Delhi High Court

D.K.Chopra vs South Delhi Municipal ... on 27 November, 2019

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Judgment Reserved on: 25.09.2019
                          Judgment Pronounced on: 27.11.2019

+       W.P.(CRL) 2078/2019

        D.K CHOPRA                                   ..... Petitioner
                          Through      Petitioner in person.

                          versus

        SOUTH DELHI MUNICIPAL CORPORATION & ORS
                                    ..... Respondent
                          Through      Mr. Rajan Tyagi, ASC with
                                       Mr. Ashok Kumar, Ex. Eng.,
                                       Mr.Naiem-AE, Mr.Jitender
                                       Rana-JE for R-1(SDMC).
                                       Mr. Ashish Aggarwal, ASC
                                       for Mr.Rajesh Mahajan, ASC
                                       for R-2.
                                       Insp. Sanjay Kumar & SI
                                       Pankaj Dhatarwal, PS
                                       Kishangarh for R-4.

        CORAM:
        HON'BLE MR. JUSTICE BRIJESH SETHI
                     JUDGMENT

BRIJESH SETHI, J.

1. Vide this Judgment, I shall dispose of a petition filed under

Article 226 of the Constitution of India read with Section 482 CrPC

for direction to State to take action against the guilty officers not

registering case against respondent no.3 and his associates and to

direct the State to register case against Head Constable Sunil and

Devendri for giving wrong complaint/ statement against the

petitioner for attempt to tear cloths and rape as well as direction to

respondent no.1 to remove illegal construction carried out on the

terrace by respondent no.3.

2. It is submitted that the petitioner is a retired Central

Government GO and residing at Flat No. 1039, Sector A, Pocket A

Vasant Kunj, New Delhi-110070 with his family. Respondent no. 3

Sh. Rajeev Kumar keeps harassing him by stopping his way by

standing before his house on common Stairs. He has fixed three

Cameras one at his own house near gate, Second at Stairs of 1038

facing petitioner's house and third on newly constructed room

blocking passage of water, air exist of petitioner at terrace facing

petitioner terrace.

3. Respondents no. 2,3 & 4 i.e. State (NCT of Delhi), Mr. Rajeev

Kumar and SHO, Kishan Garh Police Station, Katwaria Instituional

Area, New Delhi had also arranged a theft at petitioner's residence

on 28.01.2008 with the help of one Rakesh, a car cleaner on the

direction of the then Chief Commissioner Kalkata Sh H.K. Saran.

The said Rakesh was again caught stealing goods from petitioner's

terrace but was saved by Respondents no 3 and respondent No. 4.

4. It is submitted that Abhya Sood resident of flat No. 1033 is

business partner of Rajeev, respondent no.3. It is submitted that

Rajesh Kathoria of Flat No. 1035 who is also partner of Rajeev i.e.

respondent No. 3 had blocked the petitioner's toilet waste pipe

intentionally which was got rectified through MCD after 70 days of

struggle.

5. It is submitted that Respondent No. 3 used his mother to book

a false case of attempt to rape upon the petitioner on 12.2.2019.

However, the same was not accepted by Respondent No. 4. It is

further alleged that Respondent No. 3 with the help of Respondent

No. 4 has blocked his camera, TV, light and was instrumental in

theft of his goods. It is further submitted that due to illegal

construction carried out on terrace all drainage system was blocked

by respondent no. 3 in connivance with respondent No. 1, 2 and 4

and respondent no. 1 has not taken any action against illegal

construction carried out by respondent No. 3 by using his terrace.

6. It is next submitted that the petitioner had also met respondent

No. 1 DC on 25.7.2019 but without any positive result. It was

prayed that directions be issued to register cases against all those

persons who are guilty of not taking any action against his

complaints and departmental action be also ordered against

delinquent officers.

