Shankar Aiyer And Co. And Anr. vs The State
1986 Latest Caselaw 446 Del

JUDGMENT

M.K. Chawla, J.

(1) In this appeal, most of the facts are not in dispute. Appellant no, I, V. Shankar Aivar & Co. is a firm of Chartered Accountants. Appellant no. 2, Shri V. Rethinam is one of the partners. The Company is running its office at 8, S. Bhagat Singh Marg, New Delhi. The building in question falls in Zone D-5, and according to the Master Plan for Delhi and Zonal Development Plan of the area, the premises can be used for residential purposes only. On 23-9-80, Public Witness-1, Shri B.S. Saini, Junior Engineer, inspected the premises and found the same being used for office purpose against the prescribed user of residential. On the report of the Junior Engineer, the complaint Ex. Public Witness 1/F was filed against both the accused after obtaining requisite sanction from the Competent Authority. After the cognizance was taken, both the accused put in appearance and separate notices under Section 251 Cr. P.C. were given to them. They pleaded not guilty and claimed trial.

(2) The respondents took up the stand that the premises in question were taken on rent by the company for running an office. In fact, this building is situated in the commercial area and is being used by various offices and banks. There is no provision for kitchen, latrine or bath which utilities are very essential for the use of any building for the purpose of residence. In defense, they also produced witnesses to show that the house-tax of this premises is also being charged at commercial rates by the N.D.M.C.

(3) The learned trial court on consideration of the material on record came to the conclusion that as the accused/appellants are using the premises for commercial purposes, which is against the prescribed user of the Master Plan for Delhi, thus their user is in contravention of Section 14 read with Section 29(2) of the Delhi Development Act. However, a lenient view was taken and a fine of Rs. 500.00 on each of the accused was imposed and in default, accused No. 2 was ordered to undergo S.I. for two months.

(4) Their appeal before the Additional Sessions Judge met the same fate except that the fine was reduced to Rs. 100.00 on each of the two appellants. It is against this order the present petition has been preferred.

(5) The main contention of the learned counsel for the petitioners is that at the time of taking the premises on hire the landlord of the building represented that the premises in question could be used for commercial purposes, and on that understanding, a space of 1300 sq. ft. consisting of one hall, one room and a toilet on the first floor of the building was acquired. At that time, the petitioner company made independent enquiries from the area and found that many other establishments were having their offices. The company bona fide believed that the premises could be used for commercial purposes. This belief was further confirmed when the N.D.M.C. started charging the house-tax on the basis of the commercial user. The submission is that the courts below erred in not appreciating the fact that almost the entire area is being used as commercial and there was no mala fide intention on their part to misuse the premises as now made out by the D.D.A.

(6) The submission of the learned counsel for the respondent-DDA, on the other hand, is that the respondents have not led any evidence to show that the other premises in the vicinity were being used for commercial purposes after the coming into force of the Master Plan. In the absence of this evidence, the petitioner cannot take advantage of the existing situation and use the premises for commercial purposes.

(7) There is much substance in the submission of the respondents. It is no doubt true that from the evidence of the petitioners' witnesses, it can safely be inferred that there are many commercial shops- and establishments running in this area. It is also not disputed that the House-tax and electric connection sanctioned by the N.D.M.C. in the building are being charged on commercial basis. It may be that the petitioners took on rent the premises for their office use, under a bona fids belief that the area is basing put to commercial use. But is this fact, by itself, enough to absolve the petitioners of the liability under the provisions of Section 14 read with Section 29(2) of the D.D.A. Act. The only answer to this query can be in the negative. In order to take advantage of the similarly situated premises in the locality, it was incumbent on the petitioner to have led convincing evidence to overcome the proviso to Section 14 of the Act which carves out an exception to the general rule, Section 14 of the Delhi Development Act, 1957 reads as under :-

"14.User of land and buildings in contravention of plans. After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan ;

Provided that if shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for land to which it is being used upon the date on which such plan comes into force."

(8) The reasonable interpretation to be placed on Section 14 of the Delhi Development Act will be that if any particular and definite use of land is indicated in the Master Plan, a different use of that land cannot be permitted. Similarly, if a Zonal Development Plan provides for a particular use of any land or any building in that zone, it cannot be put to a different use. The Planned development of Delhi, as envisaged in the provisions of the Act, was likely to take time and during the intervening period, human activity was not desired to be brought to a standstill. To tide over such difficulty, proviso to Section 14 made it lawful to continue to use any land or building for the purpose of and to the extent for and to which it was being used on the date on which any of the plans came into force. But the exception envisaged by the proviso would be subject to such terms and conditions as may be prescribed in regulations made in that behalf. The provision of Section 14 and the proviso to it are not susceptible to two interpretations. The said proviso carves out an exception to the prohibition for use or permitting to be used any land or building in a zone otherwise than in conformity with such plan.

(9) Applying the said ratio on the facts of the present case, it can safely be said that the building in question falls within the development zone no. D-5 of the Master Plan for Delhi, and this can be used only for residential purposes. The zonal development plan of this area has also come into force. The building has been located at point 'X' in the Zonal Map Ex. Public Witness 1/G. There is no dispute about its identity. The building admittedly is being put to a contrary use. The findings of the courts below under these circumstance stand fully proved and arc hereby confirmed.

(10) Learned counsel for the petitioner tried to get out of this difficult situation by alleging that at the time of taking the premises on rent. the petitioner had no guilty mind. According to him, the requisite means rea, namely knowledge on the part of a person of a fact must be established before he is sought to be visited with the penalty. This aspect has not been taken note of by the court below which can be made the basis of the acquittal. This is hardly a circumstance which can absolve the petitioners of the charge. The question of means read in such like cases does not arise nor can it be considered as plea in defense. There may be a presumption that means read is an essential ingredient of a statutory offence but this can be rebutted by the express words of a statue creating the offence or by necessary implication. Having regard to the object of the Act, it is absolutely clear that the implementation of the provisions of the statute would be defeated in case such a plea is allowed to be entertained. No other point has been raised nor any re quires going into. There is no force in the revision petition. The conviction and sentence of the accused is hereby maintained and the revision stands dismissed.