Delhi District Court
State vs Himanshu Sardana And Ors on 27 March, 2025
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IN THE COURT OF ASHISH KUMAR MEENA
JMFC-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.: 423/2022
U/S: 332/461 DMC ACT
PS: Maidan Garhi
STATE
VS.
(1). HIMANSHU SARDANA, S/O VIRENDER KUMAR,
R/O C-747, JVTS GARDEN, CHHATTARPUR, NEW
DELHI.
(2). NARESH KUMAR, S/O HARI CHAND,
R/O H. NO. 588, DERA VILLAGE, NEW DELHI.
(3). MANMOHAN KUMAR, S/O RAMNATH,
R/O H. NO. C-548, JVTS GARDEN, CHHATTARPUR,
NEW DELHI. ...... ACCUSED PERSONS
1. Sr. No. of the case : 2071/2023
2. The date of offence : 17.10.2022
3. The name of the complainant : DC SDMC
4. The plea of the accused : Pleaded not guilty
5. Argument heard on : 20.03.2025
6. The date of order : 27.03.2025
7. The final order : Convicted
JUDGMENT
1. Briefly stated, Himanshu Sardana, Naresh Kumar and Manmohan Kumar ("Accused Persons") are facing trial on the allegations that on 17.10.2022 at property adjacent to A172, Chhatarpur, Enclave-II, New Delhi, within the jurisdiction of PS-
FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana Digitally signed by ASHISH And Ors ASHISH KUMAR MEENA KUMAR Date:
MEENA 2025.03.27 15:30:31 +0530 Page 2 of 11 Maidan Garhi, the accused persons being builder/occupier/owner of the said property, in furtherance of common intention, were found carrying out unauthorized construction in the shape of stilt to fourth floor without permission/sanction from the concerned authority of Municipal Corporation of Delhi (MCD). Thus, the accused persons were booked under the Section 332 r/w 461 of The Delhi Municipal Corporation Act, 1957 (DMC Act).
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused persons were summoned after taking cognizance of offence. The accused persons were charged u/s 332/461 DMC Act r/w 34 IPC and accordingly, the charge was framed against the accused persons to which they pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined two witnesses. PW-1 Sh. Raghvendra Pratap Singh (JE) has deposed that on 17.10.2022, he was posted as JE, BLDG, South Zone, SDMC in the area of Chhatarpur Enclave, Phase-II, New Delhi. On the said day, during routine inspection, he reached at property no. adj. A-172, Chhatarpur Enclave, Phase-II, New Delhi and noticed an unauthorized construction on the above-mentioned property in the shape of stilt to fourth floor. Upon reaching office, he prepared FIR and put it up before the concerned AE vide Ex.PW1/A. Thereafter, a show cause notice u/s 344(1) and 343 of DMC Act was issued against the owner/builder vide Mark-A. He went to the property to serve the notice, but no one was present there. Thereafter, the said notice was served by way of pasting. As no reply of the above-said show cause notice received, accordingly he reported the matter to Digitally FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana ASHISH signed by ASHISH KUMAR And Ors KUMAR MEENA Date:
MEENA 2025.03.27
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concerned AE. He requested the concerned AE to issue demolition notice/order u/s 343 DMC Act to the owner/builder of the above-mentioned property. Accordingly, on 27.10.2022, second notice/order of demolition has been issued to owner/builder of the above-mentioned property vide Mark-B. He again went to the above-mentioned property to serve the notice, but no one was present there. Accordingly, it was served by way of pasting. By following due process of law the UC file of the above-said property has been handed over to office incharge for further necessary action as per policy of priority. He also initiated the prosecution file and upon my complaint a complaint u/s 332/461 DMC Act r/w Section 466A was filed by the concerned DC to SHO, PS-Maidan Garhi. Thereafter, an FIR was got registered. IO/HC Raj Kumar called him and he went to the above-mentioned site. He told to IO about the above-said property. IO had prepared the site plan at his instance vide Ex.PW1/B. Thereafter, IO had recorded his statement. The witness has been duly cross-examined on behalf of the accused.
