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Hanuman Prasad Ganeriwala Vs. Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 197 of 1972
Judge
Reported in1974CriLJ1451; ILR1974Delhi896
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 195, 476B and 537
AppellantHanuman Prasad Ganeriwala
RespondentMunicipal Corporation of Delhi and ors.
Advocates: G.R. Chopra,; Y. Dayal and; Keshav Dayal, Advs
Cases ReferredChhajoo v. Radhey Shyam
Excerpt:
.....of the building'.(12) with the memorandum of appeal was produced by the appellant a certified copy of the plan attached to the sale deed dated march 10, 1970, after obtaining it from the office of the sub-registrar. (15) we are in respectful agreement with the view which was taken by the high court of allahabad in the case of chhajoo (supra) and in any event the filing of the appeal before the complaint was actually made was at best a curable irregularity, as held by the high court of patna in the case of mt. an observation was as well made that the original plan must ordinarily have been in possession of the appellant and was not produced even during arguments in the case. to base a conclusion on an inspection note in a suit pending before a subordinate judge may not be safe, for..........weighed with the learned judge. with the affidavit in opposition to the writ petition a photostat copy of a plan that had been submitted by the appellant himself in connection with an application for permission for making some constructions in the property was produced. in that plan no godown or tin-shed was shown. the plan whose photostat copy was annexure a-7 to the counter-affidavit was, thereforee, considered to show that annexure 'c' to the writ petition was a false document. the second factor taken note of was that certified copy from the office of the sub-registrar to show that annexure 'c' was a true copy had not been produced. an observation was as well made that the original plan must ordinarily have been in possession of the appellant and was not produced even during.....
Judgment:

Jagjit Singh, J.

(1) This appeal is against an order dated October 4, 1972 of a learned Single Judge of this Court. On an application submitted on behalf of the Municipal Corporation of Delhi, under section 476 of the Code of Criminal Procedure. V. D. Misra J.. held against Hanuman Prasad Ganeriwala that offences 'under sections 182, 196, 199, 200, 209, and 471 of the Indian Penal Code, as referred to in section 195, sub-section (1), clauses (b) and (c) of the Code of Criminal Procedure appear to have been committed in or in relation to the proceedings of this Court' and 'that it is expedient in the interest of justice that enquiry should be made into these offences, and complaint be made to a Judicial Magistrate having jurisdiction in the matter'.

(2) For appreciating the contentions which have been raised in the appeal it is necessary to state certain facts. A property at No. 1 Raj Narain Road, Delhi, on an area of approximately 3,700 square yards, was purchased by the Mercantile Bank of India Limited from Harbans Bahadur, Raghubans Bahadun Pukh Raj Bahadur and Jamshed Bahadur, through a registered sale deed dated May 31, 1954. Shri Raghubans Bahadur had joined the other vendors in executing the sale deed not only on his own behalf but also as guardian of his minor son, Sashibans Bahadur. The sale in favor of the Bank was for Rs. 1,50,000.00. In the sale deed the description of the property was given in detail though in a somewhat cumbersome manner as follows:-

'.. the said messuage land hereditament and premises No. 1 Raj Narain Road, Delhi as aforesaid containing an area more or less 3700 syuare yards and delinerated on the map or plan hereto annexed and thereon surrounded by the red lines and more particularly described in the Schedule hereto Together With all out-houses, godowns, walls, compounds, yards, garages, paths, passages, sewers, drains, waters, rights, liberties, easements and benefits or ancient light and air and appurtenances whatsoever to the said messuage land hereditament and premises belonging or anywise appertaining or therewith held occupied or enjoyed as part or parcel thereof or appurtenant thereto And the reversion and reversions remainder and remainders rents, issues and profits thereof And All the estate right, title interest heritance use trust possession property claim and demand whatsoever of the Vendors in to and upon the said missuage land hereditament and premises and every part thereof. . '.

It will be noticed that amongst other details given 'godowns' were as well mentioned.

(3) The Mercantile Bank sold the same property to Shri Hanuman Prasad Ganeriwala (to be hereinafter referred to as 'the appellant') by a registered, sale deed dated March 10, 1970 for Rs. 3,85,000.00 . In the sale deed the description of the property was given in almost the same terms as in the sale deed which had been executed by Shri Harbans Bahadur and others in favor of the Bank on May 31, 1954. To the sale deed executed on behalf of the Bank in favor of the appellant was attached a plan in which the property sold was also said to have been delineated.

