M.L. Khera vs The State And Anr.
1986 Latest Caselaw 413 Del

ORDER

M.K. Chawla, J.

1. In this revision petition M.L. Khera has challenged his conviction under Section 29(2), Delhi Development Act (herein after referred to as the Act) and sentence of fine of Rs. 2,000/- only or in default to undergo simple imprisonment for six months by the Courts below.

2. In order to appreciate the scope of this revision petition, it is relevant to keep in mind the admitted facts. On 18th Jan. 1980, Shri B.M. Aggarwal, P.W. 2, Junior Engineer of D.D.A. inspected building No. 21-A, North Avenue Road, Punjabi Bagh, New Delhi, and found that in one of the rooms on the ground floor an office of a property dealer under the name and style of "Khera Property Dealer" was functioning. This was a prohibited user of the building as per the Master Plan of Delhi. After obtaining necessary sanction from the Competent Authority, D.D.A. filed a complaint under Section 14 read with Section 29(2) of the Act in the Court of the concerned Magistrate on 16th April, 1980.

3. In support of the complaint, three witnesses were examined. P.W. 1 Krishan Lal proved the resolution Ex.PW 1/1, which empowered the officer concerned to launch prosecution. P.W. 2 Shri B.M. Aggarwal inspected the building, prepared the report Ex.PW 2/A and proved other relevant documents. According to P.W. 3 Saffeer Hussain, the building in question falls in zone G-10 and can be used only for residential purpose. The present petitioner in his defense took up the stand that in one room of the building, only professional service of property dealer akin to that of a doctor or a lawyer is being carried out. In fact, no commercial activity in the real sense is being undertaken. He further maintained that Municipal Corporation of Delhi had already allowed the petitioner such user by charging house tax of the property treating it as commercial. He also maintained that till the time and Zonal Development Plan is enforced, the. question of its violation could not be alleged at all. In support of his contention, he examined one witness from the office of Municipal Corporation of Delhi,

4. The learned lower Court on consideration of all the material on record did not agree with any of his contentions and convicted him and sentenced the accused which was upheld by the Additional District Judge, Delhi.

5. Before this Court, the learned Counsel for the petitioner has urged that admittedly so far as the Zonal Development Plan of the area has not been enforced and unless and until the user of the building in question is specified, independent of the user of the land, no criminal liability can be fastened Even though, the Master Plan has come into force, it does not lay down user of the land building. In this behalf, he referred to the cross-examination of P.W. 2 Junior Engineer, wherein he admitted that non-residential activities like the hospital, park and the market exist and are undertaken in Zone G-10. Support was sought from the judgment reported as White Hill v. D.D.A. (1986) 30 Delhi LT 234.

6. I have given my careful consideration to the argument of the learned Counsel for the petitioner but do not find any substance therein. I proceed on the assumption that for Zone G-10 the Zonal Development Plan has not come into force, but can this fact by itself absolve the present petitioner from the criminal liability. The only answer to this query is in the negative.

7. The Master Plan has come into existence in the year 1962. The area of Punjabi Bagh has been earmarked as a built up colony and is shown as entirely to be residential one. The local authorities, however, can permit any non-conforming user as per the provisions of the Master Plan. If any market or non-residential activity is allowed by the competent authority, then it will not be considered as a violation of the Master Plan. However, the fact remains that the building in question has not been sanctioned by the authority for commercial use and the running of an office under these circumstances is a clear violation of the Master Plan of Delhi.

8. This aspect has repeatedly been considered by our own High Court and one of the judgments relevant on this point is reported in B.T. Menghani v. D.D.A. 1974 Rajdhani LR 1 : AIR 1974 Delhi 159. In this case also, the contention before the Full Bench was that the provisions of Section 14 of the Act are not attracted, in as much as no Zonal Development Plan has been prepared for the area in which commercial user is alleged. This argument was brush beside by observing that the prosecution case, as laid in the complaint, was the violation of the Master Plan and not the Zonal Development Plan and the prohibition contained in Section 14 would be effective in any zone, if any of these plans had come into operation in such zone. It is not anomalous to say that the Master Plan has come into operation in the entire area, ie., in all the zones and, therefore, invariably in each zone. The Full Bench further observed that if, therefore, there is a user of the land or building otherwise than in conformity with either the Master Plan or the Zonal Development Plan or any of them, after such a plan has come into operation, it will be actionable under Sub-section (2) of Section 29 of the Act. As the area in question has been earmarked in the Master Plan for residential purpose and that such use was in contravention of the Master Plan and consequently in contravention of the provisions of Section 14 of the Act. This very view was reaffirmed in the judgment reported as R.P. Kapur v. D.D. A. 1976 Rajdhani LR 189: 1976 Cri LJ 1285. In D.D.A. v. Principal Vocational Training College 2nd (1980) 2 Delhi 1082, a Division Bench of this Court held that the use of a residential building for an unpermitted user is not misuse of the building alone but misuse of the land as well.

9. The Supreme Court has also an occasion to deal with a similar question in the case reported as D.D.A.v. R.S. Bajwa , and has gone to the extent of approving the Full Bench decision of B.T. Meghani's case AIR 1974 Delhi 159. The relevant observation is:

The High Court has expressed the view, and it seems to us correctly too, that the inhibition contained in Section 14 comes into play after the coming into operation of any of the plans in these cases the Master Plan On consideration of the other provisions of the Development Act it seems to have rightly opined that the Master plan may provide not1 only for user of land as distinguished from; building in the various zones but also for the user of building on such lands. Since both the words, viz., "land" and "building" have been used in Section 14 it was an exercise in vain to find that the "land" in the context does not include "building", when the word "building" also has been used in the section. No person could use or permit to be used any building in the zone in which the Master Plan had come into operation otherwise than in conformity with such plan.

10. With this background, let us now deal with this case and the judgment of White Hills v. D.D.A. 1986 (30) Delhi LT 234 on which the petitioner has placed much reliance. During the course of the judgment, J.D.Jain, J. took note of the aforesaid judgment but instead of agreeing with the legal proposition, disposed of the matter on facts by concluding that in the complaint as well as in the evidence of the complainant's witnesses, it has not been proved beyond reasonable doubt that the building was put to a use contrary to the land use prescribed by the Master Plan. Furthermore, the complainant could not bring on record the clear case of misuse of the building with the help of land use plan demarcating the residential and non-residential areas in different colours. The judgment relied upon by the petitioner is quite distinguishable on the facts of the present case and in my opinion is of no help to the petitioner. Here the accused petitioner admits that in the building meant for. residence, a part of it is being used as an office which is quite contrary user as laid by the Master Plan. The charging of the house tax on commercial rate by the Municipal Corporation of Delhi will not help the accused. To my mind, the charging of the house tax on commercial rate is with regard to the building but that will not amount to the change of user of zone G-10 as non-residential.

11. Since admittedly the user of the premises by the petitioner/appellant is non-residential, it is clear violation of the provision of the Master Plan of Delhi and is punishable linder Section 29(2) of the Act without there being any violation of the Zonal Development Plan.

12. In view of the above finding, I have 40 hesitation to confirm the judgment of the Courts below and dismiss the present revision petition.