1. Are the prosecutions, instituted by the Delhi Development Authority, against owners and occupiers of two premises, forming subject-matter of this batch of petitions, under Art. 227 of the Constitution and Section 482 of the Criminal P.C. for offences under Section 29(2) read with Section 14 of the Delhi Development Act, 1957, on allegations of misuse of residential premises for a commercial purpose, contrary to the Master Plan for Delhi, liable to be quashed on any ground.
2. The principal ground of challenge to the validity of the prosecutions in the petitions was based on implied compounding of the offences and/or estoppel arising out of the policy announced by the Authority in a public advertisement, incorporating a representation that the non-confirming use could continue until the allotment of alternative accommodation, provided the non-conforming users deposited a specified amount by way of premium within a specified time and agreed to other terms and conditions of the policy. I have voided two prosecutions on this count. M/s. Sowhney Bros. v. D.D.A., Criminal Misc. (M) No. 251/80 and Crl. Misc. (M) No. 621/80 decided on May 23, 1983. (reported in : 24(1983)DLT112 ). It, however, appears that although the occupiers of the two premises in question did make the necessary deposits of the premiums and would have been entitled to protection but for the fact that the alternative accommodations offered to the occupiers were turned down by them on the ground of inadequacy. That being so, the protection arising out of implied compounding and/or estoppel would, thereforee, not be available to the petitioners and the petitioners, thereforee, did not seriously canvass this ground.
3. The petitioners, however, sought to assail the prosecutions on a number of other counts, specifically raised in the petitions, undeterred by the unfavorable circumstance that, by and large, these grounds had already been turned down expressly or by necessary implication, either by a larger Bench of this Court or by the Supreme Court, either on the merits or on the ground that such a challenge to the prosecution could be more appropriately mounted at the trial, since it involved interpretation of the Master Plan or the Zonal Development Plan, other questions of fact with regard to the location of plots, and the appreciation of other material. Counsel, however, sought to introduce a measure of refinement in the various contentions with a view to get over the binding precedents, which were not favorable to the petitioners, and where these decisions clearly stood in the way, Counsel sought to urge that either the decisions deserved to be reconsidered or to be read down in the context of earlier decisions of the Supreme Court, or even that such decisions were per incuriam and, thereforee, could not stand in the way of favorable answers to the questions, posed by the petitioners, being returned.
4. The first question in controversy between the parties is if the area known as Greater Kailash, in which the premises in dispute are situated, was declared to be a 'development area' under sub-section (1) of Section 12 of the Act and, in particular, if the land on which the premises in dispute stand forms part of such a 'development area'. It was not disputed on behalf of the Authority that Greater Kailash as such has been a developed colony since before the enactment of the Development Act. But certain non-developed pockets in the area could be and were in fact declared to be development areas under the Act by different notifications, issued from time to time. Counsel for the respondents placed on record some of these notifications but, when faced with the situation that against the total area of Greater Kailash stretching over more than roughly a thousand acres, the notifications produced covered a small section of the area, counsel urged that this was a question of fact and if and when such a contention was raised at the trial, it would be possible for the Authority to produce material to show that certain pockets in the area were declared as development areas and, if necessary, to demonstrate that the plots in dispute form part of such development area.
It is, however, unnecessary to carry this controversy any further because, based on the decision of a Division Bench of this Court in the case of Vasuraj (1971) 2 Delhi 21, it was urged that for the purposes of the present petition, it would be assumed that Greater Kailash was not only a 'non-development' area but, though a predominantly residential area, it contained pockets meant for and put to commercial use and that, nevertheless, the user of a residential premises for a commercial purpose was within the mischief of Section 29(2) of the Act read with Section 14 thereof and that for the purpose of determining liability under these provisions, it was immaterial if the premises were in a 'development' or a 'non-development' area. This contention of the Authority appears to be well founded and is not only supported by the decision in Vasuraj (supra) but also the scheme and the provisions of Development Act. The distinction between a 'development' and a 'non-development' area under the Development Act is material for the purpose of determining as to the authority competent to deal with certain matters relating to development or to regulate use of land or building, but the distinction ends there and is of no consequence in arriving at any conclusion with regard to the liability of a person for an offence under Section 29 read with Section 14 of the Act.
