Skip to content


Indian Bank Vs. Delhi Development Authority - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 182 of 1976
Judge
Reported in1978CriLJ1023; 15(1979)DLT209
ActsDelhi Development Act, 1952 - Sections 29(2)
AppellantIndian Bank
RespondentDelhi Development Authority
Advocates: Ambrish Kumar and; Keshav Dayal, Advs
Cases ReferredNew Delhi v. Smt. Lila D. Bhagat
Excerpt:
.....to section 14 - facts revealed petitioner-bank was not public utility for purpose of master plan - delhi development authority (dda) competent to sanction present prosecution as dda itself was complainant and not required sanction under section 49 - use of building as bank not permitted as such it amounted to infringement of master plan - petition liable to be dismissed. - - naturally, an authority like the delhi development authority can only act through some other person as it is a corporate body. (9) there is another question in this case which arises on account of the failure to file the learned magistrate's judgment along the additional sessions judge's judgment. 1-a (b) which says that in the case of a petition an order of an app-hate court, a copy of the order of the court,..........ii, new delhi which led to the allegation that the bank was functioning contrary to sec. 14 of the delhi development act. a complaint was accordingly filed under section 29 (2) of the act. the sanction for the prosecution was given by the secretary, of the delhi development authority. the magistrate convicted the conviction was maintained by the additional sessions judge, who however reduced the sentence on the managar to rs. 500.00 fine and on the bank to rs. 1000.00 fine. the fines have been paid but the petitioners have moved this court.(2) in support of the contention that the conviction is unfounded the learned counsel for the petitioners has urged three points. firstly, it is urged that the running of a bank does not contravene the master plan because even in residential zones,.....
Judgment:

(1) This criminal revision is directed against the conviction of the petitioners for offences under S. 29 (2) of the Delhi Development Act. The petitioners are the Indian Bank South Extension, Part Ii, New Delhi and its Manager. The case of the prosecution was that a branch of the Indian Bank was functioning at D-4, Ring Road, N.D.S.E. Part Ii, New Delhi which led to the allegation that the bank was functioning contrary to Sec. 14 of the Delhi Development Act. A complaint was accordingly filed under Section 29 (2) of the Act. The sanction for the prosecution was given by the Secretary, of the Delhi Development Authority. The Magistrate convicted the conviction was maintained by the Additional Sessions Judge, who however reduced the sentence on the managar to Rs. 500.00 fine and on the Bank to Rs. 1000.00 fine. The fines have been paid but the petitioners have moved this Court.

(2) In support of the contention that the conviction is unfounded the learned counsel for the petitioners has urged three points. Firstly, it is urged that the running of a bank does not contravene the Master Plan because even in residential zones, public utilities are Permitted and the running of the bank is a public utility service. To understand this contention it ii necessary to refer to page 48 of the Master Plan for Delhi, wherein the permitted uses in residential zones are set out. One of the permitted uses is 'public utilities and buildings except service and storage yards.' It is contended that a bank is a public utility service. In order to substantiate this claim a reference has been made to a notification issued by the Ministry of Labour under the Industrial Disputes Act, 1947 whereby the banking industry carried on by a banking company has been declared to be a 'public utility sevice.' The actual notification seems to show that this declaration is for six months but it maybe that this period has been extended. On the basis of this notification it is contended that the running of the bank is a public utility and, thereforee, the use is not contrary to the Master Plan This contention requires some analysis.

(3) Under the Industrial Disputes Act, 'Public Utility Services' are defined in Sec. 2 (n). They include railway service, port service, postal service etc. or any other industry which the appropriate Government may declare to be a public utility service from the list set out in the First Schedule. The declaration has to be for an emergency or in public interest. The effect of such a declaration under the Industrial Disputes Act is that the employer cannot declare a lockout an the employees can also not go on strike, subject to certain limitations. (Refer in this connection Ss. 22, 23 and 24 of that Act). The effect of the notification of a public utility service under the Industrial Disputes Act is to tender strikes and lockouts in such industries more difficulty and illegal in certain circumstances. The function of the industrial Disputes Act is quite different from that of the Delhi Development Act. The Delhi Development Act is concerned with the planning of the metropolitan city of Delhi and its surroundings and is not at all concerned with the financial or economic system of the country in general; nor has the Delhi Development Act anything to do with labour-management relations. In order to see what are the permitted uses under the Master Plan one cannot be guided by any declaration which may be made under the Industrial Disputes Act. This is even more clear from the fact that the Government may issue different notifications under the Industrial Disputes Act at different time dependent on the industrial, social or political situation that may exist at any given time. It cannot be that the Master Plan has to vary from time to time in this way. It is, thereforee-necessary to say at once that a public utility under the master Plan means a public utility which is commonly so understood by ordinary citizens.

