Delhi District Court
Cc No. 1494/1 Mcd vs . D.S. Oberoi 1/13 on 18 February, 2013
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE SAKET COURTS:
DELHI
In Re: MCD V. D.S. OBEROI
CC No. 1494/01
U/s 347/461/466 of DMC Act 1957
Date of Institution of Case : 20.12.2001
Judgment Reserved for : 18.02.2013
Date of Judgment : 18.02.2013
JUDGMENT:
(a) The serial no. of the case :1494/01
(b) The date of commission of offence : 28.08.2001
(c) The name of complainant : MCD
(d) The name, parentage, of accused : D.S. Oberoi s/o Late Sh. Shobha Singh
Oberoi, R/o G34, Green Park Main, 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
(g) The final order : Accused acquitted
(h) The date of such order : 18.02.2013
CC No. 1494/1 MCD Vs. D.S. Oberoi 1/13
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 28.08.2001 at 05.30 pm, accused D.S. Oberoi was found using property No. G34, Green Park Main, Ground Floor, New Delhi for commercial purposes i.e. for running a shop of general store 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 has 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 09.07.2003 notice u/s 347/461/466 of DMC Act 1957 was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined eight witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case.
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 Green Park main, New Delhi.
CC No. 1494/1 MCD Vs. D.S. Oberoi 2/13 Part layout plan showing property no. G34, Ground Floor, Green Park Main, New Delhi at point A in black colour is Ex. PW1/A. He deposed that as per lay out plan Ex. PW1/A sanctioned and permissible use of the property in question is residential only.
5. PW2 Sh. S.D. Sharma deposed that on 28.08.2001 he was posted as AE (B) in South Zone, Green Park, New Delhi and on that day after going through inspection report dated 28.08.2001 of Sh. Sanjeev Jain, JE he verified its content and made his endorsement on Ex. PW2/A. He deposed that he forwarded the report to Sh. Vijay Kadyan for orders.
6. During his cross examination he stated that he did not see any document of ownership in the name of Sh. D.S. Oberoi in the respect of property in dispute. He stated that except the inspection report he did not go through any document while forwarding the same to Sh. Vijay Kadyan. He stated that he did not visit the site. He denied the suggestion that no general store was being run at the given time and place.
7. PW3 Sh. Brij Mohan, Clerk, Urban Development, GNCTD duly proved copy of notification dated 10.08.1990 as Ex. PW3/A.
8. PW4 Sh. Anirudh Kumar, Record Clerk, Building South zone, Green Park, New Delhi produced original sanctioned building plan pertaining to property no. G34, Green Park, New Delhi and duly proved the same as Ex. PW4/A. CC No. 1494/1 MCD Vs. D.S. Oberoi 3/13
9. During his cross examination he stated that he does not have any personal knowledge of the present case. He stated that he does not know whether there is a shop in the said property or not. He stated that the sanctioned plan Ex. PW4/A was sanctioned in the year 1962. He stated that there is no other plan of the said property in their office. He stated that he is not aware whether any change in the sanctioned plan Ex. PW4/A has been reported in their office or not.
10. PW5 Sh. K.P. Singh deposed that he was posted as S.E. in South Zone, MCD during the year 2001 and during his said tenure he has received a prosecution report prepared by JE Sh. Sanjeev Jain and forwarded by Sh. S.D. Sharma, AE and Executive Engineer Sh. V.K. Kadyan. He deposed that he has also gone through the said prosecution report which is in the name of the accused regarding misuse in the property in the shape of running of General Store. He deposed that after being satisfied he had submitted the same to the Deputy Commissioner, South Zone for according the sanction for filing the complaint and his endorsement in this regard is at point C and his signatures is at point D on Ex. PW2/A.
11. During his cross examination he stated that he does not have any personal knowledge of this case. He stated that he had not personally verified the contents of the complaint sent to him by JE Sh. Sanjeev Jain by visiting the site personally. He stated that the JE had sent him the inspection report through the proper channel for prosecution. He CC No. 1494/1 MCD Vs. D.S. Oberoi 4/13 stated that he had not seen any photographs of the site along with the inspection report. He denied the suggestion that he has not applied his mind while sending this case for prosecution and the same has been done by him only on the basis of inspection report without having sufficient documents on record. He denied the suggestion that on 28.08.2001 the accused was not running any shop of General Store at the ground floor of property no. G34, Green Park Main, New Delhi. He denied the suggestion that he was deposing falsely.
12. PW6 Sh. V.K. Kadyan deposed that he was posted as Executive Engineer in South Zone during the year 2001 and during his said tenure he had received a prosecution report prepared by JE Sh. Sanjeev Jain and forwarded by Sh. S.D. Sharma and he had further forwarded the same to the SE for seeking further orders and his signatures are at point E on Ex. PW2/A.
13. During his cross examination he stated that he does not have any personal knowledge of this case. He stated that he had not personally verified the contents of the complaint sent to him by JE Sh. Sanjeev Jain by visiting the site personally. He stated that the JE had sent to him the inspection report through the proper channel for prosecution. He stated that he does not remember whether he had seen any photographs of the site along with the inspection report or not. He denied the suggestion that he had not applied his mind while sending the case for prosecution and same has been done by him only on CC No. 1494/1 MCD Vs. D.S. Oberoi 5/13 the basis of inspection report without having sufficient documents on record. He denied the suggestion that on 28.08.2001 accused was not running any shop of general store at the ground floor of property no. G34, Green Park Main, New Delhi. He denied the suggestion that he was deposing falsely.
14. PW7 Sh. Sanjeev Jain deposed that he was posted as JE in South Zone, MCD during the year 2001 and during his said tenure on 28.08.2001 he had inspected the property bearing no. G34, Green Park Main (Ground Floor) at 05.30 p.m. where he found running of a General Store at the ground floor which is being run by accused D.S. Oberoi. He deposed that he had also asked the accused whether he had any permission for running of the said General store but he failed to show any permission in this regard. He deposed that thereafter he had prepared the prosecution report in the name of accused for running of the General Store in the above said property in violation of the provisions of DMC Act without any permission. He deposed that the said prosecution report is Ex. PW2/A and his report in this regard is at point F and his signatures are at point G on the said exhibit. He deposed that after preparing the said report he forwarded the same to AE Sh. S.D. Sharma. He deposed that as per the lay out plan of the area which is Ex. PW1/A and sanction building plan of the property which is Ex. PW4/A the use of the said property/sanction is residential.
15. During his cross examination he stated that he remained posted in south zone CC No. 1494/1 MCD Vs. D.S. Oberoi 6/13 MCD with effect from 2001 to 2002 but he does not remember the date and month when he joined his posting in south zone MCD. He stated that he does not know since when the mixed land use has been permitted by the Govt. in Green Park, New Delhi Area. He stated that he does not know whether the Green Park, Hauz Khas Main Road going from AIIMS towards IIT is a commercial road or not. He stated that the Hauz Khas Area of south zone was also within his jurisdiction during his above said posting. He denied the suggestion that he was intentionally not disclosing that the Green Park, Hauz Khas Main Road going from AIIMS towards IIT is a commercial road or that the Green Park Area is within the mixed land use permitted by the Government. He stated that he does not know the exact no. of premises challaned by him in Green Park Area for running commercial activities without permission. He stated that he does not know if in the property no. G35, Green Park Main New Delhi at the first floor there are the ATM of banks, one dental clinic and a shop by the name of Shakun retailers. He stated that as the matter is 1112 years old, so he does not remember whether he had challaned the above said premises no .G35 for running commercial activities. He stated that the commercial activities may have been going on in the premises bearing no. G28, G31, G32, G36, G37, G39, G41 to G45, G48 to G52 and G56 Green Park, Main New Delhi. He stated that he does not remember whether he had challaned any of the said premises for running commercial activities. He stated that he had gone at the property bearing no. G34 Green Park, Main New Delhi on 28.08.2001. He stated that at that time he was alone and no staff of MCD was with him. He stated that he does not remember now whether the property in CC No. 1494/1 MCD Vs. D.S. Oberoi 7/13 question is single, double or triple stories. He denied the suggestion that he does not know how much stories are there in the said property as he never visited the said property either on 28.08.2001 or on any other date. He stated that when he inspected the premises Mr. D. S. Oberoi was present there who claimed himself to be the owner, however, he failed to produce any documents to that effect. He stated that he does not know how many tenants are there in the said property. He denied the suggestion that he was unable to tell the no. of tenants in the said property because he never inspected the same as claimed by him. He stated that he cannot say whether there is a open courtyard in the front portion of the property in question. He stated that he does not know whether the building is constructed as per the sanction plan. He denied the suggestion that there was no shops in the said property in question at the time of inspection. He stated that he does not know the measurement/area of the said property. He stated that he did not get the said property photographed to show that the shop was being run in the said property. He denied the suggestion that he had prepared the inspection/prosecution report on 28.08.2001 in his office without actually visiting and verifying the facts from the spot. He denied the suggestion on 28.08.2001 Sh. D. S. Oberoi was not present at the said property and was not running any shop. He denied the suggestion that he was deposing falsely.
