Delhi District Court
M/S. Rajpath Motors vs Municipal Corporation Of Delhi (Edmc) on 16 July, 2014
IN THE COURT OF SHRI SANJAY GARG : ADDITIONAL SESSIONS JUDGE -
01 (EAST) :KARKARDOOMA COURTS : DELHI
Crl. Appeal No. 61/13
M/s. Rajpath Motors
Through Prop. Sh. Rakesh Pandey,
5/23, Geeta Colony,
Delhi.
..... Appellant
Versus
Municipal Corporation of Delhi (EDMC),
Vishwas Nagar Institutional Area,
Delhi110032.
..... Respondent
ORDER
1. This appeal is preferred against the judgment dated 20.5.13 vide which this appellant was held guilty for the offences u/s. 416/417/430/461 DMC Act. Vide order on quantum of sentence appellant with its proprietor Rakesh Pandey was jointly sentenced to pay fine of Rs. 3000/ u/s. 416 DMC and Rs.500/ u/s. 417 DMC Act and in default SI for 15 days.
2. The case of the prosecution is that on 9.11.03 proprietorship firm i.e appellant was found running petrol pump on Main Road, Geeta Colony, having 15 pumping machines with Air compressors without MCD license and was challaned for the same u/s. 416/417/430 of DMC Act.
3. Respondent led evidence and examined two witnesses. CW1 Vinay Awasthi had visited the premises of appellant on 9.12.03 and challaned it. CW2 Sh. Vinod Kumar Mantoo, Asstt. Law officer has proved the challan filed by Sh. Pramod Kumar Sharma, Municipal Prosecutor as he is reported to have died in the year 2009. Statement of Rakesh Pandey, proprietor of appellant was recorded u/s. 313 CrPC. Here he submitted that MCD license is not required for any petrol pump. When they started petrol Crl. Appeal No. 61/13 page 1 of page 4 pump they had applied for license but as per the practice MCD do not issue license to petrol pumps. He was not present at the site when this challan was done.
4. Appellant examined its Manager as defence witness.
5. Heard arguments of Sh. Sanjay Gupta, Ld. counsel for the appellant and Sh. Vishwajeet Mangla, Ld. counsel for respondent. Perused the record.
6. Ld. counsel for the appellant has relied upon 2000 (1) RCR (Crl) 841 case titled State of UP V/s. Ashok Dixit, in support of his submissions.
7. The contentions raised by Ld. counsel for the appellant are in two fold (i) The respondent has failed to prove on record the challan made before the Trial Court as Sh. P.K. Sharma, AMP is stated to have expired but no documentary evidence is proved in this regard. (ii) Petrol Pumps are not covered under partI of section schedule of DMC and also not covered u/s. 417 (i) (b) (d) of DMC Act. The Trial Court erred in holding that petrol pumps are covered in section 416 of DMC Act.
8. CW1 has visited the premises of appellant on 9.12.03. As per him he had found appellant running petrol pump with the help of 15 pumping machines with air compressor with 20 HP approximately without the MCD license. On that basis he challaned the appellant u/s. 416/417/430 of DMC Act. Despite opportunity CW1 was not crossexamined by appellant. CW2 is the Asstt. Law Officer of MCD, as per him Sh. P.K. Sharma, Municipal Prosecutor has died in the year 2009 and he identified his signatures on challan Ex.PW1/A at point X1. As per CW2 he has seen Sh. P.K. Sharma signing and writing in due discharge of his official duties. The identification of signatures by CW2 of Municipal Prosecutor Sh. P.K. Sharma cannot be disputed as he is Asstt. Law Officer of MCD and had seen Sh. P.K. Sharma signing and writing. I thereby do not agree with the contention raised by Ld. counsel for the appellant that since no documentary proof regarding death Crl. Appeal No. 61/13 page 2 of page 4 of Sh. P.K. Sharma has been brought on record, the respondent has failed to prove the challan. Moreover, CW1 has already proved the challan Ex.PW1/A.
9. It is not disputed by the appellant that at his Petrol Pump he is having 15 pumping machines with Air compressors of 20 HP approximately. It is also admitted case of the appellant that he was not having MCD license when challaned. The other contention raised by Ld. counsel for the appellant is that business being done by appellant is of such a nature for which MCD license is not required and he is wrongly challaned and convicted for the offence u/s. 416/417 of DMC Act.
10. As per section 416 DMC Act for establishing in any premises i.e. used as workshop or trade premises, in which the person who intends to employ steam, electricity, water or other mechanical power he has to seek permission from Commissioner of MCD. Appellant has failed to show any permission taken by him in the said premises.
11. The other contention raised by Ld. counsel for the appellant is that petrol pump is not covered under the Eleventh Schedule of DMC Act. The Eleventh Schedule PartI provides purposes for which premises may not be used without a license.
Carrying out any of the following trades or operations connected with trades (xl) Oil other than petroleum (either by mechanical power of by hand power or ghani driven by bullock or any other animal). PART II Articles which may not be stored in any premises without a license.
68. Oil, other than petroleum.
74. Petroleum, other than dangerous, as defined in the Petroleum Act, 1934.
12. As per Section 417 DMC Act, no premises can be used without taking license from Commissioner for any purposes specifying in part I of Eleventh Schedule and for storing any of the articles specified in Part II of Crl. Appeal No. 61/13 page 3 of page 4 the Eleventh Schedule. As already mentioned above, Petrol is duly covered under No.74 of Part II of Eleventh Schedule of DMC Act, 1957.
13. In view of the aforesaid reasons, I find no substance in this appeal. Same is accordingly dismissed. As per the impugned order on quantum of sentence, appellant was sentenced to pay fine of Rs.3500/ u/s 416/417 of DMC Act. The said fine amount has already been deposited by the appellant before Trial Court on 21.06.13. The impugned judgment has already been complied with.
Since appellant is absent, copy of this order could not be provided to him. Two copies of this order, one for Ld. Trial Court and other for appellant be sent to Ld. Trial Court with TCR.
Appeal file be consigned to the record room.
Announced in the open Court ( SANJAY GARG )
on 16.07.2014 Addl. Sessions Judge01 (East)
Karkardooma Courts, Delhi
Crl. Appeal No. 61/13 page 4 of page 4