Delhi District Court
Centre For Holistic Development vs State Of Nct Of Delhi on 5 January, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 248/2021
CNR No.: DLCT01-016494-2021
Centre for Holistic Development, New Delhi
1D, First Floor, Shahpur Jat, New Delhi-110049
Through its Executive Director
Mr. Sunil Kumar Aledia
..... Petitioner
VERSUS
1. State of NCT of Delhi
2. National Buildings Construction Corporation Limited
(NBCC)
NBCC Bhawan, Lodhi Road,
New Delhi-110003
3. Chairman-cum-Managing Director of National Buildings
Construction Corporation Limited (NBCC)
NBCC Bhawan, Lodhi Road,
New Delhi -110003
4. World Health Organization (WHO), Regional Office for
South-East Asia
Permanent Address: World Health House,
Indraprastha Estate, Mahatama Gandhi Marg,
New Delhi-110002
Temporary Address: Metropolitan Hotel Office Block,
Bangla Sahib Road, Gole Market, Sector-4,
New Delhi-110001
5. Person In-Charge of World Health Organization (WHO),
Regional Office for South-East Asia
Permanent Address: World Health House,
Indraprastha Estate, Mahatama Gandhi Marg,
New Delhi-110002
Crl. Rev. No. 248/2021 Centre for Holistic Development, New Delhi vs. State & Ors. Page No. 1 of 15
Temporary Address: Metropolitan Hotel Office Block,
Bangla Sahib Road, Gole Market, Sector-4,
New Delhi-110001
6. Commissioner and Person In-Charge
Dr. Sen Nursing Home Drain,
South Delhi Municipal Corporation (SDMC),
South Zone, KD Colony, Sector 9,
Rama Krishna Puram, Delhi-110022
7. Delhi Jal Board
Public Relations Office
Room No. 306, 3rd Floor,
Varunalaya Phase-II, Jhandewalan,
Karol Bagh, New Delhi-110005
..... Respondents
Date of Institution : 01.12.2021
Date of Arguments : 04.12.2021
Date of Judgment : 05.01.2022
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'the Cr.P.C.') is directed against order dated 08.12.2020 (the impugned order) arising from the complaint case vide Cr. Case No. 4872/2020 titled as 'Centre for Holistic Development vs. National Buildings Construction Corporation Ltd. (NBCC) & Ors.' whereby Ld. MM-03, Central District, Tis Hazari Courts, Delhi (In short 'the trial Court') dismissed an application under Section 156 (3) of the Cr.P.C. filed by the petitioner seeking registration of FIR.
Crl. Rev. No. 248/2021 Centre for Holistic Development, New Delhi vs. State & Ors. Page No. 2 of 15 BRIEF FACTS:
2. Facts leading to filing of the criminal revision petition are that the petitioner filed an application under Section 156 (3) of the Cr.P.C. for registration of case under Section 425/431/432/268/288/290/34 of 'The Indian Penal Code, 1860' (In short 'IPC') on the averments that the petitioner is a Non- Government Organization (NGO) and espousing the cause of homeless and weaker sections of the society residing and working in urban centers including Delhi. The petitioner, through its Executive Director, filed the said application on behalf of 12 families (In short 'displaced families') comprising 71 persons residing at Anna Nagar JJ Cluster, behind ITO, near Indraprastha Metro Station on the bank of drain known as Dr. Sen Nursing Home Drain (In short 'the said drain').
3. The case of the petitioner is that National Buildings Construction Corporation Ltd. (In short 'NBCC') is constructing a building comprising 16 floors on a 7000 square metre plot for World Health Organization (In short 'WHO'). NBCC constructed a basement for WHO building and excavated an underground hole for that purpose. NBCC excavated land nearly 6 floors deep just adjacent to the said drain. The debris disrupted the flow of the said drain and led to collection of water in the hole excavated on the construction site. The improper excavation and illegal boundary wall raised by NBCC led to blocking of the said drain and obstructed flow of rain water and resulted into flooding of the said drain.
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4. According to the petitioner, the said factors led to flooding of the construction site and formation of a sink hole in the middle of the said drain which resulted into destruction of houses of the displaced families. South Delhi Municipal Corporation (In short 'SDMC') is responsible for maintenance of the said drain. SDMC permitted NBCC to build wall near the said drain causing weakening of embankment of the said drain, blockage of the said drain and improper disposal of the construction waste material into the said drain.