(4) On March 7, 1972 the appellant filed a civil writ petition (No. 206) in this Court for getting quashed a demolition order dated February 22, 1972, made under section 343 of the Municipal Corporation Act, 1954 and certain prosecution proceedings pending against him and his mother in various courts. By the demolition order the appellant was required to demolish what was alleged to be unauthorised construction within a period of six days, failing which demolition of the unauthorised constructions was to be carried out by the Corporation and the expenses incurred in that connection were to be recovered from him as arrears of land revenue. Two of the prosecution proceedings referred to in the writ-petition were under section 332 read with section 461 of the Delhi Municipal Corporation Act and under section 29 of the Delhi Development Act and were against his mother Shrimati Krishna Devi and were stated to be pending in the Courts of two judicial Magistrates. The other prosecution proceedings were against him under sections 346 and 417 read with section 461 of the Delhi Municipal Corporation Act and under section 29 of the Delhi Development Act and were stated to be pending in the courts of various Judicial Magistrates. Besides that he also asked for declaring the provisions of sections 343 and 344 of the Delhi Municipal Corporation Act to be ultra-vires as being vocative of articles 14, 19, 20 and 31 of the Constitution of India.

(5) In the writ petition it was averred that after purchasing property at No. 1 Raj Narain road, Delhi, some interior structural changes in the out-houses attached to the godown were carried out and thereafter the premises were let out to Shri Kailash Nath Goenka. On November 29, 1970 Shri Goenka was said to have applied for fixation of standard rent and during the pendency of the proceedings relating to fixation of standard rent the godown on the premises got damaged due to heavy rains and leakage from the proof resulting in damage to the tenant's goods stored in the godown. It was also stated that Shri Goenka had threatened to file a suit for damages but due to the intervention of common friends there was a compromise and in terms of the said compromise certain repairs had to be done which necessitated removing partition walls of out-houses, removing the old roof of the out-houses and the tin-shed of the godown and laying one roof of Agra stone over the entire covered area of 7225 square feet 'without changing the height of the roof or outer walls of the building' and that gates were removed and replaced by two shutters and the walls of the godown were plastered and the ground floor area was 're-floored'.

(6) It was further stated in the writ petition that in carrying out the above-mentioned repair work no breach of the Delhi Municipal Corporation Act was committed but as the appellant's relations were strained with Shri Brij Raj Bahadur Mathur, an Indian Administrative Service . Officer, the latter got him involved in various cases. It was alleged that on account of the influence of Shri Mathur the Delhi Municipal Corporation and the Zonal Engineer (Buildings). Civil Lines Zone, tried to demolish the godown and other portions of the property on October 7 and 13, 1971 and, thereforee, the appellant had to file Suit Nos. 1295 and 1296 on the 9th and the 15th October 1971 seeking decrees of perpetual injunction against the Delhi Municipal Corporation and its employees to restrain them from demolishing any parts of the premises in contravention of the provisions of section 343 of the Delhi Municipal Corporation Act. On February 22, 1972 demolition order No. 19/ MC/CIZ/18-1-72 was stated to have been served on him in spite of the suits instituted by him being still pending.

(7) Thus the stand taken by the appellant was that prosecutions against him and his mother were illegal and mala-fide and the demolition order was unjustified. The repairs and interior structural changes carried out were averred to be mere 'works for the maintenance', which affected only the interior and did not materially affect the external appearance of the building and were, thereforee, covered by the 'savings' provided by section 54 of the Delhi Development Act, 1957. For showing that sheds or godowns already existed in the property when it was purchased from the Mercantile Bank a plan which purported to be a copy of the plan attached to the sale deed was produced as Annexure 'C' to the writ-petition. The writ-petition was also supported by an affidavit of the appellant and in paragraph 3 whereof it was affirmed that the annexures filed were 'the true copies according to their originals'.

