Kamal Jeswani vs State
2003 Latest Caselaw 1274 Del

JUDGMENT

J.D. Kapoor, J.

1. This is a petition for quashing of FIR No. 598/2003 P.S. Rajouri Garden registered for the offences punishable under Sections 188/448, IPC, for having tampered with the seal fixed under Section 345-A of the DMC Act.

2. It is alleged that MCD sealed the property on 9.7.2003 by way of order passed under Section 345-A of the DMC Act by the Deputy Municipal Commissioner, West Zone on the following grounds:

"Whereas, it has been brought to my notice that unauthorised construction work is being carried on or has been completed by and at the instance of Sh. S. Khanna owner/builder in premises No. C-70, Rajouri Garden, New Delhi. The unauthorised construction carried out by the owner/builder at the above premises is as under:

"U/const of basement in some portion and a hall at GF."

And whereas upon carefully considering the reports before me and having gone through the file and all the other relevant papers, I an satisfied that for the purpose of carrying out the provisions of this Act and for preventing any dispute as to the nature and extent of unauthorised construction/erection of work, it would be essential to order sealing of the aforesaid premises of the unauthorised construction/ erection of work being carried on or completed therein for the purpose of carrying out provisions of DMC Act and for preventing any dispute as to the extent and nature of erection of work later on.

3. Notice for raising construction was served upon one Mr. S.K. Khanna. The wife of the petitioner claims to have purchased the property from Sh. Hardeep Sahni, Sh. Gautam Prakash Sahni and Smt. Sheila Kumari Sahni vide Registered Sale Deed dated 6.3.2002. The aforesaid vendors are alleged to have purchased the property from Vinod Bala vide Regd. Sale Deeds dated 13.7.1993. Vinod Bala acquired the property from Sh. Jagat Narayan Malik by way of a Regd. Sale Deed dated 29.9.1962. Sh. Jagat Narayan Malik acquired the property from Balwant Singh by way of a Regd. Sale Deed dated 31.10.1955 and Shri Balwant Singh acquired the said property from the coloniser DLF Housing and Construction Ltd. by way of Regd. Sale Deed dated 23.9.1953. No where Mr. S. Khanna figures in the sale and purchase of the property in question since 1955 as owner.

4. Admittedly no notice was served upon the petitioner or his wife. Notice was served upon one Mr. S. Khanna who has nothing to do with the property inasmuch as neither is he the owner of the property nor his whereabouts are known. Aforesaid FIR was registered without naming either the owner or occupier to the person who is alleged to have broken the seal.

5. Before any property is sealed or any action is taken under Section 345-A of the DMC Act it is incumbent upon the MCD to serve notice upon the owner or occupier. In the FIR there are no allegations as to who has broken the seal. Without disclosing the facts in the FIR that notice was served upon the petitioner and pursuant to service of notice an order under Section 345-A of the DMC Act was passed and without investigating the allegations in the FIR against the petitioner as to who has broken the seal and taken the possession of the premises, no arrest of the petitioner could have been made by the IO. There is no person by the name S. Khanna nor has the MCD or the Investigating Agency laid hand upon any document in favor of Mr. S. Khanna upon whom notice is alleged to have been served leading to the passing of the order under Section 345-A of DMC Act.

6. As is apparent from the facts of the case there was no allegation against the petitioner or his wife in the FIR that the petitioner had broken the seal or that the notice was served upon the petitioner before an order under Section 345-A was passed.

7. If the order of sealing is itself void ab-initio and is not operable against the petitioner who claims to have purchased the property from a bona fide vendor and therefore claims to be bona fide, purchaser neither an order under Section 345-A of the Act could have been passed without serving a mandatory and statutory notice upon the petitioner nor could have the premises been sealed. If at all an order was to be passed it should be against one Mr. S. Khanna though he was not at all in the picture as he was neither the owner nor the occupier nor had any connection with the premises in question. The FIR is vague and without any specific allegations against the petitioner and, therefore, is liable to be quashed against the petitioner.