Delhi District Court
Cc No. 1275/1 Mcd vs . Ashish Khanna Etc 1/13 on 11 February, 2013
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE SAKET COURTS:
DELHI
In Re: MCD V. ASHISH KHANNA ETC
CC No. 1275/1
U/s 347/461/466 of DMC Act 1957
Date of Institution of Case : 27.11.2001
Judgment Reserved for : 11.02.2013
Date of Judgment : 11.02.2013
JUDGMENT:
(a) The serial no. of the case :1275/01
(b) The date of commission of offence : 25.08.2001
(c) The name of complainant : MCD
(d) The name, parentage, of accused : 1. Ashish Khanna s/o Sh. Satinder Khanna, R/o B23, Ground Floor, Greater Kailash, New Delhi
2. Ravi Chandra s/o Jeevan Chandra, R/o C140, DDA flats, Kalkaji, New Delhi.
Present Address : As above
(e) The offence complained of : U/s 347/461/466 of DMC Act 1957
(f) The plea of accused : Pleaded not guilty
CC No. 1275/1 MCD Vs. Ashish Khanna etc 1/13
(g) The final order : Both accused acquitted
(h) The date of such order : 11.02.2013
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 25.08.2001 at 05.30 pm, accused Ashish Khanna and Ravi Chandra were found using property No. B23, Ground Floor, GK I, New Delhi for commercial purposes i.e. for running a shop/office in the name & style of M/s SISA Trading Company which was in contravention of the sanctioned/permissible use as per which the premises could be used only for residential purpose and thus thereby the accused persons have committed an offence punishable u/s 347/461/466 of DMC Act 1957.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused persons were supplied the documents. Thereafter vide orders dated 04.02.2003, notice u/s 347/461/466 of DMC Act 1957 was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined five witnesses, thereafter the PE in the matter was closed and the statement of accused persons u/s 313 Cr.P.C was recorded wherein they claimed themselves to be innocent and having been falsely implicated in the case. They also examined one witness in their defence.
CC No. 1275/1 MCD Vs. Ashish Khanna etc 2/13 A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Sh. R.S. Nagar produced the lay out plan of B23, Greater KailashI, copy of same is Ex. PW1/A. He further produced that as per the lay out plan the land use of the property is residential.
5. PW2 Sh. Sushil Kumar deposed that he was posted as Assistant Engineer (Building) in South Zone of the MCD during the year 2000 to 2001 and in due discharge of his official duties he had verified the report of JE Sh. Vinod Sharma regarding misuse of property no. B23, Ground Floor, Greater Kailash, New Delhi. As per his endorsement at point A on Ex. PW2/A the report of JE is at point B. He deposed that he had submitted the report of JE duly verified by him at point A and C to Sh. Vijay Kadyan, Executive Engineer.
6. During his cross examination he stated that it is a matter of record as to when the building was constructed. He stated that he does not know when the building was constructed. He stated that he did not visit the spot in question. He stated he cannot tell the exact number of misuser in the B Block Greater Kailash I, New Delhi. He stated that he relied upon the report of JE and as per layout plan he verified the report since he does not have any reason to disbelieve the report of JE. He stated that the verification of the report of JE was done by him without inspecting the site in question. He stated that he is CC No. 1275/1 MCD Vs. Ashish Khanna etc 3/13 not aware if there are any units G9 and G10 in B23, Greater Kailash, New Delhi.
7. PW3 Sh. Vinod Sharma deposed that he was posted as JE (Building) in South Zone of MCD during the year 2001. He deposed that he was Incharge of GKI area. He deposed that on 25.08.2001 at about 05.30 p.m. he had visited property no. B23, Ground Floor Greater Kailash Part I, New Delhi in routine duties and found the commercial activity in the name and style of M/s SISA Trading Company being run at ground floor at the instance of Sh. Ashish Khanna and Sh. Ravi Chandra without obtaining any written permission from the Commissioner of MCD. He deposed that both the accused persons met him at the site at the time of his inspection and he asked them to show the written permission or any document for running the said commercial activity but they did not show him any such permission except delivered to him the visiting card, same is Mark A. He deposed that according to lay out plan Ex. PW1/A the sanctioned and permissible use of the property in question is residential. He deposed that he had also seen the sign board hanging outside the shop in question in the name and style of M/s SISA Trading company. He deposed that on the basis of site inspection he prepared prosecution report Ex. PW2/A. He deposed that the report duly prepared and signed by him was submitted to Sh. Sushil Kumar, AE for obtaining further orders against the accused.
