Vijay Chauhan
Asked May 07, 2017

Property Dispute

  • 1 Answer

Hello Everyone, We have a flat in our mother and father name and we got possession way back in the year 2009, in Delhi. However, the people ( many brothers – a few of them living abroad and sending money back to his brother stationed in India, living just across our flat) bought 4 small shops that were there in the ground floor of the building in 2015 facing main road side. That brother went berserk, and he, at the behest of his foreign based brothers, started demolishing the original small 4 shops including their walls and illegally expanded sideways, to make them bigger and when everything was done by him, at the end what we had was still 4 shops however, during their illegal expedition, all shops were made a lot bigger and the common passageway of the apartment building leading on to the main road ( as per the sanctioned map of the building ), was blocked by him and he had put a roof over it and converted it into a shop as well. Furthermore, he destroyed original pillars of the apartment building, modified illegally the original sewage system of the building by placing narrow pipes and constructed an illegal toilet obstructing another common passageway ( as per the sanctioned map of the building ) . Furthermore, an independent investigative group of engineers of the local municipality also visited the site and verified all the facts and found all their illegal acts to be true and found them in total violation of the deed of so called 4 shops and they documented these in their vigilance inspection report. Mother and one other flat owner, as responsible citizens, filed Cr. P.C 133, Cr. P.C 107 and others as applicable, removal of obstruction from common passageway in the SDM court. Because of this, those criminals got furious and what they did is that they filed a concocted False FIR with severe criminal IPC acts against the mother, her son and her daughter in law, and the case is pending now, as a retaliation. Please answer the following questions: (i) With respect to her SDM (Cr. P.C 133, Cr. P.C 107 and others as applicable) case, a sanctioned map of the apartment building was procured, and it came to light that there was no 4 shops approved in the ground floor of the building to begin with ! Only 2 very small shops were approved while the remaining area was authorized for common passageway and parking by the municipal authority. The SDM case is pending for about a one year now and no action has been taken. And no action has been taken on the local municipality vigilance case against that brother and the builder, as well. Contrary to the directions of the vigilance team of the local municipality, electricity connection has been granted to those illegal constructions and the despite asking the local thana to use full force to demolish illegal construction, nothing has been done --- and about 1 year has passed. (ii) Does the Cr. P.C 133 (Cr. P.C 133, Cr. P.C 107 and others as applicable ) apply here, since the common passageway was meant to be used by residents of the building and other people of the other buildings all within a common campus ( the campus has several other buildings ) ? (iii) Should we be concerned by the delay in SDM court process, as I have heard that there has to be some imminent danger to the public ? Should we approach High Court ? What should be our strategy with respect to escalation of the matter, and not to be beaten by delays? (iv) What are the chances of our victory with respect to Cr.P.C 133, removal of obstruction from common passageway, and what might be their possible defense and tactics ? Will they be successful in trying to convert the suit into a civil one ? (v) What steps should we take to make sure that those criminals are nailed in their illegal acts either in the SDM court ( or any other court you might suggest ) before they get the time to pursue on their totally false and concocted criminal case against mother and her wards ? (vi) The official sanctioned map of the apartment building has also been submitted to the SDM court that clearly indicates common passageways on both sides of the building leading to the main road and the exact number of shops and area designated for common parking. What are the chances of the opposite party to subvert this proof – are deviation of this large scale from the sanctioned map even allowed? (vii) If convicted, under Cr.P.C 133, what quantum of punishment might be given to those offenders? And how to make sure that they are not let go and they receive proper justice and punishment that comes with it ? (viii) Will these criminal’s act and ensuing lodging of SDM case (Cr. P.C 133, Cr. P.C 107 and others as applicable) by mother, will be a sufficient and necessary ground to have their false concocted criminal case lodged against her and her wards, quashed in Hon’bl High Court, because the entire fabricated case had been lodged with malafide intention , that is to take revenge and as a retaliatory action ? Thank you very much !

Answer 1

This is a case of contempt of court. In such a case a proceeding maybe initiated for contempt of court as provided under Section 2(c) of the Contempt of Courts Act, 1971, which defines criminal contempt. However the limitation for contempt has been prescribed as a period of one year from the date on which the contempt is alleged, under Section 20.

Based on the facts as stated by you, Section 133, which provides for conditional order to remove nuisance applies in the present case as such construction is not only illegal, but is also obstructing the passageway thereby causing physical hardship to the residents.

Once the order has been passed and the respondents are not complying with the judicial order, you must initiate proceedings for contempt of Court without any further delay in order to ensure the wrongdoers are brought to justice.

Conviction under Section 133 would require the respondents to comply with the provisions of the section including removal, detest from carrying out, prevention of, or to destroy such construction. However, since the respondents have not complied with the order of the court and are guilty of contempt, they may face criminal charges.

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