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Delhi Development Authority Vs. Principal, Vocational Training College and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 191 of 1974
Judge
Reported inILR1980Delhi1082
ActsDelhi Development Act, 1957 - Sections 14
AppellantDelhi Development Authority
RespondentPrincipal, Vocational Training College and ors.
Advocates: Keshav Dayal,; Ram Paul,; R.K. Khanna,;
Cases ReferredAchchelal v. Janpada Sabha
Excerpt:
.....user of the building on the ground that the building feli within the residential zone shown in the master plan of delhi. ultimately, the secretary of the delhi development authority, sanctioned prosecution of the respondents and on the same day filed the complaint before the magistrate. the learned magistrate acquitted both the respondents on the ground that the use of the building as a school or hostel was permitted. accepting the appeal,; 1. the delhi development act deals with three types of powers, namely--(1) powers vested in the authority and exercisable only by the authority (2) powers vested in the authority as well as other persons, and (3) powers vested in the authority but exercised by other persons as well by delegation. in regard to the second type, act indicates the..........user of the building on the ground that the building fell within the residential zone shown in the master plan of delhi and could not be used for the purpose it was being used. nothing happened with the result that on april 23, 1973. shri h. n. fotedar, secretary of the authority, sanctioned prosecution of the respondents in his capacity as the officer authorised to sanction by virtue of resolution no. 18 passed by the authority on january 15, 1958. on the same day he, filed the complaint before the magistrate. (3) the learned magistrate took the view that vocational training college was a school and inasmuch as according to the use plan of the residential zone wherein the building was situated, the use as hostel, or school was a permitted use, there could be no objection as to use. he.....
Judgment:

O.N. Vohra, J.

(1) This appeal is directed against the judgment dated December 19, 1973 of Shri Prem Sagar, Judicial Magistrate 1st Class, Delhi whereby the Principal, Vocational Training College and Surjit Malhan, Secretary of the institution, hereinafter referred to as respondents, were acquired of the charge under Section' 14 read with Section 29(2) of the Delhi Development Act, 1957, hereinafter called 'the Act'.

(2) Briefly, the facts are that Ramesh Chandra, Sectional Officer of the Delhi Development Authority, hereinafter referred to as 'the Authority', inspected building No. J-30, New Delhi South Extension, Part-1, New Delhi, and found that Vocational Training College for Women was being run on the ground floor while the first floor was being used as hostel. The respondents, who were in charge of the institution and persons responsible to conduct the affairs thereof, were directed to vacate the non-conforming user of the building on the ground that the building fell within the residential zone shown in the Master Plan of Delhi and could not be used for the purpose it was being used. Nothing happened with the result that on April 23, 1973. Shri H. N. Fotedar, Secretary of the Authority, sanctioned prosecution of the respondents in his capacity as the officer authorised to sanction by virtue of Resolution No. 18 passed by the Authority on January 15, 1958. On the same day he, filed the complaint before the Magistrate.

(3) The learned Magistrate took the view that Vocational Training College was a school and inasmuch as according to the use plan of the Residential Zone wherein the building was situated, the use as hostel, or school was a permitted use, there could be no objection as to use. He further took the view that the prosecution itself was not competent in view of the Full Bench decision of this Court in B. T. Mehghani v. Delhi Development Authority, : AIR1974Delhi159 wherein this Court had held that the Master Plan had not specified any user of building as distinguished from land and the Authority had not placed on record any Zonal Development Plan indicating the way and the manner in which the building in dispute was to be used and, thereforee, there was no question of any misuse or, in other words, of a user which was not in confirmity with the Master Plan. The result was that both the respondents were acquitted.

(4) The contention of the Authority is that the view taken by the Full Bench of this Court in B. T. Mehghan's a case (supra) was set- aside by the Supreme Court in The Delhi Development Authority v. Smt. Lila D. Bhagat and others, : AIR1975SC495 , wherein it was observed that the inhibition contained in Section 14 of the Act comes into play after the coming into operation of any of the plans, viz., Master Plan or the Zonal Development Plan, that since both the words viz. 'land' and 'building' have been used in Section 14 of the Act it was an exercise in vain to find that the 'land' in the context does not include 'building' and thus when the word 'building' also has been used in the Section, no person could use or permit to be used any building in the zone in which the Master Plan had come into operation otherwise than in conformity with that plan.

(5) Another contention is that there was in fact misuse as a building situated in a Residential Zone meant to be used for residence only was being used for running a Training College.

