Delhi Development Authority vs R.K. Gupta
1995 Latest Caselaw 608 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) Eave to appeal sought for, is granted.

(2) This appeal, by special leave, is by the D.D.A. preferred against the judgment dated 23.4.93 in Cri. Case No. 88/92 on the file of Mr. A.K. Garg, M.M., New Delhi, acquitting the accused/respondent of the offence punishable under Section 14 read with Section 29(2) of the Delhi Development Act, 1957.

(3) Succinctly put; the case of the prosecution is that by are port dated 11.7.85 (Ex.PW-IA)of the Surveyor Shri Chandra Prakash (Public Witness l)itwasbroughttothe notice of the appellant that the respondents had permitted to be used a building bearing No. F-329, Az, Sudershan Park, New Delhi, to a non-conforming use inasmuch as an office-cum-factory under the name and style of M/s. Asha Mechanical Works was being run therein. According to the appellant, the land/ building falls in Zone G-3 and it can be used only for residential purposes in accordance with the Master Plan formulated in respect of the said Zone. The respondent was prosecuted for contravening the provisions of Master Plan of Zone G-3 as referred to under Section 14 of the D.D. Act and made punishable under Section 29(2) of the said Act.

(4) : The respondent has admitted in his examination under Section 313 Cr.P.C. that on 11.7.85 the premises No. F-329 Az, Sudershan Park, New Delhi, was inspected by Shri Chandra Prakash (Public Witness 1) and an office-cum-factory under the name and style of M/s. Asha Mechanical Works was being run therein. His specific defense is that he had a valid license to run the trade in the premises in question. He has examined Ram Chander(DW 1) in support of his defense.

(5) The learned Trial Court by the impugned judgment acquitted the respondent. Feeling aggrieved by the judgment, the appellant has come up in appeal before this Court.

(6) Learned Counsel for the appellant assails correctness of order of acquittal on the ground that the same suffers from vice of non-consideration of evidence and non-application of judicial mind. We have gone through the impugned judgment and find that the same is so infirm that we are unable to appreciate as to how the finding of acquittal was arrived at. It is well settled that there is no immunity to an erroneous order form a strict appellate scrutiny. (Sanwant Singh v. State of Rajasthan, ; Chandra Kavita Debnath v. State of Tripura,AlR 1986 Sc 606; State of U.P. v. Krishna Gopal, . The mainstay of the prosecution case is the testimony rendered by the Surveyor of the Dda namely, Chander Prakash (Public Witness 1). He deposed that the premises in question, namely, building No. F-329, Az Sudershan Park, New Delhi, was inspected by him on 11.7.85 and an office-cum-factory under the name and style of M/s. Asha Mechanical Engineering Works was found functioning there and that the respondent is the proprietor of the said factory. It is pertinent to note here that on the said points his testimony has been left unchallenged by the respondent. On the contrary, the respondent, in his examination under Section 313 Cr.P.C. has unequivocally admitted the above mentioned facts. His defense was that he had a valid license to run the trade in the premises in question. Surprisingly, the learned Trial Court came to the conclusion "that the factory of the accused was functioning at some other place and not at F-329, Sudershan Park. Thus, I find that the Complainant has failed to prove.its case". In reaching the above conclusion, the learned Trial Court has completely overlooked the evidence of Chandra Prakash (PW 1) and the admissions made by the respondent in his examination under Section 313 Cr.P.C. In our opinion, the approach of the learned Trial Court is basically erroneous arid its judgment is founded on false assumptions, conjectures and surmises. As observed by the Apex Court in State of Punjab v. JagirSingh, : "A criminal trial is not like a fairy tale wherein one is free to give flight to one's own imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of crime with which he is charged......"

(7) In the instant case, the evidence of Chandra Prakash (Public Witness l)readAlong with the statement of the respondent under Section 313 Cr.P.C. proves beyond reasonable doubt that the respondent had permitted to be used his building bearing No. F-329, Az, Sudershan Park to a non-conforming use inasmuch as the office cum-factory of M/s. Asha Mechanical Works was being run therein. Evidence of Chandra Prakash (Public Witness 1) further proves that the premises in question falls in Zone G-3 and it can be used only for residential purposes in accordance with the Master Plan. Section 14 of the D.D. Act prohibits a person not only from using the building himself in contravention of the Master Plan but also to prevent such use by others as well. The very purpose of the prohibition contained in Section 14 of the Act is bound to be defeated if people are permitted to circumvent the provisions of the Act. In the present case, we find the premises in question has been put to use for purpose which is strictly prohibited by Section 14 of the D.D. Act. Consequently we find and hold that the respondent contravened the provisions of Section 14 ibid, and thereby committed an offence punishable under Section 29(2)(8) of,the D.D. Act.

In the result, we set aside the judgment of the learned Trial Court, reverse the finding of acquittal and hold the respondent guilty under Section 29(2) of,the D.D. Act.

of the D.D. Act. A fine of Rs. 4,000.00 is imposed on the respondent. The appeal is