Deepak Gupta vs Joint Commissioner Of Police & Ors
2011 Latest Caselaw 5053 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 13th October, 2011.

+             W.P.(C) 6045/2011 & CM No.12196/2011 (for stay).

       DEEPAK GUPTA                                              ..... Petitioner
                   Through:             Mr. Pankaj Gupta, Adv.

                                    Versus

    JOINT COMMISSIONER OF POLICE & ORS ..... Respondents
                 Through: Mr. Sanjeev Sabharwal, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may        Not necessary
       be allowed to see the judgment?

2.     To be referred to the reporter or not?             Not necessary

3.     Whether the judgment should be reported            Not necessary
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner claims to have commenced the work of erection of a

temporary tin shed on the roof above the second floor of house No.1090,

Gali Raja Uggar Sain, Bazar Sita Ram, Delhi - 110 006. A complaint

thereof was made by the respondent no.5 Shri Satish Kumar Gupta to the

police authorities and respondent no.4 Head Constable Rameshwar Kumar

of PS Hauz Qazi visited the site and got the work stopped.

2. The petitioner lodged a complaint against the respondent no.4 Head

Constable Rameshwar Kumar, alleging that he had acted in connivance with

the respondent no.5.

3. A preliminary inquiry was held in this regard and Sub Inspector Jaan

Mohd. of the Vigilance Cell of the Police in his report dated 16 th October,

2010 found no case to have been made out against the respondent no.4 Head

Constable Rameshwar Kumar.

4. Aggrieved therefrom the petitioner represented on 10th March, 2011 to

the respondent no.1 Joint Commissioner of Police (Northern Range).

5. The grievance of the petitioner is that the respondent no.1 Joint

Commissioner of Police, instead of inquiring into the matter himself, again

marked the same to the respondent no.3 Sub Inspector Dharambir Singh,

Public Grievance Cell who in his report dated 26 th April, 2011 again found

no case for any proceedings against the respondent no.4 Head Constable

Rameshwar Kumar to have been made out.

6. This petition has been filed seeking mandamus to the respondent no.1

Joint Commissioner of Police to himself deal with and dispose of the

representation dated 10th March, 2011 of the petitioner in accordance with

law.

7. The counsel for the respondents no.1 to 4 appearing on advance notice

has handed over in this Court a Status Report dated 20th September, 2011

along with a compromise arrived at between the petitioner and the

respondent no.5 before the Civil Judge where it was agreed that the

petitioner shall raise the construction if any above the second floor of the

property aforesaid only in accordance with law.

8. Upon enquiry whether the petitioner has obtained the requisite

sanction for construction, the counsel for the petitioner contends that no

permission from MCD is required for constructing of a tin shed. He is

however unable to refer to any clause of Bye Law 6.4.1 of the Building Bye

Laws, 1983 of the MCD detailing the works which can be carried out

without permission. In any case the word "tin shed" is ambiguous. It rather

appears that the present petition has been filed to raise unauthorized

construction. In the circumstances, it is deemed expedient to clarify that

before the petitioner commences any work of erection of tin shed, he is

required to submit plans thereof to the MCD and to obtain NOC from the

MCD if for the works intended no sanction is required and if any permission

is required for the works intended to be undertaken, to obtain the said

sanction.

9. As far as the relief claimed in the petition is concerned, the counsel

for the petitioner has invited attention to Rules 6&15 of The Delhi Police

(Punishment and Appeal) Rules, 1980. However Rule 6 provides that the

punishment mentioned therein shall be awarded by an officer not below the

rank of appointing authority or above after a regular departmental enquiry.

Admittedly in the present case neither any departmental inquiry has been

held nor any punishment has been awarded; thus the plea of the petitioner

that the appointing authority of the Head Constable is the Dy. Commissioner

of Police, has no relevance today. All that has been done is, holding of a

preliminary inquiry as provided for in Rule 15. Though the counsel for the

petitioner is however unable to show any breach of Rule 15 in holding of

preliminary inquiry but contends that a decision pursuant to the preliminary

inquiry of "no action" would be subject matter of judicial review. He

however admits that he has not sought judicial review of the said decision

but has merely sought a decision of his representation by the respondent no.1

Joint Commissioner of Police.

10. The counsel for the petitioner was on the very first date i.e. 19 th

August, 2011 asked to explain as to what is the right of the petitioner to have

his representation decided by the respondent no.1 Joint Commissioner of

Police. In reply thereto only an organizational chart is handed over. However

the same does not show that the said representation is to be decided by the

respondent no.1 Joint Commissioner of Police.

11. I am satisfied that the complaints made by the petitioner have been

sufficiently and properly looked into. Even otherwise, once a complaint to

the Police of unauthorized construction is made, the police officials cannot

be expected to go into the disputed questions raised by rival parties and

when any co-owner or neighbour objects to such construction, the only

course available to the police is to get the construction stopped and to allow

the parties to have their claims adjudicated in accordance with law. For this

reason also, no misconduct is found on the part of respondent no.4 Head

Constable Rameshwar Kumar.

12. The petition is therefore dismissed but a direction however to the

police authorities to ensure that no construction on the second floor of the

house aforesaid is carried out without obtaining NOC or sanction as

aforesaid from the MCD.

13. The counsel for the petitioner at this stage seeks liberty to apply for

judicial review of the report on the preliminary inquiry.

14. Liberty if available in law, granted.

No order as to costs.

Dasti.

RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 13, 2011 pp