4. PW-2 HC Raj Kumar Yadav (IO of this case) has deposed that on 23.12.2022, an FIR u/s 332/461 DMC Act was marked to him for investigation. All the documents pertaining to this case was sent by MCD officials alongwith complaint. This complaint was firstly marked to ASI Sonu Nain who endorsed the same and got the FIR registered. After registration of FIR, he collected all the documents alongwith complaint. He called JE Sh. R. P. Singh to join the investigation. Thereafter, he met with JE Sh. R. P. Singh on 02.02.2023 at property i.e. 173, New Delhi and JE pointed out towards the property in question and told him that Digitally signed by FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana ASHISH ASHISH KUMAR And Ors KUMAR MEENA Date:
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this is the property where unauthorized construction has taken place. At the instance of JE, he prepared the site plan of the property vide Ex.PW1/B. Thereafter, he recorded statement of JE u/s 161 Cr.P.C. During investigation, he inquired from locality and got to know that person namely Manmohan Arora was doing construction work at the property. However, owner of the property was not present on that day. So, he came back to PS. He again visited the property later on and met with person namely Manmohan at the property. He gave notice u/s 91 Cr.P.C. to Manmohan to produce the property documents and other related documents. Sh. Manmohan called his partners at the property in his presence. Thereafter, a person namely Naresh and Himanshu Sardana came at the property. He inquired from all the above- mentioned three persons about the property. They stated that they have jointly purchased the property and they are jointly doing construction work at the subject property. He gave notice u/s 41A Cr.P.C. to Manmohan Kumar S/o Ramnath, Himanshu Sardana S/o Virendra Kumar and Naresh Kumar S/o Hari Chand vide Ex.PW2/A, Ex.PW2/B & Ex.PW2/C respectively. Manmohan Kumar produced property documents of the subject property vide Ex.PW2/D. Accused Manmohan has pointed towards the property vide Ex.PW2/E. He recorded disclosure statement of accused Manmohan Kumar vide Ex.PW2/F. He bound down all the accused persons. He wrote letter to DC, South Zone, SDMC for seeking permission u/s 467 DMC Act. He got permission on 04.04.2023, completed the investigation, prepared the charge- sheet u/s 332/461 DMC Act and submitted it before the concerned Court. The witness has been duly cross-examined on behalf of the accused.
FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana Digitally signed
by ASHISH
ASHISH KUMAR
And Ors MEENA
KUMAR Date:
MEENA 2025.03.27
15:30:52
+0530
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5. Vide separate joint statement under Section 294 Cr.P.C., the accused persons have admitted the present FIR as Ex.AD1, Certificate under Section 65 B of Indian Evidence Act supporting the FIR as Ex.AD2, Complaint u/s 466A DMC Act as Ex.AD3 and Complaint u/s 467 DMC Act as Ex.AD4. In view of the same, remaining witnesses were dropped from the list of witnesses. Accordingly, prosecution evidence concluded.
6. On completion of prosecution evidence, statement of accused persons were recorded u/s 281 Cr.P.C r/w 313 Cr.P.C, wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. He has stated that he is innocent and all the exhibits are false and manipulated. Further, the accused persons wished not to lead defence evidence.
7. Final arguments heard. Case file perused.
8. Short point for determination before this court is as under:
''Whether on 17.10.2022 at property adjacent to A172, Chhatarpur, Enclave-II, New Delhi, within the jurisdiction of PS-Maidan Garhi, the accused persons being builder/occupier/owner of the said property, in furtherance of common intention, were found carrying out unauthorized construction in the shape of stilt to fourth floor without permission/sanction from the concerned authority of Municipal Corporation of Delhi (MCD). Thus, the accused persons were booked under the Section 332 r/w 461 of The Delhi Municipal Corporation FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana Digitally signed by ASHISH ASHISH KUMAR And Ors MEENA KUMAR Date:
MEENA 2025.03.27 15:31:00 +0530 Page 6 of 11 Act, 1957."
9. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the accused persons and hence prayed for conviction of accused persons as per the evidence produced by the prosecution witnesses.
10. It is argued by the Ld. Counsel for the accused persons that they are innocent and falsely implicated in the present matter. Ld. Counsel submitted that the Prosecution has failed to prove that accused persons are the owner/occupier or builder of the property in question. It is submitted that the accused persons have no interest or connection with the property in question. Further, it is submitted that the prosecution has no evidence against the accused persons, hence, they are liable to be get acquitted from all charges.
11. In the present case accused persons are charged under Section 332 r/w 461 DMC Act. Before appreciating the evidence in hand, it is important to go through the relevant provision of the Act:
332. Prohibition of building without sanction: - No person shall erect or commence to erect any building or execute any of the works specified in section 334 except with the previous sanction of the Commissioner, not otherwise than in accordance with the provisions of this Chapter and of the bye-laws FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana Digitally signed by ASHISH And Ors ASHISH KUMAR MEENA KUMAR Date:
MEENA 2025.03.27 15:31:06 +0530 Page 7 of 11 made under this Act in relation to the erection of buildings or execution of works
461. Punishment for certain offences: (1) Whoever--
(a) contravenes any provision of any of the sections, sub-sections, clauses, provisos or other provisions of this Act mentioned in the first column of the Table in the Twelfth Schedule; or
(b) fails to comply with any order or direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, sub-sections, clauses, provisos or other provisions, shall be punishable--
(i) with fine which may extend to the amount, or with imprisonment for a term which may extend to the period, specified in that behalf in the third column of the said Table or with both; and
(ii) in the case of a continuing contravention or failure, with an additional fine which may extend to the amount specified in the fourth column of that Table for every day during which such contravention or failure continues after conviction for the first such contravention or failure.
(2) Notwithstanding anything contained in sub-section (1), whoever contravenes the provisions of subsection (1) of section 317 or sub-section (1) of section 320 or sub-section (1) of section 321 or subsection (1) of section 325 or section 339, in relation to any street which is a public street, shall be punishable with Digitally FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana signed by ASHISH And Ors ASHISH KUMAR KUMAR MEENA MEENA Date:
2025.03.27 15:31:13 +0530 Page 8 of 11 simple imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both.
12. Section 332 lays down that no person shall erect or commence to erect any building except with the previous sanction of the Commissioner, or otherwise than in accordance with provisions of Chapter XVI and of the bye-law make under the Act in relation to the erection of buildings. The MCD has been empowered to discourage, prevent and stop illegal and unauthorized building and construction activities under Sections 343,344,345,345-A,346 and 347 of the Act to demolish and stop the building work, require alteration or work and seal unauthorized construction. In view of the same, the MCD has endowed with ample powers to discourage, prevent and stop illegal and unauthorized construction.
13. Further, it is clear from a plain reading of Section 332 of the Act that in order that a person may be proved guilty of having committed the offence mentioned therein, the prosecution will have to prove that such person either "erected" or "commenced to erect" any building or any works without previous sanction or in a manner not authorised by the Act. Further, what is critical is that the person who is sought to be bound guilty should himself have either erected or commenced to erect the unauthorized construction. The mere presence of a person at the spot may not satisfy this requirement. This Court places its reliance on MCD vs Prakash, 148 (2008) Delhi Law Times 587.
14. The case of the prosecution is that the accused persons, Digitally FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana ASHISH signed by ASHISH And Ors KUMAR KUMAR MEENA Date:
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being in the capacity of builder/owner of the property adjoining to A-172, Chhatarpur Enclave-II, New Delhi was found carrying out unauthorized construction in the shape of stilt to fourth floor without any sanction from concerned Commissioner of DMC.