5. The case of the petitioner is that on 19.07.2020, the houses of the displaced families were washed away due to caving in of the said drain caused by construction site of WHO and therefore, the displaced families lost their belongings and savings. The improper and negligent excavation weakened and eroded the soil and caused accumulation of drain water in the basement. For that reason, a large tree near WHO basement was uprooted and a sink hole was formed in the ground and houses of the displaced families were damaged. The houses of the displaced families were destroyed due to the blockage of the said drain on account of construction wall erected by NBCC. The displaced families made a complaint to SHO, PS IP Estate on 05.08.2020. However, local police did not take any action. The respondents are public authorities and they are responsible for destruction of the houses and permanent displacement of the displaced families.
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6. According to the petitioner, the said destruction suffered by the displaced families on account of breach of their duties by the respondents. The respondents had the knowledge that illegal construction will block the said drain and obstruct flow of water and resultantly, damage houses of the displaced families. The improper management of the construction site resulted in water logging causing breach of embankment and formation of sink hole in the said drain. The petitioner sent a complaint on 05.08.2020 to SHO, PS IP Estate and other senior police officers for seeking registration of FIR. However, the police did not take any action on the said complaint and register FIR against the respondents. Therefore, the petitioner filed the said application under Section 156 (3) of the Cr.P.C. seeking registration of FIR.
THE IMPUGNED ORDER:
7. The trial Court dismissed the said application under Section 156 (3) of the Cr.P.C., vide the impugned order, as under:
"Coming back to the present case, as per the allegations leveled by the complainant, the houses of displaced families were destroyed due to caving in of drain caused by the construction site of WHO building which led to the blockage of the adjacent drain and caused the flooding of water leading to the alleged destruction. The complainant has relied upon the news reports alleging that same are sufficient to make the proposed accused persons liable for the alleged offences. It is a trite law that the news reports can at the best be considered as a hearsay evidence and same does not have any evidentiary value in the eyes of law.
Crl. Rev. No. 248/2021 Centre for Holistic Development, New Delhi vs. State & Ors. Page No. 5 of 15 There has to be at least some cogent material on record in support of the allegations of the complainant. It is not the case of the complainant that alleged construction work was being carried out without any sanctioned site plan or without obtained permission from the concerned authorities. The allegations rather revolve around the alleged improper handling of the construction site by the proposed accused persons and also regarding the non disposal of the debris and waste material of the site, which has led to inundation of the drain and resulted in flooding, causing the destruction of the houses of displaced families. These allegations are required to be established by the complainant through some cogent and clinching material on record. The present case does not require any scientific investigation to be conducted by the police nor same requires any custodial interrogation of proposed accused persons. The evidences are well within the control and reach of the complainant. Therefore, there does not exist any ground for issuing directions qua registration of case FIR u/s 156 (3) Cr. P.C. in the present case. Accordingly, the present application deserves dismissal and same is hereby dismissed. Application stands disposed off.
At this stage, taking cognizance of the complaint u/s 200 Cr.P.C., the complainant is given opportunity to led the Pre-summoning evidence. Put up for PSE on 01.03.2021."
GROUNDS OF REVISION:
8. Feeling aggrieved and dissatisfied with the impugned order, the petitioner has challenged it on the following grounds:
(a) The impugned order was passed mechanically without application of judicial mind;
(b) The trial Court did not direct registration of FIR even when a cognizable case was made out and investigation was required for collection of proper evidence;
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(c) The trial Court did not consider that prima facie, a cognizable offence under Section 432 IPC was disclosed against the respondents;
(d) The trial Court wrongly considered and relied action taken reports in reaching to an incorrect conclusion;
(e) The trial Court did not consider the factors leading to inundation and obstruction of the drainage i.e. improper and illegal excavation of WHO site, improper disposal of construction waste, failure of SDMC in securing proper disposal of construction waste, inaction of SDMC in ensuring proper flow of the said drain and failure of Delhi Jal Board in ensuring safety and security of its pipelines;
(f) The respondents committed offence under Section 432 IPC with the requisite knowledge and intention that their acts were likely to cause inundation and obstruction to public drainage and injury and damage to public;
(g) SDMC allowed NBCC to construct a wall adjacent to the said drain which resulted into weakening of the embankment of the said drain, blocking of the said drain, flooding of the site and formation of a sink hole;
