Delhi District Court
State vs Sanjay Ahuja Etc on 21 June, 2024
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IN THE COURT OF ASHISH KUMAR MEENA
MM-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.:1453/2014
PS: Mehrauli
U/S: 332/461 DMC ACT r/w 120 B/34 IPC
STATE
VS.
(1) SANJAY AHUJA S/O SH. JAI DAYAL,
R/O H.NO K-34, KHIRKI EXTENSION,
MALVIYA NAGAR, NEW DELHI.
(2) KAPIL KUMAR S/O SH. MAUSSADI LAL
R/O H.NO A-61, CHHATTARPUR EXTENSION,
MEHRAULI, NEW DELHI
...... ACCUSED PERSONS
1. Sl. No. of the case : 3765/2014
2. The date of offence : 16.07.2014
3. The name of the complainant : DC SDMC
4. The plea of the accused : Pleaded not guilty
5. Argument concluded on : 06.06.2024
6. The date of order : 21.06.2024
7. The final order : CONVICTED
JUDGMENT
1. Briefly stated, accused Sanjay Ahuja ("Accused No.1") & Kapil Kumar ("Accused No.2") are facing trial for the allegations that on 16.07.2014 at property between E-56 & E-55/2 and opposite E-51 Chhatarpur Extension, New Delhi, within the FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr. ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2024.06.21 MEENA 12:33:33 +05'30' Page 2 of 12 jurisdiction of PS Mehrauli, the accused Sanjay Ahuja being owner/occupier, in furtherance of common intention and under criminal conspiracy with builder/ occupier Kapil Kumar, were found carrying out unauthorized construction in the shape of stilt to first floor without permission/sanction from the concerned authority of South Delhi Municipal Corporation (SDMC). Thus, the accused was booked under the Section 332 r/w 461 of The Delhi Municipal Corporation Act, 1957 (DMC Act) r/w 120B/34 IPC.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused persons were summoned after taking cognizance of offence. The accused were charged u/s 332/461 DMC Act r/w 120B/34 IPC and accordingly, the charge was framed against the accused persons to which they pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined four witnesses. PW-1 Sh. Amarjeet Singh, the then JE SDMC, has deposed that he found unauthorized construction at property in question. He found unauthorized construction done by the accused no.2 Kapil Kumar. The accused raised construction in the shape of stilt to first floor without any valid sanction/permission. He reported the FIR to concerned AE vide Ex. PW1/A. He affixed the show-cause notice outside the property in question. The said show cause notice was given to Kapil Kumar, to which he did not respond. Thus, the order for demolition was passed. Thereafter, the criminal complaint was filed by the then DC SDMC. During investigation, he was called by the IO at place of incident. IO/HC Vikas Mavi prepared the site plan vide Ex.
ASHISH Digitally signed
by ASHISH
FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr. KUMAR KUMAR MEENA
Date: 2024.06.21
MEENA 12:33:53 +05'30'
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PW1/B and recorded his statement u/s 161 Cr.P.C.
4. PW-4 ASI Vikas Mavi (the then HC), IO of this case, has deposed that he obtained relevant documents from MCD. He recorded the statement of inspecting officer Sh. Amarjeet Singh and prepared site plan at his instance. He visited the spot met the builder, who narrated that he is constructing the building with collaboration with Sanjay Ahuja and Pawan Kumar. Thereafter, accused no.1 Sanjay Ahuja handed over ownership document pertaining to property in question vide Ex. PW4/A. On interrogation, accused Kapil Kumar revealed that he is raising the construction on the basis of collaboration agreement executed between both the accused. The said collaboration agreement is Ex. PW4/C.
5. PW-2 ASI Manoj Kumar is second IO of this case. He has deposed that he formally prepared the charge-sheet as HC Vikas Mavi had completed the investigation. He obtained prosecution sanction from concerned DC SDMC u/s 467 DMC Act. On completion of investigation, he filed the charge-sheet. Furthermore, PW-3 Sh. Rajeev Kumar, Officer In-charge SDMC has certified that the handed over the true copies of documents pertaining to property in question to IO of this case.
6. Vide separate statement of accused persons under Section 294 Cr.P.C recorded on 29.08.2023, the accused persons have admitted the present FIR bearing No. 1453/2014 as Ex. A1, Certificate under Section 65 B of Indian Evidence Act supporting the FIR as Ex. A2, complaints of DC, South Zone, SDMC dated as Ex. A3 & A4.
