Delhi District Court
) Sh. Jagdish Bhalla vs The State on 3 August, 2018
1
IN THE COURT OF SH.NARINDER KUMAR:SPECIAL JUDGE2
NDPS ACT:(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI
Crl. Rev. No. 431/ 2018
Date of institution: 06.06.2018 Decided on: 03.08.2018
In the matter of :
Occupants of (House No.47/15 to 47/20
39/15 to 39/34) and other residents
of Old Rajinder Nagar, New Delhi
Through
1) Sh. Jagdish Bhalla
S/o Late Sh.D.C.Bhalla
R/o 4/52, Old Rajinder Nagar,
New Delhi110060.
2) Shri S.P.Gupta
S/o late Sh.Madan lal
R/o 28/7, Old Rajinder Nagar,
New Delhi110060
3) S.Charanjit Singh Grover,
S/o Late S.Rawail Singh Grover
2
R/o 21/5, Old Rajinder Nagar,
New Delhi110060
4) Bela Sangal Jain
W/o Sh. Sunil Kumar Jain
R/o 10/7, Old Rajinder Nagar,
New Delhi110060
5) Sh. Sumeer Bindra
S/o Late Sh. Shamsher Singh
R/o 4B/60, Old Rajinder Nagar,
New Delhi110060
6) Sh. Sachin Nagpal
S/o Sh. Ratan Nagpal
R/o 4A/3, Old Rajinder Nagar,
New Delhi110060
7) Sh. Krishan Kumar
S/o Late Sh. Hotu Ram
R/o 4A/56, Old Rajinder Nagar,
New Delhi110060
8) Sh. Vijay Kumar Saxena
S/o Late Sh. T.S.Saxena
R/o 39/21, Old Rajinder Nagar,
New Delhi110060
3
9) Sh. Ashok Adwani
S/o Late Sh. V.M. Advani
R/o 39/24, Old Rajinder Nagar,
New Delhi110060
10)Sh. O.P. Arora
S/o Late Sh. Lachhman Dass
R/o 39/25, Old Rajinder Nagar,
New Delhi110060
11)Sh. Amit Grover
S/o late Sh. Vijay Grover
R/o 39/26, Old Rajinder Nagar,
New Delhi110060
12)Sh. Tulsi Das
S/o Late Sh. Lorind Chand
R/o 39/28, Old Rajinder Nagar,
New Delhi110060
13)Sh. Vikram Vohra
S/o Sh. S.S.Vohra
R/o 39/30, Old Rajinder Nagar,
New Delhi110060
14)Sh. Vipan Mehta
S/o late Sh. T.N. Mehta
4
R/o 39/31, Old Rajinder Nagar,
New Delhi110060
(Petitioners no.2 to 14 through petitioner No.1)
.....Petitioners
Versus
1. The State
5, Sham Nath Marg,
Delhi110054
2. Sh. Rajan Lao
S/o Sh. Ram Chand
R/o 4/51, Old Rajinder Nagar,
New Delhi110060
3. North Delhi Municipal Corporation
Through Executive Engineer
52Block, Old Rajinder Nagar,
New Delhi110060
.....Respondents
AND
Crl. Rev. No.432/2018
5
Date of institution: 06.06.2018 Decided on: 03.08.2018
1. Sh. Pankaj, For Crown Medicos
Through Mr. Manish Bhatia
47/21, Old Rajinder Nagar,
New Delhi110060
2. Sh. B. L. Bhatia,
Through Mr. Manish Bhatia
47/19, Old Rajinder Nagar,
New Delhi110060
3. Sh. S.K.Jain,
Through Mr. Manish Bhatia
47/18, Old Rajinder Nagar,
New Delhi110060
4. Sh. Surinder Kumar,
Through Mr. Manish Bhatia
47/17, Old Rajinder Nagar,
New Delhi110060
5. Sh. Vinod Sagar,
Through Mr. Manish Bhatia
47/16, Old Rajinder Nagar,
New Delhi110060
6
6. Sh. Ashwani Kumar Dandona, Advocate,
Through Mr. Manish Bhatia
47/15, Old Rajinder Nagar,
New Delhi110060
7. Smt. Mohini Bakshi,
Through Mr. Manish Bhatia
39/39, Old Rajinder Nagar,
New Delhi110060
8. Sh. Ravinder Singh Chauhan,
Through Mr. Manish Bhatia
39/34, G.F., Old Rajinder Nagar,
New Delhi110060
9. Sh. Inder Mohan Bhatia,
Through Mr. Manish Bhatia
39/27, Old Rajinder Nagar,
New Delhi110060
10 Smt.Kamla Berry,
Through Mr. Manish Bhatia
39/16, G.F., Old Rajinder Nagar,
New Delhi110060
11. Sh. M.P. Aggarwal,
7
Through Mr. Manish Bhatia
39/17, Old Rajinder Nagar,
New Delhi110060
12. Sh. Jagmohan Giroti,
Through Mr. Manish Bhatia
39/18, Old Rajinder Nagar,
New Delhi110060
13. Sh. Suveer Abbi,
Through Mr. Manish Bhatia
39/19, Old Rajinder Nagar,
New Delhi110060
14. Smt. Bimla Devi,
Through Mr. Manish Bhatia
8/9, Old Rajinder Nagar,
New Delhi110060
15. Sh. Ashok Kumar Sharma,
