Delhi District Court
State vs Chaman Singh on 25 July, 2024
Page 1 of 11
IN THE COURT OF ASHISH KUMAR MEENA
MM-01/JMFC-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.:169/2023
PS: Fatehpur Beri
U/S: 332/461 DMC ACT
CR. CASE NO.4363/2023
STATE
VS.
CHAMAN SINGH, S/o LATE SH. BALJIT SINGH,
R/O H. NO. 72, GHORA MOHALLA,
AYA NAGAR, NEW DELHI ...... ACCUSED
1. Sr. No. of the case : 4363/2023
2. The date of offence : 19.12.2022
3. The name of the complainant : DC MCD
4. The plea of the accused : Pleaded not guilty
5. Argument heard on : 03.07.2024
6. The date of order : 25.07.2024
7. The final order : CONVICTED
JUDGMENT
1. Briefly stated, accused Chaman Singh ("Accused") is facing trial for the allegations that on 19.12.2022, at time unknown, accused were found raising unauthorized construction in the shape of basement and raising columns and wall of ground floor at the property bearing no. 72, Kh. No. 1691, Main Road, Ghora Mohalla, Aya Nagar, New Delhi, within the jurisdiction of P.S. Fatehpur Beri, without obtaining permission from Commissioner, South Delhi Municipal Corporation in accordance ASHISH Digitally signed by ASHISH FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh KUMAR KUMAR MEENA Date: 2024.07.25 MEENA 15:24:40 +05'30' Page 2 of 11 with The Municipal Corporation Act 1957. Thus, the accused was booked under the Section 332 r/w 461 of The Delhi Municipal Corporation Act, 1957 (DMC Act).
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused was summoned after taking cognizance of offence. The accused was charged u/s 332 r/w 461 DMC Act and accordingly, the charge was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined two witnesses. PW-1 Sh. Santosh Pathak (the then JE) has deposed that on 09.12.2022, he was on routine inspection. He reached at property no. H. No. 72, Khasra No. 1691, Main Road, Ghoda Mohalla, Aya Nagar, Near Arjun Medicos, New Delhi and noticed an unauthorized construction on the above-mentioned property in the shape of basement and raising of columns and wall of ground floor. Upon reaching office, he prepared FIR and put it up before the concerned AE vide as Ex.PW1/A. Thereafter, a show cause notice u/s 344(1) and 343 of DMC Act was issued against the owner/builder namely Prince vide Ex.PW1/B. He went to the property to serve the notice, but some person who was there refused to take the notice. Thereafter, the said notice was served by way of pasting. As no reply of the above-said show cause notice received, accordingly he reported the matter to concerned AE. He requested on 22.12.2022 to concerned AE to issue demolition notice/order u/s 343 DMC Act to the owner/builder of the above- mentioned property vide Ex.PWI/C. Accordingly, on 22.12.2022, second notice/demolition order has been issued to owner/builder ASHISH Digitally by ASHISH signed State Vs. Chaman Singh KUMAR Date:
KUMAR MEENA FIR No:169/2023 PS: Fatehpur Beri 2024.07.25 MEENA 15:24:50 +05'30' Page 3 of 11 of the above-mentioned property vide Ex.PW1/D. He again went to the above-mentioned property to serve the notice, but persons available at the site refused to receive the said notice. Accordingly, it was served by way of pasting on 27.12.2022. By following due process of law, the UC file of the above-said property has been handed over to office in charge for further necessary action as per policy of priority. He also initiated the prosecution file on 03.01.2023 and upon his complaint a complaint u/s 332/461 DMC Act r/w Section 466A was filed by the concerned DC on 12.01.2023 to SHO, PS-Fatehpur Beri. Thereafter, an FIR was got registered. IO Khushi Ram called him and he went to the above-
mentioned site. He told to IO about the above-said property. IO had prepared the site plan at his instance vide Ex.PW1/E. Thereafter, IO had recorded his statement u/s 161 Cr.P.C. This witness has been duly cross-examined on behalf of the accused.
4. PW-2 HC Khushi Ram (IO of this case) has deposed that on 19.04.2023, a complaint was received by MCD u/s 332/461 DMC Act and same was marked to ASI Ram Karan by the SHO. After transfer of ASI Ram Karan, same was marked to him. He endorsed the same and got the FIR registered on 19.04.2023 vide Ex.PW2/A. During investigation, he visited personally and gave notice to MCD office, for providing relevant documents pertaining to this case. He received all the relevant documents regarding this case. He called JE Sh. Santosh Pathak to join the investigation. Thereafter he met with JE Sh. Santosh Pathak on 20.04.2023 at property i.e. H. No. 72, Khara No. 1691, Main Road, Ghoda Mohalla, Aya Nagar, Near Arjun Medicos, New Delhi and JE pointed out towards the property in question and told him that this is the property where unauthorized construction has taken place. Digitally signed ASHISH byKUMAR ASHISH MEENA KUMAR Date:
2024.07.25 FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh MEENA 15:24:57 +05'30' Page 4 of 11 At the instance of JE, he prepared the site plan of the property vide Ex.PW1/E. Thereafter, he recorded statement of JE u/s 161 Cr.P.C. During investigation, he inquired from some laborers and locality and he got to know that person namely Chaman Singh, S/o Baljeet Singh is the owner of the property in question. However, owner was not present at the property. He came back to PS. He again visited the property same day and he met with owner Chaman Singh at the property. He gave notice u/s 41A Cr.P.C vide Ex.PW2/B. He bound down the accused. He interrogated the accused who gave his statement that he was constructing the above-said house without the permission of MCD. Accused did not dispute the status of ownership of property in question and admitted that he is the owner of the property in question. He wrote letter to DC, South Zone, SDMC for seeking permission u/s 467 DMC Act. He got permission and he completed the whole investigation and prepared the charge-sheet u/s 332/461 DMC Act and submitted it before the concerned Court. This witness has been duly cross-examined.