16. PW8 Sh. Manoj Kumar deposed that he was posted as Deputy Commissioner, South Zone, MCD w.e.f. July 2001 to August 2002 and during his said tenure he had received a prosecution report in respect of property no. G34, Green Park Main prepared CC No. 1494/1 MCD Vs. D.S. Oberoi 8/13 by the then JE Sh. Sanjeev Jain, verified by the then AE Sh. S.D. Sharma forwarded by the then Executive Engineer and recommended by the then SE Sh. K.P. Singh. He deposed that he considered the said report and accorded sanction for prosecution u/s 347 of DMC Act against the accused. His endorsement in this regard is at point E on Ex. PW2/A and his signatures are at point F on Ex. PW2/A. He deposed that the present complaint has been filed by him which is Ex. PW8/A.
17. This so far is the evidence led by complainant MCD in the present matter.
18. 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 in the matter and perused the documents placed on record by complainant/MCD in this case.
19. 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.
20. In order to establish its case the MCD/ complainant had to prove beyond reasonable doubt that premises bearing no. G34, Ground Floor, Green Park Main, New Delhi was being used by accused D.S. Oberoi for running a shop of general store i.e. CC No. 1494/1 MCD Vs. D.S. Oberoi 9/13 commercial purposes whereas the said premises could only be used for residential purposes. However, the prosecution could neither connect the accused with the premises in question nor could it even remotely establish that a general store as alleged was being run from the premises in question.
21. The star/material witness of the prosecution was JE Sh. Sanjeev Jain who was examined as PW7 as it was his inspection of the premises which led to the present prosecution against the accused however his deposition did not inspire confidence and suffered from numerous inconsistencies.
22. Though PW7 Sh. Sanjeev Jain claimed that on 28.08.2001 he had visited/inspected the premises in question however during the cross examination by Ld. 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 state/describe what was the kind of activity carried out on the other floors in the premises in question. He was specifically asked whether there was any ATM or a Dental Clinic adjoining the premises in question but he could not give any satisfactory answer. Similarly when he was asked about the number of floors he merely stated that he does not know whether the property in question is a single, double or triple storied. He could not even give the area or other description of property/premises in question or the details of the other occupants/tenants. All this casts CC No. 1494/1 MCD Vs. D.S. Oberoi 10/13 serious doubts upon his claims that he visited the property.
23. During the entire trial prosecution could not bring on record any document to connect the accused 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 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. I am not inclined to fasten any penal liability upon the accused 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 with the premises in question. There is not even a single document linking the accused 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 general store 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 atleast one or two photographs showing the general store in question running at the premises. 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 CC No. 1494/1 MCD Vs. D.S. Oberoi 11/13 Department or any other documentary or oral proof no presumption can be drawn that indeed the premises was being used for running a general store much least by the accused.
24. 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 is connected with the property no liability can be affixed upon him. As is the case MCD failed to connect the accused with the premises in question. Similarly apart from the bare statement of the JE there is no proof of misuser.
25. Apart from JE Sanjeev Jain i.e. PW7 the remaining witnesses examined by MCD are formal in nature. Admittedly none of them had ever visited the premises in question 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 CC No. 1494/1 MCD Vs. D.S. Oberoi 12/13 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. 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.
26. Hence the MCD/ complainant could neither connect the accused with the premises in question nor it could prove the misuser. Accused is entitled to acquittal.
27. I order accordingly.
Announced in the open (Gaurav Rao)
Court on 18.02.2013 MM (SD)/Delhi
CC No. 1494/1 MCD Vs. D.S. Oberoi 13/13
CC No. 1494/1 MCD Vs.D.S. Oberoi
18.02.2013
Pr: Ld. AMP for MCD.
Accused on bail present today along with his 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.
Fresh bail bonds u/s 437 A Cr.P.C. furnished, considered and accepted. File be consigned to Record Room.
(Gaurav Rao) MM (SD)/Delhi.
18.02.2013
CC No. 1494/1 MCD Vs. D.S. Oberoi 14/13