(1) In the writ petition, the petitioners had challenged virus of Ss. 4 and 29(2) of the Act. on the ground that these violate the fundamental rights of the petitioners guaranteed under Articles 14 and 19(l)(f) of the Constitution. Mr. R P. Kapur, petitioner No. 1 who appeared in person and argued the case both on his behalf and on behalf of the other petitioners, did not press this ground at the time of the arguments in view of the Presidential Order suspending the invocation of Articles 14 and 19 of the Constitution of India during the Emergency which was subse-quently ratified by Parliament. Mr. Kapur, however challenged the virus of section 29(2) of the Act on the ground that it was an arbitrary piece of legislation and did not lay down any guidelines for the imposition of penalties provided under section 29(2) of the Act. In support of this ground, he argued that the penalty provided under section 29(2) of the Act was far too excessive in considering the nature of the offence, and that a person convicted under this section was liable to be sentenced to the maximum penalty under the section irrespective of the gravity or otherwise of the offence committed by him. Even if we accept the argument that the penalty provided under the Act is too severe, section 29(2) of the Act cannot be held to be ultra virus on that ground. The virus of the section cannot be challenged on the ground of arbitrariness or unreasonableness. So far as the contention that the penalty provided in the section is too severe considering the nature of the offence is concerned, this is a matter entirely within which for a the competence of the Legislature which provided a particular penalty for a a particular offence and it is not within the competence of the Court to say that the penalty for a particular offence is excessive. As regards the other contention that no guidelines have been provided in the section for levy of the penalty, the simple answer is that no such guide lines can be provided as the penalty has to be levided only by a Court having regard to the facts and circumstances in each case under section 29(2) of the Act. We have, thereforee, to hold that Section 14 and 29(2) of the Act do not suffer from any constitutional infirmity.
(2) The next contention of Mr. Kapur is that the provisions of Section 14 of the Act do not apply to the petitioners as no zonal plan has been prepared for the area in which Khasra Nos. 373, 374 and 375 are situated, and that in the absence of a zonal plan for (his area, it cannot be said that the petitioners have violated the provisions of Section 14 of the Act by the alleged permission given by them to respondents 3 to 5 for the use of the land for commercial purposes. Mr. Kapur further contends that the prosecution of the petitioners is based upon an alleged use of the purpose for which the land has been earmarked in the zonal plan, and that in fact no zonal plan had been published for the land in question. In this connection, he has referred to a zonal map filed by the prosecution in the course of the evidence of Public Witness .I, :Shri Shamlm Haider, which has been marked as Ex. Public Witness . 1/C. It is first necessary to clarify the position on the basis of which Mr. Kapur appears to have advanced this argument. It is not the case of the prosecution that the petitioners have made use of the land in question in violation of any zonal plan. The case of the prosecution, on the other hand, is that the use of the land by the petitioners was in violation of the Master Plan. Ex Public Witness . 1/C which is described as a zonal map is not the zonal development plan contemplated by Sections 8 and 14 of the Act, but is a map which is prepared as part of the Master Plan itseif. The nature of these zonal maps has been described by this Court in B T. Many.hani v. D.D A. AIR 1974 Delhi 1959 -1974 RLR. 1 as follows :--
'THEN at pages 5 onwards it describes the land-use plan for urban Delhi. For this purpose, it is stated at page 7 that the city has been divided into eight planning divisions which are self-contained in the matter of employment. residential places, recreational areas, shopping and other requirements. These divisions which are eight in number are indicated by letters -A', 'B', -C'. 'D'. 'B'. T', 'G' and H on the Zonal Map which has been prepared to show the broad outline of these eight planning divisions and the various zones therein'.
(3) Thus, the contention of the petitioners that the Zonal Map Ex. Public Witness . 1/C is a map prepared under the Zonal Plan is based on a wrong premises. The complaints'filed by the Dda against the petitioners specifically allege that the petitioners have permitted the use of their land in contravention of the Master Plan of Delhi. thereforee, the absence of a Zonal Development Plan for the area in question does not vitiate the prosecution. Section 14 of the Act refers to 'the plans' in the plural which means that Section 14 applies even to a case where any land is used in contravention of the Master Plan. As observed by this Court in B.T. Manghani's case : 'The prohibition contained in section 14 would, thereforee, be'effective in any zone if any of these plans has come into operation in such zone. It is not anomalous to say about the Master Plan that it has come into operation in the entire area, that is, in all the zones, and. thereforee, inevitably in each zone. If. there- fore, there is a user of any land or building otherwise than in confirmity with either the Mister Plan or the Zonal Development Plans or any of them after such plan has come into operation, it will be actionable under Subsection (2) of Section 29 of the Development Act.'. According to the prosectuion. the area in question has been earmarked in the Master Plan for residential purpose/that it has been permitted by the petitioners to be used for commerical purposes, and that such use was in contravention of the Master Plan and consequently, in contravention of the provigions of section 14 of the Act.
(4) This brings us to the main question'' which arises for consideration in this case and which has necessitated the reference of this case by Mr. Justice'Anand to 'a'larger Bench. The question is whether section 29(2) of the Act applies not only to a person who has him- self used the land in contravention of the Master Plan or whether it applies also to a person who has permitted another to use the land in contravention of the Master Plan. The learned Judge, who has made the reference has pointed out the difference in the language in section 14 and Section 29(2) of the Act. These sections have already been reproduced above and the difference in the language of the two sections in this, namely, that whereas section 14 states that 'no person shall use or permit to be used any land', section 29(2) states that 'any person who uses any land xx... xx. xx.' shall be punishable under the section. The omission in Section 29(2) of the words 'permit to be used' has raised the question whether it is the actual user of the land who can be punished under Section 29(2) or whether the person who, though not using the land himself but who has permitted any other person to use the land in contravention of the Master Plan, comes within the mischief of section 29(2) of the Act. Mr. Justice Anand has referred to a number of single Bench judgments of this Court in which it has been held that a person who permits another to use the land in contravention of the provisions of the Master Plan is liable to be punished under Section 29(2) of the Act. The learned Judge has doubted their correctness as in no one of these judgments had the significance of the difference in the language of Sections 14 and 29(2) of the Act been considered.
(5) Section 14 of the Act prohibits a person not only from using the land himself in contravention of the Master plan but also from permitting another to use the land. The question for consideration is whether having made such a prohibition under section 14 of the Act, the intention of the Legislature was to penalise only the actual user of the land and not to penalise the person who permits another to use the land in contravention of the Master Plan. We see no valid reason for inferring such an intention on the part of the Legislature. The very purpose of the prohibition contained in section 14 of the Act will be defeated if it can be circumvented by permitting another person to use the land in contravention of the Master Plan. A careful reading of the language of section 14 and sub-section to be noticed is that the provisions in the main part of section 14 is a prohibition of the use of any land or building by a person otherwise than in confirmity with the plan either (a) by himself or (b) through another person. Section 29(2) of the Act penalises a person who uses any land or building 'in contravention of the provisions of section 14' the said provisions (so far as the main part of section 14 is concerned), being, as stated above, the prohibition of the use of any land or building otherwise than in conformity with the plans either (a) by himself or (b) through another person. In other words, the main part of section 14 contains a two-fold prohibition, and section 29(2) penalises the contravention of the entire two-fold prohibition in the main part of section 14, i.e. both the contravention by himself and the contravention through another person. As the language used in section 29(2) clearly brings out the said effect that was intended by the Legislature, the words 'or permit to be used' were not repeated in section 29(2). Thus sub-section (2) of the section 29 of the Act applies not to a person who uses the land in contravention of the Master Plan but also to a person who permits another to use the land in contravention of the Master Plan. This, in our view, is the only reasonable construction to be put on the words used in sub section (2) of section 29 of the Act.'
(6) Such a construction is also in conformity with the scheme of the Act. Section 32 of the Act is applicable to offences committed by companies and subsection (2) of the Section 32 of the Act reads as follows :-
'NOTWITHSTANDING anything contained in sub-section (1) where an offence under this Act has been committed... secretary or other officer shall also be deemed...liable to be proceeded against and punished accordingly.' Reading sections 29(2) and 32(2) of the Act together, it would appear that in the case of offences committed by a company, the liability under section 29(2) of the Act extends to an officer of the Co. who even though not directly responsible for the commission of the offence by the Co. has consented to such commission or to whose neglect the commission of the offence by the Company is attributable. thereforee, the scheme of the Act is not only to punish the person who is directly responsible for the use of the land in contravention of the Master Plan but also to punish persons who indirectly committed the offence by permitting another person to use the land in contravention of the Master Plan.
(7) Mr. Justice Anand in his referring Order has referred to some of the judgments of this court. In Ram Kumar v. Dba and another Cr. M.(M) No. 72 of 1973 decided on 15.5.73, it was urged that the opening words in sub-section (2) of section 29 indicate that only that person will incur the liability who uses any land or building in breach of the obligations imposed by that provision and that the liability will not be incurred by a person who permits another to so use the land or building. Safeer, J. did not accept this argument and held that 'the words 'user' as indicated in Webster's Third New International Dictionary would mean that it may be put to utilisasion according to the nature or purpose of the thing used' and that 'where a landlord who has residential or business premises builds property for the purpose of letting it out to others for earning rent, it will be the utilization of the property if he lets it out and he will be held to have put the property to use,' In Vijay Chand v. D.D.A. Cr. M. (M) 97/69, decided on 23.7.73, R.N. Aggarwal, J. observed as follows :
'THE contention of the learned counsel for the petitioner that it is only the actual user of the property who can be prosecuted for using the property in contravention of the Master Plan has not appealed to me. The petitioner had let out the premises to the Govt. for using it as their office. Section 14 of the Delhi Development Act provides that after the coming in to operation of any of the plan in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan. The allegations in the complaint disclose that the petitioner had permitted the tenant to use the building for a purpose other than that permitted by the Master Plan. The allegations of the prosecution if believed, would bring the petitioner within the mischief of S. 14 '
In ShaHnder Kumar v. D.D.A. and another Cr. M.(M) No. 315 of 1973, decided on on 23.1.75 V.D. Misra, J. held that section 14 prohibited persons from using or permitting the use of any land or building in contravention of the Master Plan and that such use was punishable under section 29(2) of the Act. Although, as rightly observed by Anand, J. in his referring order, in none of the judgments of this court referred to above, was the difference rence in the language of sections 14 and 29(2) specifically examined, we are in respectful agreement with the ultimate view expressed by the learned Judges in the said judgments. We, thereforee, hold that it is not only a person who actually uses a land or building in contravention of the Master Plan that commits an offence under section 29(2) of the Act but also a person who permits another to do so (use the land or building). If thereforee, according to the prosecution, the petitioners have permitted the respondents Nos. 3 to 5 to use the land in question for commercial purposes, they would bs liable to be punsihed under section 29(2) of the Act. (Para 16 onwards, assertion of petitioners that there is no prima facie case against them is discussed as pre-mature.)