Municipal Corporatin Of Delhi vs Subhash
2009 Latest Caselaw 4685 Del

14A
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      Crl.A.No. 578/1999

#     MUNICIPAL CORPORATION OF DELHI       ..... Appellant
!                     Through: Counsel for the appellant.

                       versus

$     SUBHASH                              ..... Respondent
^                           Through: Mr. Anand Aggarwal for the
                            respondent,    along      with  the
                            respondent


*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?      No


      2.    To be referred to the Reporter or not?         Yes



      3.    Whether the judgment should be
            reported in the Digest?                        Yes



: V.K. JAIN, J.

This is an appeal against the judgment dated 10 th July,

1995 whereby the respondent was acquitted of the charge under

Section 461 of Delhi Municipal Corporation Act, 1957 read with

Section 332 thereof.

2. The case of the appellant is that on 20.11.1989, during

inspection by the concerned Junior Engineer of South Zone, it

was found that the respondent had carried out unauthorized

construction of shop by laying roof on the existing wall in

premises No. 20/6-7, Yusuf Sarai, New Delhi without prior

permission of Commissioner of MCD.

3. The appellant / complainant produced three witnesses in

support of its case, whereas one witness was produced by the

respondent in his defence.

PW-1 Shri Naresh Sharma, Jr. Engineer stated that on

20.11.1989 he inspected premises No. 20/6-7, Yusuf Sarai, New

Delhi and found that the respondent was getting unauthorized

construction of a shop by laying of roof on the existing walls. He

further stated that existing walls were about 6 ft. height and

respondent had raised the height by about 2 feet from 3 sides

and layed the roof over it and then fixed two shutters on the

road side at ground floor. The curing and finishing work was

found in progress at the time of inspection.

PW-2 and PW-3 are formal witnesses whose testimony are

need not be discussed.

3. In his statement under Section 313 Cr. P.C. the respondent

stated that he did not make any unauthorized construction.

4. DW-1 Sita Ram is a resident of 69, Yusuf Sarai. He has

stated that he knew the respondent, who was having godown in

20/6-7, Yusuf Sarai and that he had never seen any new

construction, addition or alteration in 20/6-7 Yusuf Sarai either

on or before or after 20.11.89.

5. The Ld. MM held that laying of roof is not an addition to a

building and therefore offence alleged against the respondent

did not stand prove.

6. Section 332 of Delhi Municipal Corporation Act, 1957

provides that no person shall erect or commence to erect or

execute any of the works specified in Section 334, except with

the previous sanction of the Commissioner, nor otherwise than

in accordance with the provisions of this Chapter and of the bye-

laws made under this Act in relating to the erection of buildings

or execution of works.

Section 331 of the Act defines the expression "to erect a

building". It means amongst others to roof or cover an open

space between walls or buildings to the extent of the structure

which is formed by the roofing or covering of such space.

7. The allegation against the appellant is that he raised the

height of the walls and then put roof over them. Though, in the

report, prepared by PW-3, there is no mention of raising the

height of the walls, it has been specifically recorded in this

report, which was prepared at the time of inspection, that

unauthorized construction of shop had been done by laying roof

on the existing walls in premises No. 20/6-7, Yusuf Sarai, New

Delhi without prior permission of Commissioner MCD, with the

help of labour. Therefore, presuming that the height of the walls

had not been raised, the respondent would nevertheless be

guilty of erecting a new building within the definition of 332 of

DMC Act if he laid roof on the existing boundary walls of the

premises No. 20/6-7, Yusuf Sarai. In view of the specific

definition given in Section 331 (f), it cannot be disputed that

laying roof or covering an open space between the walls would

amount to erection of a building. Therefore, the Ld. MM was not

at all correct in saying that laying of roof does not amount to

erection of a building. In fact, the Ld. MM has not even

considered the definition of „erection of a building‟ given in

Section 331 of the Act and has come to a wrong conclusion

without there being any basis for drawing such a conclusion. It

is rather strange that she did not even advert to the definition

given in the Act, and gave her own meaning to the expression „to

erect a building.‟

8. There is no reason to disbelieve the deposition of PW-3

which stands corroborated from the report Ex. PW3/A which he

prepared at the time of his inspection. There is no enmity

between him and the respondent and therefore he had no reason

to prepare a false report and make a false allegation of laying of

roof on the existing walls of house No. 20/6-7, Yusuf Sarai, New

Delhi.

9. This is not the case of the appellant that he was not in

possession of premises in question at the relevant time or that

later on walls were laid by some person other than him. DW-1

has also admitted in his cross examination that the respondent is

owner of premises in question. Since it was the respondent who

was in possession of premises in question, no other person could

have laid roof on the walls of that building. Therefore, charge

under Section 461 of Delhi Municipal Corporation Act r/w

Section 332 thereof and further read with Schedule 12 of Delhi

M.C. Act stands duly proved against the respondent and the

respondent is convicted accordingly.

10. As regards sentence, the appellant has filed an affidavit

stating therein that he had given possession of the premises in

question to his brother about 10 years ago and his brother has

also handed over its possession to its owner. This appeal itself is

pending for the last more than 10 years. Keeping in view all

these facts and circumstances, the respondent is sentenced to

pay a fine of Rs. 5,000/- or to undergo SI for three months in

default. He is granted two weeks time to deposit the amount of

fine in the trial court.

The criminal appeal stands disposed of.

V.K.JAIN, J NOVEMBER 18, 2009 acm