(8) The writ petition was admitted by a Division Bench of this Court on March 8, 1972. On that date an ex-parte interim stay of prosecution proceedings and demolition of the alleged unauthorised construction was also given and notice of the -stay application presented with the writ petition was directed to be issued to the respondents. In connection with the final disposal of the stay application (C.M. No. 388-W/72) V. D. Misra, J., wanted to examine the appellant, as his counsel, Shri C. P. Whig, was not sure whether there was any urinal or W.C. in the godown for the demolition of which the notice dated February 22, 1972 had been issued. The counsel for the appellant was, thereforee, directed, on April 12, 1972 to produce the appellant on April 14, 1972. The appellant, however, did not appear on April 14, 1972 but an application (C.M. No. 639) purporting to be under Order 23, rule I, of the Code of Civil Procedure was submitted on his behalf for withdrawing the writ petition. On that application being received the ex-parte order of interim stay was vacated and for disposing of the application for withdrawing the writ petition the case was adjourned to April 18, 1972.

(9) It was on April 18, 1972 that the application (C.M. No. 727-W) under section 476 read with section 479-A of the Code of Criminal Procedure was presented by the counsel for the Municipal Corporation of Delhi and the Zonal Engineer (Buildings), for prosecution of the appellant by making a complaint to a competent court. It was alleged in the said application that the appellant had deliberately made false averments in the writ petition that merely partition walls were removed and one unit comprising 7225 square feet was created without changing the height of the roof or the outer walls of the building and further that he had intentionally fabricated false evidence and' given false evidence by way of affidavit.

(10) The application submitted on April 14, 1972 was disposed of on September 1, 1972 and the writ petition was dismissed as withdrawn with costs, The application (C.M. No. 727-W) made on behalf of the Municipal Corporation of Delhi and the Zonal Engineer (Buildings), on April 18, 1972, was decided on October 4, 1972, after the appellant had filed his reply. As already stated the learned Judge directed complaint to be made against the appellant under sections 182, 196, 199, 200, 209 and 471 of the Indian Penal Code after holding that it was expedient in the interest of justice that enquiry should be made into those offences.

(11) The learned Judge while ordering filing of a complaint against the appellant referred to certain documents which had been produced on behalf of the respondents and came to the conclusion that copy of the plan which was annexed as Annexure 'C' to the writ petition was a false document. Regarding that matter it was observed that a certified copy from the office of the Sub-Registrar had not been produced to show that Annexure 'C' was a true copy of the same. It was further remarked that according to the affidavit of the appellant in support of his writ petition the Annexures filed with the writ petition were true copies according to their originals and that the original plan must have been in the possession of the appellant but was not produced. The plan Annexure 'C' was, thereforee, prima-facie regarded as a forged document and not to be a true copy of the original plan that had been attached to the sale deed and the appellant to have fraudulently or dishonestly used it as genuine knowing it to be forged. It was further held that the averments contained in paragraph 14(1) and 14(2) of the writ petition that merely partition walls were removed and one unit comprising of 7225 square feet was created without changing the height of the roof or outer walls of the building stood falsified by the inspection report of Shri R. L. Gupta, Subordinate Judge, a copy of which was produced on behalf of the respondents. The report of the Subordinate Judge was said to clearly belie the appellant's stand about one unit having been 'created without changing the outer walls of the building'.

(12) With the memorandum of appeal was produced by the appellant a certified copy of the plan attached to the sale deed dated March 10, 1970, after obtaining it from the office of the Sub-Registrar. That certified copy shows a tin-shed and tallies with the plan which had been produced as Annexure 'C' with the writ petition.

(13) On behalf of the Municipal Corporation of Delhi, respondent No. I in the appeal, a preliminary-objection was raised that the appeal filed was not competent. Section 476B of the Code of Criminal Procedure, however, gives right of appeal to a person against whom any civil, Revenue or criminal court has under the provisions of section 476 made a complaint. The appeal lies to the Court to which the Court making the complaint is subordinate within the meaning of section 195, sub-section (3) of the said Code. In Narain Das v. State of Uttar Pradesh and another : 1961CriLJ317 , it was held by their Lordships of the Supreme Court that the right of appeal is given by section 476B of the Code of Criminal Procedure and the forum of appeal is also determined by the provisions of the said section read with section 195(3) and, thereforee, the only relevant consideration to determine the proper forum for an appeal against such an order is as to which court the appeal against appealable decrees of the Single Judge ordinarily lie and as such appeals lie to the High Court under Clause 10 of the Letters Patent so an appeal lies to the High Court and not to the Supreme Court.