5. It was, however, urged that Development Act being an Act to provide for the 'development of Delhi according to Plan' and the Authority being an authority constituted under that Act, charged with the duty to carry out a civic survey and prepare a Master Plan for Delhi, and the Zonal Development Plans for different zones and to carry out development in development areas and to generally supervise the implementation of the Plans, had no role to play either in carrying out development in non-development areas or to be concerned with the use or misuse of any land or building, once the development has been carried out. It was urged that the administration of the lands and buildings, including the supervision with regard to their use, after the development work has been carried out, was a function which was appropriate for the Municipal Government of the area, constituted under an appropriate Act and in the present case, the Municipal Corporation of Delhi, constituted under the Delhi Municipal Corporation Act, 1957, for short, the Corporation Act.
It was further urged, as a necessary corollary, that having regard to the scheme and the provisions of the Development Act, the corresponding law in England, on which the Act is based, and the scheme and some of the provisions of the Corporation Act, a valid prosecution for an offence punishable under Section 29(2) read with Section 14 of the Development Act, in respect of user of land or building could be instituted only with the previous sanction of the Local authority concerned under Section 49(1) of the Development Act. If the Authority has no role to play in regulating use of land or building after development, whether in a development area or a non development area, and if any prosecution based on such misuse could be filed only with the previous sanction of the local authority concerned, a further question may also arise, though not raised, as to the appropriate Authority which may institute prosecution for such an offence, as distinct from sanctioning it. This is so because Section 49 of the Development Act is so structured that it only deals with one of the two incidents of public prosecution. One of these is the authority, which may prosecute, and the other is the authority or officer, who may sanction such a prosecution, before it is instituted. Such is the scheme of corresponding provisions. It is, however, open to the Legislature to provide for one or the other or both of these matters.
Section 49 does not bar cognizance of an offence without the complaint of any particular authority nor does it specify which of the various authorities may initiate action as, for example, provided by Section 467 of the Corporation Act. According to which, no Court can try any offence under that Act 'except on the complaint of or upon information received from' any of the specified authorities or person authorised by anyone of them. The present Section merely bars prosecution except with the prior 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' Section 48 of the Development Act deals with the jurisdiction of courts but imposes no condition on taking cognizance of any offence with the result that for all these prosecutions Section 190 of the Criminal P.C. would have its ordinary play, except to the extent of the variations introduced by Sections 47, 48 and 49 of the Development Act.
6. While the question as to the authority, which may initiate or institute prosecution under the Development Act has not been raised before, the other question as to the competing roles of the Authority and the 'local authority concerned', inter alia, in the matter of granting previous sanction, was raised and the contention, now sought to be raised as to the incompetence of the Authority to sanction prosecution, for an offence punishable under Section 29(2) read with Section 14 of the Development Act, was raised in the case of Vasuraj (1971) 2 Delhi 21 (supra) and repelled. This decision still holds the field and though temporarily eclipsed, with respect, by the decision of the Full Bench of this Court in the case of Menghani : AIR1974Delhi159 with regard to the question if the misuse of a residential premises for a commercial purpose could be said to constitute a violation of the Master Plan and be punishable under Section 29(2) of the Act read with Section 14 of the Act, in the absence of an appropriate Zonal Development Plan, was eventually restored by a decision of the Supreme Court in the case of Bhagat : AIR1975SC495 .