Through Mr. Manish Bhatia
39/29, Old Rajinder Nagar,
New Delhi110060
VERSUS
1. State, NCT of Delhi,
8
5, Sham Nath Marg,
New Delhi
2. North Delhi Municipal Corporation
Through Executive Engineer
52Block, Old Rajinder Nagar,
New Delhi110060
3. Sh. Rajan Lao
S/o Sh. Ram Chand
R/o 4/51, Old Rajinder Nagar,
New Delhi110060
.....Respondents
JUDGMENT
Vide this common judgment both the above mentioned revisionpetitions are being disposed of as the same arise out of one order dated 11.04.2018, vide which Learned Sub Divisional Magistrate (Karol Bagh) has disposed of complaint under Section 133 Cr.P.C, filed by Sh. Rajesh Lao, respondent herein and issued directions to authorities to take steps for removal of nuisance, by way of 9 encroachment of public way, by residentsoccupants of houses in the area of old Rajinder Nagar, Delhi.
2. Complainantrespondent herein is a resident of Old Rajinder Nagar, situated between Pusa Road and Shankar Road, Delhi. By way of his complaint dated 20.10.2016, he prayed to Sub Divisional Magistrate (Karol Bagh Zone, Delhi) for necessary action for the purpose of removal of nuisance on account of encroachment of public land particularly by the occupants of property bearing No.47/20 to 47/15 and the occupants of property No.39/34 to 39/15.
As alleged by the complainant, occupants of the property bearing no.47/20 to 47/15 have encroached public land approximately to an extent of 30 feet each in the area, opposite Metro Station Rajindra Place and DMRC source, when one enters from Pusa Road.
As regards the other occupants from property 10 no.39/34 to 39/15, complainant alleged about encroachment of public land by them approximately, to an extent of 8 feet to 10 feet, on the road leading to Arya Samaj Mandir and thereafter, to Shankar Road, through Block No.35 and Block No.37.
As to the manner in which the encroachment made by way of unathorised construction, complainant narrated about traffic jam at the entry point and that all the rickshaw pullers and vendors have clustered the side. As to the impact of nuisance in the aforesaid manner, complainant alleged that it was impossible for any vehicle including fire tender, ambulance or any other utility vehicle to pass through the aforesaid roads and that in case of any disaster, no such vehicle can reach the area.
Complainant also alleged nuisance, because of a public urinal, said to have been constructed temporarily, at the entry point from Pusa Road/Rajindra Place Metro Station, during Common Wealth Games period by DMC.
11Complainant was aggrieved that MCD was not maintaining the public urinal and it was required to be removed.
Complainant is also alleged to have already complained to municipal authorities, but no action was taken on their part. Last of all, he is said to have submitted identical complaint dated 12.02.2016 to the Deputy Commissioner, North DMC, but in vain.
3. On receipt of the complaint, Learned Sub Divisional Magistrate ordered for issuance of notices to all the parties u/s 133 Cr.P.C.
MCD and Police Department were also ordered to be called for personal hearing.
Subsequently, complainant submitted additional list of other 12 residents. Notices were ordered to be issued to them as well. Notices were also once ordered to be served by pasting on the wall while calling upon the party 12 to file reply. All the parties were directed to submit their reply.
Reply came to be filed by the opposite party including MCD and L&DO.