(h) The improper disposal of the waste material and want of remedial measures led to the destruction of the houses of the displaced families;
(i) The action taken report wrongly concluded that the said incident was caused by excessive rain without seeking any expert / scientific opinion;
(j) The status report revealed that embankment between the basement and the said drain was weak which resulted into erosion of soil around Delhi Jal Board pipeline and breaking of embankment and drowning of basement of WHO building which led to formation of sink hole in the said drain;
(k) There has never been any incident of such nature within the period of 30 years since when the displaced families are residing there and the said destruction of houses of the displaced families was caused by redevelopment of WHO building and negligence of NBCC and Delhi Jail Board;
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(l) Action taken report states that there was erosion of soil beneath Delhi Jail Board pipelines which were part of the embankment dividing the said drain and the basement excavated at WHO construction site;
(m) There is no mention of sink hole in the status report which was caused by deep excavation at the construction site which resulted into destruction of houses of the displaced families;
(n) Sanction plan of the building of WHO is not relevant as it does not state about excavation undertaken at the site. Sanction plan require that construction waste shall be removed on weekly basis and there must not be any disturbance to the residents of the neighborhood;
(o) Investigating Officer did not incorporate videos pertaining to the incident as part of the investigation;
(p) The trial Court placed burden of collecting and producing evidence on displaced families;
(q) The responsibility of collection of evidence is of the police and not of the complainants;
(r) There is need of scientific investigation of the manner of the incident and it can only be collected by the police;
(s) The trial Court erred in discarding news reports as hearsay evidence as the said reports disclosed commission of a cognizable offence;
(t) The trial Court did not consider the facts leading to the destruction of houses of the displaced families on 19.07.2020 due to acts and omissions of the respondents;
(u) In the facts and circumstances of the case, it is necessary that the police must be directed to investigate the case and obtain scientific and technical reports leading to the incident; and
(v) The impugned order deserves to be set-aside.
Crl. Rev. No. 248/2021 Centre for Holistic Development, New Delhi vs. State & Ors. Page No. 8 of 15 APPEARANCE:
9. I have heard Mr. Shiven Varma, Advocate for the petitioner and examined the material on record. CONTENTIONS OF THE PETITIONER:
10. Mr. Shiven Varma, Advocate for the petitioner contended that the impugned order suffers from material illegality, legal infirmity and apparent error of law. He contended that the facts and circumstances of the case disclose prima facie commission of offence under Section 432 IPC which is a cognizable offence and therefore, the trial Court erred in not directing registration and investigation of the case. He contended that the displaced families are weaker sections of the society and they cannot collect and produce the scientific and technical evidence. He contended that such evidence can only be collected during investigation of the case. He contended that the trial Court did not apply its judicial mind to the facts and circumstances of the present case. He contended that the trial Court did not consider that improper excavation at WHO site and disposal of construction waste in the said drain obstructed free flow of storm water in the said drain which led to formation of sink hole in the said drain and destruction of houses of the displaced families. He contended that the respondents are the public authorities and they had the knowledge that their actions will cause inundation and obstruction to the said drain which would cause damage to the houses of the displaced families.
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11. Mr. Shiven Varma, Advocate for the petitioner displayed a CD containing media reporting of destruction of houses of the displaced families aired on channels 'ABP Live', 'Nation News', 'Times Now', 'ANI ht', videos of the uprooting of the trees and caving in of the said drain and photographs of the place of incident. He contended that NBCC is constructing a building comprising 16 floors on a plot measuring 7000 square meters. He contended that NBCC excavated the land to the extent of 6 floors deep just adjacent to the said drain and construction waste led disruption of free flow of the said drain and accumulation of water in excavated site causing caving in of the said drain and destruction of houses of the displaced families. He contended that because of digging work embankment on one side was breached and it resulted into soil erosion in heavy rain and destruction of houses of displaced families. He contended that a wall raised by NBCC blocked flow of the said drain which led to overflowing of the said drain. He contended that investigation is required for collection of scientific evidence pertaining to cause of the incident. He contended that the displaced families are weaker sections of the society and they cannot collect such scientific evidence. He contended that impugned order be set-aside. He contended that local police be directed to register FIR and investigate the case and collect scientific evidence besides other relevant evidence relating to cause of incident.