8. During his cross examination he stated that the building was already constructed. He stated that he does not know whether the building was used for commercial activity CC No. 1275/1 MCD Vs. Ashish Khanna etc 4/13 prior to the date of his inspection. He stated that number of shops were in existence from basement and ground floor at the time of his inspection. He stated that he cannot tell the exact number of the prosecution recommended by him at the premises in question however 4 to 5 prosecution cases for misuse were recommended by him on the said date. He stated that he cannot tell the exact number of units existing in B23. He stated that he did not notice any numbering of the units. He stated that both the accused persons were found present in the shop. He stated that at the time of inspection no customer was found present in the shop. He stated that at the time of inspection he noticed some wooden frames, certain antiques and flower pots etc. were lying in the shop. He denied the suggestion that actually decoration pieces were lying in the office. He stated that he went through the house tax record in respect of the shop in question after the inspection. He denied the suggestion that property in question is being shown as commercial in house tax record. He stated that he does not know if electricity bills are being raised for the said premises on commercial basis. He stated that he does not know if property no. B17, B24, 41, 43, 45 and 58 are being used for commercial purposes or that this fact was within his knowledge. He admitted that in prosecution report he did not mention that the premises was being used as shop cum office. He denied the suggestion that the premises in question was not being used as a trading company or that actually the same was being used by a lawyer as his office.
9. PW4 Sh. Brij Mohan, Clerk, Urban Development, GNCTD duly proved copy of notification dated 10.08.1990 as Ex. PW4/A. CC No. 1275/1 MCD Vs. Ashish Khanna etc 5/13
10. PW5 Sh. Manoj Kumar deposed that he was posted as Deputy Commissioner, South Zone, MCD from 19.07.2001 to 26.08.2002 and the prosecution report Ex. PW2/A was forwarded to him by Sh. K.P. Singh, Superintending Engineer for according the sanction in the month of September 2001 against the accused as he was found having changed the use of premises from residential to commercial. He proved his signatures as well as his endorsement on the back of this exhibit at point A to A1. He deposed that as he was empowered by virtue of notification dated 10.08.1990 to accord the sanction of prosecution and to lodge the criminal complaint, the criminal complaint Ex. PW5/A was lodged under his signatures appearing at point A, B and on affidavit at point C and D.
11. During his cross examination he stated that the Engineering wing and the Legal wing of MCD had drafted the complaint. He stated that the complaint was drafted under the supervision of the then EE Mr. Kadyan and SE Mr. K.P. Singh. He stated that he does not have personal knowledge as to whether the accused was merely the occupier or the owner as well of the property in question. He voluntarily stated that he had accorded his sanction for prosecution on the basis of report prepared by the JE and forwarded by EE. He stated that he does not recollect now as to the nature of commercial activities reportedly carried on by the accused. He voluntarily stated that he can check the records and tell the same. He stated that the accused was found running a shop/office in the name & style of M/s SISA Trading Company. He admitted that the words "shop" and "office" have different meanings. He stated that he cannot tell precisely as to whether it was a CC No. 1275/1 MCD Vs. Ashish Khanna etc 6/13 shop or an office. He stated that the sanction was granted by him around 10 years back and it is difficult for him to remember now the nature of records relied upon by him to grant the sanction. He stated that he has no personal knowledge of the present case which includes the inspection. He stated that the powers of inspection lying with the MCD has been delegated to the different officials of the department. He stated that there is an inspecting staff comprising of Jr. Engineer and other officials of MCD especially for this purpose. He stated that there is no office order delegating the power on record. He admitted that there is no document on record to show that PW3 was granted power/authority to inspect the premises in question. He denied the suggestion that PW3 had no authority to inspect the premises. He stated that he does not remember now as to whether 10/15 other properties in the same building were inspected on the same date or whether he had granted sanction for prosecution for those properties. He stated that he has no personal knowledge as to whether property no. B/23, single Storey, ground floor is a bungalow or multi Storey building. He stated that he is not aware whether the entire property comprises of shops and offices and no residential unit is located therein. He stated that he is not aware whether since the building was constructed it has been used only for commercial purposes. He stated that he does not know whether the premises which was inspected was a lawyer's office and owner of same was Mr. Lalit Bhasin. He stated that he does not know whether the premises is being charged for the purposes of electricity and house tax as a commercial property/unit. He denied the suggestion that the MCD had allowed the building to be run for/used for commercial purposes as seen from CC No. 1275/1 MCD Vs. Ashish Khanna etc 7/13 perusal of lay out plan wherein the same is situated amongst bungalow plots. He stated that he is not aware whether the earlier occupants of property have also been prosecuted. He denied the suggestion that he has not applied his mind to the facts of the case and granted sanction in a routine manner. He denied the suggestion that he was deposing falsely.