ASHISH Digitally by ASHISH signed FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr. KUMAR KUMAR MEENA Date: 2024.06.21 MEENA 12:34:01 +05'30' Page 4 of 12
7. On completion of prosecution evidence, statement of accused persons were recorded u/s 281 Cr.P.C r/w 313 Cr.P.C, wherein all the incriminating evidence was put to the accused persons, to which they stated that they have been falsely implicated in this case and all the exhibits are false and manipulated. Further, the accused person wished not to lead defence evidence.
8. Final arguments heard. Case file perused.
9. Short point for determination before this court is as under:
'' Whether 16.07.2014 at property between E- 56 & E-55/2 and opposite E-51 Chhatarpur Extension, New Delhi, within the jurisdiction of PS Mehrauli, the accused Sanjay Ahuja being owner/occupier, in furtherance of common intention and under criminal conspiracy with builder/ occupier namely Accused Kapil Kumar, were found carrying out unauthorized construction in the shape of stilt to first floor without permission/sanction from the concerned authority of South Delhi Municipal Corporation (SDMC).
Thus, the accused was booked under the Section 332 r/w 461 of The Delhi Municipal Corporation Act, 1957 (DMC Act) r/w 120B/34 IPC."
10. 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 ASHISH Digitally signed by ASHISH KUMAR FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr. KUMAR MEENA Date: 2024.06.21 MEENA 12:34:09 +05'30' Page 5 of 12 accused and hence prayed for conviction of accused as per the evidence produced by the prosecution witnesses.
11. It is argued by the Ld. Counsel for the accused that the accused persons are innocent and falsely implicated in the present matter. Ld. Counsel submitted that the Prosecution has failed to prove that accused persons have erected the said property in question. It is submitted that the accused persons have no interest or connection with the property in question. Further, it is submitted that the prosecution has no evidence against the accused persons, hence, they are liable to be get acquitted from all charges.
12. 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 ASHISH Digitally signed by ASHISH FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr.
KUMAR KUMAR MEENA
Date: 2024.06.21
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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
(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.
13. 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 provisions of Chapter XVI and of the bye-law make under the Act in relation to the erection of buildings. The MCD has been ASHISH Digitally signed by ASHISH FIR No:1453/2014 PS: Mehrauli KUMAR State Vs. Sanjay Ahuja @ Anr. KUMAR MEENA Date: 2024.06.21 MEENA 12:34:28 +05'30' Page 7 of 12 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.
14. 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.
15. The case of the prosecution is that the accused Sanjay Ahuja being owner/occupier, with connivance of builder Kapil Kumar was found carrying out unauthorized construction in the shape of stilt to first floor at property in question without any sanction from concerned Commissioner of SDMC.
16. In view of this court and as discussed above, the prosecution is not only required to prove that the accused Sanjay Ahuja is owner/occupier and accused Kapil Kumar is builder of the property in question, but the accused persons have jointly erected or commenced to erect the said unauthorized construction. ASHISH Digitally signed by ASHISH FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr. KUMAR KUMAR MEENA Date: 2024.06.21 MEENA 12:34:39 +05'30' Page 8 of 12
17. In this regard, the prosecution has examined the inspecting officer/ the then JE, PW-1 Sh. Amarjeet Singh, who has supported the version of prosecution. He has deposed that on 16.07.2014, he noticed ongoing unauthorized construction in the shape of stilt to first floor being raised at house situated in between E-56 and E- 55/2, opposite E-51, Chattarpur Extension, Mehrauli. Thus, he initiated the prosecution and prepared First Hand Report vide Ex. PW1/A, which also reflects that he met builder accused Kapil Kumar at the spot raising such unauthorized construction. He prepared site plan vide Ex. PW1/B. He issued show cause notice u/s 344(1) and 343 of DMC Act vide Mark C and demolition notice vide Mark D, Mark E & Mark F. As per the statement of witness, it is clear that unauthorized was being carried out at the time of inspection. It is also clear that the property was traceable and concerned show notices were brought to the knowledge of the accused persons.