Crl. Rev. No. 248/2021 Centre for Holistic Development, New Delhi vs. State & Ors. Page No. 10 of 15 ANALYSIS OF THE IMPUGNED ORDER:
12. The trial Court passed the impugned order on the following grounds:
(a) News reports are hearsay evidence;
(b) There must be some cogent material to support the allegations of the complainant;
(c) The complainant must substantiate the allegations pertaining to non-disposal of the construction waste and debris and inundation of the said drain and consequent flooding and destruction of houses of the displaced families;
(d) The case does not require any scientific evidence;
and
(e) The evidence is within the reach of the complainant.
DISCUSSION AND CONCLUSION:
13. On thoughtful examination of the application under Section 156 (3) of the Cr.P.C., complaints, videos, media reporting and news reporting in the light of the arguments addressed by Ld. Counsel for the petitioner, it is evident that the case of the petitioner is that NBCC is constructing a building comprising 16 floors for WHO near the said drain. NBCC excavated the site to the extent of 6 floors deep and raised a wall near the said drain. NBCC thrown the debris and the construction waste in the said drain and the excavation near the said drain led to the weakening of the embankment of the said drain. The debris and the construction waste thrown in the said drain obstructed free flow of the said drain.
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14. On 19.07.2020, there was heavy rain in Delhi.
The debris and construction waste obstructed the free flow of the said drain and led to accumulation of water in the said drain. The said water diverted into the excavation at the construction site. The flow of the storm water rushing towards the excavation caused soil erosion of the already weak embankment of the said drain and thereby, a sink hole was created in the said drain which engulfed the houses on the other side of the said drain and caused serious damage to the other houses.
15. NBCC is constructing WHO building in accordance with a sanctioned plan. There is no evidence on the file of the Court that NBCC had thrown any debris or construction waste in the said drain. From the videos and media reporting, there is nothing that any debris or construction waste disrupted the flow of the said drain. Even if news reporting and media reporting is considered as prima facie material depicting the state of affairs at the place of incident immediately after the incident, they do not show that there was any construction waste or debris in the said drain or the cause of formation of sink hole in the said drain was weak embankment or excavation of the construction site. The petitioner must lead cogent and convincing evidence that NBCC had thrown debris and construction waste in the said drain. The petitioner must lead evidence that inundation of the said drain and consequent flooding of the said drain and destruction of houses of the displaced families was attributable to the said construction.
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16. In case any scientific or technical evidence is required, the trial Court may take recourse to Section 202 of the Cr.P.C. It is trite to state that a Magistrate has power to direct registration of case. However, this power must be exercised judiciously on proper grounds. Such power cannot be exercised mechanically. In 'Subhkaran Luharuka & Anr. vs. State' 2010 (3) JCC 1972; Hon'ble Delhi High Court observed as under:
"42. Thus, there are pre-requisites to be followed by the complainant before approaching the Magistrate under Section 156 (3) of the Code which is discretionary remedy as the provision proceeds with the word 'May'. The Magistrate is required to apply his mind while doing so. He should pass the orders only if he is satisfied that the information reveals commission of cognizable offences and also about necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police.
It is thus not necessary that in every case where a complaint has been filed under Section 200 of the Code the Magistrate should direct the police to investigate the crime merely because an application has also been filed under Section 156 (3) of the Code even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, may be with the assistance of the Court or otherwise, ....."
17. The trial Court rightly declined to issue direction to the police to register a case. The trial Court rightly observed that there must be some cogent material in support of the allegations made in the complaint. The trial Court rightly observed that the petitioner must substantiate its allegations through cogent and clinching material. The trial Court rightly taken cognizance and given opportunity to the petitioner to lead pre-summoning evidence to substantiate its allegations. Crl. Rev. No. 248/2021 Centre for Holistic Development, New Delhi vs. State & Ors. Page No. 13 of 15 CONCLUSION:
18. The impugned order does not suffer from any legal infirmity or material illegality or jurisdictional error which would occasion injustice, if it is not set-aside. Accordingly, the criminal revision petition filed by the petitioner is dismissed. A copy of the judgment be sent to the trial Court. Revision file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.01.05
15:55:05 +0530
Announced in the open Court SANJAY SHARMA-II
on this 05th January, 2022 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
Crl. Rev. No. 248/2021 Centre for Holistic Development, New Delhi vs. State & Ors. Page No. 14 of 15 Centre for Holistic Development, New Delhi vs. State & Ors. CNR No.: DLCT010164942021 Crl. Revision No. 248/2021 05.01.2022 Proceedings convened through Video Conferencing. Present : Mr. Shiven Varma, Advocate for the petitioner.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The revision file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.01.05
15:55:19 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
NK 05.01.2022
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