(14) It also .appears to us that the mere fact that the appeal had been filed before the complaint was actually made does not make the appeal pre-mature. A Full Bench of the Allahabad High Court in Chhajoo v. Radhey Shyam : AIR1968All296 , took the view that the right of appeal under section 476B arises as soon as the finding is recorded under section 476 that it is expedient in the interest of justice that a complaint be filed and an order is made for filing of a complaint as the giving of the finding and the passing of such an order must be treated to be the making of a complaint. It was also observed that the analysis of section 476 of the Code of Criminal Procedure shows that it contemplates three stages in the making of a complaint; the first stage is when a finding has to be given by the court concerned to the effect that it is expedient in the interest of justice to file a complaint, the second is the making of the complaint in writing signed by the presiding officer or by the officer appointed by the High Court and the third stage is that of forwarding the same to a Magistrate of the First Class. The learned Judges further added that the making of a complaint by signing it is the natural result of the giving of a finding and must automatically follow the giving of the finding as to the expediency and in a way can be said to be part and parcel of one and the same process. The Patna High Court in a Full Bench decision reported as Mt. Rampati Kuer and others v. fadunandan Thakur and others : AIR1968Pat100 , did make a distinction between the order of the Court directing the filing of the complaint and the subsequent action of the Court in filing the complaint, but admission of an appeal filed after an order for making a complaint had been made was regarded to be a mere curable irregularity unless prejudice has been shown.

(15) We are in respectful agreement with the view which was taken by the High Court of Allahabad in the case of Chhajoo (supra) and in any event the filing of the appeal before the complaint was actually made was at best a curable irregularity, as held by the High Court of Patna in the case of Mt. Rampati Kuer and others (supra), particularly as it could not be shown on behalf of the respondents that the admission of the appeal after the order of the learned Judge but before the complaint could be made has caused any prejudice.

(16) Coming to the merits of the appeal it may be mentioned that the learned Judge had not directed the appellant to file a certified copy of the plan attached to the sale deed by which the property at No. 1 Raj Narain road, Delhi, was purchased. In holding the copy of the plan filed with the writ petition as Annexure 'C' to be prima-facie a forged document two factors appear to have mainly weighed with the learned Judge. With the affidavit in opposition to the writ petition a photostat copy of a plan that had been submitted by the appellant himself in connection with an application for permission for making some constructions in the property was produced. In that plan no godown or tin-shed was shown. The plan whose photostat copy was Annexure A-7 to the counter-affidavit was, thereforee, considered to show that Annexure 'C' to the writ petition was a false document. The second factor taken note of was that certified copy from the office of the Sub-Registrar to show that Annexure 'C' was a true copy had not been produced. An observation was as well made that the original plan must ordinarily have been in possession of the appellant and was not produced even during arguments in the case.

(17) In our opinion from the mere fact that in a plan submitted by the appellant to the Municipal Corporation of Delhi no godown or tinshed was shown, it does not necessarily follow that in the site plan attached to the sale deed executed on March 10, 1970 by the Mercantile Bank Limited in favor of the appellant no such godown or tin-shed had been indicated. The plan submitted to the Municipal Corporation was for obtaining permission for making certain constructions and as those constructions were not to be made at the site of alleged godown or tin-shed so not showing the godown or tin-shed in the plan could be the result of omission. In any event from that plan no conclusive inference could be drawn. Whether the copy of the plan field with the writ petition was genuine or a forged one could, of course, depend upon the fact whether or not in the plan attached to the sale deed executed on behalf of the Mercantile Bank a tin-shed was shown. In the description of the property sold 'godowns' were mentioned. Before coming to even a prima-facie finding regarding the forged character of the plan attached to the writ petition the appellant could have been required to produce a certified copy of the original plan or the original plan attached to the sale deed.

(18) During the hearing of the appeal it was felt by us that seeing the original sale deed and the plan attached thereto may be of help but we were told by the counsel for the appellant that the original sale deed and the plan attached thereto were not traceable. But as already stated above a certified copy of the plan obtained from the office of the Sub-Registrar was produced along with the memorandum of the appeal and that completely tallies with the one that had been filed as Annexrue 'C' to the writ petition. Both in the plan marked as Annexure 'C' to the writ petition and in the certified copy of the plan obtained from the office of the Sub-Registrar a tin-shed has been shown. It is this tin-shed and the out-houses which were said to have been converted into one unit by removing partition-walls, changing the roof and by plastering walls etc.