7. After conclusion of arguments, the petitioner also filed

written submissions and submitted that encroachment and illegal

construction has been carried out by occupants of house number

1033, 1035, 1037. It is further alleged that about fifteen years back

Rajeev and Devendri, Respondent no. 2 and 3 respectively had

broken the petitioner's tubelight and CCTV camera. On 28.01.2008,

during the day, a major theft had taken place at the Petitioner's

house. Police had refused to file the FIR. The ACP who had

registered the FIR after 5 days was immediately transferred. Later

on Respondent No.4 filed status report stating that police was unable

to trace the accused persons. It is submitted that in October 2018,

one Rakesh who is a Driver by profession was caught by the

petitioner while committing theft in his property but was allowed to

escape by Respondent No. 3 Devendri. The petitioner's daughter

had also made recordings of the event but the police till date has

failed to file the FIR even though stolen property was recovered

from Rakesh.

8. It is next submitted that in the year 2013 there was illegal

encroachment and construction on government land measuring 250

sq. feet in front as well as and backside by one Abhay Sood. He had

also broken petitioner's water tank on 01.07.2013 and the

connection was only restored after the intervention by the police.

When the daughter of the petitioner had gone to click pictures on

04.07.2013, Abhay Sood had misbehaved with her and also

manhandled her. The police has, however, not taken any action

against him. It is further submitted that the neighbors also regularly

allow their water to overflow and have also grown a tree in the

property of the petitioner.

9. It is next submitted that respondents No. 2 and 3 along with

their male and female servants claim that they are Gujjars and have

threatened to annihilate the petitioner and his family on the ground

that they are Punjabis. In this regard an attempt was made on

16.03.2019 when they had tried to book a false case of molestation

against the petitioner. The respondents have also blocked the CCTV

camera of the petitioner. They have also damaged the property

belonging to the petitioner and have prevented him from entering

his own property many times. All attempts of bringing this to the

notice of the Police has failed.

10. It is next submitted that roof of the petitioner has also been

damaged. Cracks have made their way through the ceiling and water

seepage has become a major issue during rainy seasons. Not only is

this bothersome but it has also damaged the property of the

petitioner as well as his electrical devices.

11. It is further submitted that petitioner has been prevented from

carrying out repair on the damaged roof. On 31.03.2019, a worker

repairing the said ceiling was chased away. The daughter of the

petitioner was also chased and threatened to have her clothes ripped

apart if the petitioner did not back out from his attempts to have the

roof fixed.

12. It is submitted that the status report filed by the respondents is

not correct. Moreover, the photos submitted in the status report

show a distorted version as the illegal encroachment on the roof of

the respondents is not shown in the same. It is also submitted that

illegal encroachment has been regularized for extraneous

considerations.

13. It is next submitted that the petitioners are being deprived of

their right to life, property liberty, security and privacy. The state

cannot be allowed to disregard its responsibilities towards the

petitioner. The petitioner has prayed that the illegal encroachment be

removed and the respondent 4 be directed to take actions against the

respondents. It is also requested that actions be taken against head

constable Sunil and Respondent 3 for conspiring with each other

and instituting a false case against the petitioner. It is submitted that

State be directed to take action against the guilty officers for not

booking case against respondent no.3 and his associates, direct the

state to book case against HC Sunil and Devendri W/o Mahak R/o

A-1037, VasantKunj, New Delhi for giving wrong

complaint/statement against the petitioner for attempt to tear clothes

and rape and to direct respondent no.1 to remove illegal construction

carried out on the terrace by respondent no.3.

14. The State in its reply has submitted that the prayers as sought,

cannot be maintained by the way of a criminal writ petition. If the

petitioner has a grievance that a case is not registered on his

complaint, the proper course is to approach the magistrate U/S

156(3) CrPC and not by the way of a writ petition. Further, whether

the complaint given by the Devendri was false or not cannot be

sought to be adjudicated by the way of present petition. In case , the

petitioner is aggrieved by any illegal construction by respondent

no.3, he has an efficacious remedy against the same and cannot

maintain such relief by way of the present criminal writ petition.

15. It is submitted that pursuant to the order dated 29.07.2019

passed by this Hon'ble Court directing the respondents to file a

status report in the case, an inspection of flat no. 1039 with terrace

and flat no. 1037, Sec-A, Pkt-A, Vasant Kunj, New Delhi was

carried out on 29.07.2019 along with J.E Jitender Singh Rana of

SDMC. S.I Pankaj along with W/Ct. Tekasenla and J.E Jitender

Singh Rana also jointly inspected flat no. 1039 with terrace and flat

no.1037,Sec-A, Pkt-A, Vasant Kunj, New Delhi. During inspection

the State was photographed and video recordings was also done.

