Delhi District Court
State vs Nirmal Kumar on 3 October, 2024
Page 1 of 9
IN THE COURT OF ASHISH KUMAR MEENA
JMFC-01, SAKET COURT (SOUTH) NEW DELHI.
FIR No.:51/2016
PS: Malviya Nagar
U/S: 332/461 DMC ACT
CR. CASE No. 3698/2016
STATE
VS.
NIRMAL KUMAR, S/o SH. MOOL CHAND,
R/O H. NO. S-75, PANSHEEL PARK,
NEW DELHI ...... ACCUSED
1. Sr. No. of the case : 3698/2016
2. The date of offence : 16.11.2015
3. The name of the complainant : DC SDMC
4. The plea of the accused : Pleaded not guilty
5. Argument heard on : 19.07.2024
6. The date of order : 03.10.2024
7. The final order : Acquittal
JUDGMENT
1. Briefly stated, accused Nirmal Kumar ("Accused") is facing trial for the allegations that on 16.11.2015 at S-75, Panchsheel Co-operative Housing Society, Panchsheel Park, New Delhi, within the jurisdiction of PS Malviya Nagar, the accused being builder/occupier/owner of the said property was found carrying out unauthorized construction in the shape of basement and deviation against sanction building plan file no.
ASHISH Digitally signed
FIR No:51/2016 PS: Malviya Nagar State Vs. Nirmal Kumar by ASHISH
KUMAR KUMAR MEENA
Date: 2024.10.03
MEENA 15:28:17 +05'30'
Page 2 of 9
115/A/HO/94, dt. 26.07.1994 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).
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused was summoned after taking cognizance of offence. The accused was charged u/s 332 r/w 461 DMC Act and accordingly, the charge was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined two witnesses. PW-1 Sh. Narender Singh, (the then JE, Building, South Zone, SDMC) has deposed that on 16.11.2015, he was posted as JE at SDMC, South Zone, Green Park, New Delhi. He went to the spot i.e S-75, Panchsheel Park, New Delhi during routine inspection where he found unauthorized construction done by the accused in violation of the site plan approved in 1994. The unauthorized construction was being carried out in the basement. A show-cause notice was pasted outside the property in question on 16.11.2015. The said show cause notice was given to accused. Accused did not respond to the show-cause notice subsequent to which the demolition notice was issued on 24.11.2015 by concerned AE (Bldg.). Thereafter, the criminal complaint was filed against the accused through Deputy Commissioner. The witness has been duly cross- examined on behalf of the accused.
ASHISH Digitally
by ASHISH
signed
FIR No:51/2016 PS: Malviya Nagar State Vs. Nirmal Kumar
KUMAR KUMAR MEENA
Date: 2024.10.03
MEENA 15:28:26 +05'30'
Page 3 of 9
4. PW-2/ASI Padam Kumar (IO of this case) has deposed that on 14.01.2016, a complaint was received by MCD u/s 332/461 DMC Act and same was marked to him by the SHO. SHO endorsed the same and got the FIR registered on 14.01.2016. After registration of FIR, the same was marked to him for investigation. During investigation, he gave notice u/s 91 Cr.P.C. to MCD office for providing information vide Ex.PW2/A. He received all the relevant documents regarding this case from MCD office. On 12.05.2016, he went to the property i.e. S-75, Panchsheel, Cooperative Housing Society, Panchsheel Park, New Delhi. He prepared site plan at the property in question vide Ex.PW2/B. Owner of the property was not present there. Later on, he again visited the property on 23.08.2016. He met with owner of property namely Nirmal Kumar Purohit at the property. The accused show him his authority letter. He took that letter into custody and placed it on record vide Mark-A. He arrested the accused vide arrest memo Ex.PW2/C. Accused was released on police bail. He wrote letter to MCD for seeking permission u/s 467 DMC Act vide Ex.PW2/D. He got permission and he completed the whole investigation, prepared the charge-sheet u/s 332/461 DMC Act and submitted it before the concerned Court.
5. Vide separate statement under Section 294 Cr.P.C. recorded on 08.07.2024, the accused has admitted the present FIR as Ex.A1, Certificate under Section 65 B of Indian Evidence Act supporting the FIR as Ex.A2, complaint u/s 466A DMC Act, dt. 08.01.2016 as Ex.A3 and complaint u/s 466 DMC Act, dt. 16.11.2016 as Ex.A4. In view of the same, remaining witnesses were dropped from the list of witnesses.
ASHISH Digitally by ASHISH signed FIR No:51/2016 PS: Malviya Nagar State Vs. Nirmal Kumar KUMAR KUMAR Date:
MEENA 2024.10.03 MEENA 15:28:32 +05'30' Page 4 of 9
6. On completion of prosecution evidence, statement of accused was recorded u/s 281 Cr.P.C r/w 313 Cr.P.C, wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. He has stated that he is innocent and all the exhibits are false and manipulated. Further, the accused wished not to lead defence evidence.
