(1) respondent S. Ganga Singh, was prosecuted under S. 29(2) read with section 14 of the Delhi Development Act, 1957 (hereinafter called 'the Act') on a complaint filed by the appellant, Delhi Development Authority, on the allegation that he on or about 19th September 1964, had permitted the ground floor and 1st floor of the building bearing No. H-89, Ring Road, N. D. S. E.-1 for the purpose of running office of various concerns, namely, Gupta Property Dealers, Navyug Property Dealers and Cirugia Delux Pvt. Ltd., in the contravention of the Master Plan of Delhi and Section 14 of the Act.
(2) The Trial Court by its impugned judgment dated 28th October, 1975, acquitted Ganga Singh by giving him benefit of doubt holding that the prosecution had not conclusively proved the case against him.
(3) The Delhi Development Authority (hereinafter called the 'Authority') has filed the present 'appeal feeling aggrieved by the above-said judg- ment.
(4) Brief facts of the case arc as follows. Harish Chander Tulsiani, Sectional Officer of the Authority visited premises bearing No. H-89, N. D.S.E. Part I, New Delhi, on 30th October, 1968, and found that three concerns of property dealers under the name and style of Gupta Property Dealers, Navyug Property Dealers, Jain Property Dealers and the office of Cirugia Delux Pvt. Ltd., were functioning in the ground floor and first floor of the building. Enquiries made by him revealed that the said office had been functioning in the building since the year 1964. The premises fall within the medium density zone No. D-20 and the user of the building being against the provisions of the Master Plan and section 14 of the Act, Shri Tulsiani made a report to his department. Consequently, a complaint under section 29(2) read with section 14 of the Act was filed against the respondent.
(5) In support of its complaint, the appellant examined Harish Chander Tulsiani, who appearing as Public Witness Public Witness 1 supported the above-noted allegation. In his cross-examination, he conceded that he did not examine the lease agreements of the concerns whose offices were being run in the building adding that the same were not shown to him. He did not contact the landlord of the building. He also did not try to ascertain the possible date of the commencement of the misuse of the building.
(6) The only other witness examined was Sita Ram (Public Witness 1 ) a clerk from the appellant's office who proved resolution No. 8 dated 15th January, 1958, copy Exhibit Public Witness Public Witness I/A, on the basis of which the present complaint was filed against the respondent. No other witness was examined to corroborate the version of Harish Chander Tulsiani that the building was being put to the non-conforming user since September, 1964.
(7) Ganga Singh, respondent in his statement recorded under section 342 of the Code of Criminal Procedure, 1898, asserted that the premises in question were being used for non-conforming purpose prior to 1961. In fact he had put the said suggestion to Harish Chander Tulsiani who of course gave the usual reply that he did not know whether the premises were being used for the office purposes since 1961.
(8) To substantiate his claim that the premises in question were being utilized for the non-conforming user prior to 1961, Ganga Singh examined S.G.Jain (DW 1) who stated that he was a tenant in a portion of the house in question which he had taken on rent on 1st August, 1961, in which he is running his office as a property dealer. He had not kept the original rent receipts or the old record to vouchsafe for the correctness of his claim but admitted his signatures on the counter-foils. Exhibit Dw I/I to Dw 1/26. There is no challenge to these receipts which assume importance in view of the categorical statement of the witness that since his income was not taxable, he did not keep the old record. It is significant here to note that the witness had produced a copy of the Newspaper, Hindustan carrying an advertisement of Jain and Co. at page 3 of the said paper mentioning the telephone number of .the Company as 74966. S.C.Jain further stated that one portion of the building in question was used by M. P. Gupta for running an office as a property dealer. M. P. Gupta, however, was evicted from the portion in his occupation through Court proceedings. He also stated that one Smt. Ishwar Bai used to run a school in a portion of the building in 1961 which she left after a year or so. His above-noted statement was not challenged in cross-examination and we see no discernible reason why he should not be believed.
(9) There is also documentary evidence, letters Exhibits Dw 2/A to Dw 2/D on the record which lends great weight and support to the claim of the respondent. These letters were got proved through 0. P. Malhotra (DW 2) who identified the signatures of Shri S. M. Hasnain, Assistant Engineer of the Municipal Corporation of Delhi, on these letters.
(10) Testimony of Vishwa Mitar Narang (DW 3) is not determinative of the question under consideration. He is a tenant in a portion of premises in question since December, 1964. No useful purpose would be served in noticing his testimony.