(6) Shri Mohinder Narain, learned counsel for the respondents, has, on the other hand, raised the objection that the initiation of prosecution in this case was had inasmuch as previous sanction for prosecution which was a sine qua non. for the filing of the complaint is not there. The argument is like this. The Authority is a creature of the Statute and has a mandate of the Statute which it has to comply. The Secretary, who is stated to have sanctioned the prosecution, on derives all his powers under Section 4(1) of the Act either from regulations or on delegation being made by the Authority and in this case there was neither any regulation nor delegation. By seeking support from the dictum of their Lordships in Nazir Ahmad v. Emperor, , that 'where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all, and that other methods of performance are necssarily forbidden', it is submitted that Section 52(1) of the Act provides the manner in which the Authority can delegate any power exercisable by it under the Act and that is possible either by way of making regulations with the previous approval of the Central Government by following the procedure laid down in Sections 57 and 58 of the Act or by notifying in the Official Gazette. It is pointed out that neither any regulation conferring power on Secretary by name or otherwise was made nor the conferral of power to sanction prosecution was notified in the Official Gazette and the defect is such as strikes at the jurisdiction of the Court to entertain the complaint and it renders all the proceedings so far taken against the respondents a nullity. With a view to rendering support to his contention, it is submitted that Resolution No. 8 dealt with conferal of the power to take appropriate action in suits and legal proceedings and for matters incidental thereto as well as the grant of sanction for prosecution under Section 49 of the Act but the part dealing with grant of sanction under Section 49 was deleted and thus was not notified in Official Gazette as SRO. 480 dated New Delhi, the 28th January, 1958 appearing in Part Ii of the Gazette of India, January-February, Extra January December 1958 would show. It is urged that the Master Plan came into force a long time thereafter, i.e., on September 1, 1962 and, thereforee, the part dealing with the grant of sanction for prosecution was rightly omitted at that time and, thereafter, despite the coming into operation of the Master Plan, the conferal of power to gran't sanction was not notified probably on account of inadvertence. In the alternative, it is submitted that the omission appears to be deliberate inasmuch as the Act does not contemplate user as part of development at all and it was never the intention to prosecute people for the so-called misuse of buildings on the ground that there was violation of the Master Plan. In short, the submission is that it was not the legislative intent that the use to which a building was put be looked into by the Authority and, for that reason, the Master Plan is not concerned with the use of the building.

(7) The stand taken by Shri Keshav Dayal, the learned counsel for the Authority, on the other hand, is that Section 49 which deals with the power to sanction prosecution is wholly independent of Section 52 and inasmuch as the statute has conferred the power to prosecute on a number of persons including an officer authorised by the Authority, the Secretary was competent to sanction prosecution by virtue of Resolution No. 8 and launch prosecution and no fault can, thereforee, be found with the initiation of proceedings against the respondents.

(8) The objection raised on behalf of the respondents goes to the root of the case and, thereforee, we would deal with it in the first instance. However, before entering into discussion we feel that it would be necessary to examine the scheme of the Act in so far as the conferal and exercise of different powers under the Act is concerned. It would also be expedient to reproduce the relevant portions of Sections 49, 52 and 4 of the Act to which the arguments on behalf of the parties have been focussed.

'49(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.'

'52(1)The Authority may, by notification in the Official Gazette, direct that any power exercisable by it under this Act except the power to make regulations may also be exercised by such officer or local authority (or committee constituted under section 5A) as may be mentioned therein, in such cases and subject to such conditions, if any, as may be specified therein.'

'4(1)The central government may appoint two suitable persons respectively as the secretary and the chief accounts officer of the Authority who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the Authority or the chairman.'

(9) Reverting to the scheme of the Act, the perusal of the various provisions dealing with the conferal and exercise of powers by the Authority would show that the Act deals with three types of powers. One is such powers are vested in the Authority and are exercisable by the Authority and the Authority alone as for instance the power to make rules and regulations. Second is such powers as vest in the Authority as well as other persons. In regard to such powers the Act has indicated the categories who would exercise but has left the approval of persons to the Authority. Third is such powers as are vested in the Authority and can be entrusted to other persons by delegation by the Authority. The power to sanction prosecution contained in Section 49(1) of the Act belongs to the second type. The Section itself says that previous sanction which is a condition precedent to institution of prosecution vests in the Authority or any officer authorised by the Authority or the local authority concerned or any officer authorised by such local authority in this behalf. The power to compound contained in Section 46 is dealt with in like manner. More instances are furnished by Sections 28, 30(1), 31(1) and 34. What is significant about these provisions is that the Legislature of its own has provided that these would be exercised by the Authority, the local authority concerned and such other officers as are approved by the Authority or as the case may be the local authority. The words used to specify such officers are 'authorised' and 'empowered' which mean one and the same thing. There are still other powers contained in Sections 38, 37, 36, 13(3) and 12(3) which belong to the third type. By way of example, Section 37(1) provides the power of the Authority to levy betterment charges. According to this provisions, this power is vested in the Authority but there is no embargo on its being delegated. Section 52(1) exists for delegation of such type of powers.