12. This so far is the evidence led by complainant/MCD in the present matter. The accused persons also examined one witness in their defence.
13. DW1 Sh. Sanjay Bhagat deposed that he was working as DGM Business, BSES Nehru place Delhi and produced test report dated 22.04.1999 in favour of the building no. G10, Ground Floor, B23, G.K.I, New Delhi, copy of same is Mark DW1/A. He deposed that as per test report the electricity connection was for commercial use. He also produced meter book sheet from 22.04.1999 to 16.08.2003, copy of same is Mark DW1/B.
14. During his cross examination he stated that he cannot say from the perusal of the documents that what commercial activities was carried out at the time of installation of meter in this property.
15. I have heard the arguments advanced at bar by the learned defence counsel as also the learned AMP for MCD. I have also carefully gone through the evidence recorded CC No. 1275/1 MCD Vs. Ashish Khanna etc 8/13 in the matter and perused the documents placed on record by complainant/MCD in this case.
16. After going through the material on record and giving my thoughtful consideration to the rival contentions raised at bar I am of the opinion that the complainant/MCD has miserably failed to bring home the guilt against the accused persons.
17. In order to establish its case the MCD/ complainant had to prove beyond reasonable doubt that premises bearing no. B23, Ground Floor, Greater Kailash, New Delhi was being used by accused persons for running an office in name of M/s SISA Trading company i.e. commercial purposes whereas the said premises could only be used for residential purposes. However, the prosecution could neither connect the accused persons with the premises in question nor could it even remotely establish that an office as alleged was being run from the premises in question.
18. The star/material witness of the prosecution was JE Vinod Sharma who was examined as PW3 as it was his inspection of the premises which led to the present prosecution against the accused persons. However his deposition did not inspire confidence and suffered from numerous inconsistencies.
19. Though PW3 Sh. Vinod Sharma claimed that on 25.08.2001 he had visited/inspected the premises in question however during the cross examination by Ld. CC No. 1275/1 MCD Vs. Ashish Khanna etc 9/13 Defence counsel the witness fumbled and could not withstand the grilling cross examination. When he was asked to give the description of the premises in question his answers/statement remained anything but satisfactory. For example he could not tell the total number of units which existed in the property in question. He also could not tell what was the status of the adjoining properties i.e. what kind of activities was going on there. All this casts serious doubts upon his claims that he visited the property. In fact he even failed to describe as to what kind of activity was actually being carried out at the premises at the time of his inspection. He stated during his cross examination "at the time of inspection I noticed some wooden frames, certain antiques and flower pots etc were lying in the shop". This is the best description given by the witness/JE regarding the kind of activity going on in the premises in question. From the above statement it cannot even distantly/remotely concluded as to what was the nature of activity being carried out at the premises in question to bring it within the misuser clause. Though he claimed that he has inspected the premises but neither his prosecution report nor during his testimony he could describe as to what was the commercial activity which entailed the present prosecution by him. No doubt he had claimed during his statement that one sign board of M/s Sisa Trading Company was hanging outside the shop however during the entire trial he could not and for that matter the complainant i.e. MCD could not explain to the court as to what kind of activity M/s Sisa Trading Company if indeed it was functioning/operating from the premises in question was carrying out at the relevant time. Neither the JE nor the other MCD officials i.e. AE, SE or DC bothered to collect the CC No. 1275/1 MCD Vs. Ashish Khanna etc 10/13 requisite information from the concerned department for example Sales Tax, Income Tax, DDA etc and place it along with the prosecution report or during the trial to substantiate their claims.