(19) Shri Yogeshwar Dayal, learned counsel for the Delhi Municipal Corporation, submitted that in all probability the plan kept in the office of the Sub-Registrar had been tampered with and the certified copy was that of the tampered plan in the office of the Sub-Registrar. There is, however, no material on the record from which any such inference may be drawn. If the plan in the office of the Sub-Registrar has in fact been tampered with by the appellant or by some one else at his instance then it would be for the authorities concerned to take appropriate action in accordance with law. This much, however, has to be said that there is not sufficient material from which a finding about the plan attached as Annexure 'C' to the writ petition may prima-facie be held to be a forged document. The original sale deed and the plan attached thereto not being before the learned Judge, it was difficult to say that false averment had been made in the affidavit of the appellant about Annexure 'C' to the writ petition being a true copy of the original plan.

(20) It has not been disputed before us that the copy of the plan which had been attached to the writ petition does tally with the one which is at present in the office of the Sub-Registrar. We, are, thereforee, unable to uphold the findings about the plan attached as Annexure 'C' to the writ petition being prima-facie a forged document or that the appellant had fraudulently or dishonestly used it as genuine knowing it to be forged.

(21) Another finding of the learned Judge, based on an inspection note of a Subordinate Judge, was that the stand taken by the appellant about one unit having been created without changing the outer walls of the building was incorrect and, thereforee, the averments made in paragraph 14(1) and 14(2) of the writ petition that merely partition walls were removed and one unit comprising 7225 square feet was created without changing the height of the roof or outer walls of the building were false. The writ petition, as already stated, was dismissed as withdrawn and there was no occasion for any finding being given on merits regarding the said averments. The inspection note was made by a Subordinate Judge during the pendency of a suit and not in the judgment by which that case may have been disposed of. To base a conclusion on an inspection note in a suit pending before a Subordinate Judge may not be safe, for the party against whom any observations may be made in such a note may be able to show that the observations were not justified.

(22) The order made by the learned Judge was on an application under section 476 read with section 479A of the Code of Criminal Procedure. It was conceded before the learned Judge by Shri Yogeshwar Dayal that section 479A of the Code of Criminal Procedure bad no application to the proceedings. The application on behalf of the Delhi Municipal Corporation was, thereforee, directed to be treated to be only under section 476 of the Code of Criminal Procedure. Under sub-section (1) of section 476 when any Civil, Revenue or Criminal Court is, whether on an application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in section 195, sub-section (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that court, such court may, after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the Presiding Officer of the Court, and shall forward the same to a Magistrate of the First Class having jurisdiction. Where the Court making the complaint is a High Court the complaint may be signed by such officer of the Court as the Court may appoint.

(23) The relevant portion of section 195 of the Code of Criminal Procedure, as referred to in sub-section (1) of section 476. reads as under:-

'195.(1) No Court shall take cognizance- (a) ** *** (b) of any offence punishable under any of the following sections of the same Code, namely. Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211, and 228, when such offence is alleged to have been committed in, or relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Courts to which such Court is subordinate.'

(24) It would be noticed that the offence punishable under section 182 is not one of the offences either mentioned in clause (b) or clause (c) of sub-section (1) of section 195 of the Code of Criminal Procedure. While acting within the scope of section 476 of the Code of Criminal Procedure a complaint for an offence under section 182 of the Indian Penal Code cannot, thereforee, be made.

(25) In view of what has been stated above about the position of the plan attached as Annexure 'C' to the writ petition and the affidavit filed in support of the averments contained in the said writ petition prima-facie offences under sections 196, 199, 200, 209 and 471 of the Indian Penal Code were not made out as having been committed in or in relation to the proceedings in this Court and it seems to us that it would not be expedient in the interest of justice that any complaint should be made to a Magistrate for enquiry into the alleged offences under sections 196, 199, 200, 209 and 471 or section 182 of the Indian Penal Code. It was also not a case in which a complaint may be made even outside the provisions of section 476 of the Code of Criminal Procedure.

(26) The appeal is accordingly accepted and the order for making the complaint is set aside. We would, however, like to make it clear that the acceptance of this appeal shall not in any way be deemed to be expression of opinion regarding the validity or otherwise of the demolition orders made in respect of the alleged unauthorised constructions or regarding the merits of the prosecution proceedings pending against the appellant or his mother in different courts or regarding the merits of any matter that may be required to be decided by the courts concerned for disposing of the suits that had been filed by the appellant or any other proceedings that may be pending or may hereafter be instituted in any courts.


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