16. It is further submitted that during the course of enquiry on the

complaints referred to by the petitioner, the site i.e. Flat no. 1039,

Sector A, Pocket A, Vasant Kunj, New Delhi, the house of the

present petitioner and respondent no.3 i.e. Flat no. 1037, Sector A,

Vasant Kunj, New Delhi was visited and 3 CCTV cameras were

found installed there. One CCTV camera is installed outside the

main gate of flat of respondent no.3, the other camera is installed on

the terrace above the extended floor of the flat of the respondent

no.3 and 3rd camera is installed at the entry/exit point of the terrace

of the building. During the course if enquiry, it was revealed that all

the said CCTV cameras are installed by respondent no.3.

17. It is submitted that to verify the allegation of the petitioner

that on 28.01.2008, a theft was arranged by respondent, records

were verified from the then police station PS- Vasant Kunj (North),

New Delhi, however, no record of any complaint or PCR call made

by the petitioner could be traced. Further, all the record of the year

2008 stand destroyed by the order of Dy. Commissioner of police,

south district, New Delhi and no FIR was found to have been lodged

regarding the said alleged incident as quoted by the petitioner in his

present petition.

18. It is submitted that on 14.07.2013, at 10:50 pm, a DD.no. 53A

was recorded against the complaint about teasing of one maid

servant at house no. 1033, Sec-A, Pkt-A, Vasant Kunj, New Delhi

by a neighbor. The DD was received at PS- Vasant Kunj(N) and was

entrusted to SI Amar Singh for further necessary action. SI Amar

Singh reached at the spot where one Ms. Amrita D/o Jeet Bahadur

R/o House no. 1033,Sec-A, Pkt-A, Vasant Kunj, New Delhi and one

Abhay Sood S/o Tek Chand R/o 1033,Sec-A, Pkt-A, Vasant Kunj,

New Delhi were found present. Ms Amrita gave her written

complaint to SI Amar Singh wherein she alleged that on 14.07.2013,

at 10:15 pm, when she went to see water tank at the back side of the

building, Mr. D.K Chopra R/o house no.1039,Sec-A, Pkt-A, Vasant

Kunj, New Delhi i.e present petitioner who was present there had

caught her by her arm and pulled her to his side. When she

screamed, he threatened her and fled away. Thereafter she called the

owner of his house Sudesh Sood and his son Dr.Abhay Sood for

help. Dr. Abhay Sood had called at 100 number and on this

complaint, a case FIR no. 272/13, U/s 354A/506 IPC was registered

at PS- Vasant Kunj (N), New Delhi against the present petitioner.

During the course of investigation, the present petitioner Dinesh

Kumar Chopra S/o Ramnath Chopra R/o House no.1039,Sec-A, Pkt-

A, VasantKunj, New Delhi was arrested on 15.07.2013. The

statement of complainant Ms Amrita was got recorded U/s 164

CrPC wherein she reiterated her initial statement which was given

by her in her complaint on which the said FIR was registered. After

completion of investigation, the accused/present petitioner Dinesh

Kumar Chopra was charge sheeted and the case was put in court for

trial before the Mahila Court, Patiala House Courts, New Delhi on

06.09.2013. Presently the case is pending before the Mahila Court,

Patiala House Courts, New Delhi.

19. According to prosecution, the petitioner was also earlier

arrested in another case being FIR no. 76/2002 U/s 342/506 IPC,

PS- Vasant Kunj, New Delhi.

20. It is submitted that on 12.02.2019 at 15:07:52 hrs, a PCR call

vide DD no. 31A regarding quarrel at house no.1037, Sec-A, Pkt-A,

VasantKunj, New Delhi, was received at PS- Kishangarh, New

Delhi and the same was entrusted to HC Sunil for further necessary

action. HC Sunil reached at the spot, where the lady caller W/o Sh.

Mahek Singh i.e the mother of respondent no.3 was found present.