20. During the entire trial prosecution could not bring on record any document to connect the accused persons with the premises in question. No document of ownership or any other document in the form of any lease /license agreement could be brought on record by MCD/complainant to connect the accused persons with the premises in question. The testimony of the JE as well as other witnesses examined on behalf of the MCD makes it amply clear that no efforts whatsoever was made by them or any other concerned official of the Building Department Municipal Corporation of Delhi to substantiate the claim of occupation and misuser of the premises by the accused persons. I am not inclined to fasten any penal liability upon the accused persons upon a bare/oral statement of the JE when there is nothing to corroborate his claims. Some documents should have been collected by the JE and produced in the court during the trial to connect the accused persons with the premises in question. There is not even a single document linking the accused persons with the premises in question. The JE who had prepared the prosecution report ought to have made some efforts so as to give some weightage to his prosecution report/present complaint. If indeed a commercial activity in the form of office or shop was being run from the premises in question then the JE ought to have collected some material from Sale Tax Department or the Income Tax Department or Bank or CC No. 1275/1 MCD Vs. Ashish Khanna etc 11/13 atleast one or two photographs showing the office and the kind of activity carried out in it. He admitted during his cross examination that he did not take any photograph at the time of his visit. In the absence of any photographs or report from Sale Tax Department or any other documentary or oral proof no presumption can be drawn that indeed the premises was being used for running a shop/office much least by the accused persons
21. Though Ld. AMP for MCD relied upon two judgment of Hon. High Court of Delhi titled as MCD Vs. Bhujbir Singh dated 17.01.1997 and another titled as Surender Singh Vs. MCD dated 30.11.2011 while arguing that ownership was irrelevant i.e. MCD was not required to prove that the accused was owner of the premises in question. However I do not agree with the Ld. AMP for MCD. Firstly both the above rulings were regarding unauthorized construction wherein the liability is affixed on the person carrying on the construction in contravention of the building by laws. Secondly, if not the ownership then alteast MCD was expected/bound to prove that the accused was somehow related to the property/premises in question i.e. either as a landlord or a tenant or a licensee. Unless the accused persons are connected with the property no liability can be affixed upon him. As is the case MCD failed to connect the accused persons with the premises in question. Similarly apart from the bare statement of the JE there is no proof of misuser.
22. Apart from JE Vinod Sharma i.e. PW3 the remaining witnesses examined by MCD are formal in nature. Admittedly none of them had ever visited the premises in question CC No. 1275/1 MCD Vs. Ashish Khanna etc 12/13 and none of them made any efforts to seek clarification from JE as to the material relied upon by him for substantiating the prosecution report. Admittedly none of them bothered to verify the claims of the JE regarding the ownership/occupation of premises by the accused. The Assistant Engineer, the Executive Engineer, the Superintending Engineer and the DC concerned admitted that while forwarding the report and granting sanction for prosecution they did not bother to verify the claims of JE regarding the ownership/occupation by the accused persons. They admittedly did not bother to check the ownership documents of the premises nor made any efforts to even prima facie satisfy themselves regarding the claims of JE. No proof of misuser in the form of report from their department or DDA or Sale Tax or Income Tax Department etc. was sought by them and it seems that they forwarded the report of JE blind foldedly in a routine manner without applying their minds.
23. Hence the MCD/ complainant could neither connect the accused persons with the premises in question nor it could prove the misuser. Accused persons are entitled to acquittal.
24. I order accordingly.
Announced in the open (Gaurav Rao)
Court on 11.02.2013 MM (SD)/Delhi
CC No. 1275/1 MCD Vs. Ashish Khanna etc 13/13
CC No. 1275/1 MCD Vs.Ashish Khanna
11.02.2013
Pr: Ld. AMP for MCD.
Both accused persons are on bail present today along with their counsel. Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao) MM (SD)/Delhi.
11.02.2013
CC No. 1275/1 MCD Vs. Ashish Khanna etc 14/13