Delhi District Court
9. Further In Delhi Cantonment Board vs . Kamaljit Gill, It Has on 15 January, 2016
IN THE COURT OF SH. VIKRAM, MM03, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI.
C.C. No. : 92/4
U/s : 247 Delhi Cantonment Act
Delhi Cantonment Board,
Delhi Cantt., Delhi 110010
Through its
Chief Executive Officer
.......... Complainant
Versus
Smt. Anju Jain
W/o Sh. Praveen Jain
R/o H.No. III/4/40, Sham Singh Street,
Gopi Nath Bazar, Delhi Cantt 110010
......... Accused
Date of Institution : 15.05.2012
Final arguments heard on : 15.01.2016
Date of Decision : 15.01.2016
Final Order : Acquitted
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The complainant is a board constituted under section 10 of
The Cantonments Act 2006 (hereinafter referred to as 'the Act')
having jurisdiction over Delhi Cantt area. Chapter X of the Act
prescribes about town planning and control over buildings and it
requires every resident of the Cantonment Area to apply for
sanction u/S 235/236 of the Act, in case he intends to erect or re
erect any building and the Board enjoys the power to allow or refuse
such sanction u/S 238 of the Act. Such erection or reerection of
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building without sanction constitutes an offence u/S 247 of the Act.
2. JE Ajay Kumar is an employee of complainant who enjoys the
power to inspect the area. On 28.03.2012 during such inspection at
11.00 AM at H.No. III/4/40, Shyam Singh Street, Gopi Nath Bazar,
Survey No.52/1, Delhi Cantt., New Delhi, he found illegal
construction going of which he prepared inspection report
Ex.CW1/A and took photographs Ex.CW1/D1 to D4 and reported
the matter to CEO. The CEO then issued notice Ex.CW1/C
demanding stoppage of construction and demolition of illegal
construction, sent complaint to SHO PS Delhi Cantt which is
Ex.Cw1/B to stop such construction and filed the complaint
Ex.Cw1/E before the court.
3. Since the complaint was filed by a public servant in his official
capacity formal examination of complainant u/S 200 Cr.P.C was
dispensed with and the accused was summoned. On appearance
and after admitting her on bail, the accused was supplied with copy
of complaint and she was served with notice u/S 251 Cr.P.C for
commission of offence u/S 247 of the Act. To this notice accused
pleaded not guilty and claimed trial.
4. To prove its case complainant produced JE Ajay Kumar in
witness box as CW1 who proved documents ExCw1/A to Ex.Cw1/E.
He was cross examined. As the complainant closed its evidence all
the substance including documents were put to accused to which
she claimed that she was not carrying out any unauthorised
construction but was doing some repairs.
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5. I have heard the parties and perused the record.
6. The evidence led by prosecution must be assertive enough to
prove all allegations beyond reasonable doubt. Besides testimony
of CW1 there is nothing on record except inspection report
Ex.Cw1/A and photographs Ex.CW1/D1 to D4. The sketch of the
property contained in the report do not constitute any indication of
construction. The photographs though show that there is some
construction going but none of these photographs give any definite
finding that these are of the property of the accused. No
photographs are showing any house number, gali, lane etc.
7. Further, the 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 Court. This was not done. Resultantly, there is no plan
available to the Court for comparison.
8. As relied by Ld. Defence counsel in Delhi Cantonment Board
Vs. Smt. Sushma, it has been held that
"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."
9. Further in Delhi Cantonment Board Vs. Kamaljit Gill, it has
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been observed, while dismissing the appeal against acquittal of
accused, 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."
10. Similar is the case here. The sole witness of complainant 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, during cross examination.
11. Section 247 of the Act provided for the same provisions in Section 184 of the Cantonment Act, 1924. In view of the ratio of above judgments, I find that the solitary account of CW1 does not disclose convincingly enough that the property was either government property or 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. The complainant, in my opinion, has failed to prove its case against accused hence, the accused is acquitted of the charges leveled against her.
Dictated & Announced in Open Court (Vikram)
On the 15h day of January, 2016 MM03/SouthWest/Delhi
15.01.2016
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