(10) The distinction between powers which, besides the Authority or the local authority concerned, are exercisable by the officers authorised by the Authority or the local authority concerned, on the one hand, and other powers of the Authority which can be entrusted to others, on the other, is vital as well as distinct. In the case of such powers as have been made exercisable under the Act by the Authority as well as others all that is left to be done by the Authority is to authorise such persons as may be considered fit and proper while in the case of the other powers it is for the Authority to see for itself which powers, if any, should be entrusted to other persons, corporate or otherwise, to determine the period for which entrustment should be made and to determine in which cases this should be done and which cases should be excepted and whether it should be dune without reservation or otherwise. So viewed, Section 52(1) contains the provision dealing with the power to delegate any power exercisable by the Authority under the Act and the manner in which that operation is to be carried out a'nd consummated. Such powers as are vested in the Authority as well other persons are not power exercisable under the Act by the Authority alone and inasmuch as the other persons who are to exercise co-ordinate powers have been indicated and defined, no consideration of delegation of the Authority would arise and Section 52(1) would not be attracted. Section 49(1), on the other hand, is a specific section dealing with sanction of prosecution and enumerates the persons in whom the power vests and who are to exercise. The two provisions are obviously different in regard to their scope and domain. We would, thereforee, unhestifatingly hold that the provision contained in Section 49(1) of the Act is independent of the provision contained in Section 52(1) and the fields they cover are distinct.

(11) In order to see whether the interpretation which we have placed on the two provisions is the correct interpretation, we would apply some recognised tests. The first is that the language of the statute should be read as it is by avoiding rejection of words. As on the one hand, it is not permissible to add words or to fill in a gap or lacuna, on the other hand effort should be made to give meaning to each and every word used by the legislature. 'It is not a sound principle of construction', says Patanjali Shastry, C.J., 'to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the Statute', Aswini Kumar Ghose v. Arabinda Bose, : [1953]4SCR1 . And as pointed out by Jagannadhdas, J., : 'It is incumbent on the court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application', Rao Shiv Bahadur Singh v. State of V. P., : 1954CriLJ1480 . 'In the interpretation of statutes', observes Das Gupta, J., 'the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect', J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P., : (1961)ILLJ540SC . The legislature is deemed not to waste its words or to say anything in vain (Quebec Railway, Light, Heat and Power Co. v. Vandry, Air 1920 Pc 181 and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons, Ghanshyamdas v. Regional Asst. Commr, Sales Tax, : [1964]51ITR557(SC) .

(12) Learned counsel for the respondents has placed emphasis on word 'any' occurring before 'Power' in Section 52(1) and has submitted that references to all powers of the Authority. The argument is that authorization is nothing except delegation and resort to Section 52(1) is a must if it is .desired that some one other than the Authority should exercise its power. If the contention were correct what was the necessity of mentioning 'or any officer authorised by the Authority' These words would obviously become redundant. For similar reasons, similar important portions of the provisions contained under Sections 46, 47, 30(1), 31(1) and 28 would become redundant. It would also be seen that Section 52(1) itself provides for delegation of power by the Authority in favor of local authority and, thereforee, words 'or, as the case may be, the local authority concerned or any officer authorised by the authority or such local authority in this behalf.' In Section 49(1) and other sections just mentioned would become redundant. The only reason putforth by Shri Mohinder Narain in justification is that delegation of power is in the nature of sub-delegated legislation and it is well-known that one quite general question effecting all such sub-delegated legislation and of supreme importance to the continuance of the rule of law, is the right of the public affected to know what that law is. By relying upon the observations of Scott. L. J. in Blackpool Corporation V. Locker, 1948(1) K.B. 349, it is submitted that the maxim that ignorance of the law does not excuse any subject represents the working hypothesis on which the rule of law rests and that applies in legal theory just as much to written as to unwritten law, i.e., to statute law as much as to common law or equity; but the very justification for that basic maxim is that the whole of the law, written or unwritten, is accessible to the public in the sense, of course, that, at any rate, its legal advisers have access to it, at any moment, as of right. It is argued that it is the notification in the Official Gazette which can ensure the object and not a sanction accorded by the ofiicer privately without notice and filed along with the complaint. The learned counsel forgets that the conferal of power to prosecute under Section 49(1) is not vested in the Authority alone. The Section mentions infer alias the officer authorised by the Authority as one competent to sanction prosecution. This being so there is the necessary notice to the public as undeniably the statutory provision was published in the Official Gazette. What remained was the names and other particulars of the officers who were so authorised and those were mentioned in the Resolution copy whereof was filed along with the complaint. There could be no legitimate grievance on this count and we see none. Even on this aspect acceptance of the contention of the learned counsel would give rise to an enomalous position inasmuch as Section 52(1) deals with delegation of power of the authority and not of the local authority while according to Section 49(1) sanction to prosecute vests in the local authority as well as can be exercised by the local authority as well and its authorised officer. The result would be that in case of officers of the Authority there should be notification in official Gazette and none such in the case of officers of the local authority. Certainly this position cannot be countenanced.

