Delhi District Court
Prem Dass vs State on 8 June, 2018
IN THE COURT OF SAVITA RAO, SPL. JUDGE, (PC ACT) CBI01,
(SOUTH) SAKET COURTS : NEW DELHI
Crl. Revision No. : 209/2018
FIR No. : 77/17
P.S. : Mehrauli
IN THE MATTER OF :
Prem Dass
S/o Late Ram Prasad
R/o House no. 240, Chattarpur Village,
New Delhi 74
................Petitioner
Vs.
State
.............Respondent
Date of Institution : 31.05.2018
Date of Arguments : 04.06.2018
Date of Order : 08.06.2018
ORDER
1. This is revision petition filed by petitioner aggrieved by the order of Ld. Trial court dated 15.3.2018.
2. This is a case where the FIR was registered u/s 332/461 of DMC Act on the allegations of carrying out of unauthorized construction by petitioner at property bearing no. 236, 60 feet Road, Chattarpur Phari, New Delhi. In terms of allegations, the Junior Engineer (Building), South Zone reported regarding the CR No. 209/2018 1/4 unauthorized construction at the abovesaid property by the owner/builder/occupier of the property without any permission from Commissioner , SDMC, New Delhi. The building department of South Zone had also initiated action u/s 343/344 of DMC Act, based upon which, complaint u/s 466A of DMC act was made with request that the persons responsible for carrying out the unauthorized construction in the said premises be arrested and complete investigation be conducted. Notice u/s 41.1 Cr.P.C. was given to petitioner and during the interrogation, he stated that he was the original owner of the property and also produced the copies of documents. Further it was alleged in charge sheet that petitioner had not obtained the permission for construction of the building and was bound down in this case. After necessary sanction, the charge sheet was filed.
3. Ld. Trial court noted that there was an application for condonation of delay. Notice of the said application was issued upon the accused/petitioner . After the appearance of accused, matter was fixed up for arguments and disposal of the application seeking condonation of delay. In terms of order, accused sought disposal of challan by pleading guilty . Case was explained to the accused and he undertook to remove unauthorized construction in the shape of ground floor adjacent to D8/273B, Chattarpur Phari, New Delhi within month's time, based upon which Ld. Trial court sought report from SDMC.
4. It is submitted by Ld. Counsel for petitioner that the petitioner had been residing in this house which was alloted for residential purpose vide Patta Certificate issued by Gram Sabha. Petitioner made some renovations in the said house in year 2016 and at the time of renovations, no person from the office of MCD ever raised any objection nor any notice was issued upon him for carrying CR No. 209/2018 2/4 out any unauthorized construction. Petitioner under the bonafide impression and without understanding the accusation explained to him, pleaded guilty though there was no unauthorized construction raised by him.
5. Ld. Counsel for petitioner referred to sec. 3.1.1.1 of Unified Building Bye Laws for Delhi 2016 which makes only certificate from Architect mandatory for the properties measuring less than 105 m² after submitting the plan alongwith requisite documents and fees to the concerned local body. As brought on record, the documents were duly submitted by Architect with SDMC, copies of which are placed on record. It is also submitted that the petitioner is 91 years old person and had pleaded guilty without understanding the accusation.
6. Ld. Counsel for petitioner also referred to NCT Delhi Laws (Special Provision) Act 2011, to make the submission that no demolition order can be passed pertaining to the construction raised prior to 2014 which stands amended with the words " at any time before 31st day of December 2017" vide National Capital of Territory Laws (Special Provisions) Amendment Act 2017 .
7. Notice dated 30.12.2016 addressed to owner/builder of property adjacent to D8/237B, Chattarpur Phari is part of the charge sheet with regard to unauthorized construction in shape of ground floor. Petitioner is owner of property bearing no. B236 and number of property even is not mentioned in the notice, though in other documents, the property number finds mention. Besides that, extent of unauthorized construction as referred is " in shape of ground floor" which term itself is vague. Since, it is not the case that construction of ground floor of property was unauthorized, then which was the shape that was unauthorized was required to be clarified by the prosecuting agency. Without their being identification of the CR No. 209/2018 3/4 property, identification of the extent of unauthorized construction and without affording the opportunity to the petitioner to explain regarding the alleged unauthorized construction, registration of FIR itself was premature u/s 332/461 of DMC Act.
8. The continuation of proceedings against the petitioner without identifying the extent of unauthorized construction, if any at all, shall be abuse of process of law. The order passed by Ld. Trial court, in these circumstances, stands set aside. Proceedings against petitioner are directed to be stopped, having the effect of discharge from the proceedings pending before Ld. Trial court. However, this order shall not prejudice any further legal action against the petitioner after the compliance of necessary formalities/proceedings, in case the factum of unauthorized construction at the property belonging to petitioner is established. Revision petition is disposed off in above terms. TCR alongwith copy of this order be sent to the trial court. Revision file be consigned to record room.
Digitally
signed by
SAVITA
SAVITA RAO
RAO Date:
2018.06.08
15:09:48
+0530
Announced in the Open Court (Savita Rao)
Today on 08.06.2018 Spl. Judge (PC Act), CBI01(South)
Saket Courts/ New Delhi
CR No. 209/2018 4/4