Delhi District Court
State vs Virender Pal on 11 March, 2025
IN THE COURT OF AMARDEEP KAUR
ADDITIONAL CHIEF JUDICIAL MAGISTRATE
NORTH, ROHINI DELHI
JUDGMENT
STATE Vs. VIRENDER PAL FIR NO.: 717/2014, U/s 332/461/466-A OF DMC ACT READ WITH SECTION 288 IPC PS : MAHENDRA PARK CNR NO. DLNT02-004262-2015 A. CIS No. of the Case : 5292832/2016 B. Date of Institution : 30.09.2015 Date of Commission of C. : 13.11.2014 Offence Sh. Vijay Kumar Bidhuri, IAS, Dy.
D. Name of the complainant : Commissioner, Civil Line Zone, MCD, Delhi Virender Pal S/o Shri Lal Chand Name of the Accused, his R/o H. No. C-8, Gali No. 12, E. :
Parentage & Addresses Ramgarh Village, Mahendra Park, Delhi U/s 332/461/466-A of Delhi F. Offence complained of : Municipal Corporation Act read with Section 288 IPC U/s 332/461/466-A of Delhi G. Offence charged of Municipal Corporation Act read with Section 288 IPC FIR No. 717/2014 State Vs. Virender Pal Page No. 1 /11 H. Plea of the Accused : Pleaded not guilty and claimed trial.
I. Order reserved on : 18.02.2025 J. Date of Order : 11.03.2025 K. Final Order : ACQUITTAL
Brief Statement Of Reasons For Decision Of The Case
1. It is the case of the prosecution that on 13.11.2014 at 1:15 p.m. at C-
8, Gali No. 12, Ram Garh Village, Delhi within jurisdiction of PS Mahendra Park, aforesaid property of the accused was found having unauthorized construction/work as mentioned in the complaint Mark A without any permission from Commissioner, North Delhi Municipal Corporation and thereby he committed offence U/s 332/461/466-A of DMC Act read with Section 288 IPC.
2. The charge sheet against the accused was filed in the court on 30.09.2015 upon which cognizance was taken on the same day. Accused appeared before the Court on summons and copy of charge-sheet along with other documents under Section 207 Cr.P.C. was supplied to him.
3. Charge was framed against the accused vide order dated 30.08.2016 for the offences punishable under Section 332/461/466-A of DMC Act read with Section 288 IPC, to which he pleaded not guilty and claimed trial.
FIR No. 717/2014 State Vs. Virender Pal Page No. 2 /114. Thereafter, the matter was listed for prosecution evidence wherein the prosecution examined 06 witnesses including witnesses Sh. Deepak Kumar Mehto, JE (PW1), Sh. Vijay Kumar Bidhuri, IAS, PS to Minister of State, (PW2), W/ASI Anju Baba (PW3), Inspector Mukesh Kumar (PW4), SI Jaiveer Singh (PW5) and Inspector Devi Lal (PW6).
5. PW-1 Sh Deepak Kumar Mehto, JE Building Department MCD, Civil Line Zone deposed that during the field visit, he found that unauthorized construction was going on at the ground floor of the property bearing H. No. C-8, Gali No. 12, Ram Garh Village, Delhi. He further deposed that the said property was booked for violation of DMC Act and show cause notice was issued to the owner of the said property i.e., the accused Virender Pal. He further deposed that despite issuance of notice, the accused did not stop the unauthorized construction. Thereafter, Deputy commissioner, MCD lodged a complaint for registration of FIR against the accused. He further deposed that the said construction was unauthorized as no sanction was obtained by the accused from their department. He brought the file pertaining to the unauthorized construction by the accused, which was taken on record as Mark C (colly.). The witness was duly cross examined by the accused.
6. PW-2 Sh. Vijay Kumar Bidhuri, IAS, PS to Minister of State, proved the complaint for registration of the FIR Ex. PW-2/A bearing his signatures at point A. He submitted that upon receipt of report of the JE, he lodged the FIR No. 717/2014 State Vs. Virender Pal Page No. 3 /11 complaint Ex. PW-2/A with the concerned PS. He was duly cross examined by the accused.
7. PW-3 W/ASI Anju Bala and PW-5 SI Jaiveer Singh are formal witnesses and have only deposed in regards to the different stages of investigation. PW-3 has proved the computerized copy of the FIR Ex. PW- 3/A and typed endorsed complaint Ex. PW-3/B. She also proved the certificate under section 65B IEA Ex. PW-3/C. PW-5 deposed that he handed over the copy of FIR and rukka to SI Mukesh for further investigation.
8. PW-4 Inspector Mukesh Kumar was the first IO. He along with Ct. Jaiveer PW-5 went to the spot on 13.11.2014 and prepared the site plan Ex. PW-4/A. The witness further deposed that on 18.01.2015 he served the notice under section 91 CrPC Ex. PW-4/B to the present accused for seeking details of the ownership of the property and copy of sanction plan/ permission to construct etc. The witness was duly cross examined on behalf of the accused.
9. PW-6 Inspector Devi Lal (second IO of the case) deposed that on receipt of case file for further investigation, he gave the notice u/s 41A Cr PC to the accused on 19.04.2015 (Ex. PW-6/A). He further deposed that on receipt of the notice, accused appeared before him and joined the investigation. He also proved the reply of the accused to the notice u/s 91 FIR No. 717/2014 State Vs. Virender Pal Page No. 4 /11 Cr PC served by the previous IO. The witness was duly cross examined by ld counsel for the accused. Thereafter, PE was closed.
10. All incriminating evidence was put to the accused and his statement under Section 313 Cr.P.C was recorded on 20.08.2024 whereby the accused submitted that the suit property was situated in Ramgarh village and that he was residing in the suit property along with his brothers from 1980 onwards. He further submitted that the property consisting of ground floor and first floor and having water and electricity connection was in his name. He further submitted that with passage of time the road level had gradually increased and the sewage water had started entering into his house and certain cracks developed and thus he made repairs in the premises to make it usable and habitable within the permissible limit of MCD Bye laws and there was no unauthorized construction. He further stated that he did not wish to lead any defence evidence.
11. Matter was then listed for final arguments which were heard on behalf of both parties.
12. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution's case beyond reasonable doubt. Ld. APP for the state submitted that the Prosecution has duly proved its case and dispelled its burden of proof by placing on record all relevant documentary evidence and testimony of its witnesses and thus FIR No. 717/2014 State Vs. Virender Pal Page No. 5 /11 the court must return a finding of conviction.
13. Per contra, it is argued by the Ld. Counsel for the accused that the accused is innocent and falsely implicated in the present matter. It is submitted that the case of the prosecution suffers from various deficiencies. He submitted that the area in which the property of the accused is located i.e. Ramgarh colony has not been notified as being urbanized u/s 507 of DMC Act. It is his submission that in absence of any notice of urbanization u/s. 507 DMC, building laws as imposed by MCD are not applicable upon the property. He has further submitted that the accused had only undertaken repair works upon his property which are covered and protected under clause 6.4.1 of MCD Building Bye Laws, 1983 and no sanction was required by him to be taken to do the same. He thus submitted that in view of failure of the prosecution to establish its case, the accused deserves to be acquitted.
14. I have perused the record in light of the contending arguments and relevant legal provisions.
15. Before appreciating the evidence in hand, it is important to go through the relevant provision of the Act. The accused has been charged with Section 332 read with section 461 DMC Act, which is a cognizable offence under section 446 A DMC Act. Relevant portion of these sections is reproduced as follows:
"332. Prohibition of building without sanction: - No person shall FIR No. 717/2014 State Vs. Virender Pal Page No. 6 /11 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 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
16. Now for an offence under section 332 of DMC Act, it needs to be established by the prosecution that the accused, being in the capacity of builder/occupier/owner of the property in question i.e. property bearing no. C-8, Gali No. 12, Ram Garh Village, Delhi raised unauthorized construction in form of alterations, additions, or repairs of building as provided under section 334 of DMC Act 1957, without any due sanction FIR No. 717/2014 State Vs. Virender Pal Page No. 7 /11
17. Further the accused has also been charged with section 288 IPC which reads as follows: -
288. Negligent conduct with respect to pulling down or repairing buildings: - Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any probable danger to human life from the fall of that building, or of any part thereof, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
18. Thus, for an offence under section 288 IPC, the prosecution has to prove beyond reasonable doubt, the following mandatory ingredients, viz.,
i) The Accused was pulling down or repairing the building;
ii) The Accused omitted to take such order with that building as was sufficient to guard against probable danger to human life from the fall of the building or any part thereof; and
iii) The omission complained of was due to negligence or with knowledge of such probable danger.
19. Let us now discuss, the fulfillment of ingredients of offence punishable under section 332/461/466-A of DMC Act in the present facts.
20. PW-1 in his testimony has submitted that during his field visit, he found unauthorized construction being undertaken at H. No. C-8, Gali no.
FIR No. 717/2014 State Vs. Virender Pal Page No. 8 /1112, Ram Gargh Village, Delhi and that the said unauthorized construction was not sanctioned by the department. However, no submission has been made by him in his entire deposition as to the nature of unauthorized construction being undertaken by the accused. The office copy of the records Mark A(colly) containing the complaint dated 10.11.2024 and show cause notice u/s 344(1) and 343 of DMC Act bearing no. 232/C-15/B- II/UC/CLZ/2014 dated 17.10.2014 has only described the alleged unauthorized construction as "U/C in the shape of GF entire". However, no details have been furnished as to what was the exact scope of the unauthorized construction including the exact work being undertaken, the measurement of the area of the property wherein such work was being raised, the materials being used etc. Testimony of PW-2 as well as IO PW- 4 and PW-6 is also silent in this regard.
21. Now to establish its case, the prosecution is required to establish two things that the accused raised construction upon the subject property and that the said construction was in violation of the DMC norms i.e. the construction being raised was in the manner as specified in section 334 of DMC Act and hence a sanction to erect the same or execute such works was required to be taken by the owner/ occupier of the property by giving notice of his intentions to the commissioner in such form. Thus, it was imperative for the prosecution to establish the nature and scope of the alleged construction being undertaken by the accused and also establish that the accused was required to obtain a sanction to undertake the same.
FIR No. 717/2014 State Vs. Virender Pal Page No. 9 /1122. However, the star witness of the prosecution PW-1 Sh Deepak Kumar Mehto, JE Building Department MCD, Civil Line Zone has failed to depose in regards to any such details, in absence of which it cannot be said that the accused undertook construction of such nature as described in section 334 of DMC Act. Merely submitting that the construction was being undertaken by the accused without sanction is insufficient to establish the commission of the offence u/s 332, 461, 466A of DMC Act, especially when the accused has taken the defence that he was merely undertaking works of repair which do not fall under the head of 'structural change' and thus no sanction or written permission from the authority was required.
23. Further, while the accused in his defence has raised the submission that provision of DMC Act are not applicable in the territory known as Ram Garh Colony as the same is yet to be regularized, despite having been asked, the prosecution witnesses PW-1, PW-3, PW-4 and PW-6 did not place any notification in support of urbanization of the said area on record. On the contrary, witness PW-2 Vijay Kumar Bidhuri (Deputy Commissioner MCD) has himself submitted in his examination that he does not remember having come across any sanction building plan of any property situated in Ramgarh Colony. Thus, in absence of any notice of urbanization of the area known as Ramgarh Colony, this court cannot presume that the provision of DMC Act are applicable upon the subject property and that the accused committed offence punishable under 332, FIR No. 717/2014 State Vs. Virender Pal Page No. 10 /11 461, 466A of DMC Act.
24. In regards to offence under section 288 IPC, none of the prosecution witnesses have submitted in regards to any omission by the accused to take such order or precaution so as to sufficiently guard against probable danger to human life from the fall of the building or any part thereof. There is no submission in regards to any negligence on part of the accused which resulted in or was expected to result in some danger or injury upon the occupants, neighbours or the workers/labourers etc. Thus offence under section 288 IPC is also not made out.
25. It is settled proposition of law that the onus to prove the guilt of the accused was entirely on the prosecution. However, the prosecution has miserably failed to establish its case, for which the benefit of doubt ought to be given to the accused.
26. Accordingly, accused Virender Pal S/o Sh. Lal Chand is hereby acquitted for the offence punishable U/s 332/461/466-A of Delhi Municipal Corporation Act as well as offence punishable under Section 288 IPC.
Digitally signed by AMARDEEP AMARDEEP KAUR KAUR Date: 2025.03.11 14:16:39 +0530 Announced in Open (AMARDEEP KAUR) Court on 11.03.2025 A.C.J.M.(North)/ Rohini Court/Delhi FIR No. 717/2014 State Vs. Virender Pal Page No. 11 /11