7. Final arguments heard. Case file perused.
8. Short point for determination before this court is as under:
'' Whether 16.11.2015 at S-75, Panchsheela Co-operative Housing Society, Panchsheel Park, New Delhi, within the jurisdiction of PS Malviya Nagar, the accused being builder/occupier/owner of the said property was found carrying out unauthorized construction in the shape of basement and deviation against sanction building plan file no. 115/A/HO/94, dt. 26.07.1994 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)"
9. 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 accused and hence prayed for conviction of accused as per the ASHISH Digitally signed by ASHISH KUMAR FIR No:51/2016 PS: Malviya Nagar State Vs. Nirmal Kumar KUMAR MEENA Date: 2024.10.03 MEENA 15:28:40 +05'30' Page 5 of 9 evidence produced by the prosecution witnesses.
10. It is argued by the Ld. Counsel for the accused that the accused is innocent and falsely implicated in the present matter.
Ld. Counsel submitted that the Prosecution has failed to prove that accused has raised unauthorized construction as alleged by the prosecution. It is submitted that there is no evidence on record in support of bald allegation, hence, he liable to be get acquitted from all charges.
11. 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 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 Digitally signed ASHISH byKUMAR ASHISH MEENA FIR No:51/2016 PS: Malviya Nagar State Vs. Nirmal Kumar KUMAR Date:
2024.10.03 MEENA 15:28:46 +05'30' Page 6 of 9 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.
12. 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 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.
13. 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 ASHISH Digitally by ASHISH signed FIR No:51/2016 PS: Malviya Nagar State Vs. Nirmal Kumar KUMAR KUMAR Date:
MEENA MEENA 2024.10.03 15:28:54 +05'30' Page 7 of 9 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.
14. The case of the prosecution is that the accused, being in the capacity of builder/occupier/owner of the property in question bearing no. S75, Panchsheel Park, New Delhi has raised unauthorized construction of basement in deviation against sanctioned building plan vide file No. 115/A/HO/94, dt. 26.07.1994. The said construction was found to be in contravention of provision of DMC Act 1957.
15. In view of this court and as discussed above, the prosecution is not only required to prove that the accused is the owner/occupier/builder of the property in question, but the accused has erected or commenced to erect the said unauthorized construction.
16. In this regard, the prosecution has examined the IO/ASI Padam Kumar and inspecting officer the then JE Narender Singh. As alleged, the accused has raised unauthorized construction in deviation of site plan approved in 1994. PW-1 Narender Singh has deposed that he visited the property on 16.11.2015. During inspection, he found that the accused Nirmal Kumar has raised unauthorized construction in deviation of the said plan. Thus, he ASHISH Digitally by ASHISH signed FIR No:51/2016 PS: Malviya Nagar State Vs. Nirmal Kumar KUMAR KUMAR MEENA Date: 2024.10.03 MEENA 15:29:02 +05'30' Page 8 of 9 pasted show cause notice outside the property. PW-2 has deposed that he gave notice u/s 91 Cr.P.C. to MCD office and received all the relevant documents. However, it is to be noted that the most important document i.e. sanctioned building plan vide file No. 115/A/HO/94, dt. 26.07.1994 is not placed on record. The deposition of the witnesses and the complaint of concerned DC, South Zone, MCD clearly suggests that the owner/occupier of property in question was authorized to raise construction to limited aspect as per the said sanction plan. Thus, it was incumbent upon the prosecution to prove that the accused has raised unauthorized construction in deviation of the said plan. In order to prove the said allegation, it was necessary for the prosecution to show that the accused or the owner of the premises was restricted to raise construction beyond the condition of sanction plan. However, the said sanctioned plan is neither tendered in evidence nor placed on record. Further, it is impossible for this court to ascertain if the accused has raised unauthorized construction in deviation of any prior sanctioned plan due to want of evidence. Furthermore, there is no evidence on record that proves that any unauthorized construction was raised by the accused. As per cross-examination of PW-1, it has come on record that PW-1 did not meet accused Nirmal during the inspection. He has admitted that he did not even mentioned the accused name in the show cause notice. Further, he did not take any photograph of unauthorized construction. The prosecution has not placed any documentary evidence to prove that the accused has erected or commenced to erect the property in question.
17. From the aforesaid discussion, it is very clear that the ASHISH Digitally by ASHISH signed FIR No:51/2016 PS: Malviya Nagar State Vs. Nirmal Kumar KUMAR KUMAR Date:
MEENA MEENA 2024.10.03 15:29:08 +05'30' Page 9 of 9 manner in which the investigation has been conducted on the spot, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
18. Hence, accused Sh. Nirmal Kumar S/o Sh. Mool Chand stands acquitted of the offence under section 332/461 of The Delhi Municipal Corporation Act, 1957, he has been charged with. Ordered accordingly.
ANNOUNCED IN THE OPEN COURT ON 03.10.2024. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO NINE PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED.
Digitally signed by ASHISH ASHISH KUMAR MEENA
KUMAR MEENA Date: 2024.10.03
15:29:18 +05'30'
(ASHISH KUMAR MEENA)
JMFC-01/SAKET COURT(SOUTH),
NEW DELHI/03.10.2024
FIR No:51/2016 PS: Malviya Nagar State Vs. Nirmal Kumar