Delhi District Court
High Court Of Delhi In Delhi Cantonment ... vs . Smt. Sushma, on 26 September, 2014
IN THE COURT OF SH. VIKRAM, MM03, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI.
C.C. No. : 126/4
U/s : 247 Delhi Cantonment Act
Delhi Cantonment Board,
Delhi Cantt., Delhi 110010
Through its
Chief Executive Officer
.......... Complainant
Versus
Mahesh Jain
3/4/35, Shastri Bazar,
Delhi Cantt 110010
......... Accused
Date of Institution : 15.10.2012
Final arguments heard on : 26.09.2014
Date of Decision : 26.09.2014
Final Order : Acquitted
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, the case is that the present complaint is filed by
the Chief Executive Officer of Delhi Cantonment Board against the
accused Mahesh Jain for having carried out unauthorized
construction in the total area of 2.80 meter x 5.10 meter plus 2.80
meter x 0.95 meter at premises No. III/4/35, Shastri Bazar, Delhi
Cantt., Delhi. The complainant alleged that this construction was
carried without the prior permission of the complainant under the
Cantonment Act and the present complaint is based on the
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inspection carried out by the Junior Engineer on 13.08.2012.
2. The accused has been summoned and copies of complaint
and documents supplied to the accused to his satisfaction.
3. On the basis of material on record, notice for offence u/s
247 Cantonment Act was served upon the accused on 05.07.2013, to
which accused pleaded not guilty and claimed trial and stated in his
defence that he has only carried out repair work and has not done
any illegal construction and further that the inspection carried out
by complainant was illegal.
4. In support of its case, the complainant examined CW1 Ajay
Kumar, JE who deposed that accused was found carrying
unauthorized construction at premises No. III/4/35, Shastri Bazar,
Delhi Cantt., Delhi, on the date of inspection i.e. 13.08.2012. He
also proved the documents viz. Report Ex. CW1/A, notice dated
21.08.2012 Ex. CW1/B, photographs Ex. CW1/C to Ex. CW1/E, the
present complaint Ex. CW1/F and a complaint dated 21.08.2012
sent to SHO, PS Delhi Cantt. Ex. CW1/G. CW1 was duly cross
examined by Ld. Counsel for accused.
5. After completion of complainant evidence, statement of
accused u/s 313 r/w Section 281 Cr.P.C was recorded wherein he
denied all the incriminating evidence against him and took the
defence that he has not made any unauthorized construction
regarding the property in question and has only carried out repairs
as the building was in dilapidated condition and it was dangerous
for living. He further stated that no inspection was being carried
C.C. No: 126/4 D.C.B. v. Mahesh Jain Page 2/6
out.
6. I have heard the counsel for the parties as well as perused the
material and evidence on record.
7. It is argued by Ld. Counsel for complainant that the
inspection report Ex. CW1/A shows the unauthorized construction
in the premises and it has also been shown in photographs Ex.
CW1/C to Ex. CW1/E, therefore, the complainant has proved that
the accused has committed offence u/s 247 Cantonment Act, 2002.
8. On the other hand, Ld. Defence counsel submitted that accused
has not carried out any unauthorized construction but was carrying
out repairs. Ld. Counsel also submitted that the inspection report
as well as the photographs of complainant have failed to prove that
accused was carrying unauthorized construction. Ld. Counsel for
accused has also placed reliance upon the judgment of Hon'ble
High Court of Delhi in Delhi Cantonment Board Vs. Smt. Sushma,
Crl.L.P. NO. 90 of 2009 and on Delhi Cantonment Board Vs.
Kamaljit Gill, Crl. L.P. No. 75 of 2008.
9. CW1 has deposed in his evidence that on 13.08.2012 at about
4:00 PM, he visited premises No. III/4/35, Shastri Bazar, Delhi Cantt,
Delhi, and found unauthorized construction carried by accused in
total area of 2.80 meter x 5.10 meter plus 2.80 meter x 0.95 meter at
first floor with material cement, sand and bricks etc and there were
about two masons and two labourers working.
10. The cross examination of CW1 shows that he did not record
statement of any labour or noted down their name. It also shows
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that CW1 had not seized the construction material on the spot. It
also shows that CW1 was unaware of the site plan which could show
the alteration in the building. Further, it is admitted by CW1 that
the photographs Ex. CW1/C to Ex. CW1/E produced by him in
evidence, does not show the number of property to connect it with
the property in question. CW1 has deposed that construction was
going against building bye laws but has failed to show what bye laws
have been violated. CW1 also states that accused was present at the
site at the time of inspection, but he did not take photographs of the
accused.
11. Evidence led by a prosecuting party must be assertive enough
to prove all allegations beyond reasonable doubt. The report Ex.
CW1/A purportedly show construction in the premises in form of
columns, rooms, kitchen etc. I find the purported sketch of the
property contained in report Ex. CW1/A do not constitute any
indication of construction. Any construction related activity would
have been better proved by the deposition of the bar binders and
labourers allegedly working at the spot. Yet not one of these
workers was either named or their statements recorded. Why CW1
omitted such a prudent course of action is difficult to imagine.
12. Also, construction can not be alleged without a basic reference
point viz., a construction plan of the premises. If the property had
actually vested in the government and a previous structure existing
at the spot was demolished by the accused, a plan of the earlier
construction should have existed and was required to be filed in
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Court. This was not done. Resultantly, there is no plan available to
the Court for comparison.
13. In Delhi Cantonment Board Vs. Smt. Sushma, it has been
held "ingredients of Section 184 of the Act are required to be proved by the
complainant by showing, with reference to any sanctioned plan, that the construction
found to have been carried out was in fact unauthorized. Further the photographs
taken of the unauthorized construction would be contemporaneous evidence and would
definitely have to be proved in accordance with law."
14. Further in Delhi Cantonment Board Vs. Kamaljit Gill, it has
been held that, " the trial court in the impugned judgment referred to the cross
examination of the prosecution evidence. During the cross examination the prosecution
has failed to disclose the exact construction existing at the site at the time of allotment
so as to carry out comparison of the construction existing on the date of the allotment
and on the date of alleged inspection of the site. The court also found that merely
plastering of walls and laying of asbestos sheet in an old construction by no stretch of
imagination could amount to raising of a new construction warranting action against
the respondent under Section 184 of the Cantonment Act, 1924.
The counsel appearing for the applicant has failed to point out as to how the said order passed by the trial court can be termed as illegal, irrational or perverse in any manner."
15. Section 247 Cantonment Act which provides for punishment for carrying out construction without prior permission as required under Section 235 and 236 of the Act is corollary of Section 184 of C.C. No: 126/4 D.C.B. v. Mahesh Jain Page 5/6 the Old Act. The requirement of the offence under both the Acts are same.
16. The solitary account of CW1 does not disclose convincingly enough that the property was either government property, that permission was required for construction or that any construction took place. The photographs being inadequate, the inspection report being sparse and the workers not being examined spell doom for the allegations of the complainant. I am of the considered opinion that the complainant has failed to prove its case against the accused and hence, the accused is acquitted of the charges leveled against him.
Dictated & Announced in Open Court (Vikram) th On the 26 day of September, 2014 MM03/SouthWest/Delhi 26.09.2014 C.C. No: 126/4 D.C.B. v. Mahesh Jain Page 6/6