Delhi Development Authority vs Shri M.L. Sodhi
2005 Latest Caselaw 833 Del

JUDGMENT

Manju Goel, J.

1. This appeal is directed against the judgment dated 3rd August, 1984 passed by Shri A.S. Yadav, M.M., whereby the respondent M.L.Sodhi was acquitted of the offence under Section 14 read with 29 of the Delhi Development Act, 1957 (hereinafter referred to as the `Act).

2. The allegation against the respondent was that he was running an office under the name and style of M/s. Laxmi Finance Exchange in the entire basement of plot No. 12-A, Sagar Apartments, Tilak Marg, New Delhi in contravention of the Master Plan/Zonal Development Plan. During trial the petitioner proved that the respondent was running an office under the name of M/s. Laxmi Finance Exchange in the basement of the building known as Sagar Apartments, Tilak Marg, New Delhi. It was further proved by the prosecution witness that the building in question fell in the Development Zone D-3 of the Master Plan for Delhi and should be used for residential purpose only. The learned M.M. found the facts in favor of the appellant but he held the view that running of the office in the basement of that building did not amount to non-conforming use. DW-1 proved before the court the resolution No.195 dated 28.11.1978 which did not provide any specific use for the basement in which it was observed that no specific use for the basement has been provided for in the Master Plan and it recommended that the basement should be used for parking, servicing and storage. The learned M.M. observed that the running of an office was covered by the words `servicing'. He, therefore, acquitted the respondent.

3. A number of judgments of this court has been placed on the record to show that the basement of that building could not be used for running an office. The first judgment is of Crl. A. No.169/1983 titled DDA vs. M/s. Federation of Engineering Industry of India & Ors. which deals with the basement No.30 of Sagar Apartments where the accused was running an office. The M.M. had convicted the accused but the learned Addl. Sessions Judge over-ruled the conviction and acquitted the accused on the finding that no specific use of the basement in question was prescribed in the Master Plan and, therefore, could be used for office without contravention of the Master Plan. This court vide the judgment dated 30.10.2003 followed a decision of the Division Bench of this court in DDA vs. Rajinder Mittal reported as 42 (1990) DLT 592 in which it was held that if the building falls in the residential area, the basement could be no exception. It was observed by the Division Bench that by administrative orders it was made clear that the basement could only be used for residential purposes or for purposes incidental thereto. The court, therefore, convicted the accused and confirmed the sentence imposed by the M.M.

4. The Division Bench dealing with the case of Rajinder Mittal (Supra) which was in respect of an offence committed in October, 1978 took note of an earlier judgment of this court in Criminal Appeal No.56/1981 DDA vs. M/s.Rajiv Trading Co. & Ors. delivered on 6.9.1990 by a Bench comprising of S.B.Wad and M.K.Chawla, JJ. Approving the finding of this court in the case of M/s.Rajiv Trading Co. (Supra) the court quoted certain potions of that judgment in its judgment in the case of Rajinder Mittal (Supra). I am tempted to quote the same portions here as the same clinches the subject in very lucid terms:

"It may be seen from the Master Plan that it covers the entire territory of Delhi and for planned development of Delhi details the areas which can be used for industries, areas which are commercial areas, areas which are residential areas, areas which are to be left out as green belts and so on. It divides the territory of Delhi into different zones. The Zonal Plan, in detail, specifies the purpose of the land use according to different localities. It is an admitted fact that the Zonal Plan for the area in which Tilak Marg is situated lays down that the land use is residential use. The permission for construction granted to the owner of the land under section 13 and the building plans that are sanctioned in relation to such residential areas are essentially for the purposes of residence and no other purposes. Although it is so, there is large scale abuse of the land use and conversion of the land and buildings for non-conforming use.

The learned Metropolitan Magistrate has not correctly appreciated as to what is meant by Master Plan and the Zonal Plan. By their very conception they are the plans for huge parts of the territory of Delhi and similar localities. They are not meant for specifying the use of a particular building or a part of a building. The Master Plan and the Zonal Plan particularly lay down what are the residential areas. For proper town planning it is necessary that residential areas are separately demarcated and used only for that and no other purpose. If in the residential areas the industries are allowed to grow or widespread commercial activities are permitted there will be hazards of pollution, noise, heavy vehicular traffic, etc. This would affect the peace and health of the citizens staying in the residential areas.

........................ even if according to the administrative circulars the residential buildings can be used also for purposes incidental to the residence which can only mean that it can be used for parking of cars or for sorting his goods. So also, where a professional such as a doctor, lawyer or architect is residing in the building he can have a small office located in the basement and these uses can only be described as incidental use to that of residence. The activities which are out and out commercial activities or industrial activities do not conform to the requirements of the building plans which are sanctioned on the basis of the zonal plans. The learned Magistrate has stated that the zonal plan or the master plan do not specifically lay down the user of the basement. This is clearly a misconception. By the same token neither the Master Plan nor the Zonal Plan state the user for the ground floor or the other stories of the building. If a building is sanctioned for residential purpose in a residential area, every part of it, including the basement, has to be used for residential purposes or for the purpose incidental to it.'

5. It is clear from these observations that an office can be incidental to the residence only when the residence and office are located in the same building. However, the basement cannot be used as an independent office by a commercial venture. Such an office cannot be covered by the term `servicing'. Nor the same can be covered by the terms `residence' or `parking' or `storage'.

6. The second judgment in Crl. A. 40/1985 titled DDA vs. M/s.Elasto Chem Pvt. Ltd. & Anr. is also in respect of 9, Sagar Apartment, 6, Tilak Marg, New Delhi. This judgment dated 4.12.2003 follows the decision in Crl.A.No.169/83 and upholds the conviction. The third judgment dated 4.12.2003 in the case of M/s. Shipping and Clearing Agents Pvt. Ltd. & Anr. is in respect of premises No.27, Sagar Apartments, where again the judgment in the case of Crl.A.No.169/83 has been followed. Another judgment cited is in the case of M.L.Khera vs. The State & Anr. numbered Crl.Revision No.139/83 which was decided on 21.11.1986. In this also this court held that if the building was meant for residence no part of it could be used for an office despite the fact that house tax was being charged at commercial rates. Needless to say that the Division Bench relied upon this court's judgment in Crl.A.No.169/83 in respect of the use of the basement and prohibited the use of the basement for office purposes. Impugned order is accordingly set aside and the appeal is allowed.

7. The matter is remanded back to the ACMM who may hear the case himself or assign it to some other competent court who will resume the proceedings in the case No.192/84 and will impose a proper sentence according to law. The parties shall appear before ACMM on 5.7.2005.