Delhi District Court
Neera Malik @ Neera Mahajan vs State (Govt. Of Nct Of Delhi) on 14 July, 2017
1
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
In Crl. Revision No. 87/2017
Neera Malik @ Neera Mahajan
...... Revisionist
Versus
1. State (Govt. of NCT of Delhi)
2. Gulshan Kumar Arora
S/o Late Sh. Asanand Arora,
R/o N17, NDSE, PartI
New Delhi. ..... Respondents
ORDER :
1. This revision petition u/s 397 of the Code of Criminal Procedure is directed against the order dated 25.01.2017 passed by the Ld MM 01, SouthEast in the complaint case titled as Gulshan Kumar Arora v. Neera Mahajan and others, CC No. 630172/2016, P.S Lajpat Nagar whereby the revisionist Ms Neera Mahajan @ Neera Malik has been summoned as an accused for the offences punishable u/s 182/341/452/427/506 IPC.
2. The facts relevant for the disposal of the present petition are that the complainant (respondent No. 2 herein) had purchased basement and ground floor of the property bearing No. M11, Lajpat NagarIII, New Delhi in July, 2014. The property was not in habitable condition. He started its renovation after taking permission from the MCD. Since there was no supply of water in his property, he went Neera Malik v. State CR No. 87/17 Page No. 1/9 2 upstairs with his plumber where the petitioner/revisionist, occupier of third floor of property stopped him from inspecting his servant quarter and water supply portion. She also threatened him to implicate in false cases. He lodged complaint with the MCD and the police but she continued interfering in the renovation work. She threatened him and his workers to falsely implicate them if they would not stop the renovation work.
3. The complainant alleged that the revisionist trespassed into the servant quarter belonging to him, demolished its structure and illegally occupied it. The revisionist also lodged complaint with MCD which sealed the basement of the complainant. He challenged the sealing order before the Tribunal and vide order dated 20.07.2016, it was set aside. He also filed a suit which was decreed in his favour. The complainant alleged that the revisionist falsely implicated him, his labourers and staff in a case registered vide FIR 875/2014 at the police station Lajpat Nagar. She after conniving with the MCD officials also falsely implicated him in another case FIR No. 880/14.
4. Ld MM, on the basis of material available on record after getting prima facie satisfied, took cognizance of the offences punishable u/s 182/341/452/427/506 IPC and ordered for summoning of the revisionist.
5. This order is assailed on the ground that it is bad in law and against the facts. She had purchased the entire third floor on 29.09.1995.
Since then, she has been living on the third floor. She has been paying all the dues and electricity charges regularly. She did not Neera Malik v. State CR No. 87/17 Page No. 2/9 3 make any addition/ alteration on the third floor since when she purchased it. The problem regarding water logging in the basement and ground floor area was prevalent for about twenty two years. She alleged that the respondent No. 2 i.e. the complainant started the illegal construction in his portion causing damage to the foundation and cracks to the building. She and her neighbourers tried to make him understand that the illegal construction would damage the building but he did not listen and threatened them of dire consequences. She then made the complaint to the police on 11.08.2014 which forwarded to SDMC on 14.08.2014. The SDMC after enquiry vide letter dated 22.08.2014 got stopped the construction work being carried out by the respondent No. 2 and proceeded to take action against all the occupants of the property including the revisionist. The SDMC also issued demolition notice dated 01.10.2014 to the revisionist to demolish extra area/unauthorized portion of the property which she duly replied claiming that she never raised any unauthorized construction rather it was the respondent No. 2 who raised the construction in contravention of the bye laws. The officials of SDMC visited the building and found the respondent No. 2 carrying out the illegal construction. They sealed the portion of respondent No. 2 on 17.11.2014. She also got her portion inspected from an approved engineer and obtained covered area certificate. Respondent No. 2 in violation of the sealing order broke the seal and again started the construction activities. She and her neighbours then made the complaint to SDMC which led to the registration of FIR No. 880/14.
