IMPORTANT POINT
By merely digging of the earth and by merely stacking the same, the offence under section 332 of Municipal Corporation Act is not made out.

JUDGMENT

Charanjit Talwar, J. - This judgment disposes of two criminal appeals filed by Municipal Corporation of Delhi. One of them is Crl Appeal No. 64/82 filed against M/s Silver Tone Radio Electrical Company through its partner Mr. Raghubir, Singh, The other appeal is filed against M/s S.K. Electric Company and its partner Mr. Raj Pal. The allegations of the Municipal Corporation of Delhi (for short 'the Corporation') are that the respondents in both the cases were carrying out unauthorised digging of earth for the purpose of constructing a basement in their shops. The premises number of the shop in first appeal (Cr. A. 64/82) is 1681/11 Bhagirath Place, Delhi and the premises in the other appeal (Cr.A. 7/82) is 1680/11. Bhagirath Place, Delhi.

2. The facts are that Mr. S.S. Sharma, a Junior Engineer of the Corporation, had visited the premises on 20th June, 1979 and found that the respondents were carrying out digging therein. He was of the view that the digging was being carried out for the purpose of constructing a basement. He prepared his reports and served notices on the respondents as required under section 332 of the Delhi Municipal Corporation Act (for short 'the Act'). Thereafter complaints were filed by the Corporation for offence under Section 332 read with section 461 of the Act.

3. The learned Magistrate after analysing the evidence of the prosecution and after noticing statement under section 313 of the Criminal Procedure Code of the accused acquitted them on the ground that the prosecution have failed to prove that merely digging of earth could be said to be commencement to erect any building within the purview on section 332 of the Act.

4. After hearing learned counsel for the appellants and going through the records we agree with the finding of the learned Magistrate. At the stage of digging of the earth in the premises which belong to the respondents, in our view the offence punishable under section 332 of the Act could not be said to have been committed. The said section reads as follows:

"No person shall erector commence to erect any building, or execute any of the works specified in section 334 except with the previous sanction of the Commissioner, nor otherwise than in accordance with the provisions of this Chapter and of the by laws made under this Act in relation to the erection of buildings or execution of works."

5. Whether a person has erected or has commenced to erect any building is a question of fact. In the circumstances under consideration merely digging of the earth and by merely stacking the same, the offence charged could not be brought home. At the most one can say that the respondents were preparing possibly to commence to erect any building. There is no force in these appeals. They are dismissed.

6. In case the respondents have after the acquital in question erected any building or have actually commenced to construct the basement, it is open to the appellants to initiate fresh proceedings after giving due notice. It is well settled that such an offence is a continuing Offence.