4. During enquiry, letters were sent to Chief Town Planner, North MCD, to obtain copy of Zonal Plan and layout plan of Old Rajinder Nagar, Delhi. GSDL prepared CDs of illegal encroachment using satellite images. Thereupon, Additional GM (GSDL) was requested to super impose the recent satellite on the lay out plan of MCD and L&DO, so as to find out encroachment on public roads and lands.
Parties were permitted to go through the lay out plans furnished by MCD and L&DO. Vide order dated 27.12.2017, the parties were provided opportunity of being heard.
135. Ultimately, vide impugned order, the complaint was disposed of while issuing following directions, while observing in the manner as: "In the light of the aforestated discussion, I am convinced that the complainant has been able to make out the case of public nuisance by which it is proved that the public area / pathway / grassy patch has been illegally encroached upon and converted to the private use by the property owners of the area / colony known as Old Rajinder Nagar, which is required to be restored to the public usage. I therefore direct that:
i) all property owners / occupants of Old Rajinder Nagar having encroached the public land beyond the area conveyed in their favour by the L&DO vide respective Lease Deed / Conveyance Deed, shall themselves take steps to remove the unauthorized construction extended 14 on the respective pathway / road / public land and restore the same for the public usage, within 30 days of the publication / receipt / knowledge of this order, failing which necessary legal action as per law shall follow. Publicity of this order may be carried out by the Tahsildar (Karol Bagh) through beat of drum / public address system, by circulating the copies of this order to the respective welfare associations of the colony, by putting / pasting the order on all possible public places / conspicuous places in the colony which are the source of public gatherings etc.
ii) The Dy.Commissioner North Delhi Municipal Corporation is directed at the first instance to carry out survey of the area of Old Rajinder Nagar to identify the properties / houses part of which exists on the public land / street / pavement / berm as the case may be and display 15 the same on its portal which exercise may be completed within a period of two months from the date of service of this order.
iii) The Dy. Commissioner North Delhi Municipal Corporation after completing the aforesaid exercise shall take steps to remove the encroachment on the public land / street / gali / other area and restore the status in accordance with layout plan of the clony. The Dy.
Commissioner North Delhi Municipal Corporation shall also pass necessary order directing to demolish / remove the public urinal existing on the junction of Pusa Road / Maharishi Dayanand Saraswati Marg, 47 Block, Old Rajinder Nagar, opposite Gate No.3, Rajendra Place Metro Station, being a serious public nuisance.
iv) The Dy. Commissioner North Delhi Municipal 16 Corporation shall submit a compliance / status report within a period of 3 months from the date of service of this order, where after the further proceeding as provided under section 133 of Cr.P.C shall be carried."
Hence these revision petitions.
6. Arguments heard. File perused.
7. While considering the allegations levelled by the complainant and the pleas put forth by the opposite party, in para no. 1, under the heading "Findings on Facts", Sub Divisional Magistrate has tabulated the defence pleas.
One of the pleas put forth by the owner of property no. 39/30, 39/31, 39/22, 39/21, 39/25, 39/24, 39/26, 4B/37, 4C/10, 4A/56, 4B/60, 4A/3, 4/52 and 10/7 reads as under: "every house of Rajinder Nagar was given a strip of land adjoining 17 their houses which was meant for the grassy land and gradually all the residents of Rajinder Nagar covered the said strip of land adjoining their house by raising 56 ft. wall and when Delhi Municipal Corporation came into existence, the corporation started charging Tehbazari from every household but for the last few years the corporation is not charging. The strip of land never meant for general public and meant for owner of the houses"
From the aforesaid plea, learned SDM has observed that same is clear admission of encroachment of the public land, though with lame excuse in the manner indicated above which does not find support from documentary evidence.
In order to appreciate this defence plea, learned SDM examined the contents of Lease Deed/Conveyance Deed pertaining to some of the properties conveyed by the L & DO.18
In the opinion of the learned SDM, none of the residents was conferred any right in respect of strip of land and that the Deed rather clearly postulated the measurement of the area of the plot transferred.
Learned SDM also took into consideration that on Superimposition Satellite picture of the Rajinder Nagar Colony/key plan/lay our plan, it has been found that hardly there is any house owner who has not extended the boundary or not encroached the public land/pavement. The pavement made on each side of the road, and meant for grassy patch, is missing. In the key plan/layout plan these pavements have been terms as 'berm'. In view of the above discussion, learned SDM rejected the plea put forth.
