (vii) wooden furniture, boxes,barrels , khokas, or other articles of wood or of plywood or of sandal wood .
39. I have gone through section 417, its 11th Schedule part 1 and particularly the above referred entries enumerated under part 1 of 11th schedule and am convinced by the contention of Ld.AMP for the complainant/MCD that accused engaged in running the factory of manufacturing of wooden furniture, the ingredients of section 417 have also been proved on record against the accused by the complainant/MCD as per the deposition of witnesses adduced on record from the side of complainant as well as in view of the statement of DW1 (accused).
40. In this case the accused has also been challaned and notice framed for the offence punishable u/s 430 of DMC Act . The said provision relates to signature, CHALLAN NO.407400 M/s Aditya Furniture 27 conditions, durations, suspension, revocation etc. of licenses and written permissions.
Section 430. Signature, conditions, duration, suspension revocation, etc of licences and written permissions (1) ...........
(2) ...........
(3) ...........
(4) ...........
(5) Every grantee of any license or written
permission granted under this Act shall at all reasonable time, while such license or written permission remains in force, if so required by the Commissioner or the authority by whom it was granted, produce such license or written permission.
41. After going through the above provision of Law (430 DMC Act) I find that sub section 5 thereof is relevant that Every grantee of any licence or written permission granted under this Act shall at all reasonable time, while such licence or written permission remains in force, if so required by the Commissioner or the authority by whom it was granted, produce such licence or written permission. In this case, it is an admitted case of both these parties that accused is not having any license from the MCD for running the factory. Therefore, the question of production of the same at the time of inspection on the relevant date , time and place does not CHALLAN NO.407400 M/s Aditya Furniture 28 arise. Hence, it is held that complainant/MCD has not been able to prove its case against the accused for the offence punishable u/s 430 DMC Act. The accused is accordingly acquitted of the offence u/s 430 DMC Act.
42. As per contents of challan Ex.CW1/A, it is alleged that accused firm was earlier prosecuted vide challan No.395431 on 4.9.09 for similar offence. In this view of the matter, the deposition of CW1 Sh.Jagdish Lal challaning officer becomes relevant. He has deposed that accused was earlier also challaned for similar offence in the year, 2009. Ld.counsel for the accused has not cross examined CW1 on this aspect of the matter. The accused as DW1 has admitted during the course of cross examination conducted by Ld.AMP for the complainant/MCD that "it is correct that I had been earlier challaned for the similar offence by the MCD vide challan bearing NO.395431 dated 4.9.09 and was convicted and fined of Rs.3000/ vide receipt No.632080 on 29.9.09. It is correct that in the earlier challan I had pleaded guilty".
43. In view of the case of the complainant/MCD as also the admission on the part of the accused that he was earlier also challaned in the year 2009 for the similar offence, it becomes very much relevant to have a look at the relevant provision of Law pertaining to repeated challans. I find that the relevant provisions of Law CHALLAN NO.407400 M/s Aditya Furniture 29 provided under the DMC Act is section 461 with the heading offences and penalties . The said provision for the sake of ready reference is reproduced as under:
461.Punishment for certain offences; (1) Whoever
(a) contravenes any provision of any of the sections, subsection, clauses, provisos or other provisions of this Act mentioned in the first column of the Table in the Twelfth Schedule; or
(b) fails to comply with any order or direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, sub sections, clauses, provisos or other provisions shall be punishable
(i) with fine which may extend to the amount or with imprisonment for a term which may extend to the period, specified in that behalf in the third column of the said Table or with both; and
(ii) in the case of a continuing contravention or failure with an additional fine which may extend to the amount specified in the fourth CHALLAN NO.407400 M/s Aditya Furniture 30 column of that Table for every day during which such contravention or failure continues after conviction for the first such contravention or failure.
(2) ...................................................
44. This section provides for punishment for certain offences. Sub section (1) provides that whoever contravenes provisions of any of the section, clauses , sub sections, provisos or other provisions of this Act mentioned in the first column of the Table in the Twelfth Schedule, or fails to comply with any order or direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, sub sections, clauses , proviso or other provisions, shall be punishable with fine which may extent to the amount or with imprisonment for a term which may extend to the period specified in that behalf in third column of the said Table or both , and in case of a continuing contraventions or failure with an additional fine which may extend to the amount specified in the fourth column of that Table for every day during which such contravention continues after conviction for the first such contravention of failure.
45. In view of all these provisions of Law it becomes relevant also to extract the Twelfth Schedule. The Table is tabulated hereunder: CHALLAN NO.407400 M/s Aditya Furniture 31 THE TWELFTH SCHEDULE (See Section 461) PENALTIES (1) (2) (3) (4) Section, sub section, Subject Fine or imprisonment Daily fine clause or proviso which may be imposed which maybe imposed Section 416 Establishment of 5,000 500 factory, etc. without permission Section 417 Certain things not to 1,000 100 be kept and certain trades and operations not to be carried on without a license
46. In view of the above discussion and the case law, the accused is held guilty for offence u/s 416 & 417 of the Delhi Municipal Corporation Act 1957 as the complainant has proved on record beyond reasonable doubt that on 30.05.2011 at 5.20 PM the accused was found running the trade of manufacturing of wooden furniture from the impugned premises with 10 HP approximately at Ground Floor CHALLAN NO.407400 M/s Aditya Furniture 32 and First Floor in a non confirming area without having any valid Municipal License from the complainant / MCD. The accused is accordingly convicted for the offence punishable u/s 416 & 417 of DMC Act.
Judgment pronounced in the
open court on 18/11/2011 (Kishor Kumar)
Metropolitan Magistrate-02 (Municipal)
Dwarka Court, Dwarka, New Delhi.
CHALLAN NO.407400
M/s Aditya Furniture
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CHALLAN NO.407400
M/s Aditya Furniture
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CHALLAN NO.407400
CENTRAL ZONE
U/S 416/417/430 DMC ACT, 1957.
18.11.2011.
Present: Ld.AMP for complainant/MCD.
Accused in person on bail with counsel Sh. P.K. Srivastava, Advocate. Vide my separate detailed judgment the accused has been convicted for the offences punishable u/s 416 &417 DMC Act. Copy of judgment be given to the convict free of cost against receipt.
Put up for argument on sentence on 21.11.2011 at 2.00 PM.
(Kishor Kumar) Metropolitan Magistrate-02 (Municipal) Dwarka Court, Dwarka, New Delhi.
18.11.2011 CHALLAN NO.407400 M/s Aditya Furniture