D.D.A. vs Rajiv Khurana
2013 Latest Caselaw 1843 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Reserved on: 22nd April, 2012
%                                            Date of Decision: 25th April, 2013

+      CRL. A. 695/1999

       D.D.A.                                                  ..... Appellant
                              Through:     Mr. Rajesh Mahajan with Mr.
                                           Agnihotri, Advocates.
                     versus

       RAJIV KHURANA                                          ..... Respondent
                              Through:     Mr. Rajesh Gupta, Advocate.

CORAM:
MR. JUSTICE R.V. EASWAR

                                 JUDGMENT

R.V. EASWAR, J.:

By the present appeal, the appellant challenges the judgment of the

Metropolitan Magistrate passed on 01.03.1999 acquitting the respondent of

the offence charged under section 29(2) of the Delhi Development Act, 1957,

hereinafter referred to as the „DD Act‟.

2. The facts are these. On 01.03.1995, the surveyor of DDA, Shri D.D.

Tyagi inspected premises bearing No.A-7, Kirti Nagar, Delhi and found that a

furniture showroom under the name and style of M/s. Khurana Furniture was

functioning in the ground floor in an area of about 2500 sq. yds. The

premises fell in Development Zone No.G-2 of the Master Plan for Delhi and,

therefore, could have been used only for residential purposes. There was thus

a violation under section 14 of the DD Act, which was punishable under

section 29(2) of the said Act. However, before launching prosecution for the

violation, sanction for the prosecution had to be obtained as required by

section 49 of the DD Act. The sanction was accordingly obtained and a

complaint was filed in the court. In support of the complaint, two witnesses

were examined by the complainant. The statement of the accused was also

recorded under section 313 of the Cr.P.C. He, however, did not lead any

witness in his defence.

3. A preliminary point which was raised before the Magistrate was to the

effect that the prosecution was bad on account of the fact that there was no

valid sanction for the same under section 49 of the DD Act since the

sanctioning authority had not applied its mind to the facts and circumstances

placed before it. This point appealed to the Magistrate. According to him the

complaint was filed against the respondent in his capacity as proprietor of

M/s. Khurana Furniture on the ground that he was found using the premises

for commercial purposes ever since 19.05.1979 when M/s. Khurana Furniture,

which was a partnership firm at that time, was convicted by the Metropolitan

Magistrate for running a furniture showroom in violation of the Master Plan.

The Metropolitan Magistrate in the impugned judgment has also noted that

the sanction for the prosecution was granted on the basis of the inspection

report dated 01.03.1995, that it was totally silent about the previous

conviction of the firm on 19.05.1979 and that it was also silent about the

continuing nature of the offence from that date. In these circumstances he

held that the complaint cannot go beyond the sanction, but has to conform to

it. After noticing the provisions of section 49 and a few authorities on the

question of the requirements of a valid sanction for prosecution, he held that

the complete facts about the earlier conviction and the continuous misuse of

the premises were not placed before the sanctioning authority and, therefore,

the complaint, in as much as it proceeds on the basis that the accused is liable

to be convicted and fined under the later part of the section 29(2) of the DD

Act was invalid and incompetent. He accordingly quashed the complaint and

acquitted the respondent of the offence.

4. It is the correctness of the aforesaid order that is called in question

before me by the Delhi Development Authority. Section 29(2) of the DD Act

is in the following terms: -

"29. Penalties. -

       (1)    .................

       (2)    Any person who uses any land or building               in
       contravention of the provisions of section 14 or              in
       contravention of any terms and conditions prescribed          by
       regulations under the proviso to that section shall           be

punishable with fine which may extend to five thousand rupees and in the case of a continuing offence, with further fine which may extend to two hundred and fifty rupees for every day during which such offence continues after conviction for the first commission of the offence."

5. Section 49 (1) of the DD Act reads as under: -

"49. Sanction of prosecution. -

(1) No prosecution for any offence punishable under this Act other than an offence referred to in sub-section (2) shall be instituted except with the previous sanction of the Authority or as the case may be, the local authority concerned or any officer authorised by the Authority or such local authority in this behalf."

