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B.T. Menghani Vs. the Delhi Development Authority - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal Nos. 192, 354, 465 and 668 of 1970 and 180 of 1971
Judge
Reported inAIR1974Delhi159; ILR1974Delhi443
ActsDelhi Development Act, 1957 - Sections 14; Constitution of India - Article 226
AppellantB.T. Menghani
RespondentThe Delhi Development Authority
Advocates: A.K. Sen,; D.S. Golani,; L.M. Sanghvi,;
Cases ReferredFaqir Chand v. Ram Rattan Bhanot
Excerpt:
(i) delhi development act, (1957) - sections 14 & 29(2)--scope & extent of--residential buildings being used for non-residential purposes--whether the owners/occupiers of these buildings liable to be prosecuted even when zonal development plans have not come into force.; that it is the domain of the zonal development plans to provide for the uses to which buildings in a zone or in an area in a zone or upon the esite in an area in zone may be put.; that misuse of a building contrary to the master plan entails a criminal prosecution and, thereforee, there muse 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, in the instant case, has not specified any user of building as distinguished from land......s.n. andley, c.j.(1) the respective petitioner in each of these writ petitions is the owner of a building. the buildings concerned are situate in lajpat nagar, new delhi south extension part ii or haus khas. new delhi. the buildings arc governed by the delhi municipal corporation act, 1957, hereinafter referred to as 'the municipal act'. each of the petitioners is being prosecuted in the court of a judicial magistrate in delhi under sub-section (2) of section 29 of the delhi development act. 1957, hereinafter referred to as 'the development act' for an alleged contravention of the master plan of delhi by using or permitting the use of the building otherwise than in conformity with the master plan which is alleged to be prohibited by section 14 of the development act. (2) the.....
Judgment:

S.N. Andley, C.J.

(1) The respective petitioner in each of these writ petitions is the owner of a building. The buildings concerned are situate in Lajpat Nagar, New Delhi South Extension Part Ii or Haus Khas. New Delhi. The buildings arc governed by the Delhi Municipal Corporation Act, 1957, hereinafter referred to as 'the Municipal Act'. Each of the petitioners is being prosecuted in the Court of a Judicial Magistrate in Delhi under sub-section (2) of section 29 of the Delhi Development Act. 1957, hereinafter referred to as 'the Development Act' for an alleged contravention of the Master Plan of Delhi by using or permitting the use of the building otherwise than in conformity with the Master Plan which is alleged to be prohibited by section 14 of the Development Act.

(2) The principal-respondent in these writ petitions is the Delhi Development Authority, hereinafter referred to as 'the Authority' constituted under the Development Act. The Judicial Magistrate concerned is also a proforma party respondent. It is a matter of record and it is not disputed by the respondents that about a thousand similar prosecutions are pending in the courts of Judicial Magistrates in Delhi in respect of various buildings in various areas of Delhi covered by the Master Plan and that many of them have given rise to similar writ petitions which are pending in this Court. Similar petitions had earlier been filed and one such petition, Civil Writ No. 728 of 1970 was disposed of by a Division Bench of this Court (Hardy and Deshpande, JJ.) by judgment reported in in the case of N. K. Vasuraj v. Delhi Development Authority

'IT is contended that no prosecution could be filed before the 7.onal plans in respect of the zones in which the premises arc situated come into force. But the reply is that section 14 of the Act applies after the coming into operation of any of the plans'. thereforee, as the Master Plan has come into operation and the user is contrary to the Master Plan, the prosecutions arc legal even though no zonal plans have yet been framed for these zones.'

(3) After this decision, a host of other petitions similar to the ones we are dealing with were filed in this Court and the principal point which was urged was the same as the above quoted question. The Admission. Benches of this Court felt that this was purely a question of construction of section 14 of the Development Act and of the Master Plan and these writ petitions were admitted to a hearing. In view of the large number of writs filed and the importance of the question, the present writs were ordered to be placed before a Full Bench.

(4) We have heard arguments in these writ petitions only on the question of construction of section 14 of the Development Act. namely. whether the owner or occupier of a building constructed for residential purposes but used for non-residential purposes is liable to any penalties for contravention of the Master Plan of Delhi which came into operation on September 1, 1962. if the zonal plans for the zone in which the building is located have not come into force and. whether such user can be said to be not in conformity with the Master Plan. Various other questions have been raised in these petitions. which appear to us to be questions of fact including the question whether the user in the case of any particular building is residential or nonresidential either wholly or in part. We are not going into these questions of fact. We are determining these writ petitions on the assumption that the actual user is not residential. The question is whether such user is actionable under the Development Act on the ground that it is otherwise than in conformity with the Master Plan which is in force.