5. Vide separate statement under Section 294 Cr.P.C. recorded on 27.06.2024, the accused has admitted the present FIR as Ex.AD1, Certificate under Section 65B of IEA supporting the FIR as Ex.AD2, Complaint u/s 466A DMC Act dt. 12.01.2023 as Ex.AD3 and Complaint u/s 467 DMC Act, dt. 19.05.2023 as Ex.AD4. Accordingly, PW mentioned at serial no. 1 & 3 were dropped from the list of witnesses.
6. On completion of prosecution evidence, statement of accused was recorded u/s 281 Cr.P.C r/w 313 Cr.P.C, wherein all the incriminating evidence was put to the accused, to which he ASHISH Digitally by ASHISH signed FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh KUMAR KUMAR MEENA Date: 2024.07.25 MEENA 15:25:04 +05'30' Page 5 of 11 stated that he has been falsely implicated in this case. He has stated that he is innocent and all the exhibits are false and manipulated.
Further, the accused wished not to lead defence evidence.
7. Final arguments heard. Case file perused.
8. Short point for determination before this court is as under:
'' Whether on 19.12.2022, at time unknown, accused were found raising unauthorized construction in the shape of basement and raising columns and wall of ground floor at the property bearing no. 72, Kh. No. 1691, Main Road, Ghora Mohalla, Aya Nagar, New Delhi, within the jurisdiction of P.S. Fatehpur Beri, without obtaining permission from Commissioner, South Delhi Municipal Corporation in accordance with The Municipal Corporation Act 1957. Thus, the accused was booked under the Section 332 r/w 461 of The Delhi Municipal Corporation Act, 1957."
9. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the accused and hence prayed for conviction of accused as per the evidence produced by the prosecution witnesses.
10. It is argued by the Ld. Counsel for the accused that the accused is innocent and falsely implicated in the present matter.
ASHISH Digitally signed
by ASHISH
FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh KUMAR KUMAR MEENA
Date: 2024.07.25
MEENA 15:25:13 +05'30'
Page 6 of 11
Ld. Counsel submitted that the Prosecution has failed to prove that accused has erected the alleged unauthorized construction. Further, it is submitted that the prosecution has no evidence against the accused, hence, he liable to be get acquitted from all charges.
11. In the present case accused is charged under Section 332 r/w 461 DMC Act. Before appreciating the evidence in hand, it is important to go through the relevant provision of the Act:
332. Prohibition of building without sanction: - No person shall erect or commence to erect any building or execute any of the works specified in section 334 except with the previous sanction of the Commissioner, not otherwise than in accordance with the provisions of this Chapter and of the bye-laws made under this Act in relation to the erection of buildings or execution of works
461. Punishment for certain offences: (1) Whoever-- (a) contravenes any provision of any of the sections, sub-sections, 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 ASHISH Digitally by ASHISH signed FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh KUMAR KUMAR MEENA Date: 2024.07.25 MEENA 15:25:22 +05'30' Page 7 of 11 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 column of that Table for every day during which such contravention or failure continues after conviction for the first such contravention or failure.
(2) Notwithstanding anything contained in sub-section (1), whoever contravenes the provisions of subsection (1) of section 317 or sub-section (1) of section 320 or sub-
section (1) of section 321 or subsection (1) of section 325 or section 339, in relation to any street which is a public street, shall be punishable with simple imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both.
12. Section 332 lays down that no person shall erect or commence to erect any building except with the previous sanction of the Commissioner, or otherwise than in accordance with ASHISH Digitally signed by ASHISH FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh KUMAR KUMAR MEENA Date: 2024.07.25 MEENA 15:25:29 +05'30' Page 8 of 11 provisions of Chapter XVI and of the bye-law make under the Act in relation to the erection of buildings. The MCD has been empowered to discourage, prevent and stop illegal and unauthorized building and construction activities under Sections 343,344,345,345-A,346 and 347 of the Act to demolish and stop the building work, require alteration or work and seal unauthorized construction. In view of the same, the MCD has endowed with ample powers to discourage, prevent and stop illegal and unauthorized construction.
