Delhi High Court
Logistics India & Ors vs Mcd on 8 September, 2011
Author: Mukta Gupta
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3429/2010 & Crl.M.A. 16938/2010 (stay)
LOGISTICS INDIA & ORS ..... Petitioners
Through Ms. Sima Gulati, Adv.
Versus
MCD ..... Respondent
Through Mr. Mukesh Gupta, APP for State
with Mr. Jeevan Singh, F.I. MCD
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Not Necessary
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
MUKTA GUPTA, J. (ORAL)
1. The Petitioners are one of the many Carrying and forwarding agents
of M/s Hindustan Lever Ltd. which is marketing ice cream and frozen
desserts under the brand name of "Kwality". M/s. Hindustan Lever Ltd. has
entered into agreements with various companies owning cold storages for
using cold storage services on payment of service charges. As a carrying
and forwarding agent, the Petitioners are required to store the products in
cold storage. Thus, one such cold storage facility owned and maintained by
M/s. Kold Hold Industries Pvt. Ltd. for storage and further distribution of the
said product was taken on lease by the Petitioner firm. M/s. Kold Hold
Industries Pvt. Ltd. has been issued a license as required under the Delhi
Municipal Corporation Act (in short the DMC Act). The Respondent
instituted a Criminal Complaint No. 917/08 under Section 416/417/430
DMC Act against the Petitioner for running a cold storage without the
license wherein the Petitioners were summoned. Hence the present petition.
2. Learned counsel for the Petitioner contends that prior to the present
challan, two challans being challan case Nos. 272904 and 335405 were filed
against the Petitioner for the same allegations in the years 2006 and 2008
which were dismissed for the Learned Municipal Magistrate holding that the
Petitioners did not require any license, as a valid license has been issued to
M/s. Kold Hold Industries Pvt. Ltd. which was running the cold storage
facility. Despite earlier two challans being dismissed, the Respondent has
again initiated prosecution of the Petitioners for violation of Sections
416/417/430 DMC Act.
3. It is further contended that the requirement of the license is for the
premises and not for the individual running the premises. It is not the case
of the Respondents that there was no license issued for the premises in
question. The present is at best a case of subletting which is not prohibited
under the Act and, thus the present proceedings against the Petitioners are
also liable to be quashed.
4. Learned counsel for the Respondent on the other hand contends that
the Petitioners do not have a valid Municipal license and the license issued is
of the premises and the Petitioners are not permitted to use the said license
which has been issued in the name of some other person/ company.
Whenever electricity, power load etc. are required to be used a factory
license is required under Section 416 of the DMC Act. The Petitioners are
running the cold storage contrary to the terms of the license and hence they
are liable to be prosecuted.
5. I have heard learned counsel for the parties. The short issued in the
present petition is whether the license issued under Section 417 of the DMC
Act is issued in the name of the individual/ company or the premises.
Section 416 and 417 reads as under:
"416. Factory. etc., not to be established without the
permission of the 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
premises in which it is intended to employ steam, electricity,
water or other mechanical power.
(2) The Commissioner may refuse to give such permission, if
he is of the opinion that the establishment, alteration,
enlargement or extension of such factory, workshop or trade
premises, in the proposed position would be objectionable by
reason of the density of the population in the neighbourhood
thereof, or would be a nuisance to the inhabitants of the
neighbourhood.
417. Premises not to be used for certain purposes without
license:-
(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 license 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 the Part II of the
Eleventh Schedule except for domestic use of any those articles.
Provided that the Corporation may declare that premises
in which the aggregate quantity of articles stored for sale does
not exceed such quantity as may be prescribed by bye-law's in
respect of any such articles shall be exempted from the
operation of clause (d).
(2) In prescribing the terms of a license granted under this
section for the use of premises as mills or iron yards or for
similar purposes the Commissioner may, when he thinks fit,
require the licenses to provide a space or passage within the
premises for carts for loading or unloading purposes.
(3) The Corporation shall fix a scale of fees to be paid in
respect of premises licenses under sub-section (1):
Provided that no such fee shall exceed five hundred
rupees."
6. A perusal of Section 416 DMC Act shows that no person is permitted
to establish in any premises, any factory, workshop or trade premises
wherein it intends to employ steam, electricity, water or other mechanical
power. Thus, the emphasis is on the permission to carry on the work
employing such power in the premises and not by the individual. This
interpretation is further fortified by a plain reading of Section 417 DMC Act
which prohibits a person from use or permit to be used any premises without
or otherwise than in conformity with the terms of the license granted by the
Commissioner in that behalf. Thus, Section 417 expressly permits the
premises to be used by some other person/ company though in conformity
with the terms of the license granted. A perusal of Clause 6 of the license
agreement copy of which has been annexed with the reply affidavit of the
Respondent shows that the license issued in the name of a person, place or
premises will not be transferred except without the written permission of the
Commissioner. Thus, the license itself envisages that it can be issued in
favour of the premises. Thus, once there is a valid license of the premises, it
cannot be held that the Petitioners violated the terms of the license and were
thus liable to be prosecuted for offences punishable under Section
416/417/430 DMC Act.
7. In view of the aforesaid discussion, the Criminal Complaint
No.917/08, the order summoning the Petitioners and the proceedings
pending before the Learned Metropolitan Magistrate (MCD North-West) are
quashed.
8. Petition and application are disposed of. Trial Court Record be
sent back.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 08, 2011
'ga'