So far as owner of property no. 47/22, 47/19, 39/20, 39/19, 39/28, 39/17, 39/39, 39/16, 47/15, 47/16, 47/20, 39/34, 39/18, 47/17 and 39/27, they denied to have encroached upon public land, but at the same time, 19 put forth the plea of adverse possession by pleading that they have been using the same for the last 20 years and that too within the knowledge of the government authority/ MCD and without any kind of interruption or objection.
Learned SDM has not accepted the plea of the adverse possession. While dealing with the contention raised by learned counsel that it was not the case of public nuisance, learned SDM has observed that with the pavement on the each side of the road has been encroached, it is public way / path way to which public has exclusive right to use and that hindrance and infringement of such exclusive right of the public to use is public nuisance within the ambit of Section 133 CrPC.
Learned SDM has opined that encroachment of pavement / strip of the public road of the public way by the house owner by Old Rajinder Nagar and is public nuisance and deserves to be removed.20
8. Learned counsel for the petitioners has submitted that this is a case where a portion of the house of the complainant, unauthorizedly constructed, was demolished by the Competent Authorities. It has also been submitted that complainant picked up only some of the properties of the area leaving the other areas, where situation is almost same.
Another submission is that the complainant has also encroached upon some area so far as property no. 4/51 is concerned.
The contention is that the complaint having been filed due to vindictiveness, should not have been entertained.
9. Proceedings under Section 133 can be resorted to only when there is a question of removal of existing obstruction on a public place. It is well settled that anyone can set the law into motion so far as resort to proceedings 21 under this provision of law is concerned.
Section 133 specifically provides that resort can be made to these proceedings on receiving report of a police officer or other information and on taking such evidence as the District Magistrate of SDM or any other Executive Magistrate specially empowered in this behalf, thinks it fit.
Herein, the complainant - respondent Sh. Rajan Rao submitted complaint to the SubDivisional Magistrate complaining of public nuisance. Section 133 CrPC does not provide that such a complaint has to be filed by such and such number of persons or by any person of same locality where the public nuisance is said to have been in existence.
Court does not find any merit in the contention raised by learned counsel for the petitioners that the present complaint should not have been entertained.
10. Section 137 CrPC provides that where the opposite party denies the existence of any public right in 22 respect of the way, river, channel or place, the Magistrate shall inquire into the matter.
SubSection (2) of Section 137 CrPC provides that if in such inquiry magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court.
This subsection further provides that if the Magistrate finds that there is no such evidence, he shall proceed as laid down in Section 138 CrPC.
In this case, the other party petitioners herein appeared before Learned Sub Divisional Magistrate and denied encroachment on any public way.
It appears that herein, learned Sub Divisional Magistrate, opted to proceed under Section 138 CrPC.
11. Section 139 CrPC provides that for the purpose of an inquiry under Section 138 CrPC, the Magistrate may 23 direct local investigation to be made by such person as he thinks fit or summon and examine an expert.
Herein, learned SDM collected layout plans from MCD and L&DO Building and also a index map of the districts and position of Karol Bagh from the office of Geospatial Delhi Ltd. and also himself inspected the spot.
12. So far as selfinspection is concerned, it is significant to note that learned SDM did not prepare any report on the basis of inspection of the spot, what to say of supply of any copy to the opposite party. The inspection, if any, cannot be taken into consideration, particularly when it was conducted in their absence and no report in this regard, is available on record.
As regards the layout plan and index map referred to above, the concerned experts / officers, were not summoned or examined before reading the same as piece of evidence, as provided under Section 140 CrPC.
24The result is that in the course of arguments, it could not be pointed out to this Court from any of the documents/material available on record as to what was the width of the road, to which the dispute pertains, constructed for being used as public way. In absence thereof it is difficult to say as to what is the extent of encroachment on the public way.
13. Learned counsel for the petitioners have submitted that report of Kanungo was also considered by learned SDM but it could not be taken into consideration, the same being incomplete.
Record reveals that report of the Kanungo was called by Learned SDM at the very initial stage i.e. even before issuance of notice to other parties and it cannot be said to form part of evidence collected during inquiry.
14. In view of the above discussion, Court finds that 25 this is a fit case where the matter needs to be decided by Learned SDM afresh after conducting inquiry as provided under PartB of Chapter X of Code of Criminal Procedure so far as, any encroachment of the public way, by any of the occupants of the houses, as is alleged in the complaint is concerned.
