Delhi Development Authority vs R.K. Dhawan
1995 Latest Caselaw 209 Del

JUDGMENT

P.K. Bahri, J.

(1) Delhi Development Authority has filed this appeal against the judgment dated February 13, 1981, of an Additional Sessions Judge, Delhi, by which he had allowed he appeal of Sh.R.K.Dhawan-respondent and had set aside the judgment dated August 1980 of a Metropolitan Magistrate, Delhi and has acquitted the respondent of an offence punishable under Section 29 read with Section 14 of the Delhi Development Act, 1957 (for short 'the Act'). The learned Magistrate has found him guilty and imposed a fine of Rs. 1,500.00 and in default to undergo simple imprisonment for 90 days.

(2) Facts leading to the filing of the present appeal against acquittal are that the respondent admittedly is the owner of house No.A-16/1, Vasant Vihar, New Delhi, which is located in Development Zone F-12 and in accordance with the Master Plan of Delhi the said house could be used only for residential purposes.

(3) Pw 1 S.K.Taneja, Junior Engineer of Delhi Development Authority had on December 18, 1978, visited the said property had prepared an inspection report Ex.PW1/A mentioning that he had found the entire first floor comprising of drawing and dining with partition and four more rooms Along with basement being permitted to be used for running an office for consultant and laboratory purposes and at the time of inspection he had found twelve employees present besides he saw a number of soil testing machines present in the basement. He had found one Shri S.Kashyap, consultant present on the spot who refused to sign the inspection report. After obtaining prior sanction under Section 49 of the Act, copy of which is Ex.PW1/C, a complaint was filed against the respondent that respondent had permitted the said residential building to be used for non-conforming purposes in violation of provisions of Section 14 of the Act and thus, has committed an offence punishable under Section 29(2) of the Act.

(4) In support of the case, Shri S.K.Taneja, Junior Engineer, appeared in witness box and proved his said inspection report and other documents. In cross- examination, it was suggested to him that the ground floor of the premises was being used for residence by one Sh.V.V.S.Rao, who is the proprietor of the consultant firm, found functioning in the premises in question. He also mentioned in cross-examination that all servant quarters on the first floor of annexe were also being misused. He deposed that he did not know about the second floor. It was suggested to him that there was no person by the name of S.Kashyap present at the site. He stated that he did not remember the exact number of soil testing machines but the number could be four. He also mentioned in cross-examination that there was no other tenant on the first floor having any back entrance and he stated that as a matter of fact he had not gone to the backside. So, he was not aware of existence of any back entrance.

(5) In the statement under Section 313 of the Code of Criminal Procedure the respondent admitted that the building in question could be used only for residential purposes according to the provisions of the Master Plan and that he is the owner of the property in question but he stated that he had let out two bedrooms, one drawing-cum-dining and a kitchen to Dr.Rao which accommodation is only a part of the first floor and he has also let out another portion on the first floor comprising one bedroom and two rooms of annexe block and he has let out the ground floor to one R.L.Nayar and he himself has been in possession of the basement.

(6) R.K.DHAWAN-RESPONDENT also appeared as his own witness and made similar statement mentioning that he had never permitted any of his tenants to misuse the premises in any manner and he had let out the premises to the tenants vide lease agreements Ex.DW1/A, D1 & D2 to the said three tenants for residential purposes only. He stated that he has kept his own goods in the basement. He in cross-examination admitted that he has been visiting the premises for collecting rent from the tenants but he has never come to know that any portion of the building has been misused by any of the tenants. He examined R.L.Nayar DW2 who is living on the ground floor of the building and he deposed that he had not seen any portion of the building being misused by tenant V.V.S.Rao at any time but he stated that Shri Rao was not a tenant at any time on the ground floor and that the basement has always been in possession of the owner. He stated that in the basement only miscellaneous goods of the owner were lying. He admitted that Dr.Rao was an expert in soil engineering. Dr.Rao has not been examined as witness by the respondent to show that he, in fact, never had any consultancy office in his tenanted premises and had not installed any soil testing machines in the basement. The documents produced by the respondent show that the respondent had let out the premises to the three tenants for residential purposes but none of these documents pertain to the letting out of the basement.

(7) It is pertinent to mention that PW1 S.K.Taneja has no reason to depose falsely against the respondent. He in due course of his official duties had inspected the building and had prepared the inspection report and he had mentioned in his inspection report that he had found soil testing machines in the basement and had also seen about twelve people functioning in the premises. In cross-examining not even a suggestion was given that no soil testing machines were present in the basement. His statement that he had found soil testing machines present in the basement and also found twelve persons working in the premises had gone unchallenged. The story that in fact, the respondent has been in possession of the basement all along has been put up by the respondent only when he was examined under Section 313 of the Code of Criminal Procedure and thereafter when he led defense evidence. It means that this is an afterthought story. There is no reason to disbelieve the testimony of S.K.Taneja which remained unchallenged on this aspect of the case. He has no axe of his own to grind to give any false report in respect of the building in question. He has no animosity with the owner of the building or with the tenants residing in that building. Mere fact that he did not notice the other portion of the first floor which was in occupation of another tenant having entrance from the backside and had not gone to the second floor would not mean that he had not inspected the building at all. The respondent, who has argued his matter himself before us, has urged that he had not received the show- cause notice purported to have been given to him before filing of the complaint. The respondent has not shown us any provision which requires that complaint could not have been filed without first serving a show-cause notice on the respondent. The respondent has drawn our attention to Section 28 of the Act which requires that before inspecting the building a notice is required to be given to the owner or to the occupier and in the present case no such notice had been given. The provisions of Section 28 do not lay down that in case the building has been inspected without such a notice being given then the inspection of such building would become illegal and facts noticed in such inspection would not be admissible in evidence.

(8) The respondent has also urged that under the guidelines issued by the Delhi Development Authority, 20% of the residential accommodation could be used by a professional for having its consultant office. There is no dispute about this provision but in the present case the basement particularly was not being used for any professional office. The basement was being used for operating the soil testing machines. In Delhi Development Authority Vs Kanti Lal Sudh & Others, , it has been made clear that professional person can use only some of the portion as his consulting room and not for any commercial activity. It appears that the Additional Sessions Judge has not examined the evidence of Junior Engineer in proper perspective and has not even touched the case of the Delhi Development Authority with regard to misuser of the basement. In view of the above discussion, we allow this appeal and set aside the judgment of the Additional Sessions Judge and restore the judgment of the Magistrate. The learned Magistrate shall take steps to realise the fine, if not already paid by the respondent.