(13) The second test is that when in relation to the same subject- matter, different words are used in the same statute, there is a presumption that they are not used in same sense. In Section 49(1)H and, for the matter of that other Sections like 46, 34 etc. we find word 'authorised' while in Section 4(1) we find word 'delegated' while Section 52 expressly deals with 'power to delegate'. According to Webster's Third New International Dictionary, to 'authorise' means (So far a's relevant for our purpose) to endorse, permit, justify or permit by or as if by some recognised or proper authority, while to 'delegate' means to entrust to another, transfer, assign, commit. In words and Phrases Legally Defined (Second Edition) by Butter- worth it is mentioned that the word 'authorised' should be read in its ordinary sense of sanction, approve or countenance and the word 'delegation' is stated to mean devolution from an agent upon another person of a power or duty entrusted to the agent by his principal. It is also mentioned that 'delegation', as the word is generally used, docs not imply a parting with powers by the person who grants the delegation but points rather to a conferring of an authority to do things which otherwise the person would have to do himself. See also Whartons Law Lexicon (14th Edition page 310). The meaning given to word 'delegation' as mentioned above was accepted in Huth v. dark. (1890) 25 Qbd 391 as also in Achchelal v. Janpada Sabha, Sihora' and another, : AIR1963MP74 , Union of India and another v. P. K. Roy and others, 1968 S.L.R. 104. It is true that delegation is in the nature of conferring authority on another and, in a sense, means authorising the other person to do which the Principal would otherwise have to do himself, the fact remains that there is difference in connotations of the two words and that the Legislature in its wisdom has used the words 'authorised' or 'empowered' in connection with officers who were mentioned along with the Authority as persons in whom certain powers were vested by statutory provision while it has used the word 'delegate' in Section 4(1) and has designated Section 52 as one dealing with the power to delegate. It is not without significance that Section 4(1) does not mention the word 'authorised' and this Section itself does not mention any power which the Secretary or the Accounts Officer was intended to exercise as such. The only infe- rence which follows the use of two different words in the matter of exercise of powers by the Authority and other persons authorised in the one hand and in whose favor there was delegation of power by notification in Official Gazette on the other, is that provision contained in Section 49(1) is independent of the provision contained under Section 52(1) and the fields covered by them are distinct.

(14) Shri Mohinder Narain has urged that in case this Court comes to the conclusion that Section 49(1) is independent of Section 52(1), Shri H. N. Fotedar could not be the authorised officer within the meaning of Section 49, inasmuch as he was the Secretary of the Authority and Section 4(1) says that the Secretary shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to him by the Authority or the Chairman. The hub of the argument is that the Secretary, in the circumstances, was not intended to be one of the officers who could be authorised to sanction prosecution, under Section 49(1). This contention, in our view, is wholly fallacious. Sub-section (3) of Section 4 speaks of the Secretary, the Chief Accounts Officer and other officers and employees of the Authority etc. The use of the word 'other' before 'officers' signifies that A the Secretary is just one of the officers of the Authority. The same expression appears at other places as well and we may mention Section 46. The use of the words 'any officer' in Section 49(1). thereforee, cannot by any stretch of reasoning exclude the Secretary from the list of officers who can be authorised to sanction prosecution by virtue of the powers conferred in that behalf. The perusal of Section 4(1) of the Act would show that the emphasis is on appointment of Secretary and Chief Accounts Officer of the Authority by the Central Government as well as on conferal of powers and delineation of duties as Secretary and Chief Accounts Officer as such. This provision cannot be taken, as is sought, to mean that the Secretary is not an officer of the Authority who could be authorised like other officers to exercise the powers under the Act as already taken notice of. The contention of the learned counsel stands repelled.