18. Furthermore, 1st IO/PW2 HC Vikas Mavi has deposed he visited the property in question alongwith Sh. Amarjeet Singh and prepared the site plan Vide Ex. PW4/B. During investigation, he met accused no.1, who handed over title deed of property in question vide Ex. PW4/A and collaboration agreement duly executed between both accused for raising construction vide Ex. PW4/D. The IO also recorded their disclosure statement, wherein they both admitted that accused no.1 Sanjay Ahuja is owner of the property in question and accused Kapil Kumar is the builder. It is also in admission that vide separate collaboration agreement, accused Kapil Kumar will raise construction for accused no.1 at the property in question. On careful perusal of Ex. PW4/A, it clearly reveals that the accused Sanjay Ahuja and one Pawan State Vs. Sanjay Ahuja @ Anr. ASHISH Digitally signed FIR No:1453/2014 PS: Mehrauli by ASHISH KUMAR KUMAR MEENA Date: 2024.06.21 MEENA 12:34:50 +05'30' Page 9 of 12 Kumar have purchased the property bearing Plot No. E-55 & E- 56, Khasra No. 874 & 874/2, Chattarpur Extension, New Delhi. The particulars of property in question completely matches with the description specified in the site plan vide Ex. PW1/B and PW4/B. Thus, the prosecution has remained successful to establish the identification of property in question. Furthermore, Ex. PW4/D reveals that the accused Sanjay Ahuja and Kapil Kumar entered into collaboration agreement on 23.04.2014. As per Ex. PW4/D, the accused Kapil Kumar agreed to raise construction for accused Sanjay Ahuja. Ex. PW4/D not only proves that the builder accused Kapil Kumar was raising unauthorized construction but also proves the active involvement of accused Sanjay Ahuja in commission of an offence u/s 332/461 DMC Act. Thus, mere existence of title deed and collaboration agreement itself shows the culpability of both accused persons.
19. Furthermore, the witnesses examined by prosecution clearly shows that the accused Sanjay Ahuja is the owner/occupier of the property in question, who entered into collaboration agreement with builder accused Kapil Kumar for raising the said unauthorized construction. In pursuance of collaboration agreement, accused Kapil Kumar was caught raising the said unauthorized construction by the then JE SDMC Sh. Amarjeet Singh. Moreover, the accused persons have admitted both the complainant made by concerned DC, South Zone, New Delhi seeking prosecution of present case. All witnesses have thoroughly cross-examined, but no variation or contradiction can be seen in their statements. It is pertinent to mention that during cross- examination, Ld. Counsel for accused persons have given suggestion that the prosecution has not filed any photographs of ASHISH Digitally signed by ASHISH FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr.
KUMAR KUMAR MEENA
Date: 2024.06.21
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ongoing construction. In view of this Court, mere non-filing of said photographs does not make prosecution case weak as Ex. PW4/D clearly proves criminal intention of both parties for raising unauthorized construction. The accused persons are only seeking their acquittal on the basis of minor inadvertence; however, the witnesses are of sterling quality. Their version has remained unrebutted and duly proved. In this regard Hon'ble Supreme Court of India in case titled as Rai Sandeep @ Deepu v. State, (2012) 8 SCC 21 has held as under:
"22. In our considered opinion, " the sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the ASHISH Digitally by ASHISH signed FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr. KUMAR KUMAR Date:
MEENA MEENA 2024.06.21 12:35:09 +05'30' Page 11 of 12 occurrence, the persons involved, as well as the sequence of it. Such a version should have co relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be started that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that as such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which they guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
20. Thus, in view of above discussion it is established that accused Sanjay Ahuja being owner/occupier of the property in question have commenced to erect unauthorized construction at ASHISH Digitally signed by ASHISH FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr.
KUMAR KUMAR MEENA
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property in question. It is also proved that the accused Kapil Kumar, in capacity of builder, has erected the said unauthorized construction at the property in question with assent of co-accused Sanjay Ahuja, 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 r/w 34 IPC against the accused persons beyond reasonable doubts. Accordingly, accused SANJAY AHUJA and KAPIL KUMAR are hereby convicted for the offence u/s 332/461 DMC Act r/w34 IPC.
22. Let the copy of judgment be given free of cost to the convicts.
23. Let the convicts be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 21.06.2024. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO TWELVE PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED.
Digitally signed by ASHISH ASHISH KUMAR MEENA
KUMAR MEENA Date: 2024.06.21
12:35:27 +05'30'
(ASHISH KUMAR MEENA)
MM-01/SAKET COURT(SOUTH),
NEW DELHI/21.06.2024
FIR No:1453/2014 PS: Mehrauli State Vs. Sanjay Ahuja @ Anr.