Neera Malik v. State CR No. 87/17 Page No. 3/9 4 Respondent No. 2 also threatened the revisionist to throw her out of the property for which she made complaint leading to the registration of FIR No. 875/14. The respondent No. 2 also filed a suit for permanent and mandatory injunction in which a decree was passed vide judgment dated 31.05.2016. Against the order/judgment, the revisionist has preferred an appeal before the District Judge. SDMC also filed a complaint against respondent No. 2 and others and FIR No. 539/16 was registered. After the desealing order by the Tribunal, SDMC again sealed the property on 30.07.2016 but the respondent No. 2 again tampered the seal and another FIR was registered. She alleged that the respondent No. 2 does not have any proof as to the demolition of the servant quarters and water tanks stated to be on the third floor as alleged by him. In fact no servant quarters/water tanks were in existence on the third floor from the very beginning i.e since 1995.
6. I have heard the arguments advanced by Ld counsel Sh. Anil Rakhra for the Revisionist and Sh. Ravindra Narayan, for the respondent No. 2. The parties also filed their written submissions and documents of their properties.
7. A perusal of the documents filed by the parties would reveal that on 06.08.1960 L&DO had executed a Lease Deed in respect of M11, Lajpat Nagar, Part III, New Delhi measuring 253.1 sq. yards in favour of Daya Ram and Gopal Dass. Smt Hiran w/o Late Daya Ram and Arjan Dass S/o Late Gopal Dass sold the aforesaid property to M/s Charanjit Builders and Promoters Pvt. Ltd through its Director Binkesh Kochhar vide Agreement to Sell dated Neera Malik v. State CR No. 87/17 Page No. 4/9 5 12.06.1990.
8. M/s Charanjit Builders and Promoters Pvt. Ltd on 27.01.1994 sold the entire third floor of the property comprising of one drawing/dining room, two bedrooms, two bathrooms and one kitchen with front and rear balconies alongwith side veranda with structures standing thereon to Madhu Suri. On 27.04.1995 Madhu Suri sold the aforesaid premises to Subrata Brahma vide Agreement to Sell and Purchase. In that agreement, Madhu Suri had claimed that she is the owner and in possession of the entire third floor and a servant quarter on its terrace, having been purchased from M/s Charanjit Builders and Promoters Pvt. Ltd vide Agreement to Sell dated 27.01.1994. It is relevant to mention that in the agreement dated 27.01.1994, there is no mention about the servant quarter on its terrace. Vide Agreement to Sell dated 27.09.1995, Subrata Brahma sold the premises to Ms Neera, the petitioner/revisionist herein. In that agreement, Subrata Brahma claimed that he is the absolute owner and in possession of entire third floor and a servant quarter on its terrace having been purchased from Madhu Suri vide Agreement to Sell dated 27.04.1995. It is not understood who constructed the servant quarter on the terrace of the third floor or who permitted the construction of the servant quarter on the terrace. In all the three agreements, the word entire third floor is mentioned. In the absence of any plans/ drawings, it is not known where the servant quarter was constructed, on the third floor terrace or on the terrace above the third floor.
9. M/s Charanjit Builders and Promoters Pvt. Ltd also sold the entire Neera Malik v. State CR No. 87/17 Page No. 5/9 6 basement of the property to Annal Kumari Jari vide agreement dated 07.07.1993. Annal Kumari sold it to Respondent No. 2 i.e Gulshan Arora vide Transfer of Lease/Assignment Deed dated 14.07.2014. M/s Charanjit Builders had also sold the entire ground floor comprising of three bedrooms with attached bathrooms, drawing cum dining, one lobby, one kitchen, front lawn with open space except from passage leading to staircase, one back courtyard and one servant quarter on the top terrace to Ajit Jari vide agreement to sell dated 07.07.1993. Ajit Jari sold the ground floor as described above to Reeta Arora w/o Gulshan Kumar Arora and Rachita Arora D/o Gulshan Kumar Arora vide transfer of lease/assignment deed dated 14.07.2014. As per the possession letter, the aforesaid portion was handed over to Reeta Arora and Rachita Arora. M/s Charanjit Builders and Promoters Pvt Ltd while entering into the Agreement to Sell with Ajit Jari had given an undertaking on 07.07.1993 to provide facilities i.e water tank and one servant quarter on the terrace. There is no document to indicate when the above facilities were provided.