(11) Exhibit Dw 2/A is a letter dated 1st May, 1962, from the Corporation to the address of Smt. Kartar Kaur owner of building in question No. H-89, N.D.S.E. Part I, New Delhi, in which with reference to the owner's letter dated 3rd July 1961, asking for grant of the completion certificate of the building in question, the owner had been informed that the Commissioner of the Corporation had refused to grant her request by his order dated 1st June, 1962, on the ground that the building was being misused i.e., the building was being used for purposes other than the residential one. This letter clearly establishes that the building in question was being used for a non-conforming purpose prior to the coming into force of the Master Plan which came into force with effect from 1st September, 1962.
(12) Exhibit DW2/B is another letter dated 11th July, 1962, from the Corporation to the address of Shrimati Kartar Kaur, owner of the building in question in which with reference to her letter dated 31st May, 1962, she was advised that her request for the grant of certificate in respect of the building in question could beconsidered by the Corporation if she complied with the twin conditions laid down by the Corporation namely (i) if she paid Rs. 325.00 i.e' one month's rent for giving her permission to use the residential building for commercial purpose -for the year commencing from 1st April, 1962, and (ii) to furnish an undertaking on a stamp paper that the building would not be used for commercial purposes after one year ending with 31st March, 1963, or earlier if the permission is withdrawn.
(13) Exhibit Dw 2/C is the copy of the receipt No. 765020 dated 24th November, 1962, by which the amount of Rs. 325.00 demanded by the Corporation in its letter Exhibit Dw 2/B was deposited by the landlady. From the documentary and oral evidence, noted above) it is evident that the prosecution has failed to cischarge its burden, namely, to prove that the building was put to non-conforming user from the year 1964. On the other hand the evidence supports the plea of the respondent that the building in question was being used for housing offices of the various concerns from 1961., i.e., prior to the coming into force of the Master Plan. The learned counsel for the Authority, however, contended that section 14 of the Act is a complete bar to any land or building being used for a purpose other than the one envisaged in the Master or Zonal Plan after the coming into operation of any of the plans in a zone and that no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan.
(14) The learned counsel for the respondent on the contrary contended that the proviso to section 14 of the Act permits to continue to use any land or building for the purpose and to the extent for and to which it was being used upon the date on which any of the plans, viz., Master or Zonal comes into force. The learned counsel for the appellant controverting the plea advanced on behalf of the respondent submitted that the exception carved out by the proviso to section 14 was available, .in case the Authority by regulations prescribes the terms and conditions upon which it shall be lawful to continue the old user of any land or building prior to the enforcement of the Act or any of the plans. ,
(15) To settle the rival contentions, it would be .appropriate to note the provisions of Section 14 of the Act which reads as under :-
'User of land and 14. After the coming into operation of any buildings in of the plans in a zone no person shall use contravention of or permit to be used any land or building plans, in that zone otherwise than in conformity with such plans : 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.'
The aim of the Act is to provide for the development of Delhi according to plan and for matters anciallary thereto. According to clause (d) of section 2 of the Act, unless the context otherwise requires, 'development' with its grammatical variations means the carrying out of building, engineering, mining and other operations in, on, over or under land or the making change in any building or land and includes re-development. According to section 6 of the Act, the object of the Authority shall be to promote and secure the development of Delhi according to plan and for that purposes the Authority shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining, and other operations, to execute work in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for purposes or such development and for such purposes incidental thereto.
(16) Planned development of Delhi as envisaged in the above-noted provisions of the Act was likely to take time and during the interventing period human activity was not desired to be brought to a standstill. The legislature knew that human problem was involved and a large segment of society engaged in trade could not be uprooted over-night. To tide over such difficulty, proviso to section 14 made it lawful to continue to use any land or building for the purpose and to the extent for and to which it was being used upon the date on which any of the plans came into force. It is true that proviso carves out an exception to the general rule embodied in section 14 and the exception envisaged in the proviso would be subject to such terms and conditions as may be prescribed in regulations made in that behalf. But if the Authority fails to make regulations no disability is created for using any land or a building for a purpose for which it was previously being used. Proviso to Section 14 is intended to relieve the hardship in carrying out the planned development of a zone. The words 'use upon such terms and conditions as may be prescribed' in the proviso enable the Authority to restrict by regulations the use of any land or building for a purpose for which it was being previously used. In other words so long as regulations are not framed an occupier of a land or a building cannot be deprived of taking advantage of the proviso to section 14. Pending framing of the Regulations prosecution in respect of a non-conforming user prior to the coming into force of any of the plans, is misconceived.