During enquiry, Smt. Devendri stated that the petitioner was doing

unauthorized construction on the terrace of his flat, due to which the

water supply pipe of her flat has got damaged. She further stated

that she has already filed a complaint with SDMC, Green Park, New

Delhi vide complaint no. 2118/19, against the present petitioner.

The said PCR call was, therefore, closed, as no cognizable offence

was made out. No other allegation as stated by the present petitioner

in his present petition, were made by the mother of respondent no.3.

21. On 18.02.2019 vide Diary no 202/LC, the petitioner lodged a

complaint at PS- Kishangarh regarding abusing, threatening of

murder and beating, damaging of property, non-removal of pipe

from his office door and false allegations of rape, damaging dress of

his mother and need for protection of life and property. Enquiry on

the said complaint was conducted since no cognizable offence was

made out, a non-cognizable report (NCR) vide no 0018/19 dated

22.02.2019 U/s 506 IPC was registered at PS- Kishangarh, New

Delhi.

22. The petitioner made various other written complaints to

various authorities regarding the alleged illegal construction carried

out by the respondent no.3 and also made various PCR calls

regarding the same. All the said PCR calls and complaints stand

filed as closed since no cognizable offence was made out and the

jurisdiction to deal with illegal construction is not with the police

but with the concerned municipal corporation.

23. It is submitted that on 25.02.2019, the resident of Flat nos.

1033,1036,1037,Sec-A, Pkt-A, VasantKunj, New Delhi lodged a

complaint against the petitioner wherein, it was alleged that the

present petitioner threatens the residents of the building and does

illegal construction and forcefully removes the water tanks of the

residents of their building. They further alleged that the present

petitioner has broken the platform of the water tanks and was trying

to encroach upon terrace. During enquiry of the said complaint, it

was revealed that the information regarding the said unauthorized

construction by the petitioner has already been sent to Deputy

Commissioner, South zone, New Delhi on 18.02.2019 vide Diary

No. 3/UC/KG. The information regarding the unauthorized

construction by the respondent no.3 was also sent to the Deputy

Commissioner, South Zone, New Delhi on 22.02.2019 vide Diary

no. 5/UC/KG.

24. It is further submitted that on 02.03.2019, at 12:49:28 hrs, a

PCR call vide GD no 21A regarding, "A lady caller alleging that

some men have climbed on the flat of her terrace who are abusing

and pushing her" was received. The same was entrusted to SI Pankaj

for further necessary action. SI Pankaj reached the spot i.e H. No.

1039,Sec-A, Pkt-A, Vasant Kunj, New Delhi i.e the flat of the

present petitioner, where the daughter of the petitioner namely

Trushti was found present. Ms. Trushti informed that the owner of

the Flat no. 1037 was doing unauthorized construction on the terrace

and when she reached at the terrace one female labor present there

along with the owner of Flat no. 1037 namely Devendri i.e the

mother of the respondent no.3 started abusing her. Since both the

parties i.e. the present petitioner and his daughter, on one side and

mother of the respondent no.3 on the other were making allegations

each other and various cross complaints of threatening and PCR

calls were received at PS- Kishangarh, it was found that there was

likelihood that both the said parties could commit a breach of the

peace and disturb the public tranquility as such preventive action

U/s 107/150 CrPC was taken vide GD No. 37A dated 02.03.2019,

PS- Kishangarh, New Delhi, against both the parties for keeping

peace and to prevent the commission of any cognizable offence. On

12.04.2019, a Kalandra U/s 107/150 CrPC was submitted before the

Ld. SEM/South west district, New Delhi and notices to both the

parties were issued by the Ld. SEM/South west district, New Delhi

with date of hearing fixed as 26.04.2019. On 26.04.2019,

13.06.2019, and 31.07.2019, both the parties did not appear before

the Ld. Court of SEM and the Ld. SEM have issued bailable

warrants against both the parties. The said proceedings are still

pending before the Ld. SEM.

