Ram Parkash v. Municipal Corporation of Delhi

1. The present petition has been filed praying for the quashing of criminal proceedings arising out of Complaint Case No. 518671/16 under Section 317/332/343/344/461 of Delhi Municipal Corporation Act, 1957.

2. The complaint was filed by the respondent/MCD alleging that the building plan for the property bearing No. 27/19, Old Rajender Nagar, New Delhi-110060 (hereinafter, ‘the property’) had been sanctioned in the name of Mr. Ram Prakash, the petitioner herein, vide File NO. 30C/B/KBZ/2004/01 dated 04.01.2005 for the basement, ground floor, first floor upon an area of 71.83 Sq meters.

3. However, during the course of construction, variation /deviation with respect to the sanction plan were noticed, therefore, action under Section 344(1) & 343 of the DMC Act was initiated against the petitioner with respect to the said variation/deviation on the ground floor and first floor, with projections over the Municipal land. Thereafter, the order of demolition was also passed on 10.03.2005 and subsequent thereto, action was taken against the second floor and third floor and the projections. It is also alleged that the fourth floor was also constructed without sanction.

4. It is further the case of the complainant/MCD that as per the prosecution report, the petitioner was found doing unauthorized construction whereby he has committed offence under Section 317/332/343/344 of Delhi Municipal Corporation Act,1957 which is punishable under Section 461 of DMC Act.

5. Mr. M.C. Dhingra, learned Senior Counsel appearing on behalf of the petitioner submits that the present petitioner was the owner of the property. However, vide registered Sale Deed dated 06.12.2004, he had sold the said property to one Mrs. Manjeet Pantel. He invites attention of the Court to the said Sale Deed (Annexure P-1) to contend that even the physical vacant possession of the said property was also handed over by the Petitioner to vendee namely, Mrs. Manjeet Pantel. The relevant para from the said sale deed reads thus: “3. that the vendor has delivered the peaceful, physical vacant possession aforesaid plot/property to the Vendee on execution of this Sale Deed.”

6. He further contends that after the execution of the registered Sale Deed, the petitioner was not having any connection with the said property. He further contends that whatever plans were sanctioned, the same were sanctioned by the MCD at the instance of Mrs. Manjeet Pantel and the petitioner is not aware about the sanction of such plans.

7. He further contends that the plans in question were sanctioned on 04.01.2005, the demolition notice was issued on 10.03.2005 and the complaint came to be filed on 19.10.2005. All these events had taken place after the petitioner had sold the property vide registered Sale Deed dated 06.12.2004.

8. Mr. Dhingra further submits that the petitioner never applied for sanctioning of plan, rather it appears that the signature of the petitioner were forged. He contends that after the summons were received by the petitioner, he even made a complaint to the police. To buttress his contention, he invites attention of the Court to the said police complaint dated 16.10.2008 (Annexure P-10).

9. Mr. Chirag Madan, learned counsel appearing on behalf of the respondent submits that the action was initiated against the petitioner only for the reason that the sanction plan was applied by the petitioner.

10. On a pointed query posed by the Court as to whether the MCD has disputed the registered Sale Deed, Mr. Madan concedes that there is no dispute insofar as the registered Sale Deed is concerned. He also, fairly states that subsequently the competent authority has regularized/compounded deviation after the deviation charges were deposited by Mrs. Manjeet Pantel.

11. Having heard the learned counsel for the parties, the only question that needs to be decided is that in the whether the complaint filed by the respondent/MCD and proceedings emanating therefrom are liable to be quashed, in the backdrop of the aforesaid admitted facts.

12. At this stage, it is apt to refer to decision of the Hon’ble Supreme Court in State of Haryana v. Bhajanlal & Ors 1992 SUPP (1) SCC 335, particularly para 102 thereof, wherein the Hon’ble Supreme Court has enumerated the circumstances under which an FIR / complaint can be quashed. The relevant para 102 reads as under:

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” (emphasis supplied)

13. Having regard to the fact that the Sale Deed dated 06.12.2004, whereby the petitioner sold the property to Mrs. Manjeet Pantel, is not in dispute, and the deviation also stands compounded / regularized by the MCD on deposit of deviation charges deposited by Mrs. Manjeet Pantel, this Court is of the view that the present case will get covered under sub-paras (3) & (5) of the para 102 of Bhajanlal (supra).