7. It was, however, urged that the case of Vasuraj (1971) 2 Delhi 21 (supra) in so far as it treated the question as to the appropriate authority to sanction prosecution, had been wrongly decided and that I should either refer it to a larger Bench for reconsideration or ignore it and come to my own conclusion with regard to the true legal position in that behalf, either on the principle of per incuriam or otherwise. In support of this contention, Counsel made a valiant effort to demonstrate, with reference to the English Act, on which the Development Act is based, the scheme and the material provisions of the Development Act and the Corporation Act, that having regard to the distinction between 'development' and 'use of land and building', as also between 'development area' and 'non-development area' and between 'development' of an area and the administration of land and building subsequent to development, whether carried out by the Authority or independently of it, the Authority was not concerned with the misuse of a land or a building in Delhi and the proper authority to deal with such misuse or in case of proposed prosecution to sanction prosecution, was the local authority concerned.
8. After hearing learned Counsel for the parties, it appears to me that there is perhaps some force in the contention that the 'local authority concerned' was the only proper authority to sanction prosecution for an offence punishable under Section 29(2) read with Section 14 of the Act at least in respect of non-development areas of Delhi. The Development Act provides for the development of Delhi according to Plan and for matters ancillary thereto and the Authority is the Authority charged with the duty of the preparation of the Master Plan and the Zonal Development Plans to ensure proper development of Delhi. The Act makes a clear distinction between the 'development area' and the 'non-development area' because there are fully developed areas in respect of which the Authority has no role in the matter of development.
The Act itself makes a distinction between 'development' and 'the user of land and building', after development. The Authority may, on one reckoning, appear to have no role to play in the matter of user of land and building. That is a function which has been assigned to the local authorities concerned. Chapter XVI of the Corporation Act contains the building regulations and makes elaborate provisions with regard to erection of any building or execution of any works with the previous sanction of the Commissioner. Once such building is erected or work is executed, it is for the local authority concerned to deal with questions if the building has been constructed in accordance with the Plans and is being used for a purpose other than that for which the building had been sanctioned and the various provisions in the Chapter contain provisions, inter alia, for the demolition of the buildings. The expression 'use of the building and of the land' occurs frequently in the various provisions in this Chapter. One of the grounds on which sanction of any building or work may be refused is that such building or work would contravene the provision of 'any other law' or rule, bye-law or order made under such other law under Section 336(2)(a) of the Corporation Act. Such 'other law' would include the Development Act, 1957.
If no work or building could be erected or carried out in an area without the prior sanction of the local authority and if so carried out or erected would be liable to be demolished, if it contravened the provision of any other law, including any rule, bye-law or order made under any such law, it follows that such local authority could not be unconcerned with the question if the person, who uses the land or building for the purposes otherwise than in conformity with the Master Plan or the Zonal Plan, and is liable to be punished under S. 29(2) of the Act read with Section 14 of the Act, should or should not be prosecuted. If this is carried further, doubt may also arise as to the authority which may be competent to institute such prosecution.
9. The decision in the case of Basuraj (1971) 2 Delhi 21 (supra) on the question of sanction, however, cannot be said to be contrary to law or be inconsistent with any binding precedent. It is a possible decision to take on a reading of the various provisions of the two Statutes. But what is more, it was at the centre of controversy not only before the Full Bench of this Court in the case of Menghani : AIR1974Delhi159 (supra) but also in the highest court of the country in the case of Bhagat 1975 Cri LJ 435 (supra). True, this aspect of the question was neither canvassed before the Full Bench nor in the Supreme Court. But that precisely is the reason why it has stood the test well. The sanction was crucial to the validity of prosecutions, which were challenged before the Full Bench, as indeed, in the Supreme Court. If the case of Vasuraj (1971) 2 Delhi 21 (supra) had not been correctly decided on this aspect of the matter, why is it that while the correctness of the decision on another aspect was challenged, the question of sanction was never raised, either in the Full Bench or when the Full Bench decision was sought to be reversed, in the Supreme Court, on the wider question of the interpretation of Section 14 of the Development Act, or the interpretation of the Master Plan. Wasn't this an implied reinforcement of the decision.