As a result, the impugned order is hereby set aside, to the extent it pertains to encroachment of the public way, by occupants of the houses, as alleged in the complaint.
15. So far as the allegation levelled by the complainant as regards nuisance on account of public urinal existing on the road adjacent to Block No.47, Learned Sub Divisional Magistrate has observed as under: "Since the Rajendra Place Metro Station also exist on the Pusa Road, the junction has become a bottle neck leading to frequent traffic jam and the 26 existence of the public urinal add injury to the public. The public urinal is not been maintained since long and neither there is urinal pot nor any water connection. There is no sewage connection at all. The urinal waste spread on the road breading mosquitoes thus endangering public health and nuisance. It is further submitted that if the urinal which is on the right of way almost middle of the road is removed the usable unction point would increase from the existing 30 ft. to 60 ft. or more paving easy excess of vehicular traffic. The bare look of this public urinal support the concerned of the complainant. The urinal exist on the junction of Main Pusa Road / Maharishi Dayanand Saraswati Marg 47Block, Old Rajinder Nagar. It is almost difficult to pass through this junction in view of the filth and horrible stench emanating from this source. There is no water 27 connection. There is no sewage connection either. It has not been maintained by the civic authority. The urinal exist on the right of way / public way and not even on the road site / pavement as is the case of similar facilities being provided by the New Delhi Municipal Committee within their area which is an ideal model of public conveniences meant for both women and men having regular maintenance, regular water and sewage connection, one caretaker always present in the premises looking after the maintenance at regular interval. It is wroth mentioning chapter 12 of the unified building bye laws for Delhi 2016 dealing with "Public Washroom Complexes" which pertains to minimum standard / norms. As per the same, the complex should atleast have one washbasin, two urinals and one W.C.each for man and woman separately with adequate electricity, 28 drainage, water and sewerage facilities and connected to the prevalent infrastructure network. The complex shall be well ventilated with adequate provisions of lighting. Provision of solar power shall be made for utilization in lighting of the complex (para 12.4). All such complexes should had single story, with a maximum floor to ceiling height of 2.8 mtr.and water tanks concealed with a parapet wall / jali not exceeding 1 mtr.in height. None of these minimum standard / norms are met by the existing structure used as public urinal. As such it is a serious source of public nuisance in as much as at one hand it exists on the right of way and on the junction causing traffic bottle neck, on the other hand on account of lack of water and sewerage connection it is positing a serious health hazard by breading mosquitoes, apart from polluting the air due to 29 stench emanating therefrom."
In view of the above observation, Learned Sub Divisional Magistrate has observed that public urinal is causing more injuries than adding to any convenience to the public and held that same deserves to be removed.
16. In the course of arguments, Learned Counsel for the petitioners have not challenged the observations made, and findings recorded by Learned Sub Divisional Magistrate so far as public nuisance due to public urinal is concerned.
Record reveals that no officer from MCD appeared before Learned SDM despite notice, to file any reply as to the allegation of public nuisance levelled by the complainant. The fact remains that the officers of MCD did not care or dare to contest the claim of the complainant as regards nuisance to the public on account of the structure existing at the given place, i.e. on public way, being used as public urinal.
30Since there is no challenge to the findings recorded by learned Sub Divisional Magistrate in respect of public nuisance due to public urinal, in view of the pleadings of the parties and the material discussed, court does not find any illegality or infirmity in the impugned order in this regard.
During pendency of this revision petition, operation of the impugned order was stayed. In view of the above findings, Learned Sub Divisional Magistrate shall be at liberty to get the impugned order executed in terms of directions already issued, so far as removal of nuisance to public due to existing condition of the public urinal is concerned.
17. As a result, the revision petitions are disposed of, with directions to Learned SDM to decide the matter afresh after conducting inquiry as per procedure provided under PartB of Chapter X of Code of Criminal Procedure so far as, 31 any encroachment of the public way, by any of the occupants of the houses, as is alleged in the complaint is concerned.
Parties to appear before Learned SDM on 13.08.2018.
Trial Court record be returned. File of revision petitions be consigned to Record Room.
Digitally signed byAnnounced in the open Court NARINDER NARINDER KUMAR on this 3rd day of August, 2018 KUMAR Date: 2018.08.08 14:44:28 +0530 (NARINDER KUMAR) SPECIAL JUDGE, NDPS02 (CENTRAL) TIS HAZARI COURTS, DELHI