25. It is further submitted that on 01.07.2019, the petitioner

lodged a complaint at PS- Kishangarh, New Delhi, wherein he

alleged that illegal construction was being carried out by the

respondent no.3. He also alleged that his camera TV, laptop etc were

blocked by the respondent no.3 and the police has booked him U/s

107/51 CrPC on 28.04.2019. The petitioner has also alleged that on

13.03.2019, his two TVs, computer lying in the stairs were thrown

on the roof and his office at his roof was damaged. An enquiry was

conducted on the said complaint. During enquiry, it was revealed

that the information regarding the said unauthorized construction by

the petitioner had already been sent to the Deputy Commissioner,

South zone, New Delhi on 18.02.2019 vide Diary no. 3/UC/KG.

Information regarding the unauthorized construction by the

respondent no.3 was also sent to the Deputy Commissioner, South

Zone, New Delhi on 22.02.2019 vide Diary no. 5/UC/KG. During

the course of further enquiry of the said complaint, it was revealed

that the petitioner had installed 2 CCTV cameras in the railing of

balcony of his flat which were found not blocked. The allegations

leveled by the complainant could not be substantiated, during

enquiry and the said complaint was filed as closed, since no

cognizable offence was made out of the said complaint.

26. I have considered the rival submissions. The petitioner has

prayed that State be directed to issue directions against the guilty

officers and directed to register a case against HC Sunil and

Devendri for giving wrong statement against the petitioner for an

attempt of tear her cloths and false allegations of rape and

respondent no.1 be directed to remove illegal construction on the

terrace by respondent no.3. This court is of the opinion that the

relief sought by the petitioner cannot be granted by way of criminal

writ petition and if he has any grievance against the respondents and

intends to register a compliant/FIR against them, the proper course/

remedy is to approach the Ld. Magistrate under Section 156 (3)

CrPC and not by way of writ petition. It is a settled law that if an

equally efficacious remedy is available, the High Court should not

grant the relief under Article 226 of Constitution of India unless the

circumstances are very compelling and extra ordinary. Similarly,

whether the complaint filed by the Davendri is false or not also

cannot be adjudicate by way of the present writ petition. So far as

illegal construction by respondent no.3 is concerned, the petitioner

has efficacious remedy by filing the complaint before SDMC or

before other competent/ appropriate forum but such kind of relief

cannot be granted by way of present writ petition. So far as

allegations of the petitioner regarding theft on 28.01.2008 is

concerned, there is no record available with the police station and in

case the petitioner is aggrieved, he can pursue the said matter by

filing a complaint under Section 156 (3) CrPC against the accused

persons for registration of FIR. While deciding the petition it has

also to be kept in mind that an FIR bearing no. 272/13 U/s

354A/506 IPC already stands registered at PS- Vasant Kunj (N),

New Delhi against the present petitioner. As per report, the

petitioner was also arrested in another case bearing FIR no. 76/2002

U/s 342/506 IPC, PS- Vasant Kunj, New Delhi. So far as the

complaint of the petitioner regarding the threat that he would be

murdered is concerned, the enquiry report has revealed that no

congnizable offence has been made out. The petitioner, however,

has efficacious remedy by filing a complaint case before the Ld.

MM.

27. From the entire facts on record, it transpires that petitioner

has not come to the court with clean hands. He has suppressed

material facts of illegal construction raised by him and is, therefore,

not entitled for any equitable relief. Reliance in this regard is placed

upon "Poonamchand & Ors. vs. State of M.P. & Ors., W.P.

139/2017", wherein Hon'ble Supreme Court has held as under:-

7. In Prestige Lights Ltd. v. SBI (2007)8 SCC 449 , it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R.V. Kensington Income Tax Commissioners (1917)1 KB 486 (CA) and observed: (Prestige Lights Ltd. Case (2007)8 SCC 449 , SCC p. 462, para 35) In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. (Emphasis supplied)

28. In view of the above law laid down by Hon'ble Supreme

Court, the petitioner who has not come to the court with clean

hands and has suppressed material facts is not entitled to the relief

claimed by him.

29. In the present case, as per report appearing on record, the

petitioner has also carried out unauthorized construction. He is

himself guilty of violating the rule, regulations, guidelines and

building by laws. He is, therefore, not entitled to an equitable relief

from the court. Since the petitioner has not come to the court with

clean hands and has also an equally effective remedy of approaching

civil and/or criminal court for redressal of his grievance, he is,

therefore, not entitled for any relief sought vide this petition under