(4) What then are 'public utilities' for the purpose of the Master Plan I would think the public utilities are those facilities without which life would be impossible; such as water supply electricity, sewerage and so on. This view is clear also from the discussion set out on Pages 36 and 37 of the Master Plan. There is reference to water, sewerage, wireless and radio transmitting stations, cremation & burial grounds, dumping grounds and sanitary fills. These special facilities are almost essential for human existence and hence they are permitted by the Master Plan. It may be, that almost every thing else can also be described as being of public utility. One cannot imagine a society or a town existing without shops, without eating houses, without banks and all the other various facilities that are necessary for civilized existence. How ever these are not public utilities in the sense of being essential public utilities (as understood by the plan). One can imagine life without a bank but cannot imagine life without water. I would, thereforee, reject the contention that a bank is a public utility. As the Master Plan itself prepared by the Govt., I suppose it can be amended at any time in case banks are to be permitted in residential zones sol see no difficulty in the Master Plan being amended suitably. Till it is so amended it has to be enforced as it is.

(5) Turning to the next contention, it has been urged that the Secretary of the Delhi Development Authority is not competent to sanction the pre- sent prosecution. Reliance for this contention is apparently based on Sec-49 of the Act which states that no prosecution shall be instituted except with the previous sanction of the Authority or by an officer authorised by the Authority. The courts below have relied on the resolution passed by the Delhi Development Authority authorising the Secretary to institute proceedings on its behalf. The question of sanction can only arise if the prosecution is launched by another person and not by the authority itself. There is no question of the authority giving itself sanction to prosecute. This is a case of the Delhi Development Authority having itself filed the complaint under the signatures of the Secretary. Naturally, an authority like the Delhi Development Authority can only act through some other person as it is a Corporate Body. In order to faciliate the taking of such action it has athorised its own Secretary to act on its behalf. This is a case of the complainant being the Authority itself and, thereforee, does not require any sanction under Sec. 49. In case a sanction is required, the Delhi Development Authority has to give the sanction, hence when the Delhi Development Authority itself instituted proceedings it did give itself sanction, by authorising the Secretary to institute proceedings. thereforee, this contention is rejected.

(6) The third contention raised is that the Delhi Development Act requires that a zonal development plan should be framed before a prosecution can be launched under Sec. 29(2) for alleged usage contrary to Sec. 14 of the Act. This contention is sought to be substantiated by reference to the Final Bench decision of this Court in the case of B.T. Memghni vs . The Delhi Development Authority, : AIR1974Delhi159 wherein it has been indicated that an infringement of the Master Plan was not sufficient to allow proceedings being taken under Sec. 29(2). It was there indicated that till the zonal plan was brought into effect it could not be predicted as to what use for a particular building was permitted. In other words, the view was that there was no indicated or permitted user of any particular building shown by the Master Plan. The Full Bench said (at p. 169):-

'FURTHER,that we are concerned with it to see whether the Master Plan indicates a user of the buildings of the petitioners or any of them which is contrary to the user to which such buildings is being put. misuse of a building contrary to the Master Plan entails a criminal prosecution and thereforee, there must be a clear provision in the Master Plan to show the user of a building or buildings therein. But the Master Plan which has been produced before us has not specified any user of building as distinguished from land. There is, thereforee, no question of any misuse or, in other words, of a user which is not in conformity with the Master Plan. If that is so, and we think it is, the , prohibition contained in Sec. 14 is not attracted and consequently no penalties can be imposed by reason of sub-section (2) of Section 29 of the Development Act.'

This judgment was appealed against to the Supreme Court, which held in the Development Authority, New Delhi v. Smt. Lila D. Bhagat, : AIR1975SC495 that the question whether the Master Plan had, in fact, specified any particular use of a particular building or whether there had been an infringement of the same was a question of fact to be decided in each case. Thus, no further reference to the Full Bench decision is necessary in this case, because all that has to be seen is whether there has been in fact an unpermitted user in any given case.

(7) The Master Plan has made provision for various types of zones, such as residential zones, agricultural zones, rural zones, general business zones etc. In each of these zones a particular type of use has been indicated by the Master Plan. The Zones themselves are specified in the Master Plan.