15. In this regard, the prosecution has examined the inspecting officer PW-1 Sh. R. P. Singh, who has supported the version of prosecution. He has deposed that on 17.10.2022, he noticed ongoing said unauthorized construction at property in question. Thus, he initiated the prosecution and prepared First Hand Report vide Ex.PW1/A. He issued show cause notice u/s 344(1) and 343 of DMC Act vide Mark-A and the notice was served by way of pasting. Thereafter, at his instance, concerned AE issued demolition order and the same was served vide Mark-B. As per instruction, he initiated the prosecution file qua the accused persons and got present FIR registered through concerned DC, South Zone, MCD. It is also clear that the property was traceable and concerned show cause notices were brought to the knowledge of the accused persons as the same were pasted at property in question. The witness was thoroughly cross-examined by the accused persons, but there is no major contradiction or variation found in his statement. Thus, the statement of PW-1 duly supported by documentary evidence has successfully shifted the onus of proof upon the accused.
16. Furthermore, PW-2 HC Raj Kumar Yadav has deposed that he collected all the relevant documents from MCD. He met the JE at property in question. On pointing out, he visited the property in question and prepared site plan at the instance of PW-
FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana Digitally
signed by
ASHISH
And Ors ASHISH KUMAR
KUMAR MEENA
MEENA Date:
2025.03.27
15:31:29
+0530
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1 vide Ex.PW1/B. On inquiry, he got to know that accused Manmohan is raising the unauthorized construction. Thus, on interrogation, accused Manmohan revealed that he is raising the construction with the help of his associate namely Naresh Kumar and Himanshu Sardana. The IO also served notice to accused Manmohan u/s 91 Cr.P.C. for production of ownership documents and the same were produced by the accused Manmohan to the IO, which was later on seized vide Ex.PW2/D. Furthermore, the pointing out memo vide Ex.PW2/E was prepared at the instance of accused Manmohan. Accordingly, IO served notice to all the accused persons u/s 41A Cr.P.C. Thereafter, on completion of investigation, he filed the charge- sheet. The witness was thoroughly cross-examined by the accused persons, but there is no contradiction or variation found in his statement. Thus, the statement of PW-2 duly supported by documentary evidence has successfully shifted the onus of proof upon the accused persons.
17. The witnesses examined by prosecution clearly shows that the accused persons are the owner of the property in question. Ex.PW1/A to Ex.PW1/B, Mark-A, Mark-B and Ex.PW2/D also supports the version of prosecution. It is also to be noted the accused persons have not disputed the factum of ownership of the property in question. The documentary evidence clearly proves that the construction raised at property in question is an unauthorized construction raised without permission of concerned authority of MCD. All witnesses have thoroughly been cross-examined, but no variation or contradiction can be seen in their statements.
Digitally
signed by
FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana ASHISH ASHISH
KUMAR
And Ors KUMAR MEENA
Date:
MEENA 2025.03.27
15:31:36
+0530
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18. Thus, in view of above discussion it is established that accused persons, in furtherance of common intention, have commence to erect/erected unauthorized construction at property in question without the previous sanction of the Commissioner of MCD and has committed offence under section 332 DMC Act punishable under Section 461 of the Act.
19. Thus, in the backdrop of aforesaid discussion, facts and circumstances and material available on record, the prosecution has proved the charges u/s 332/461 DMC Act r/w 34 IPC against the accused persons beyond reasonable doubts. Accordingly, accused (1) Himanshu Sardana, S/o Virender Kumar (2) Naresh Kumar, S/o Hari Chand and (3) Manmohan Kumar, S/o Sh. Ramnath are hereby convicted for the offence punishable u/s 332/461 DMC Act r/w 34 IPC.
20. Let the copy of judgment be given free of cost to the convicts. Let the convicts be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 27.03.2025. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO ELEVEN PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED.
Digitally signed by ASHISH ASHISH KUMAR
KUMAR MEENA
Date: 2025.03.27
MEENA 15:31:43 +0530
(ASHISH KUMAR MEENA)
JMFC-01/SAKET COURT(SOUTH),
NEW DELHI/27.03.2025
FIR No: 423/2022 PS: Maidan Garhi State Vs. Himanshu Sardana
And Ors