The complaint filed before the Metropolitan Magistrate refers to the

conviction order of 19.05.1979 for contravention of the Master Plan; in the

second paragraph it also refers to the inspection report dated 01.03.1995 and

to the fact that "the said accused has/ had not stopped the misuse even after

the first conviction of the offence and the offence was continuing up to the

date of detection of the misuse i.e. on 01.03.1995". In paragraph 3 of the

complaint it is alleged that the accused is liable to be convicted and fined to

the extent of `250/- per day till the stoppage of the non-conforming use. It

also states in para 4 that the sanction of the sanctioning authority to initiate

proceedings has been obtained. From the averments made in the complaint it

is clear that the appellant is relying on the second part of the section 29(2) and

regards the offence as a continuing offence in which case, in addition to the

maximum fine of `5,000/-, a further fine which may extend to `250/- for each

day during which the offence continues after conviction for the first

commission of the offence can be levied. The contention of the appellant is

that CW-1 Shri D. D. Tyagi, who carried out the inspection on 01.03.1995 has

deposed in categorical terms that in addition to sending the file containing his

report and plans, the documents regarding the previous conviction of M/s.

Khurana Furniture were also sent to the sanctioning authority for the purpose

of obtaining the requisite sanction for the prosecution. The contention is that

this categorical statement has not been proved wrong or false in the course of

the cross-examination and, therefore, it must be taken that the sanctioning

authority, while according sanction for the prosecution did take into account

or apply its mind to the earlier conviction before according sanction. It has

also been contended that even if the sanctioning authority is assumed, for the

sake of argument, not to have considered or applied its mind to the earlier

conviction, the sanction cannot be struck down as invalid, because section

29(2) of the DD Act consists of two distinct and severable violations or

offences and the sanction can be upheld in so far as it relates to the violation

noticed on 01.03.1995 and, therefore, the Metropolitan Magistrate ought to

have examined the question as to how much fine can be imposed on the

respondent, subject to a maximum of `5,000/-. My attention was drawn to the

judgment of the Division Bench of this Court in the case of Oriental Bank of

Commerce vs. Delhi Development Authority and Anr., decided on

16.07.1982 and reported in DRJ 1983 (4) 253.

6. On the other hand the counsel for the respondent, relying on the

judgment of a Single Judge of this Court in State (Delhi Aministration) vs.

Vasdev and Anr., 2009 (2) JCC 843 contends that where there is no evidence

in the sanction order to suggest that the sanctioning authority, at the time of

granting sanction, was aware of the facts constituting the offence or applied

its mind to all the relevant material or documents brought on record, the

sanction cannot be held to be a valid sanction. According to him, the

complaint refers to the past conviction and the present violation by the

respondent herein and has attempted to make out a case of a continued

offence and, therefore, it was incumbent upon the sanctioning authority to

apply its mind to those facts and bring out clearly and demonstrably that he

did in fact apply his mind to those facts and did consider the offence to be a

continuing offence so as to attract the later part of section 29(2) of the DD

Act. However, according to the counsel for the respondent, there is nothing in

the sanction order dated 06.03.1995 to show any application of mind to the

relevant facts and, therefore, the Metropolitan Magistrate was right in

quashing the complaint for invalid sanction. My attention has also been

drawn to the cross-examination of Shri D.D. Tyagi (CW-1) in the course of

which he has stated that at the time of the previous conviction, M/s. Khurana

Furniture had a different constitution and was a partnership firm, whereas the

present accused was not a partner of that firm and that the present accused

was the sole proprietor of M/s. Khurana Furniture, which fact was got verified

from the sales tax department. On the basis of this, it is argued by the counsel

for the respondent that it is a very material fact as to who suffered the first

conviction and if the conviction order discloses that the present accused was

not a partner in M/s. Khurana Furniture when that firm was convicted on

19.05.1979, the sanctioning authority could not have come to the conclusion

that there was a continuing offence for the simple reason that he was not a

partner in M/s. Khurana Furniture on that date.

7. I am of the view that there is a good deal of force in the contentions of

the counsel for the respondent. I consider it to be the correct principle to be

applied in such cases that even though the sanction order was in a cyclostyled

form, it can be considered valid if application of mind and consideration of

the materials on record can be easily discerned from the sanction order itself.

