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24. Learned senior Advocate further submits that it is nobody‟s case that at any point of time any intimation has been received from the owner of building and/or his architect. The petitioner was posted in the area between September 1998 to June 1999 has ignored to include the case in the list to be submitted to the committee, if at all any was constituted.

25. Further he submits that according to para 3 of said minutes, before issuance C and D Form, a building should be thoroughly checked for deviation and in case of serious deviation C and D Forms should not be issued. As submitted above, before joining of the petitioner in the area concerned on 31.08.1998. C and D Forms of the building were issued on 07.08.1998 and 14.08.1998 respectively.

2.6 Deliberately did not inform the Executive Engineers (Coordination) MCD Headquarters for inspection of the building as contemplated in the office order dated 31/10/1998."

39. Accordingly, the petitioner has been charged for committing offence under Section 120-B, by not taking appropriate action in accordance with law, he facilitated the unauthorized construction and thus causing undue advantage to the builder/owners of the property. The construction made on property is not in accordance with sanctioned building plan and there are major deviations which were not compoundable and were beyond permissible limits. The report of the expert committee further strengthen the case of prosecution as it specifically indicate the excess covered area which is non-compoundable, therefore, the wilful omission of any action of JE and AE of MCD against illegal construction was to cause wrongful gain to the builders/owners and others.

62. Learned counsel for the petitioner has referred letter dated 02.06.1997 issued by Engineering Department of MCD. The para 3 at page 251 is reproduced as under:-

           "ACTION       AGAINST       THE     UNAUTHORIZED
          CONSTRUCTION:

Whenever, any unauthorized construction/deviation against sanctioned Building Plans is noticed by the Junior Engineer (Bldg.) in charge of the area, he will prepare the FIR and show cause notice under Section 343 and 344 of the DMC Act and put up to the Asst. Engineer (bldg.). These notices will be issued under the signatures of the Asstt. Engineer (bldg.) in charge of the area. Similarly, Notice under Section 343 will be issued under the signatures of the Asstt. Engineer (Bldg.) after carefully examining the merits of the case. The orders for demolition will also be issued by the Asstt. Engineer (Bldg.). The Asstt. Engineer (Bldg.) will carry out the test check of 40% of unauthorized constructions booked in his jurisdiction and the test check for the Executive Engineer (Bldg.) will be limited to 20% during the particular month."

63. On perusal of the aforesaid para, whenever, any unauthorized construction/deviation against the sanctioned building plans is noticed by Jr. Engineer (building) in charge of the area, he will prepare the FIR and show-cause notice under Sections 343 and 344/DMC Act and put up to the Asstt. Engineer (building). These notices will be issued under the signature of Asstt. Engineer (building). The learned counsel for the petitioner submits that the concerned Jr. Engineer never reported any unauthorized/deviation to the petitioner being his Asstt. Engineer.