1. This is an appeal by the Delhi Development Authority against the order of Shri Prem Kumar, Metropolitan Magistrate dt/- 11th September, 1975 by which the learned Magistrate acquitted the respondents of the charge under S. 29(2) of the Delhi Development Act.
2. On 12th February, 1973 a report was made by the Field Staff that the respondent M/s. National Tonnage Club of Farmers was putting the building bearing No. F-2 New Delhi South Extension Part I to a non-conforming use by using a part of the said premises for running a club known as National Tonnage Club of Farmers. The respondent National Tonnage Club Farmers is a society registered under the Societies Act. The object of the said club is to foster brotherhood amongst the farmers of India and boost the agricultural production in the country. Shri S. B. Pandya who is the honorary Secretary of the club in the reply Ex. PW1/C in response to a notice by the Assistant Vigilance, Officer Delhi Development Authority, did not dispute that the ground floor of the building is used as office of the National Tonnage Club of Farmers. Shri Pandya in the reply stated that the said club is a non-commercial, non-profit making scientific service organisation with charitable motives and that its object is to foster brotherhood amongst the farmers of India and the said club is in substance a club of farmers. He further stated that in the club various problems facing the farming community are discussed and that the said club has the support of the Central and State Governments. He further pointed out that the first floor and the Barsati floor are used entirely for residential purpose.
3. Shri Pandya in defense besides examining himself (D.W. 3) examined Shri Narendra Singh Verma (D.W. 2).
4. D.W. 2 gave evidence that he is a life member of the National Tonnage Club of Farmers and that he frequently visited the said Club, that he visited the Club to obtain and render advice and give guidelines to the farmers to boost the agricultural production. The witness further deposed that no business is transacted in the said premises and it is only a charitable and social organisation and it is being run on no loss and no profit basis. The witness further deposed that he sometimes stays in the Club and it has the facilities of lodging and food.
5. D.W. 3 Shri Pandya gave evidence that no commercial transaction takes place in the office and that members come, sit and give guidelines to farmers and they sometimes stay there and take their food. He further testified that he stayed in the premises in question. In cross-examination the witness stated that it was true that the head office of the Club is located in the premises in question.
6. From the evidence produced on the record it appears to be a common, case that the first and the second floor are used for residential purpose and on the ground floor the respondent has the office where the members meet, discuss their mutual problems and in case any member wished to stay there are staying arrangements.
7. The learned Magistrate acquitted the respondents, inter alia, on two findings : (1) that the uses permitted in a residential zone included social and cultural institutions, clubs, nurseries, schools, etc. and that respondent No. 1 is a social and cultural institution and, thereforee, the use of the premises, as a club is not a violation of the Master Plan, and (2) the expression 'persons' in the General Clauses Act included the company or association or body of individuals, whether incorporate or not and that a body like a club also needs a place where it can reside and, thereforee, the use of the residential premises by the respondents as a club and for running an office would not be illegal or invalid.
8. We have heard Mrs. Usha Kumar on behalf of the appellant. There has been no appearance on behalf of the respondents and, thereforee, we did not have the advantage of the views that may have been put forward on behalf of the respondents.
9. We are of the view that both the reasons given by the learned Magistrate for acquitting the respondents are not legally sound. The Master Plan for Delhi divides the whole of the Delhi into various use zones such as residential commercial, industrial, recreational, etc. The Master Plan for Delhi at page 48 provides that in the residential 'use zones' the following uses are permitted :
'Residences, hostels and boarding houses with density limitations; nurseries kindergartens and schools; clinics, social and cultural institutions with adequate parking facilities; public utilities and buildings except service and storage yards; non-commercial farms, agricultural gardens, nurseries and green houses; any neighborhood recreational uses including clubs and other semi-public recreational uses; accessory uses clearly incidental to residential use (except retail shops and service uses) which will not create a nuisance or hazard.'
10. The learned Magistrate seems to be of the view that since social and cultural institutions are included in the residential (use zones) thereforee, if any building in the residential zone is used for any of the permitted 'uses', the use would be legal and valid.
11. In our view, the above approach of the learned Magistrate is not correct. A residential zone would require a number of facilities such as clubs, schools, nurseries, clinics, social and cultural institutions, etc. But this does not mean that a building or premises meant for residential purpose can be put to any of the uses permitted in a residential zone. The zonal development plans earmark the sites or the areas in the residential zone which can be put to the various uses such as schools, nurseries, clinics, social and cultural institutions, etc. and those areas can be used for the purpose for which they are earmarked. But it does not mean that a residential house can be used as a school or a club or for any other use which is permitted in a residential zone. There is an exception and that is that the competent authority can after a special appeal permit certain other uses (page 48 of the Master Plan). There is no plea that the competent authority had permitted the respondents to use the premises as a Club.
12. It is not disputed that the premises in question is a residential house. A residential house cannot indiscriminately be put to any of the uses permitted in a residential zone. A residential house can only be used for residence.
13. The second reason given by the learned Magistrate for acquitting the respondents is, in our view, equally untenable. The term 'residential zone' in the Master Plan as well as the Zonal Plan, in our view, must be taken to refer to natural persons and not to legal entities such as companies or associations, etc. A residential house denotes a place where a person resides, eats and sleeps and not a place where the business is carried on. See Govindaraju Naidu v. Secretary of State AIR 1927 Mad 689, and Azizuddin and Co. v. Union of India, : AIR1955Mad345 .
14. The next question arises whether the use of the Club on the ground floor can be said to be incidental to the residential use. The premises were rented by the respondent National Tonnage Club of Farmers. The first and the second floor are being used for the residence of the Secretary. On the ground floor admittedly there is an office where members meet, and discuss their day to day problems. There is also some staff working in the ground floor. D.W. 3 Shri Pandya admitted that the head office of the Club is located in the promises in question. It may be that no commercial transaction takes place in the office and the ground floor is only used as the office of the Club. Legally this would amount to misuse of the premises.
15. For the reasons stated we allow the appeal, set aside the order of acquittal and find the respondents guilty of the offence charged with. The respondents had rented the house in 1968. The misuse was detected in 1973. Taking in view the laudable objects of the respondents and also that the misuse is of a minor nature we would take a lenient view and convict both the respondents under Section 29 of the Delhi Development Act and sentence respondent No. 1 to a fine of Rs. 500/- and respondent No. 2 to a fine of Rs. 200/- and in default simple imprisonment for one week.
16. We enquired from the counsel for the appellant if the respondents were still occupying the property in question and she informed us that from the telephone directory she finds that the respondents are still in occupation of the property in question.
17. Appeal allowed.