The mere fact that the sanction order was in cyclostyled form is no ground to

invalidate the same as has been held by the Supreme Court in Shivaji Atmaji

Sawant vs. State of Maharashtra and Ors., 1986 (2) SCC 112. This

judgment has been applied by Justice Mukta Gupta of this Court in the case of

DDA vs. M/s. Gautam Hospital and Anr., (Crl. A. No.134/1999 decided on

11.01.2011). From the judgment of the learned Judge, I find that after

referring to the judgment of the Supreme Court, it has been observed that each

case has to be looked into on its particular facts and that in that case the

sanction order was found to contain individual details to which the

sanctioning authority had duly applied its mind. Further, he had appeared in

the witness box and had stated about the documents considered by him while

granting sanction. The same situation does not obtain in the present case.

The sanction order does not refer to the previous conviction on 19.05.1979,

which was necessary if the complaint under the later part of section 29(2) of

the DD Act could be lodged. The complaint was filed on the footing that

there was a previous conviction in which M/s. Khurana Furniture was

sentenced to pay a fine of `2,000/- by a conviction order passed on

19.05.1979 and a further violation was noticed in the course of the inspection

carried out on 01.03.1995 and, therefore, the accused was liable to be

convicted and fined to the extent of `250/- per day till the non-conforming

user was stopped. The sanction order however does not disclose any

application of mind on the part of the sanctioning authority to these facts, as

rightly pointed out by the Metropolitan Magistrate in the impugned order.

This is further verified by the deposition of Shri D.D. Tyagi, Surveyor of

DDA, who admitted during the cross-examination that M/s. Khurana

Furniture had a different constitution and was a partnership firm at the time of

the earlier conviction and that the present accused was not a partner of the

firm. A perusal of the conviction dated 19.05.1979 passed by the

Metropolitan Magistrate, which was before the sanctioning authority as per

the deposition of Shri D.D. Tyagi, shows that there were two partners of M/s.

Khurana Furniture - (1) Banwari Lal Khurana and (2) Anil Kumar. The

present accused was not a partner. If, as Tyagi had deposed, the earlier

conviction order was before the sanctioning authority, the fact that the present

accused was not a partner in M/s. Khurana Furniture and was not a person

who was convicted could not have escaped its notice. If that is so, the

sanctioning authority could not have reasonably or rationally come to the

conclusion that the present accused was guilty of a continuing offence or

violation within the meaning of section 29(2) of the DD Act. Thus it appears

to me to be a case of non-application of mind to the facts and the material

which were undoubtedly placed before the sanctioning authority and to which

he ought to have applied his mind before according sanction for the

prosecution. I make it clear that I am not resting my order on the ground that

the sanction order is in a cyclostyled form; as already pointed out, the

Supreme Court and the learned Single Judge of this Court have held that

merely because a cyclostyled proforma is filled it does not lead to the

inference that there is no application of mind at the time of grant of sanction

and that each case has to be looked into on its particular facts. On the facts of

the present case, it is clear that the material which was before the sanctioning

authority had not been duly taken note of and the impact of the earlier

conviction order has not been assessed at all by the sanctioning authority

before according sanction.

8. It remains for me to consider the argument of the appellant that the

Metropolitan Magistrate ought to have examined whether there was any

violation of the nature prescribed in the first part of Section 29(2) i.e. a first

violation or contravention which was discovered on 1.3.1995. This

contention, I am afraid, cannot be given effect to because that is not the

complaint filed by the appellant. As already pointed out, the violation sought

to be made out in the complaint is that there was a continuing offence which

falls under the later part of Section 29(2) of the DDA Act. There is no

specific allegation in the complaint that the violation is a first-time violation

falling within the first part of the above mentioned section attracting a

maximum fine of `5,000/-. In the absence of specific complaint to this effect,

it was not within the competence of the Magistrate to examine whether such a

complaint/violation was established. The argument of the appellant is

accordingly rejected.

9. For the above reasons, I am in agreement with the order passed by the

Metropolitan Magistrate on 01.03.1999 holding that there was no valid

sanction for the prosecution of the accused in the present case. I accordingly

uphold his order and dismiss the appeal.

(R.V. EASWAR) JUDGE APRIL 25, 2013 hs