(15) Having come to the conclusion that Section 49(1) is independent of Section 52(1), it remains hardly necessary to deal with the arguments advanced by Shri Mohinder Narain that the Act is not concerned with the use of building and it was never contemplated that there would be prosecution for violation of the Master Plan on the ground that the building was misused and that it was a case of deliberate omission in the first instance and unfortunate slip later on that tile second part of Resolution No. 8 was not notified in the Official Gazette. However, inasmuch as lengthy arguments were addressed and the contentions were pressed rather vehemently we would deal with them, in brief.

(16) The preamble of the Act mentions the object as to provide for the development of Delhi according to plan and for matters ancillary thereto. Then there is Section 6 which says that the objects of the Authority shall be to promote and secure the development of Delhi according to plan besides carrying out building, engineering. mining and other operations and to execute works specified therein. It ends with the expression 'for purposes incidental thereto'. Then there is Section 7 which speaks of preparation of the Master Plan and Sub-section (2) states that the Master Plan shall define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying put thereon of development or otherwise) and the stages by which any such development shall be carried out and serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared. Then there is Section 14 which says :

'14.Ater the coming into operation of any of the plans 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. Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force.'

Lastly, there is Section 29 which prescribes penalties for violations. A combined reading of these provisions leaves no doubt in the mind that the Act as well as the Master Plan are concerned with the development of Delhi according to Plan. Section 9 states that the word 'plan' mentioned in Section 14 means the Master Plan as well as the Zonal Development Plan for a zone. Accordingly, if the Master Plan has specified a particular use of a particular building, the fact that 'land' and 'building' both find place in Section 14 and non-conforming user is made punishable under Section 29 would undoubtedly show that the Act is concerned with the use of land as well as the use of buildings. The argument that the Master Plan concerns with the use of land alone cannot, thereforee, be countenanced. Such interpretation is repugnant on the face of it. 'Development' according to Section 2(d) means the carrying out of building, engineering, mining or other operations, in, on, over or under land or the making of any material change in any building or land and includes re-development. If the intention is that development should be according to plan and the paramount object of the Authority is not only to promote but also secure such development, it is not possible to accept that restrictions imposed on use of land come to an end the moment the land is built upon. It is the Master Plan itself that divides Delhi into different zones such as residential, industrial etc. This being so if a building meant for residence situate in a residential zone, on completion, is to be allowed to be used for a different i.e. unpermitted use, the result would obviously be to defeat the very purpose of the plan. Use of a residential building for an unpermitted user, obviously, is not misuse of building alone as it is misuse of land as well.

(17) As regards the other argument that Resolution No. 8 was not notified deliberately at one stage and unwittingly later on, there appears no basis at all for this stand and the counter argument that notification was not made as none was needed furnishes a complete reply.

(18) For the reasons aforesaid, we hold that Shri H. N. Fotedar was a duly authorised officer who sanctioned the prosecution, that Resolution No. 8 dated 15th January, 1958 clothed him with the necessary authority to accord sanction and file the complaint and the prosecution launched against the respondents was competent.

(19) Coming to the contentions urged on behalf of the Authority, the Supreme Court has observed in Smt. Lila D. Bhagat's case (supra) that this Court had unjustifiably and illegally taken upon itself the task of holding on interpretation of and on reading the Master Plan that it had not specified any use of building as distinguished from land. While recognizing that largely it was a question of fact in each case whether the Master Plan had specified a particular use of a particular building and it would largely depend upon the interpretation and reading of the Master Plan, their Lordships observed :

'BUTto arrive at a correct conclusion various other facts and circumstances will have to be taken into consideration. It was neither expedient nor possible for the High Court or this Court to arrive at definite conclusion one way or the other on the reading and interpretation of the Master Plan alone. It was primarily and essentially within, the domain of the criminal court where the prosecutions were pending to arrive at its own conclusion on appreciation of the entire evidence placed before it.'

(20) The conclusion arrived at by the learned Magistrate that there could not be any objection to the use of the building in question for running Vocational Training College, besides being influenced by the observations in B. T. Mehghani's case (supra) suffers from the vice that the Magistrate assumed without enquiry that Vocational Training College was a 'school'. Moreover, no enquiry was directed on the point that for the building in question the use as school was a conforming user as per the Master Plan.

(21) For the reasons started above, we accept the appeal and set aside the impugned judgment. The case is remanded to the trial Court with the direction that it should dispose of the complaint in accordance with law after affording opportunity to the parties to lead such evidence as they may choose.

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