(5) A preliminary objection has been raised on behalf of the respondents to the maintainability of these writ petitions. The objection is that there is a properly constituted forum, namely, the court of the Judicial Magistrate which is seized of the matter, which is competent to determine all questions raised in the writ petitions and, thereforee, this Court should not exercise its extraordinary jurisdiction under Article 226 of the Constitution. In support of this objection, primary reliance is placed upon the following observations of the Division Bench in the case of Vasuraj (supra) :-

'PROFESSEDLY,the petitioners have come to this Court under Article 226 of the Constitution for a judicial review of the administrative action which consisted in the institution of prosecutions against the petitioners. But it is a misconception to think that judicial review is confined to writ petitions filed under Article 226. On the other hand, judicial review is basically of two kinds. The first kind of judicial review which is claimed by Prof. Nathan Isaacs in an Article on 'Judicial Review of Administrative Findings' in 30 Yale Law Journal 781 at 785-786 to be 'true review' is made (a) where the administrative body applies to a court for enforcement of its action and (b) where a statute provides for an appeal to a court against the action of an administrative authority. This judicial review is called the 'true review' because it is the widest judicial review available to a person. When an administrative authority files a complaint against a person in a criminal court, as has been done by the Delhi Development Authority against the petitioners, the whole of the administrative action is open to judicial scrutiny by a court of law. The concept of legal power is broadly divisible into two. namely, (a) executive power and (b) judicial power. To exercise the executive power of recovery of penalty from a person for using the premises contrary to the Master Plan, the Authority has to submit to the judicial power of the criminal court by proving its case against the petitioners to the satisfaction of the criminal courts. This judicial scrutiny has to precede the ultimate executive action to be taken by the Authority against the petitioners. The merits of the complaint of the Authority against the petitioners can be fully gone into by the criminal court including all questions of fact and law. Similarly, in a statutory appeal against administrative action the merits are open to the scrutiny of the court. The petitioners would, thereforee, be getting 'true review' of administrative action on merits if they urge all their contentions against the prosecutions in the criminal courts. The second type of review is the independent or the collateral attack on administrative decision which is made by way of writ petitions to seek the extraordinary reliefs under Article 226 of the Constitution. In these proceedings, quite often, the merits of the administrative action arc not open to review.'

(6) After making the aforesaid observations, the Division Bench observed :-

'FURTHER,the High Court is not ideally situated in inquiring into questions of fact. Our jurisdiction is peripheral restricted to the scrutiny of constitutionality and legality of administrative action. In the present petitions. there is no constitutional attack on any of the provisions of the Act. Nor is there any serious constitutional objection shown against the prosecutions. The objections would be mostly concerned with questions of fact as to whether the premises were situated in the residential use zones and whether the user complained of really amounted to commercial user or whether it could be justified as residential user. The decision of such questions would involve the study of the maps, inspection of the spot and appreciation of the evidence. As a result of the consideration of the evidence, the conclusion would be whether the petitioners have committed the offences punishable under section 29(2) of the Act or not. This is essentially the function of the ordinary criminal court. There is absolutely no justification why such ordinary criminal cases should not be allowed to be tried by the ordinary criminal courts and why such questions of facts as to whether the petitioners are guilty or not should be decided by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution. If necessary, the appeals against the decisions of the criminal courts would be considered by the courts of Sessions and perhaps later by the High Court if this can be done under the provisions of the Criminal Procedure Code. That would be the proper procedure and proper forum for deciding these cases. Article 226 is not the forum.'

(7) It seems, thereforee, that the Division Bench considered even the first question formulated by them and which is quoted earlier to be a question of fact. With respect, we disagree. The question as for mulated by us which we are deciding in these writ petitions cannot be said to be a question of fact because the location of the various buildings as to whether they were situated in the residential use zones and whether the user complained of really amounted to commercial user or whether it could be justified as residential user is not being decided by us. We are assuming that the building in each case falls in a residential use zone and the user complained of amounts to commercial user and cannot be justified as residential user. We repeat in order to clarify the area of scrutiny-that we are only determining the question whether user otherwise than in conformity with the Master Plan can be the subject matter of a prosecution without the Zonal Development Plans coming into force and whether the Master Plan of Delhi which admittedly has statutory force concerns itself with building-user as distinguished from land-user. To our mind no question of fact is involved.

(8) Let us try to summarise the admitted facts in order to consider the preliminary objection. Admittedly, about a thousand prosecutions are pending in various courts. The offence is a recurring offence because violation is punishable with fine which may extend to five thousand rupees and in the case of a continuing offence with further fine which may extend to two hundred and fifty rupees for every day during which such offence continues after conviction for the first commission of the offence. The question that we are deciding goes to the root of the matter because if it is decided in favor of the petitioners, the proscutions must fail and in these circumstances the continuance of the prosecutions will be nothing short of harassment apart from being expensive. The prosecutions are not at the instance of the petitioners but at the instance of the Authority and the petitioners and others like them are obliged to appear in the criminal courts to defend themselves. In other words, it is not as if it is the petitioners and others like them who have availed of an alternative remedy before coming to this Court though it is true that having been subjected to prosecution, the petitioners and others like them can avail themselves of the remedies of appeal and/or revision in the event of their or any of them being convicted. The petitioners are likely to be deprived of their property in the shape of the fine that they may have to pay. Reliance by the respondents on the case of Vasuraj (supra) appears to us to be misconceived for the simple reason that the Division Bench were of the View that the other questions raised before them and which they declined to determine in exercise of the power under Article 226 of the Constitution were questions of fact. The question that falls for decision as formulated by us cannot even by stretching the imagination be said to be a question of fact because even the interpretation of the Master Plan in the context of this question is not a question of fact as the Master Plan admittedly has statutory force. The other Division Bench decision of this Court in Sudershan Kumar v. Union of India & others I.L.R. (1973) Delhi 158 (2) is equally inapplicable because in that case the petitioners before this Court had themselves availed of the alternative remedy of a suit which raised questions which were identical to the questions raised in the writ petition. Even so, after a review of all the decisions mentioned in the aforesaid judgment, it was held by the Division Bench that the power to issue a writ, if there exists an alternative remedy, is only a rule of discretion and expediency and not one of jurisdiction or limitation on the power of the High Court. The Division Bench, per Shankar, J., observed that the pleas in the writ petition cannot effectively be decided on mere affidavits and that full justice between the parties will be done if these pleas are adjudicated after full and complete evidence. In G. Veerappa Pillai v. Raman and Raman Ltd. Air 1952 SC 1923 it was observed with reference to the scope of Article 226 of the Constitution that however extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made. This Bench is not doing anything of the kind. It is merely examining only one question as to the maintainability of the prosecutions in the circumstances mentioned and there is no question of this Court converting itself into a court of appeal and examining the correctness of any decision because so far there is no decision and the question goes to the root of the matter. In Dr. Bishambar Nath v. The State of Punjab and another : it was observed that the proper course for a person who is being prosecuted for the violation of some section or rule of an Act is to raise an objection before the trying court for its decision on that point and to move this Court on revision if the decision goes against the petitioner or in the alternative to move this Court under Article 228 of the Constitution and to satisfy this Court that a case pending in a Subordinate Court involves a substantial question of law as to the interpretation of the Constitution, the determining of which is necessary for the disposal of the case and to request this Court to withdraw the case to itself and either to dispose of the case or to determine the question of law involved. If it were the case of a solitary prosecution, we would have probably adopted the course suggested. But we are here faced with a situation where about a thousand prosecutions are pending in different courts which can be disposed of by the decision of one common legal question which goes to the root of the matter and where there is a chance that different views may be taken by the different criminal courts. It appears to us to be merely a difference between tweedledum and tweedledee whether jurisdiction is exercised under Article 226 of the Constitution or whether the case is withdrawn by the High Court in exercise of its Constitutional or statutory power. In a rare situation like the one with which we are presented, the appropriate remedy, to our mind, is to invoke Article 226 of the Constitution so that hundreds of persons may not be put in jeopardy if their stand is correct. Case K. S. Rashid and Son v. Income-tax Investigation Commission and others : : [1954]25ITR167(SC) was another where, unlike here, the petitioner under Article 226 of the Constitution had himself. availed of an alternative remedy. In Sitaram Chhawehharia and another v. The State of Bihar and another (1969) 1 SCWR 213 there was a criminal prosecution wherein the validity of an Act was questioned. The accused applied under Article 226 of the Constitution but the High Court declined to entertain it as in their view the matter could be brought before them according to the procedure prescribed by section 432 of the Code of Criminal Procedure. In appeal all that the Supreme Court said was that the order of the High Court was not in any manner erroneous. In other words, the Supreme Court did not interfere with the discretion exercised by the High Court in declining to entertain the petition. This case is no authority for the proposition that the High Court could not have interfered under Article 226 of. the Constitution in the case of a pending prosecution. In M/s. Tilkchand Motichand and others v. H. B. Munshi and another : : [1969]2SCR824 it was observed while dealing with a petition under Article 32 of the Constitution :-

'THISCourt does not take action in cases covered by the ordinary jurisdiction of the civil courts, that is to say, it does not convert civil and criminal actions into proceedings for the obtainment of writs. Although there is no rule or provision of law to prohibit the exercise of its extraordinary jurisdiction this Court has always insisted upon recourse to ordinary remedies or the exhaustion of other remedies. It is in rare cases, where the ordinary process of law appears to be inefficacious, that this Court interferes even where other remedies are available. This attitude arises from the acceptance of a salutary principle that extraordinary remedies should not take the place of ordinary remedies.'

(9) This observation did not put any fetters on the jurisdiction of the Supreme Court even with regard to petitions under Article 32 of the Constitution because rare cases where the ordinary process of law appears to be inefficacious were excepted. Indisputably, the scope of Article 226 of the Constitution is wider than the scope of a petition under Article 32 of the Constitution but it may not be necessary to rely upon the wider scope because, in our opinion, a rare situation has arisen where hundreds of people are being prosecuted for violation of identical provisions of one statute. If the prosecution can be brought to a close in the event of one common point being determined in favor of the petitioner, it cannot be suggested that this Court should refuse to exercise its powers under Article 226 of the Constitution even though such people are put to unnecessary harassment and possible deprivation of their property.

(10) Rashid Ahmed v. The Municipal Board, Kairana : (1950) Supreme Court Reports 566; Engineering Traders v. State of Uttar Pradesh and another 1973 All LJ 197 and In the Matter of Technological Institute of Textile v. The Inspector, Central Excise 1968 4 DLT 206 are authorities for the proposition that if the question or the liability is a recurring one, it is a valid circumstance to be considered for the exercise of jurisdiction under Article 226 of the Constitution even if an alternative remedy exists and that the existence of an alternative remedy does not bar the jurisdiction of the High Court under this Article.

(11) We are, thereforee, of the view that it will be in the interest of all parties and of justice that this Court do exercise its extraordinary jurisdiction under Article 226 of the Constitution in these matters. We repel the preliminary objection.

(12) So, we come to the question on merits which requires first the examination of the relevant provisions of the Development Act. This is an Act, says the preamble, to provide for the development of Delhi according to plan and for matters ancillary thereto. It came into force on December 30, 1957 and, as a matter of historical background, at or about the same time as the Municipal Act came into force. Section 2 of the Development Act defines various expressions. Clause (b) defines 'building' to include any structure or erection or part of a structure or erection which is intended to be used for residential, industrial, commercial or other purposes, whether in actual use or not. Clause (d) defines 'development' as meaning, inter alia, the carrying out of building operations in, on, over or under land. Clause (e) defines 'development area' as meaning any area declared to be a development area under sub-section (1) of section 12. Clause (k) defines 'zone' as meaning any one of the divisions in which Delhi may be divided for purposes of development. Clause (1) defines 'land' to have the meaning assigned to it in section 3 of the Land Acquisition Act, 1894 which gives an inclusive definition of 'land' by staling that it includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. In so far as the Land Acquisition Act is concerned, it cannot be doubted that land would include the buildings thereon. See The State of Kerala v. P. P. Hassar Koya Air 1968 SC 1201; Province of Sind v. Harkrishindas Gulabrai Air 1940 Sind 58; The Government of Bombay v. Esufali Salebhai I.L.R. 34 Bom 618 and Damodar Das v. Secretary of State : AIR1939All106 . thereforee, unless the context otherwise suggests, 'land' in the Development Act must include the building thereon.

(13) Chapter Iii of the Development Act provides for the preparation, implementation and enforcement of the Master Plan and Zonal Development Plans. Sub-section (1) of section 7 requires the Authority to carry out a civic survey of, and prepare a Master Plan for, Delhi. Sub-section (2) of this section provides for the content of the Master Plan. It says :-

'7.(2) The master plan shall- (a) 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 out thereon of development or otherwise) and the stages by which any such development shall be carried out; and (b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared'.

Sub-section (3) of this section contemplates the Master Plan to provide for any other matter which is necessary for the proper development of Delhi. Stopping here for a moment and giving effect to the definition of 'land', it follows that the Master Plan may provide not only for user of land as distinguished from that of building in the various zones but also for the user of building on such land. We are explaining this position here as we have to ascertain whether the Master Plan of Delhi which came into force on September 1, 1962 does provide for the manner in which any particular building or group of buildings in each zone is to be used. Then section 8 provides:-

'8.(1) Simultaneously with the preparation of the master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal development plan for each of the zones into which Delhi may be divided. (2) A zonal development plan may- (a) contain a site-plan and use-plan for the development of the zone and show the approximate locations and extents of land-uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business, markets, schools. hospitals and public and private open spaces and other categories of public and private uses; (b) specify the standards of population density and building density; (c) show every area in the Zone which may, in the opinion of the Authority be required or declared for development or re-development; and (d) in particular contain provisions regarding all or any of the following matters, namely:- (i) the division of any site into plots for the erection of buildings; (ii) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes; (iii) the development of any area into a township or colony and the restrictions and conditions subject to which such development may be undertaken or carried out; (iv) the erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained in or around buildings and height and character of buildings; (v) the alignment of buildings on any site; (vi) the architectural features of the elevation or frontage of any building to be erected on any site; (vii) the number of residential buildings which may be erected on any plot or site; (viii) the amenities to be provided in relation to any site or buildings on such site whether before or after the erection of buildings and the person or authority by whom or at whose expense such amenities are to be provided; (ix) the prohibitions or restrictions regarding erection of shops, workshops, warehouses of factories or buildings of a specified architectural feature or buildings designed for particular purposes in the locality; (x) the maintenance of walls, fences, hedges or any other structural or architectural construction and the height at which they shall be maintained; (xi) the restrictions regarding the use of any site for purposes other than erection of buildings; and (xii) any other matter which is necessary for the proper development of the Zone or any area thereof according to plan and for preventing buildings being erected haphazardly in such zone or area.'

The Legislature contemplated that the Zonal Development Plans for the various zones into which Delhi may be divided by the Master Plan shall be prepared by the Authority simultaneously with the preparation of the Master Plan or as soon as may be thereafter. It is stated at the Bar on behalf of the Authority that the Zonal Development Plans for the zones with which these writ petitions are concerned were prepared by the Authority within a year or two of the enforcement of the Master Plan but such Zonal Development Plans have not come into force as they are still being considered by the Central Government as required by sub-section (2) of section 9 and have not been published as required by section 11 of the Development Act. Admittedly, thereforee, the position is that in so far as the zones involved in the present writ petitions are concerned, while the Master Plan has been in operation in such Zones since September 1, 1962, the respective Zonal Development Plans have not yet come into operation. A perusal of section 8 makes it clear that it is the Zonal Development Plans which are expected to contain the site-plan of each zone and the use-plan of such zone or site in a zone. It is also to provide for the approximate locations and extent of land-uses in a zone for public buildings and other public works including housing etc. It is to specify the standards of population density and building density or in other words how many people are to populate a particular zone and how many buildings are to be constructed in that Zone. Clause (d) of sub-section (2) of section 8 requires further particulars to be given in the zonal development plans like the division of any site for plots for the erection of buildings, allotment or reservation of land for roads etc., development of any area into a township, the erection of build ings on any site and the restrictions and conditions in regard to the open spaces etc., the number of residential buildings which may be erected on any plot or site and any other matters which may be necessary for the proper development of the zones or any area thereof. It seems to us on a perusal of section 8 of the Development Act that in reality it is the domain of the Zonal Development Plans to provide for the uses to which buildings in a zone or in an area in a zone or upon the site in an area in a zone may be put. It may be relevant here to refer to Municipal Corporation of Delhi v. Kishan Dass and another: : [1969]2SCR166 . The scheme of the Development Act was considered in this case. It was observed that the Master Plan is to give only a very broad outline of Delhi as it would look like in future. It was further observed that though there is an obligation on the Authority to prepare the Zonal Development Plans simultaneously with the preparation of the Master Plan, or as soon as may be thereafter, no such Zonal Development Plans have been prepared. The Supreme Court was of the view that the non-preparation of the Zonal Development Plan assumes considerable importance 'beacuse it is the Zonal Development Plan under section 8(2)(a) which will show the approximate locations and extents of land-uses propos in a zone for road . . . '. It was further observed that it is only when such allotment or reservation of land for roads is made that it will be possible to know clearly as to which part of a person's land and what portion thereof is allotted or reserved for a road.

(14) Resuming the narration of the provisions of the Development Act, we come next to section 9 sub-section (1) whereof provides that in this section and in sections 10, 11, 12 and 14, the word 'plan' means the Master Plan as well as the Zonal Development Plan for a zone. It may be mentioned in passing that Chapter III-A of the Development Act contains provisions for modification of the Master Plan and the Zonal Development Plans. Section 12 in Chapter Iv provides for declaration of development areas and development of land in those and other areas. In so far as this section is concerned, it may only be stated that its purpose is to provide for the period between the commencement of the Development Act and the coming into operation of the Master Plan as well as the Zonal Development Plans because during this period, permission for development of an area in a 'development area' is to be taken from the Authority and of any other area from the local authority concerned. Sub-section (4) of this section contains a prohibition against the development of any particular area except in accordance with any of the plans that may have come into operation. Then we come to section 14 which falls for closer scrutiny. This section says:-

'14.After 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'.

This section uses the words 'plans' and ''plan'. By force of sub-section (1) of section 9, they must mean the Master Plan as well the Zonal Development Plans or any of them. This section also uses the words 'land' and 'building'. If the word 'building' had not been used, the definition of 'land' in section 2(e) read with section 3 of the Land Acquisition Act, 1894 would include the building thereon. But the section uses the word 'building' also. If a Statute uses a word and defines it so as to include a larger meaning than the ordinary meaning of it, the larger meaning must be given wherever the word is used in the statute. But if a particular section of the statute uses two words having their ordinary meaning and one of the words also has a larger meaning as defined by the statute which includes the ordinary meaning of the other word, then, it is a sound principle of construction to give the ordinary meaning to both the words in that particular section and not the larger meaning of one them as defined in the statute. Otherwise, the use of the other word having only an ordinary meaning will be redundant. Redundancy cannot be attributed to the Legislature. Sometimes the Legislature uses words ex abundanti cautela and it is contended by the respondent that that is the case in so far as the word 'building' in section 14 of the Development Act is concerned. But we do not think it is a case of ex abundanti cautela. In view of the use of both the words 'land' and 'building' with the word 'or' between them, we are driven to the conclusion that 'land' in this section must mean only land and not land and the building thereon in the sense of the definition and 'building' must mean only building as distinguished from land. It is on this section that most of the arguments have been addressed. On behalf of the petitioners it is urged that the use of the words 'in a zone' indicates that the Zonal Development Plans must have come into operation as it would not be appropriate to say about the Master Plan which is in operation in the entire area of Delhi that it has come into operation in a zone. If this argument were to be accepted, this section will be rendered meaningless and we will not be giving effect to sub-section (1) of section 9 which we must. thereforee, the ordinary meaning of section 14 without the proviso, if we may put it that way, is that after the coming into operation of either the Master Plan or the Zonal Development Plans or any of them in a zone, no person shall use or permit to be used any land or building in that zone otherwise than in confirmity with such Master Plan or such Zonal Development Plan. 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 a zone. The Master Plan is in operation in the entire area, that is, in all the zones and, thereforee, inevitably in each zone. If, thereforee, there is a user of any land or building otherwise than in conformity with either the Master Plan or the Zonal Development Plans or any of them after such plan has come into operation, it will be actionable under subsect on (2) of section 29 of the Development Act which provides:-

'29(2).Any person who uses any land or building in contravention of the provisions of section 14 or in contravention or any terms and conditions prescribed by regulations under the proviso to that section shall be punishable with fine which may extend to five thousand rupees and in the case of a continuing offence, with further fine which may extend to two hundred and fifty rupees for every day during which such offence continues after conviction for the first commission of the offence.'

But to come within the mischief of the prohibition contained in section 14 of the Development Act, it is necessary that the user of the land or building is otherwise than in conformity with any of the plans including the Master Plan. At the same time, if the misuser, if we may call it that, is in respect of. land, then it must be demonstrable that any such plan prescribes a different user for such land when we take land in section 14 to mean land as distinguished from building. Likewise, if the misuse is in respect of a building, it has to be seen whether any of the plans provides a different user for such building as distinguished from land. We, thereforee, cannot accept the construction sought to be placed by the petitioners on section 14 of the Development Act to the effect that the prohibition can become operative only after the Master Plan and the Zonal Development Plans have all come into operation in a zone.

(15) In Bhagwanti Malhotra v. Delhi Development Authority 1973 RLR 661 a learned Judge of this Court has expressed the view that the word 'land' in section 14 of the De velupment Act would include buildings thereon. For the reasons given above we are of the view that as section 14 uses both the expressions 'land' and 'building' with the interposition of 'or' between them the word 'land' in section 14 is to be read only as land as distinguished from the building thereon and the definition of this word in the Development Act read with the Land Acquisition Act, 1894 would not be applicable. We, thereforee, disagree with the view expressed. We may here mention, another case. It is Faqir Chand v. Ram Rattan Bhanot: : [1973]3SCR454 . The following observation was made in this case in para 12 as reported:-

'12.What has been done in Delhi is only a preparation of the master plan for Delhi under section 7 of the Delhi Development Act 1957. The High Court seems to have misread the provisions of the master plan because Karol Bagh is one of the areas mentioned in page 56 of the book containing the master plan for Delhi. The same list contains the built-up residential areas of Daryaganj, Jama Masjid, Chandni Chowk and Fatehpuri. Nobody can say that there are no buildings in these areas used for commercial purposes. This list is at page 56 found in Chapter Ii which has the main heading 'Zoning and Sub-Division Regulations' and sub-headings 'Provisions regarding uses in use zones', 'Provisions regarding requirements in use zones: Density, coverage, floor area ratio, setback and other requirements of use Zones'. A careful reading of that section which deals with individual plots: minimum plot size, plot coverage, floors, frontage of plots set back lines, front set back, rear set back line, side set back line, service lanes, show that these are concerned with construction of buildings. The provision regarding requirement in use zones can come in only if the zonal development plans are prepared under section 8 of the Delhi Development Act, 1957. It is that section which provides for a zonal development plan containing a site plan and use plan for the development of the Zone. No such Zonal Development Plan has been prepared. The High Court was, thereforee, in error in proceeding on the basis that there was a plan in relation to this area which prohibits the use of this building under section 14'.

The aforesaid observations were read out to us by the learned counsel for the petitioners as a part of his argument and not as being conclusive of the question because later, on application by the Authority, which does not appear to have been a party to the appeal, these observations were deleted by the Supreme Court. We are not, thereforee, relying upon these observations as being binding upon us but the conclusions arrived at by us appear to be in consonance with these observations.

(16) Now, as stated earlier, although the Master Plan is in operation in the zones with which we are concerned, none of the Zonal Development Plans is in operation. The question then is whether the petitioners have used their respective building as distinguished from the land upon which it is constructed otherwise than in conformity with the Master Plan. It will, thereforee, have to be seen as a matter of interpretation of the Master Plan-which has the status of a statute- whether it prescribes a particular use for the building belonging to any of the petitioners. We would even go further and say that the scope of examination will be whether the Master Plan has prescribed a use for buildings in the zones with which we are concerned as distinguished from the land-use in these zones. This leads us to the examination of the Master Plan.

(17) The Master Plan for Delhi comprises of a book having an introduction, two chapters, appendices, four maps attached to it and a glossary. In its introduction the Master Plan gives the historical background and the reasons for the constitution of the Authority and its predecessor Provisional Authority. It recites that it had conducted surveys as were necessary, drawn up a draft Master Plan, consisting of numerous maps and plans embodying the studies and proposals and an explanatory text for an estimated population of about fifty lakhs in 1981 which was released to the public on July 8, 1960 for the purpose of inviting objections and suggestions. It recites that objections were received and considered. At page (ii) of the introduction it states that an integral part of the plan is the 'Sub-division Regulations' which, by laying down standards for streets and community facilities will guide new development and the 'Zoning Regulations' which indicate the land use permissible in the various zones and the density, coverage, floor area ratio and set-backs for various types of development. Chapter I is headed 'The Land Use Plan' and it mentions land requirements in 1981 in various Ring Towns like Ghaziabad, Faridabad, Ballabhgarh, Bahadurgarh, Gurgaon, Loni and Narela. 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'. 'E', 'F', 'G' and 'H' on the Zonal Map which has been prepared for the Delhi urban area. This Zonal Map purports to show the broad outlines of these eight planning divisions and the various zones therein. Only some of the important public buildings and colonies are mentioned by name on this map and apart from the broad outlines and boundary lines of these divisions and zones, the roads therein are not indicated with the exception of the outer Ring Road and the inner Ring Road. This Zonal Map does not purport to show either the land uses or the building uses. Proposals and suggestions are mentioned in Chapter I of the Master Plan for various human activities and some suggestions are made for the localisation of some of these activities in specified places. With respect to residential areas, it is stated at page 22 that 'one of the main objectives of the plan is to relate residential areas to the centres of employment in Government offices, industrial and commercial areas, so that the journey to work and back is kept to the minimum within the bounds of healthy living. With this in view, a rational pattern of residential densities is proposed which will correct the present disparities and imbalances'. Then certain specified areas are mentioned for the purposes of the requisite or desirable density. It may be relevant to mention that under the heading 'Development Zones' at page 26, it is mentioned that for the purpose of collection and analysis of socio-economic and physical data for the built up area, the urban area was further sub-divided into Planning Areas and Planning Units and that many considerations have gone into the delimitation of the boundaries of these units as a result of which 136 Development Zones have been drawn up for the whole of urban Delhi as shown in the map as Development Zones. The manner of development for newly developing areas is laid down in Chapter Ii of the Master Plan under 'Sub-Division Regulations' and all new developments shall take place according to Zonal Developmental Plans. Various other recommendations are made for various other activities with a view that the urbanizable area up to 1981 would cover about 1,10,500 acres. So far as Chapter I is concerned we do not find anything therein to suggest the prescription of the user of a building or its site in any area or zone or division. Chapter Ii contains the Zoning and Sub-Division Regulations. It is stated in this Chapter that zoning protects residential areas from the harmful invasions of commercial and industrial uses while it also promotes business and industry by the very nature of the planned and orderly development that it ensures and that these regulations and their administration are a major tool in carrying out the land use part of the Master Plan of which it is an integral part. This Chapter states that there shall be 24 Use Zones. The land-use in these 24 Use Zones is broadly stated to be residential, agricultural green belt, rural, retail shopping, general business and commercial (central and sub-central business districts, District Centres), wholesale, flatted factory, work-cum-industrial centre, special industry, light industry and service industry, extensive manufacturing, extractive industry, mining, brick kilns, stone quarrying etc., warehousing, storage and depots. Government and semi-government offices, recreation and public and semi-public facilities. It is then stated,-

'THEland use plan shows the various use zones. In the case of District Centres where no separate areas have been marked for retail shopping, work centre or flatted factory and government office but are indicated in the text of the land Use Plan, such demarcations will be shown in detailed plans. The land use plan does not show local shopping, local parks, schools etc. Hence, in built up areas, the local municipal authorities may allow such uses, based on quick surveys and on an ad hoc basis, until zonal development plans are prepared. The letter, when prepared, will incorporate the land use proposals prepared by the local authorities. In new areas development shall take place only on the basis of the zonal development plans'.

It is thus clear that this Chapter also gives the broad land use in various use zones as distinguished from building use or the use of a particular site in a zone. In built up areas it is the local Municipal authorities which are to allow the specified uses based on quick surveys and on an ad hoc basis until Zonal Development Plans are prepared. It is, thereforee, clear that it remains the function of the Zonal Development Plans which are to come to specify particular building uses or site uses' in particular zones. At pages 49 onwards are provisions regarding uses and use zones. So far as uses are concerned, it is provided that they will include specified 'uses permitted'; 'uses permissible if allowed by competent authority after special appeal' and 'uses prohibited'. The details of these uses again refer to land uses as distinguished from building uses or uses of particular sites in a zone on which buildings are or may be constructed. The use zones are reflected in what is described as the 'land use plan' annexed to the Master Plan. Apart from the fact that the land use plan does not indicate with reference to any building in any area the use to which the building or buildings in that area are to be put or the use of particular sites in a zone, it merely contains various colours indicative of the use, namely, residential, commercial, industrial, governmental, recreational, public and semi-public facilities and agricultural and shows the circulation pattern. Nor does it indicate any buildings either generally or in a particular use zone as appearing in any particular colour, nor even the roads barring the inner and outer Ring Roads which may be running through or comprised in a particular use zone. It is contended that the colours given in any zone indicate not only the land use but also the use of the building thereon and that if the land use map is superimposed on the zonal map, referred to earlier, it will be possible to say where a particular building in a use zone is located and depending upon the colour of that particular locality, the use of such building as permitted by the Master Plan can be ascertained. We do not agree, A layman would find it difficult to find his building or its site in any particular use zone in the land use plan. He will be able to do so, if a zone is sub-divided into sites and a site-plan and use-plan are prepared for that zone as part of the Zonal Development Plan in pursuance of section 8 of the, Development Act. We do think that either by reason of the provisions regarding uses in use zone mentioned at page 48 onwards of the Master Plan or the land use plan annexed to it, it is not possible to say that the uses of any building as distinguished from land in any zone or of the sites of such buildings have been specified. thereforee, the respondents cannot say with respect to a particular building or group of buildings in a zone that such and such is the user thereof as specified by the Master Plan.

(18) Further, what we are concerned with is to see whether the Master Plan indicates a user of the building of the petitioners or any of them which is contrary to the user to which such building 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 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 section 14 is not attracted and consequently no penalties can be imposed by reason of sub-section (2) of section 29 of the Development Act.

(19) During the course of the hearing of these writ petitions we asked the respondent Authority whether any Zonal Development Plans have come into force in any areas in Delhi. The respondents have produced two such Zonal Development Plans. These two Zonal Development Plans confirm our view that the Master Plan does not specify the user of the building as distinguished from land and that the user of buildings is to be shown in the Zonal Development Plans by indicating the sites of such buildings. The first Zonal Development Plan is for Zone A-20 (New Daryaganj Area). It is accompanied by a report which contains details about the location/and existing conditions; proposals; specification of sites for buildings for residential uses; specification of commercial uses of buildings; specification of sites for industrial and manufacturing uses; recreational uses; public and semi-public facilities; other facilities and circulation pattern. Appendix 'A' to the report specifies the existing land uses in this zone and Appendix 'B' specifies the land uses as proposed in the Master Plan. The map for this zone reflects the entire report clearly by lengend under the aforesaid heads. Roads and lanes are indicated and so are sites for ''plot housing' or 'group housing'. A mere look at the plan would show even to an untrained person the location of his building site and the use to which the building thereon is to be put. Similar is the position with respect to the Zonal Development Plan for Zones H-4, 5 and 6.

(20) An argument was addressed to us that if the view expressed by us is correct, then the owners or occupiers of buildings in zones in respect of which the Zonal Development Plan has not come into force will have a complete license to use the building in any way they like contrary to the Master Plan. An illustration was given that in a thickly populated residential area comprising of residential buildings, it will be open to the owner or occupier to use the building, though constructed for a residence, for a factory. The criticism does not appear to us to be justified. As we have stated earlier, until the Zonal Development Plans come into force, the local authority has to make a quick survey in non-development areas to determine what sort of buildings or uses thereof are to be permitted and this they do under section 12 of the Development Act. If, thereforee, the owner of land in any zone takes permission of the local authority for construction of, say, residential building, he will not be permitted to use it for any other purpose. As stated earlier, the Development Act and the Municipal Act came into force within a short time of each other. Section 313 and subsequent sections of the Municipal Act provide for lay-out plans in respect of lands within the jurisdiction of the Corporation. Clause (a) of sub-section (4) of section 313 of the Municipal Act places an injunction on the Corporation to refuse sanction of any lay-out plan 'if the particulars shown in the lay-out plan would conflict with any arrangements which have been made or which are in the opinion of the Standing Committee likely to be made for carrying out any general scheme of development of Delhi whether contained in the master plan or a zonal development plan prepared for Delhi or not'. If land is utilised without any sanction under section 313 of the Municipal Act, power is given to the Corporation under section 314 to alter or demolish any street and under section 315 to order work to be carried out itself. Under the Municipal Act, the construction of buildings is governed by Chapter Xvi and the regulations made under the Act. Section 347 of the Municipal Act provides restrictions upon the change of the use of any land or building. In other words, if a person takes permission from the Corporation to construct a residential building and changes the user thereof, he can be prohibited from doing so under section 347 of the Municipal Act. Contravention of any provision of any section of the Municipal Act is punishable under section 461. It cannot, thereforee, be said that the owner or occupier of a building has a license to use it in any manner he likes until the Zonal Development Plans come into force. Sufficient safeguards are contained in the Municipal Act to prevent such misuse. It is only the Authority who will not be able to invoke section 29 read with section 14 of the Development Act to punish the misuse of a building until the Zonal Development Plans in the Zone where the building is situate have come into force.

(21) In the result, we allow these writ petitions and we-

(A)issue a mandamus against respondent No.1 from prosecuting the criminal prosecution against the petitioner which is pending before the Judicial Magistrate ; (b) issue a mandamus restraining the Judicial Magistrate from proceeding with the prosecution of the petitioner under section 29 read with section 14 of the Development Act and (c) issue a writ of certiorari, quashing the notice issued by the Judicial Magistrate against the petitioner in the prosecution under section 29 read with section 14 of the Development Act.

(22) Each of the petitioners will be entitled to costs. Counsel's fee in each petition is fixed at Rs. 150.00.


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