For Appellant/Petitioner/Plaintiff: Rajesh Yadav, Adv.

For Respondents/Defendant: M.P. Singh, APP and Naveen Gupta, Adv. for Respondent Nos. 2 and 3

Cases Referred:

Municipal Corporation of Delhi v. Ravindra Kumar Mahindra 1991 Crl. Law Journal 2630;

Municipal Corporation of Delhi v. Sh. Sunil Sabharwal ILR (1996) 1 Delhi 79

JUDGMENT

Aruna Suresh, J.

1. This petition has been filed by petitioner Meenakshi Rawal challenging the order of summoning dated 24.4.2006 passed in criminal complaint under Sections 347/461 of the Delhi Municipal Corporation Act (hereinafter referred to as DMC Act) and seeking quashing of the said summoning order as well as the complaint No. 77/2006.

2. Ritnand Balved Education Foundation (RBEF) had taken on rent premises No. B-1/623, second floor, Janak Puri, New Delhi, for purposes of running two institutes namely Amity Institute of Competitive Examinations (AICE) and Amity School of Distance Learning. It seems that on 18.5.2004 unior Engineer inspected the said premises and on the basis of his report MCD/respondent No. 3 filed a complaint under Section 347/461 of the DMC Act on 30.7.2004 against one Ashok as owner/occupier for change of user of the property from residential to commercial. The learned Metropolitan Magistrate took cognizance of the offence and summoned the accused in the said complaint. On 1.4.2005 petitioner was appointed as an Administrative Head of AICE. Another inspection was carried out by the Junior Engineer (Building), West Zone, on 2.11.2005. On the basis of this report a complaint was filed by the respondent No. 3 against the petitioner for offences under Section 347/461 of the DMC Act for change of user of premises of the third floor B-1/623, Janak Puri, New Delhi i.e. the same house. The complaint was filed on 7.12.2005 and the learned Metropolitan Magistrate took cognizance of the offence and summoned the petitioner for 16.4.2007. The petitioner has challenged the validity of the summoning order on two grounds. Firstly, the complaint dated 7.12.2005 is barred by limitation under Section 471 of the DMC Act and secondly, complaint for the same offence with the same allegation cannot be entertained. Petitioner has also disputed her possession in respect of third floor of the above said house which is the subject matter of the complaint dated 7.12.2005.

3. Learned Counsel for the respondent No. 3 has submitted that the first complaint did not pertain to the third floor of property No. B-l/623, Janak Puri, New Delhi and it is possible that third floor was constructed after filling of the first complaint.

4. I find no merits in these submissions. Bare perusal of the first pomplaint filed against Ashok, who probably was an employee, for the misuser of property B-1/623, Janak Puri, New Delhi, shows that Ashok as owner/occupier was allegedly found committing offences under Sections 347/461 of the DMC Act on 18.5.2004 Thus, it is clear that the complaint does not speak about misuser of the property in respect of ground floor, first floor or second floor. This complaint pertains to the misuer of the entire house. Therefore, second complaint for the same offence during the pendency of the first complaint by simply adding the third floor cannot be said to be constituting a separate offence committed by the petitioner under Sections 347/461 of the DMC Act. To say that the first complaint did not pertain to third floor of the impugned property is not borne out from the record and therefore cannot be accepted as correct.

5. The maintainability of the second complaint dated 7.5.2005 is also challenged by the petitioner on the ground that it is barred by period of limitation. Section 471 of the DMC Act lays down the period of limitation for prosecution of offences committed by a person under the said Act. This section reads as follows:

471. Limitation of time for prosecution.--No person shall be liable to punishment for any offence against this act or any rule, regulation or bye-law