(8) The actual location of the particular property involved in this case is shown in Exh. Public Witness Public Witness 1/D which shows that the building is situated on the Ring Road in a residential, medium density zone, which is shown orange in plan. Having found whether the building is, and the type of zone it is situated, the next step is to determine if the Master Plan specifies the uses for such a zone. For this purpose, p. 48 of the Master Plan can again be referred to which shows that certain uses are permitted, and certain other uses are permitted, only if allowed by the Competent Authority after special appeal. As the permitted uses and the uses which can be permited after appeal are indicated it becomes a simple matter of finding out whether this particular user is permitted or not. I may also say that the Plan specifically states that all uses not specifically permitted are prohibited. To clarify the position of the petitioner, I find that banks are not among the permitted uses unless a bank is treated as a public utility. The other permitted uses are among other things, residences, hostels and boarding houses. nurseries, kindergardens and schools, clinics, clubs and other semi-public recreational uses etc. As a bank does not fall within this group, except if it is a public utility (which is also permitted). I would hold that the use of the building as a bank is not permitted in this particular zone. New, turning to the other uses which are permitted if the Competent Authority allows such uses include temples, mosques, churches and other places of worship, professional offices when situated in the same dwelling-house, or located in a local shopping centre, commercial offices, service uses and retail shops etc., and other uses which need not be set out in detail here. It may be that the use of the building as a bank is permitted if the Competent Authority allowed after special appeal. As it does not appear that any such authority or pe-mission has been taken I would hold that there is an infringement of the Master .Plan as held by the court below and I would thereforee, affirm the decision.

(9) There is another question in this case which arises on account of the failure to file the learned Magistrate's judgment along the Additional Sessions Judge's judgment. The Rules of the High Court requires that in a criminal revision the certified copy of the judgment of Ihe Additional Sessions Judge should be accompanied by a judgment of the trial court. The period of limitation under the Limitation Act, 1963 is only 90 days. When this revision was filed, it was accompanied by an application to the effect that the certified copy was not yet ready and it might be exempted. The admission order was to the effect that the certified copy should be filed within limitation. In fact. the certified copy of the trial court's judgment has not been filed at all. Learned counsel for the petitioners stated that they had been misled and he would be filing an applications under Section 5 of the Limitation Act. He, in fact, did file such an application but apparently it has not come before the Court yet. I feel that on the question of limitation, the filing of a copy of the trial court's judgment is an unnecessary restriction on the right of the citizen. When the Rule of the High Court was originally framed requiring the trial .court's judgment there was no limitation for the filing of criminal revisions. After the amendment of the Act the limitation period is only 90 days but there is no provision allowing the copying days for the trial court's judgment. This means that the effective period of limitation is even less. The Rule was not intended to create a hurdle for revisional petitioners in the matter of filing revisions but was intended to enable the court being able to look at both the judgments at the time of admission. In any case, the Rule does not seems to be of such advantage to any one. In this case the revision had been filed without the trial court's judgments has cretainly not been filed within a period of limitation. The question is, what is the effect of its absence on this revision? In this respect also, I have noticed astrange anomaly in the Rules, I have before me the Rules and Orders of the Punjab High Court corrected up to March 70 which contains Rule 3-A in Ch. 1-A (b) which says that in the case of a petition an order of an App-Hate Court, a copy of the order of the Court, of first instance shall also be filed. I have also before me Vol. V of the same High Court's Rules which was in force in March 1958. That copy of the Rules does not contain any Rule 3-A and does not say that the copy has to accompany the revision. The Delhi High Court was constituted in 1966 under the Delhi High Courts Act, and under the provisions of that Act the Rules and Orders of the Punjab High Court have become applicable to this High Court. It would obviously follow that it would be the Rules and Orders of the High Court as in force on the date the Act came into force which would apply and not any subsequent amendment I have not been able to discover when this Rule 5-A was made by the Punjab High Court. I am also not clear when it came into effect. Assuming that it was in effect even before the Delhi High Court was constituted? I still feel that it is assuming too much of the public, to ascertain which of other these Rules apply to this High Court by reference to various books issued by another High Court. In the circumstances, I come to the conclusion that inspire of the certified copy not being filed I cannot reject the revision on this ground. I would, thereforee, find that the revision was properly filed. I also hope that some clarification in the Rules of this Court is made, so as not to mislead litigants and the general public regarding the requirements for a revision in future.

(10) As I have decided the case on merits against the petitioners. I dismiss the revision.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //