Delhi District Court
Complainant vs Ashok Gupta on 29 April, 2016
IN THE COURT OF SH. KISHOR KUMAR, MM03, SOUTH WEST
DISTRICT, ROOM NO.211, DWARKA COURTS, DELHI.
C.C. No. : 271/4
U/s : 247 Delhi Cantonment Act
Delhi Cantonment Board,
Delhi Cantt., Delhi 110010
Through its
Chief Executive Officer
.......... Complainant
Versus
Ashok Gupta
S/o Sh. Om Parkash
R/o 2/39, Sadar Bazar,
Delhi Cantt 110010
......... Accused
Date of Institution : 20.12.2012
Final arguments heard on : 29.04.2016
Date of Decision : 29.04.2016
Final Order : Acquitted
BRIEF STATEMENT OF REASONS FOR DECISION:
1.The Delhi Cantonment Board (hereinafter be referred to as the 'Board') has filed the present complaint against accused for offence punishable U/s 247 of the Cantonment Act (hereinafter be referred to as the Act) on the ground that the accused had C.C. No: 271/4 D.C.B. v. Ashok Gupta Page 1/7 carried out unauthorized construction/encroachment without prior permission U/s 235/236 of the Act. Premises in question is House No. 2/39, Sadar Bazar, Delhi Cantt., Delhi. Measurement of the unauthorized construction has been mentioned in Para No.4 of the complaint. JE of the Board had inspected the site on 13.09.2012 and found the aforesaid unauthorized construction. Hence, the present complaint, having been filed through Chief Executive Officer.
2. Cognizance was taken and summons were issued to the accused, who appeared. A notice for offence punishable U/s 247 of the Act was served upon the accused, to which he pleaded not guilty and claimed trial.
3. The Board, in support of its case, examined CW1 Sh. Pawan Kumar, JE, DCB, who has deposed that on 13.09.2012 at about 04:30 pm, he visited the premises No. II/39, Sadar Bazar, Delhi Cantt., and found that the unauthorized construction was being C.C. No: 271/4 D.C.B. v. Ashok Gupta Page 2/7 carried out by the accused. He prepared the report of unauthorized construction Ex. CW1/A. The unauthorized construction was going by RCC Slab casted on ground floor covering area 3.85 m x 17.80 m, RCC Chajja 4 feet wide also projected on front side, columns RCC casted on first floor and form work to roof of first floor was in progress. He further deposed that the higher officer issued the letter dated 17.09.2012 to the SHO Ex. CW1/B. Photographs of unauthorized construction were taken by CW1 by digital camera Ex. CW1/C1&C2. Notice U/s 248(1) of the Act was also issued to the accused which is Ex. CW1/E. He further deposed that when the accused failed to comply the terms of notice, present complaint Ex. CW1/D has been filed.
4. After closer of the complainant evidence, statement of accused was recorded U/s 313 Cr.P.C., wherein he denied all the incriminating evidence put to him. He further stated that he only carried out repairs as the building was in dilapidated condition C.C. No: 271/4 D.C.B. v. Ashok Gupta Page 3/7 and it was dangerous for living. He chose to lead defence evidence, but later on stated not to lead the same. Hence the DE was closed on 29.04.2016.
5. I have heard Ld. Counsel for the Board, Ld. Counsel for the accused and have carefully gone through the record.
6. The question to be decided in the present case is whether the accused has carried out any unauthorized construction over the property in question or not, which the Board claims belonging to them, in contravention of Section 235 of the Act.
7. CW1 has been cross examined by Ld. Counsel for the accused, wherein he deposed that they do not receive any information of construction but they make routine inspections. Report was prepared on the spot on the same day when inspection was carried out. He admitted that he had not taken C.C. No: 271/4 D.C.B. v. Ashok Gupta Page 4/7 signatures of any witness at the site of inspection. He also admitted that he has not filed the negatives and that photograph is not having any date or time. He do not know how old the premises was. He had not gone through the original site plan showing the actual structure of the premises. CW1 further deposed that they have not filed the original site plan of the building in question. He admitted that as per the Cantonment rules there is no need for seeking permission to carry out repair in the building and only intimation has to be given. He has no knowledge if accused had given intimation for repairs of the building in question. He does not remember if accused had given prior intimation of repair works. He admitted that he had not taken statement of any neighbour to show that he had visited the spot for inspection. He also admitted that he had not checked the background of property related to the age of construction and its condition. He could not say if property was more than 50 years old and its condition had dilapidated and if repairs were not carried out it would have been dangerous for the C.C. No: 271/4 D.C.B. v. Ashok Gupta Page 5/7 people living there.
8. The documents relied on by the Board are the complaint Ex. CW1/D and report Ex. CW1/A. It is note worthy that the report of alleged unauthorized construction does not bear the signatures of accused though as per CW1 accused was found present at the site. So far as the photograph is concerned, CW1 deposed that same was taken through digital camera. However, no certificate U/s 65B of the Indian Evidence Act has been filed by the Board in support of photographs Ex. CW1/C1&C2. Furthermore, it is noted that the Board has failed to prove that the property in question, in fact belong to them. No title document or any revenue record has been proved by the Board to prove that property in question is owned by the Board. For want of any title document in favour of the complainant, it cannot be believed that the Board is the owner or lessor of the property in question. May be that accused require prior permission from the Board, but unless the Board proves that the property in question belong C.C. No: 271/4 D.C.B. v. Ashok Gupta Page 6/7 to them, the accused cannot be convicted for the alleged unauthorized construction/ encroachment.
9. Hence, the complainant Board has miserably failed to prove its case against the accused that on 13.09.2012 at about 04:30 pm, at premises No. II/39, Sadar Bazar, Delhi Cantt., Delhi, he was found carrying unauthorized construction. Resultantly, the complaint is dismissed and accused is acquitted of the charges levelled against him.
Dictated & Announced in Open Court (KISHOR KUMAR) On the 29th day of April, 2016 MM03/SouthWest/Delhi 29.04.2016 C.C. No: 271/4 D.C.B. v. Ashok Gupta Page 7/7