(17) The view that we have taken is reinforced by two earlier decisions in Sarojini Market Shopkeeper Association (Rogd.) another v. Union of India and others 1964 Plr 1144 and Lal Singh and others v. The Lt. Governor, Delhi and others, . In Sarojini Market Shop-keepers Association's case, the construction of a builning by the Union of India in Sarojini Nagar near the Sarojini Market and its use as shops to be allotted to various persons to facilitate their rehabilitation was objected to by the petitioners on the ground that the construction and use of the aforesaid building as shops was contrary to the provisions of the Master Plan and the provisions of the Delhi Development Act. The building was sought to be constructed at the site which was already being used as a shopping centre with a view to rehabilitate the persons thrown out of jobs as a result of fire which broke out in the said shopping centre. It was held that assuming the construction of the shops was not strictly in conformity with the Master Plan, the use of the land in dispute as a shopping centre was permissible under the proviso to Section 14 of the Act because the aforesaid land was previously used as a shopping centre and that the non-framing of the regulations could not stand in the way of the persons whom the shops in question were proposed to be allotted from using them for the purpose of selling their merchandise. It was observed that proviso to section 14 carves out an exception to the general rule laid down in that section. The exception embodied in the proviso would be subject to such terms and conditions as may be prescribed by regulations made in that behalf and where no regulations are made) the use of the land for a purpose for which it was being used on the date the plan came into force would not make it subject to any further restriction. The proviso to section 14 it was observed, does not create a disability but enables the use of land for a purpose for which it was previously being used and that the proposed allottees of the shops could not be deprived of the benefits of the proviso because of the omission of the authorities concerned to frame regulations mentioned in the proviso. It would be open to the authorities concerned to make regulations so as to restrict the use of the land for a purpose for which it was being previously used but so long as the regulations are not framed a party cannot be prevented from taking the full advantage of the proviso to section 14.
(18) In case Lal Singh and others (supra) the petitioners challenged the acquisition of their lands and buildings, amongst others, on the ground that their Colony (Shakarpur Extension Colony) was in existence prior to 1959 in which the petitioners had built the residential houses over a large number of plots owned by them and that the aforesaid Colony had been car-marked as a residential area in the Master Plan for Delhi and that in the Draft Zonal Development Plan also, except for a small portion, it had been shown as residential area and that the houses built in the Colony did not in any way violate the land use pattern provided in the Master Plan The precise argument was that both according to the provisions of law contained in section 14 of the Act and the policy announced by the Government from time to time, the built up areas were not to be disturbed even if such areas were not in conformity with the Master Plan and the Zonal Development Plan. Dealing with the submission pertaining to section 14 of the Act, it was observed that the main part of the section prohibits the user of a land or building in a zone otherwise than in conformity with either the Master Plan or the Zonal Development Plan for the zone. But the proviso lays down an exception to the main provision, and states that the previous user to which the land or the building was being put on the date on which such plan came into force can be lawfully continued upon such terms and conditions as may be prescribed by regulations made in that behalf. It was observed that it is true that the proviso states that the continuation of the user has to be upon such terms and conditions as may be prescribed by regulations made in that behalf, but that does not mean that the exception recognised under the proviso does not operate so long as no regulations are made. The words 'upon such terms and conditions as may be prescribed by regulations made in the behalf' in the proviso only enable the Authority concerned to make regulations prescribing terms and conditions for the continuation of the previous user. If regulations are not prescribing such terms and conditions, it only means that the continuation of the user permitted by the proviso would be subject to no terms and conditions. In other words, it was held, a person does not lose the benefit of the proviso if he is otherwise entitled to it, merely because the authority concerned has not chosen to make regulation prescribing terms and conditions for the continuation of the previous user. The concerned authority by closing not to avail of the enabling provision in the proviso, cannot circumvent the rest of the provision in the proviso and deprive the petitioners of the benefit conferred there under.
(19) The learned counsel for the appellant, however, contended that where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms. There can be no dispute to the proposition sought to be urged but the proviso to section 14 as already noted above carves out an exception to the main rule embodied in section 14. The principle sought to be urged is accordingly of no consequence in the instant case.
(20) Reliance placed on Madras and Southern Maharatta Ry. Co. Ltd. v. Bezwada Municipality ; Links Advertisers and Business Promoters v. Commissioner Corporation of the City of Bangalore, : 3SCR670 ; and Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subash Chandra Yograj Sinha, : 2SCR159 , is misplaced, having no bearing on the question under consideration.
(21) The submission that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision, composts best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainly in the working of the statute, should be preferred is. equally of no avail. The provision of Section 14 and the proviso to it are not susceptible of two interpretations. The provision envisaged by section 14 is clear, while proviso to the said section carves out an exception to the prohibition for using or permitting to be used any land or building in a zone after the coming into operation of any of the plans in a zone otherwise than in conformity with such plan.
(22) No ground is made out selling for interference with the impugned order. The appeal fails and is hereby dismissed.