13. Further, it is clear from a plain reading of Section 332 of the Act that in order that a person may be proved guilty of having committed the offence mentioned therein, the prosecution will have to prove that such person either "erected" or "commenced to erect" any building or any works without previous sanction or in a manner not authorised by the Act. Further, what is critical is that the person who is sought to be bound guilty should himself have either erected or commenced to erect the unauthorized construction. The mere presence of a person at the spot may not satisfy this requirement. This Court places its reliance on MCD vs Prakash, 148 (2008) Delhi Law Times 587.
14. The case of the prosecution is that the accused Chaman Singh, being in the capacity of builder/occupier/owner of the property in question was found raising unauthorized construction in the shape of basement & raising of columns & wall of ground floor, without any sanction from concerned Commissioner of SDMC.
15. On contrary, the only defence of the accused is that he has ASHISH Digitally by ASHISH signed FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh KUMAR KUMAR Date:
MEENA MEENA 2024.07.25 15:25:37 +05'30' Page 9 of 11 not raised the illegal construction. The prosecution has failed to prove that the accused has actually erected the said unauthorized construction.
16. In view of this court and as discussed above, the prosecution is not only required to prove that the accused is the owner/occupier/builder of the property in question, but the accused has erected or commenced to erect the said unauthorized construction.
17. In this regard, the prosecution has examined the inspecting officer PW-1 Sh. Santosh Pathak, who has supported the version of prosecution. He has deposed that on 09.12.2022, he noticed unauthorized construction in the shape of basement & raising of columns & wall of ground floor at property in question. Thus, he initiated the prosecution and prepared First Hand Report vide Ex. PW1/A. He issued show cause notice u/s 344(1) and 343 of DMC Act vide Ex. PW1/B. However, the said notice could not be served to accused and the same were pasted at property in question. Thereafter, at his instance, concerned AE issued demolition orders vide Ex. PW1/C & Ex. PW1/D. As per the statement of witness, it is clear that he witnesses ongoing unauthorized construction. It is also clear that the property was traceable and concerned show notices were brought to the knowledge of the accused as the same were pasted at property in question.
18. Furthermore, IO/PW2 HC Khushi Ram has deposed that he registered the present FIR on the basis of the complaint vide Ex. PW2/A. He obtained all the necessary documents from the MCD. He visited the property in question alongwith Sh. Santosh Pathak ASHISH Digitally signed by ASHISH FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh KUMAR KUMAR MEENA Date: 2024.07.25 MEENA 15:25:46 +05'30' Page 10 of 11 and prepared the site plan Vide Ex. PW1/E. He also recorded the statement. During investigation, he got to know that owner of property in question is accused. Thus, he gave notice u/s 41A Cr.P.C to accused vide Es. PW2/B. On interrogation, accused revealed himself to be the owner of the property in question. Thereafter, he sought permission from concerned DC, MCD for prosecution. On permission, he filed the present charge-sheet.
19. The witnesses examined by prosecution clearly shows that the accused is owner/occupier of the property in question. It is to be noted the accused has not disputed the fact the he is owner or occupier of the said property. Furthermore, Ex. PW1/A to Ex. PW1/D, clearly proves that the construction raised at property in question is an unauthorized construction raised without permission concerned authority of SDMC. Moreover, the accused has admitted both the complainant made by concerned DC, South Zone, New Delhi seeking prosecution of present case. Both witnesses have thoroughly cross-examined, but no variation or contradiction can be seen in their statements. During cross- examination, Ld. Counsel for accused has given a suggestion that there are no photographs to prove the unauthorized construction. However, in view of this Court, the prosecution remained successful to prove the existence of the said unauthorized construction by proving Ex. PW1/A to Ex. PW1/D. However, the accused has not given evidence to show that either the said unauthorized construction does not exist or the construction is raised with the permission of concerned authority.
20. Thus, in view of above discussion it is established that accused has commence to erect/erected unauthorized construction Digitally signed ASHISH byKUMAR ASHISH MEENA FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh KUMAR Date:
2024.07.25 MEENA 15:25:55 +05'30' Page 11 of 11 at property in question without the previous sanction of the Commissioner of MCD and has committed offence under section 332 DMC Act punishable under Section 461 of the Act.
21. Thus, in the backdrop of aforesaid discussion, facts and circumstances and material available on record, the prosecution has proved the charges u/s 332/461 DMC Act against the accused beyond reasonable doubts. Accordingly, accused CHAMAN SINGH is hereby convicted for the offence u/s 332/461 DMC Act.
22. Let the copy of judgment be given free of cost to the convict.
23. Let the convict be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 25.07.2024. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO ELEVEN PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED.
Digitally signed by
ASHISH KUMAR ASHISH KUMAR MEENA
MEENA Date: 2024.07.25
15:26:05 +05'30'
(ASHISH KUMAR MEENA)
JMFC/MM-01/SAKET COURT(SOUTH)
NEW DELHI/25.07.2024
FIR No:169/2023 PS: Fatehpur Beri State Vs. Chaman Singh