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Delhi Development Authority Vs. Kanti Lal Sudh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCompany Application No. 433 of 1976
Judge
Reported in25(1984)DLT128
ActsDelhi Development Act, 1957 - Sections 14
AppellantDelhi Development Authority
RespondentKanti Lal Sudh and ors.
Advocates: Usha Kumari, Adv
Excerpt:
- - on examination of this question the learned magistrate held that it would be unsafe to rely on the sole testimony of public witness 2 shri shamim haider in the absence of any corroboration which could have been lent to his version by the persons from whom he had purportedly enquired and who have not been examined. we are of the opinion that section 14 of delhi development act prohibits a person not only from using the building himself in contravention of the master plan but also to prevent such use by others as well. the very purpose of prohibition contained in section 14 of the act is bound to be defeated if people are permitted to circumvent the provisions of the act under false pretext......d-33, n.d.s.e. part ii, new delhi, came to be prosecuted for contravention of section 29(2) of the delhi development act, 1957, before the court of shri gulab tulsiani, metropolitan magistrate who after trial gave benefit of doubt to the accused, dismissed the complaint and acquitted them. aggrieved by this order of acquittal the delhi development authority has come in this acquittal appeal. (2) for purposes of convenience we may reproduce brief facts which are that by a report it was brought to the notice of the appellant on 20-5-74 that the aforesaid respondents on or around january 1973 had permitted to be used a building bearing no. d-33, n.d.s.e. part ii, new delhi to a nonconforming use inasmuch as the office of kanti lal & co. was being run therein. the case of the appellant is.....
Judgment:

Malik Sharief-ud-Din, J.

(1) One Kanti Lal Sudh and Adhikari Lal Sudh residents of D-33, N.D.S.E. Part Ii, New Delhi, came to be prosecuted for contravention of section 29(2) of the Delhi Development Act, 1957, before the court of Shri Gulab Tulsiani, Metropolitan Magistrate who after trial gave benefit of doubt to the accused, dismissed the complaint and acquitted them. Aggrieved by this order of acquittal the Delhi Development Authority has come in this acquittal appeal.

(2) For purposes of convenience we may reproduce brief facts which are that by a report it was brought to the notice of the appellant on 20-5-74 that the aforesaid respondents on or around January 1973 had permitted to be used a building bearing No. D-33, N.D.S.E. Part Ii, New Delhi to a nonconforming use inasmuch as the office of Kanti Lal & Co. was being run therein. The case of the appellant is that the land/building falls in zone F-3 and it can be used only for residential purposes in accordance with the Master Plan or Zonal Development Plan formulated in respect of this zone. The accused, in short, came to be prosecuted for contravening the provisions of Master Plan or Zonal Development Plan of Zone F-3 as referred to under section 14 of the Delhi Development Act 1957 and made punishable under section 29(2) of the said Act. It would be seen that no dispute was raised in respect of the existence of Resolution No. 8 dated 15-1-58 of D.D.A. authorising the Secretary to institute legal proceedings on behalf of Dda and to grant of previous s

(3) At trial two witnesses have been examined by the complainant while the respondents also examined two witnesses in defense. We have heard Mrs. Usha Kumar on behalf of D.D.A. while nobody appeared for the respondents. We have carefully considered the point arising for our decision. The learned trial Magistrate in the operative portion of his order has observed that it is also the case of the complainant that only a ground floor is used for office purpose and the dispute is only whether one room on the ground floor is being used for office purpose being professional man or the whole ground floor as stated by Public Witness 2 Shri Shamim Haider. On examination of this question the learned Magistrate held that it would be unsafe to rely on the sole testimony of Public Witness 2 Shri Shamim Haider in the absence of any corroboration which could have been lent to his version by the persons from whom he had purportedly enquired and who have not been examined. On the basis of this observation the learned Magistrate placing reliance on documents Ext. DW1/A and Ext. DW1/B has jumped to the conclusion that it does create a doubt about the guilt of the accused. The learned Magistrate further goes to state that Public Witness 2 being an interested witness of the complainant does not sufficiently establish the fact that the premises is being used for purposes which otherwise are prohibited under the development plan of the zone. On the basis of evidence led before the learned Magistrate he seems to have concluded that since one room was being used for purposes of professional office by the accused in the ground floor of the premises such use would not constitute contravention in view of the documents Ext. Dw 1/A and Ext. Dw 1/B.

(4) We may at this stage as such refer to these two important documents. Ext. Dw 1/A is a document whereby the Delhi Development Authority has said that no notice be taken if a room or small portion of the house is used by the occupants such as doctors, lawyers, engineers, teachers and architects etc. for professional purposes provided such use does not create a nuisance in the locality. The document Ext. Dw 1/B, circular, makes this exemption available on the basis of the decision of the technical committee to lawyers, architects, engineers, chartered accountants, business consultants and journalists and mandates that in such cases no action under section 14 read, with section 29(2) of the Delhi Development Act for such breaches need be taken. This is done on the consideration that such uses are confined as incidental to the residential use. The same document would indicate that a doctor who uses a room as such in such residential areas for consultancy purposes will be deemed to have violated the provisions of the D.D. Act, if he makes any dispensing facilities available in such building.