10. A letter dated 01.10.2014 of South Delhi Municipal Corporation finds mention of the status of the existing structure with respect to the sanctioned building plan and property tax record/status as on 08.02.2007.
The status of existing structure i.e sanctioned building plan:
Description of Floor Sanctioned Area Existing Area As per plan Existing (In Sqm) (In Sqm) Basement Basement 126.37 151.31 Neera Malik v. State CR No. 87/17 Page No. 6/9 7 Ground Ground 126.87 151.31 Mezzanine First 31.72 151.31 First Second 126.87 151.31 Barsati Third 63.29 151.31 Property tax record and status:
Description of Floor Area Assessed prior to Existing Area As per plan Existing 08.02.2007. (In Sqm) (In Sqm) Basement Basement 150.00 151.31 Ground Ground 150.00 151.31 Mezzanine First 140.00 151.31 First Second 135.00 151.31 Barsati Third 110.00 151.31
11. In the said letter, there is no mention of third floor. The floors have been described as basement, ground, mezzanine, first and barsati as per the sanctioned plan. As per the existing position, the floors have been described as basement, ground, first, second and third. There is no mention in the letter about the existence of servant quarters on the terrace above the third floor/barsati as per the sanctioned plan.
12. On being questioned, respondent No. 2 could not give satisfactory answer, whether the servant quarter as mentioned in the document was existing or not when he purchased the basement and the ground floor. The parties have also placed on record photographs.
According to respondent No. 2, the revisionist had merged the servant quarters on the barsati with the third floor. He however conceded that when he took over possession, the servant quarter was not in existence. The documents in respect of the third floor show that the entire third floor was sold to the revisionist. So how Neera Malik v. State CR No. 87/17 Page No. 7/9 8 can it be said that there was a servant quarter on the third/ barsati floor of the building. That being the position, question of demolishing the servant quarter on the barsati/third floor would have not been there. As regards unauthorized construction as appearing in the letter dated 01.10.2016, it is for the MCD to see whether the construction was made as per the sanctioned plan or not or whether there was any illegal or unauthorized construction. This court is not going to dwell on this issue. None of the parties placed on record the sanctioned plans.
13. As regards water tanks on the terrace, the supply to the respective floors comes from the tanks. Ld counsel for the revisionist concedes that the water tanks are available for the occupants of the first floor and second floor. It is not understood why Respondent No. 2 was being denied to construct/repair the water tank on the terrace for the basement and the ground floor which he had purchased. In the absence of any agreement to the contrary, I am of the view that the terrace is common for all as it is meant for utility services.
14. Since in the instant case, there is no material to show that the revisionist had demolished the servant quarter on the third floor and merged with the third floor as alleged by the respondent No. 2, the question as to the threat appears to be an afterthought being counter blast of the FIRs registered against the Respondent No. 2 in the complaint of revisionist and others when Respondent No. 2 allegedly carried out mass renovation work damaging the safety and structure of the building.
15. As regards allegations u/s 182 IPC that the revisionist made the Neera Malik v. State CR No. 87/17 Page No. 8/9 9 false complaint, there is no complaint from the public servant in this regard. The offence is noncognizable. Section 195 CrPC provides that no court shall take cognizance of any offence punishable under sections 172 to 188 of IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. In view of the law laid down in the case Saloni Arora v. State of NCT of Delhi, Crl Appeal No 64 of 2017 arising out of SLP ( Crl) No. 8184/2015), in the absence of any complaint from the public servant, the cognizance of offence punishable u/s 182 IPC is barred by law.
16. It is pertinent to mention that an action taken report was also submitted on the complaint of respondent No. 2 in the aforesaid case and it was opined that the complaint filed by respondent No. 2 is purely civil in nature and no cognizable offence is made out.
17. For the aforesaid reasons, no case is made out against the revisionist. The impugned order dated 25.01.2017 qua summoning the revisionist as an accused for her committing the offence punishable u/s 182/341/452/427/506 IPC is set aside.
18. File be consigned to the Record Room. A copy of this order be sent to the court concerned.
Announced in open court
on 14.07.2017 (Sanjiv Jain)
ASJ(Spl. FTC)
South East, Saket Court
New Delhi
Neera Malik v. State
CR No. 87/17 Page No. 9/9