Delhi District Court
Delhi Development Authority vs . on 25 August, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.216:TIS HAZARI COURTS :DELHI
ID NO: 02401R0353362012
CA NO:64/12
CC NO: 216/2001
DDA
vs.
RAMESH KUMAR BUDDIRAJA
U/s 14 r/w 29 (2) of DDA Act'1957
In the matter of
Delhi Development Authority
Through Vice Chairman
INA Vikas Sadan
New Delhi ......... Appellant
Vs.
Ramesh Kumar Buddiraja
Proprietor of M/s Gopal Motors
26/1506, Naiwala
Karol Bagh, New Delhi5 .............Respondent
Appeal against the Impugned Judgment dated 5.10.2011 Date of institution : 03.08.2012 Date of final hearing : 25.08.2012 Date of final order : 25.08.2012 JUDGMENT ON APPEAL
1. This appeal has been preferred by DDA against judgment of acquittal dated 5.10.2011 of Ld. MM whereby respondent herein was acquitted in a criminal complaint under Section 14 r/w 29 (2) DDA Act.
2. I have heard arguments of Ld. Counsel Miss Bina Sharma and Sh. Naresh Sharma advocates and have perused the appeal file.
3. At the onset record reveals that the order impugned is dated 5.10.2011 but the appeal in hand has been filed on 1.6.2012 i.e. after around 8 months of passing of the impugned Page 1/5 of Judgment on appeal DDA vs. RAMESH KUMAR BUDDIRAJA DT/ 25.8.2012 2 judgment of acquittal. As per Article 114 of Limitation Act'1963 period of filing of an appeal under Chapter 29 of the IPC is 90 days for appeal preferred under Section 378 (1) (a) of Cr.P.C. Separate Section 5 Limitation Act application has been filed purportedly signed and supported by affidavit of Sh S.K.Jha . The basic plea taken therein that the file went missing in their office and the appeal was filed only after the file could be traced. This is not at all a satisfactory ground. The application U/s 5 of Limitation Act deserves to be dismissed simply because it has not disclosed any justifiable ground for seeking condonation in delay.
4. Close scrutiny of Penal Provisions invoked i.e. Section 14 and 29 (2) of DDA Act reveals that the maximum sentence imposable is only Rs.5000/ fine . Both the Sections are reproduced hereunder for ready reference.
5. Section 14 of the Delhi Development Act, 1957 : User of land and buildings in contravention of plans: After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise in conformity with such plan:
Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulation made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force.
6. Section 29 (2) of the Delhi Development Act, 1957 runs as under
(2) Any person who uses any land or building in contravention of the provisions of Section 14 or in contravention of any terms and conditions prescribed by regulations under the proviso to that section shall be punishable with fine which may extend to five thousand rupees [ and in the case of a continuing offence, with further fine which may extend to two hundred and fifty Page 2/5 of Judgment on appeal DDA vs. RAMESH KUMAR BUDDIRAJA DT/ 25.8.2012 3 rupees for every day during which such offence continues after conviction for the first commission of the offence.]
7. As per Section 378 (1) (a) Cr.P.C. State can prefer an appeal before the Court of Sessions only in " cognizable and non bailable offence" . The sheer fact that the Penal Provision invoked by DDA contains the sentence of Rs.5000/, is indicative of the fact that Section 14 DDA is neither a a cognizable nor a non bailable offence and is rather a "non cognizable and bailable offence".
8. Section 378 (1) (a) Cr.P.C runs as under
Section 378 (1) Save as otherwise provided in subsection (2), and subject to the provisions of subsections (3) and (5): "(a) The District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non bailable offence;"
9. Even if DDA is not considered to be a State , even then by virtue of Section 378 (4) of Cr.P.C. in a complaint case, an appeal against acquittal can be filed only before Hon'ble High Court and that too after complainant is granted leave to file an appeal against order of acquittal.
runs as under:
10.Section 378 (4) Cr.P.C.
"Section 378 (4) Cr.P.C. If such an order of acquittal is passed in any case instituted upon complaint and the High court, on an application made to it by the complainant in th is behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
11.It is further observed that as per Section 378 (5) Cr.P.C. an application seeking leave to file an appeal before Hon'ble High Court can be filed only within 60 days of the passing Page 3/5 of Judgment on appeal DDA vs. RAMESH KUMAR BUDDIRAJA DT/ 25.8.2012 4 of the order of acquittal sought to be impugned. When the complainant is a public servant, the relevant period of limitation is 6 months.
12.Section 378 (5) Cr.P.C . runs as under:
"Section 378 (5) Cr.P.C. No application under subsection (4) for the grant of special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
13.Coming to the facts of the case / appeal in hand , the decision of DDA to prefer an appeal against an order of acquittal passed by Ld. Magistrate in a non cognizable bailable offence and that too before a Sessions Court after around 8 months of passing of the impugned order , smacks of sheer mechanical way of functioning and ignorance of Legal and Statutory Provisions.
14.Delhi Development Authority, is a Statutory Body, created by our Parliament by Legislating Delhi Development Act'1957. It is surprising that this appeal has been preferred by this Statutory Body under signature of an officer not less than the seniority of a Director. It is interesting to observe that the kind of legal brain storming done prior to filing of this appeal has been mentioned by the appellant itself in Section 5 Limitation Application in following words..... "Legal Department was of the opinion to file the appeal against the impugned judgment dated 5.10.2011 and accordingly Ld. CLA of the DDA had entrusted this case to the P/L Panel Lawyer on 26.6.2012 for filing an nd appeal. The Vacations end only on 2 July and thereafter the P/L received the file from th the Department around 10 of July and immediately the P/L had series of meeting with the officials of the DDA as an appeal has to be filed and it is only after having a Page 4/5 of Judgment on appeal DDA vs. RAMESH KUMAR BUDDIRAJA DT/ 25.8.2012 5 Marathan Discussions , the P/L was able to draft the appeal on 20.7.2012 and had sent the same to the Department / DDA for signature and verification of the competent st nd authority only on 23.7.2012 as 21 and 22 was Saturday and Sunday being non working days in DDA."
15.It is disheartening to observe that despite having so called "Marathan Discussion" , neither the DDA was aware of the Forum which has to be approached for filing such appeal nor were they aware of legal statutory provisions which are very basic to Court procedures. All this is indicative of either having its very basics of law wrong or is a glaring example of mechanical way of functioning without any actual application of mind. Such like lackadaisical work culture is violation of Article 21 of our Constitution.
16.It goes without saying that Districts Courts are clogged with litigations and being Statutory Body run by the Government of the land, at least DDA could have shown some rationalness before deciding casually to prefer an appeal in the manner detailed supra and that too in a petty case which carries the maximum penalty of only Rs.5000/.
17.For the foregoing reasons, this appeal is hereby dismissed with cost of Rs.25,000/ to be deposited with Delhi Legal Aid Service Authority within one month from today failing which copy of this judgment on appeal shall be sent to Vice Chairman , DDA for compliance.
ANNOUNCED AND DICTATED
IN OPEN COURT: 25.8.2012 (SURINDER S. RATHI)
Addl. Sessions Judge02
Central : Delhi
Page 5/5 of Judgment on appeal DDA vs. RAMESH KUMAR BUDDIRAJA DT/ 25.8.2012