(5) In this case we find that the entire defense of the accused is that they are doing the export business and are having one room on the ground floor which they are using for professional office. Admittedly, the accused arc doing export business. We find no reasons to follow the logic advanced by the learned Magistrate. It will be seen that Public Witness 2 Shri Shamim Haider who, in fact, has inspected the premises on behalf of the Authority has been to the spot and has examined the premises. He has said that he found about 30 persons working in the office. It would appear that even Dw 2 Ravi Jain has somehow admitted that 3/4 people are working in the said office of the accused. The mere fact that Public Witness 2 Shamim Haider is an employee of the appellant cannot be made a ground for declaring him as on interested witness and brushing aside his version of the facts. The fact that people from whom he has also made enquiries have not been examined is of no relevance in the hight of his assertion that he has seen the premises being used for purposes otherwise than the one for which it has been reserved in the zonal development plan. It would be seen that even Dw 2 Ravi Jain has stated that the accused are doing export business with office at Farukhabad in U.P. and they have a liason office for this purpose in this building. It is true that he has qualified it by saying that this office was run only in one room.

(6) At this stage we may state that documents Ext. Dw 1/A and Ext.DW1/B which have been pressed in service in support of the case of the accused do not help the accused at all. It would be apparent from these documents that on 'the basis of the decision of technical committee, lawyers, architects, engineers, chartered accountants, business consultants and journalists were permitted to make use of a room or small portion of such premises and such use is permitted as it was thought that in such cases it was a necessary incidence of their life by virtue of the profession they were persuing. It was, however, made clear that this permission should be strictly construed and it was explained that doctors who put a room to such a use for consultancy would be deemed to contravene section 14 of the Delhi Development Act if they expand their activity by introducing dispending facility. It would appear from the stand taken by the accused in this case that they did not fall in any one of these categories described in Ext. DW1/Aand Ext. DW1/B which has enlarged the scope of the resolution by extending such permission also to business consultants and journalists. In the present case the operation which the accused are carrying on in the ground floor of the premises admittedly does not fall in any one of the categories mentioned in these two documents. All that the accused have said is that they are running a professional office in one of the rooms on ground floor. The accused are admittedly doing export business and as would appear from the testimony of Dw 2 Ravi Jain, they are for this purpose running a liason office in the premises. Dw 2 Ravi Jain has gone on record to say that 3/4 persons are working in this office. The statement of this witness will go to show that this office is being maintained for export business and not for any consultancy. It is understandable why this witness has kept the number of workers at the minimum level of four. We are of the view that there is no reason why the testimony of Shamim Haider that accused were seen running a business house in the entire ground floor should not be believed. This would be particularly so when it is kept in view that by the very nature of his assignment he is required to go round such places and ensure that the premises are not put to any other use otherwise than permitted by the zonal development plan. We are of the opinion that section 14 of Delhi Development Act prohibits a person not only from using the building himself in contravention of the Master Plan but also to prevent such use by others as well. The very purpose of prohibition contained in section 14 of the Act is bound to be defeated if people are permitted to circumvent the provisions of the Act under false pretext. In the present case we find that the premises has been put to use for purpose other than what is strictly permitted by law. At no stage the accused has asserted that they are running an office of a business consultancy. Infact, they are not at all the business consultants but are dealing in export business and are running an office for the purpose in the premises in question.

(7) For these reasons we are of the view that the learned Magistrate has wrongly dismissed the complaint and acquitted the accused. We, thereforee, set aside the order of dismissal of the complaint, reverse the finding of acquittal and hold the accused guilty under section 29(2) of Delhi Development Act. A fine of Rs.1,000.00 is imposed on each of the accused. The appeal is accordingly accepted.

(8) While parting with this case we may point out that if contraventions of D.D. Plan are overlooked with impunity the laudable objectives enshrined therein will fall a sure casualty. For if the people were permitted to have their own ways world would be chaos and anarchy. In the interests of this great historic capital city D.D.A. should activate its staff to bring all such offenders to books. In view of the paucity of accommodation and prohibitive costs, the people certainly have the tendency to circumvent the provisions of law. The D.D.A. may start a sustained move to inspect all such sites but in doing so the inspecting staff may be required to go for inspection in the presence of one or two independent witnesses and leave no room for unscrupulous people to circumvent the law on false pretext. This will also go a long way to keep their actions above suspicion and help the courts in determining the truth or otherwise of the allegations. We wish the D.D.A. officers to view this aspect of their functions with the same amount of seriousness and sincerity with which we are viewing it. The planned development of Delhi mainly and squarely rests upon its shoulders and it must frown at the people who obstruct such developments on one or the other pretext. It will be of very great help if the high authorities of Dda periodically start campaign to detect such violations and personally supervise the operations. This will also go a long way in identifying the subordinate staff who might otherwise be overlooking such violations.


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