In the circumstances, I would not be justified in reopening this question and instead feel impelled to follow a binding precedent, which has taken a possible view of the law, and I say so with respect. For the same reason, the decision would be outside the reach of the principle of per incuriam. As it is, there is enough confusion in the law, having regard to the system of hierarchy of courts and the supremacy of binding precedents of higher courts or larger Benches of the same Court, with all the dissent that goes under the euphemism of 'distinguishing' such precedents. The principle of per incuriam could be invoked only where the decision assailed is clearly contrary to a binding precedent or is directly hit by a statutory provision, as distinct from a mere course of reasoning and logic having competing efficacy, (a) Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293 (b) R. v. Northumberland Compensation Appeal Tribunal (1951) 1 All ER 268. To ignore a binding precedent in such a situation would be making confusion worse confounded and would not be consistent with judicial propriety.
10. Lastly, it was urged that I should hold, consistently with the decision of the Full Bench in the case of Menghani : AIR1974Delhi159 (supra), that ex facie, there was no question of any misuse of the premises or of a user which was not in conformity with the Master Plan and such user or misuse did not attract the penal provisions of sub-section (2) of Section 29 of the Development Act, ignoring the decision of the Supreme Court in the case of Bhagat 1975 Cri LJ 435 (supra), on the ground that the cases of Bhagat, as indeed, Basuraj (1971) 2 Delhi 21, in relation to this point, were wrongly decided in that the decisions were either contrary to the decision of the Supreme Court in the earlier case of Kishan Dass : 2SCR166 or that the decision in the cases of Bhagat and Vasuraj should be considerably read down in the context of the weighty observations made by the Supreme Court in the case of Kishan Dass (supra).
There is no force in this contention not only on account of what I have said above about the circumstances in which the principle of per incuriam may be attracted, but also because such a contention ignores the different context of the two sets of decisions. There are no doubt weighty observations in the decision in the case of Kishan Dass (supra) which may perhaps persuade a Court to answer the question, posed in the case of Vasuraj, and Bhagat, differently, but these observations cannot be broken from context. This is what the Court said in the case of Kishan Dass : 2SCR166 .
'To attract Section 14, the appellant will have to establish that any land or part of a land or a building in a Zone has been dealt with in a particular manner by the Master Plan and that it is proposed to be used in a different manner. If a Zonal Development Plan is prepared for the area, before it comes into operation in the Zone, the procedure indicated in Section 10 will have to be followed and parties will have to be given an opportunity of placing any objections or making any representations or offering any suggestions. So far as we can see, it is certainly not the scheme of the Development Act that the moment a Master Plan has come into operation and if it contains a proposal regarding the width that a road should have, all use of land adjoining that road is prohibited for an indefinite period. The reasonable interpretation to be placed on Section 14 will be that if any particular and definite use of land is indicated in a Master Plan, a different use of that land cannot be permitted. Similarly, if a Zonal Development Plan provides for a particular use of any land or any building in that Zone, it cannot be put to a different use. If neither of the plans provide for the particular use of any land or building in the area or Zone, Section 14 will have no application whatsoever.'
In this case, the Supreme Court was not concerned with any pending prosecution which may involve the decision of the question on an interpretation not only of the law but also of the Master Plan, which were held by the Supreme Court in the case of Bhagat to be a question of fact. In the case of Kishan Dass, the Court was called upon to interpret the Master Plan and arrive at its conclusion, if having regard to the law and the Master Plan, the rejection of the Plan submitted to the Corporation by the intending builder could be rejected. This decision may not justify construction of the Master Plan when the prosecution based on its violation is at the initial stage and the trial court is still to rule on it on the basis of its reading of the Master Plan, as also the other material that may be legitimately placed before it. In any event it is neither possible nor proper for this Court, in the circumstances, to imagine how the Court, dealing with the question before it in the case of Bhagat 1975 Cri LJ 435, (supra) would have reacted to what was observed by the Court in the case of Kishan Dass : 2SCR166 . Such a plea, if at all, has to be raised elsewhere.
11. For all these reasons, the petitions fail and are hereby dismissed. It would be open to the petitioners to raise the question as to the validity of the sanction, along with other question, on the merits, at the trial.
12. Petitions dismissed.