ORDER
K.S. Gupta, J.
1. Petitioner No. 1, Managing Director and petitioner No. 2, Director of M/s. Pushpa Builders Ltd., seek anticipatory bail in case FIR No. 420/95 under Sections 420/406/120B/34 IPC PS C.R. Park, registered on the basis of complaint made by Om Gupta.
2. It is not in dispute that a public auction was conducted on 7th May, 1987 for grant of leasehold rights in commercial plot No. 159 situated at Transport Centre, Rohtak Road, New Delhi and the bid offer of Pushpa Builders Ltd. being the highest was accepted and thereafter a perpetual lease deed was executed on 16th June, 1988 between the President of India as the lessor and said Pushpa Builders Ltd, as the lessee (Photostat copy at pages 103 to 110 on the police file). The bid given by Pushpa Builders Ltd. in respect of adjoining plot No. 160 on 2nd January, 1987 was also accepted and presumably identical perpetual lease deed was executed in between the President of India and Pushpa Builders Ltd. Under the perpetual lease deed construction to be raised could be used only for automobile workshop. Occupancy certificate in respect of the building constructed on the said
plots was issued on 19th June, 1990. Thereafter on inspection of the building being carried out in October and November, 1990, the DDA found that unauthorised development had been made on the said plot in contravention of the conditions of sanction and in violation of building bye laws. Therefore, after issuing notice to the said lessee and providing opportunity of hearing to its representative, the Director (Building) of DDA directed the lessee to demolish within 7 days of the receipt of that order the unauthorised constructions carried out on the said plots by the order dated 31st December, 1990/8th January, 1991. Feeling aggrieved, the lessee filed an appeal before the Appellate Tribunal. One of the grounds taken by DDA against the lessee was that the two plots i.e. plots No. 159 and 160 had been amalgamated and construction thereon raised as if it was made on one plot. Though this ground was reversed in appeal but the remaining order of Director (Building), DDA regarding unauthorised constructions was upheld by the Tribunal by the order dated 27th March, 1991 allowing it 10 days time to remove it. On failure of the lessee to remove unauthorised constructions the Director (Building), DDA made an order for sealing the building. However, on making statement by petitioner No.1 before the Director (Building) DDA on 22nd October, 1992 that needful will be done by him within 30 days, the period of desealing was extended upto 23rd November, 1992. It is further not in dispute that said Pushpa Builders Ltd. instead of removing the unauthorised constructions within the time allowed filed C.W.P. 3447/93 in this court and obtained stay order against demolition. By the judgment dated 29th November, 1994 (photostat copy at Pages 49 to 57 on the police file) said C.W.P. was dismissed and the order of stay of demolition was vacated. In the meantime lease in respect of both the said plots was cancelled by the lessor vide order dated 11th August, 1993 on the ground of
using/getting used the building constructed on the said plots for the purposes other than the workshop for which the plots were given on lease (copy of the order at Page 120 on the police file). Details of the unauthorised constructions carried out on the plots have been noticed in the said judgment dated 29th November, 1994 thus :-
(1) 27 Nos. cubicals have been constructed in basement, work pertaining to dieting system in progress and plot has been amalgamated with Plot No. 159.
(2) No natural light and ventilation in basement and blocked by partitions.
(3) 32 Nos. cubicals have been constructed in G.F. work pertaining to duet and installation of rolling shutters in progress.
(4) Plot amalgamated at G.F. with plot No. 159.
(5) Mezzanine has been extended to a full fledged floor and has been amalgamated with plot No. 159.
(6) 32 cubicals and one toilet has been unauthorisedly constructed. Grinding of floors in progress.
3. It will not be out of place to state that in said C.W.P. 3447/93 Shri Parveen Gulati, architect was appointed as Local Commissioner to visit the building constructed on said two plots and report if the construction was as per sanctioned plans. Para 1 of the judgment dated 29th November, 1994 notices that according to the report of said architect the lessee had violated all the building plans and elevations on all the three floors i.e. basement, ground floor and Mezzanine floor and that the building totally violates the sanctioned drawings as it was constructed against all approved sanctioned plans. Probably the position in regard to unauthorised constructions carried out on both the said plots continues to be the same as it was on the date the judgment dated 29th November, 1994 was delivered.
4. It seems that the said lessee also filed Suit No. 784/94 seeking declaration that DDA’s notice dated 22nd March, 1994 asking for vacant possession of the said plots and order of cancellation of lease deed dated 11th August, 1993 were null and void and that suit ultimately came to be dismissed by this court.
5. Turning to the allegations made in aforesaid FIR No. 420/95, in short the case set up by the complainant is that as per the terms and conditions of the lease deeds the construction on said plots could be used only for automobile workshop still Pushpa Builders Ltd. lessee, inserted advertisements in newspapers including Hindustan Times issue dated 25th January, 1987 inviting the public at large to apply for offices, shops, show-rooms, godowns in Pushpa Auto Complex to be constructed on the said plots. Acting on said advertisement the complainant was induced to pay Rs. 1,000/- in cash and he issued a cheque for Rs. 17,900/- on 25th January, 1987 in the name of lessee for a shop measuring 163.28 sq. ft in the said complex. The total consideration for the built up shop was agreed to be Rs. 1,69,000/- out of which he had already paid Rs. 1,54,100/- to the lessee. Not only that, the lessee has not removed the unauthorised constructions till date
nor possession of the built up shop delivered and building has been again sealed by the DDA. A copy of said advertisement appearing in Hindustan Times is placed at Page 172 of the Police file.
6. Submission advanced by Sh. K.B. Andley appearing for the petitioners was that the possession of the shop stands delivered to the complainant on 5th January, 1991 and in support of the submission he invited my attention to the photostat copy of the handing over letter allegedly bearing the signature of the complainant filed as Annexure “C” to the bail petition. According to Sh. Andley petitioners are even ready to refund the said amount with interest at the rate of 12% p.a. to the complainant and the petitioners’ having joined the investigation in the past, no fruitful purpose is going to be served by detaining them in jail. Ms. Mukta Gupta appearing for the State while opposing anticipatory bail to the petitioners, pointed out that the handing over letter had been ante dated and the possession of shop not handed over to the complainant. Be that as it may, the fact remains that the shop possession whereof is alleged to have been
delivered to the complainant forms part of the building the substantial unauthorised constructions whereof are yet to be removed and the lease of the plots underneath stand cancelled by the lessor by order dated 11th August, 1993 on the ground noticed above and the building is lying sealed by the DDA. Offer for refund of the amount with interest at this stage and the petitioners’ having joined investigation during the period their arrest was stayed by the Additional Sessions Judge, cannot be legitimately taken as grounds for admitting the petitioners to anticipatory bail to which relief they are absolutely not entitled in the said facts and circumstances. Dismissed.