Delhi High Court
S.P. Sharma vs National Capital Territory Of Delhi & ... on 18 September, 1998
Equivalent citations: 1999IAD(DELHI)121, 76(1998)DLT422, 1998(47)DRJ408
Author: N.G. Nandi
Bench: N.G. Nandi
JUDGMENT Devinder Gupta, J.
1. The petitioner claims to be the owner of first floor of Flat No. 110, S.F.S., Munirka Encalve, New Delhi. Respondents Nos.4 and 5 are stated to be the occupants the second and third floors of the said flat. It is the petitioner's case that in March/April, 1996, he constructed a room on his terrace. Lot of problems were created by respondent No. 4 by threatening the petitioner's labours, damaging raw cement flooring on the roof, throwing water etc. and repeatedly threatening and intimidating the petitioner and his family members. A notice was sent in July, 1996 to respondent No. 4. On 14th July, 1996 respondent No. 4 came down in drunken and half naked state to the petitioner's flat and hurled abusive language. A complaint to that effect was lodged.
2. The real problem is alleged to have been created on 29.11.1997 when it is alleged that respondent Nos. 4 and 5 committed criminal trespass and forcibly removed the overhead tanks belonging to the petitioner, disconnected water pipes and destroyed roof and wall of the room. Complaint (Annexure-A) was lodged with S.H.O., P.S. Vasant Vihar, but no action was taken thereupon. The petitioner's grievance is that the complaint disclosed commission of cognizable offence and it was the statutory duty of respondent Nos. 1 to 3 to have registered FIR and carried out investigation, in accordance with law. As the statutory duty was not performed, he had no option, but to approach this Court.
3. After show cause notice, affidavit in reply was filed by Arun Kumar Sapra, S.H.O., P.S. Vasant Vihar on 26.2.1998 stating that the petitioner had erected some construction covering the area of his balcony without sanction from Competent Authority, which had resulted in dispute between the petitioner and respondent No. 4 All Steps were being taken by respondent No. 1 to 3 to maintain peace and tranquillity. However, the dispute the petitioner and respondent No. 4 was of a civil nature and as such, there was a very little role to be played by respondent Nos. 1 to 3.
4. When the case was taken up on 12.5.1998, respondent Nos. 1 to 3 were asked to file further affidavit with respect to the allegations made regarding the theft of water tanks. Additional affidavit was filed by Suresh Dagar, S.H.O., P.S. Vasant Vihar stating that on receipt of petitioner's complaint, inquiry was got conducted through S.I. Raj Kumar. As per his report, unauthorised construction is stated to have been carried out by the petitioner. Respondent Nos. 4 and 5 are stated to have opened door in front of their floor so as to have access to the roof of the unauthorised construction raised by the petitioner. On S.I. Raj Kumar's asking the petitioner to produce permission from D.D.A. or of the concerned authority, the petitioner is stated to have told that the same will be produced in Court. Affidavit further states that two water tanks, which had been kept on the terrace of the unauthorised construction, were found to have been removed and kept on the ground floor. The affidavit also states that as the dispute between the parties was with regard to the use of the roof of the unauthorised construction and both the parties were making allegations against each other of criminal trespass and theft, therefore, no action was taken on the petitioner's complaint.
5. Having heard learned Counsel for the parties and having gone through the affidavits exchanged, we are of the view that respondent No.3 was not at all justified in not registering a regular case on the basis of the averments made in the complaint, which on the face of it discloses commission of cognizable offence and in not carrying out regular investigation thereon. Though the power of police to get a verification done of the facts stated in the complaint before registration of case cannot be denied, which in the instant case was got conducted by respondent No. 3, but the scope of such verification is very limited. It cannot take place of a regular investigation. The scope of the verification has been totally misunderstood by respondent No. 3, who without proper and regular investigation came to the conclusion that it was a civil dispute. It could not have been done. The petitioner's complaint stated:
"The residents/owners of Flat No. 111, Munirka Enclave, New Delhi, Mrs. Sushma Kapoor and Mr. H.K. Kapoor have been on previous occasions consistently been ciriminally intimidating and threatening the applicant and her family members being residents/owners of Flat No. 110, Munirka Enclave, New Delhi to illegally and criminally trespass on to the roof of a room which is a part of the property of the owner of Flat No.110....
On November 29, 1997 at 9.00 a.m. and thereafter the resident/owner of 111, Munirka Enclave along with a group of miscreants given effect to this aforesaid criminal intimidation and continuous threats by illegally and criminally trespassing on to the roof of the property of Shri S.P. Sharma and unauthorisedly constructing on the said roof which belongs to and is exclusive property of Shri S.P. Sharma.......
Smt. Sushma Kapoor has forcibly removed the over-head tanks belonging to Shri S.P. Sharma and have thereby disconnected water-pipes and have destroyed the roof and wall of the room. The construction was started by residents of Flat No. 111 by breaking their own wall to get access to the roof belonging to the applicant and endangering the safety of the applicant."
6. On verification, it was noticed that respondent Nos. 4 and 5 did make an entry over the roof of the construction raised by the petitioner and that the tanks had been removed to the ground floor from the place where they were kept earlier.
7. In the face of this verification, it was incumbent on respondent No. 3 to have proceeded to register regular FIR and carried out proper investigation, in accordance with law on the facts, as stated in the complaint and then file a report. It was not done. As such, respondent No.3 failed to discharge his statutory obligations. The question whether the onstruction has or has not been raised, in accordance with law or effect thereof is required to be seen in appropriate proceedings, for which the parties are stated to have approached the Civil Court. The said question is also not a relevant consideration, which should prevail with respondent No.3 in not registering a case.
8. Consequently, the writ petition is allowed with direction to respondent No. 3 to register an FIR on the basis of the facts, as disclosed in the complaint (Annexure-A), to carry out investigation and file report in appropriate Court, in accordance with law.