Skip to content


Delhi Development Authority Vs. H.S. Kalra and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 107 of 1976
Judge
Reported in1981CriLJ666; 20(1981)DLT124; ILR1981Delhi563; 1981RLR535
ActsDelhi Development Authorities Act, 1957 - Sections 14
AppellantDelhi Development Authority
RespondentH.S. Kalra and anr.
Advocates: Keshav Dayal,; R. Dayal and; Vijay Gupta, Advs
Cases Referred(Delhi Development Authority v. Sardar Ganga Singh
Excerpt:
.....a scooter repair shop form 1968, when the premises fell within the residential zont as per master plan of delhi which came into force from 1962. for the respondent it was contended that the premises were being used for the commercial purpose of running a co-operative store from 1949 and as the proviso which operated as an exception to the main provision of section 14, permitted, upon such terms and conditions as might be prescribed, the user of any building for the purpose and to the extent it was being used, on the date on which the master plan came into force, the user of a scooter repair shop being also commercial was valid. however, the appellant contended that the words 'for the purpose and to the extent for' occurring in the proviso postulated that non-conforming use which existed..........no. 806. arjun nagar,kotia mubarakpur, new delhi, falls within the residential zoneas per master plan of delhi, brought into vogue from 1962.a part thereof was being used as a store of a co-operative society.the same being not for residential purpose, had to be treated asnon-conforming use under the master plan. before the trial 'court, a certificate from the assistant special registrar of the co-operative society delhi was. tendered which showed that the premises was being used for commercial purpose from 1949.(2) that apart, a portion of that premises which was beingso used for commercial purpose, was given over to the respondenth. s. kaira, in the year 1968, and he started running a scooterrepair shop there.(3) the delhi development authority, thereforee, commencedprosecution.....
Judgment:

D.R. Khanna, J.

(1) The facts giving rise to this appealmoved by the Delhi Development Authority against the acquittalby Shri Gulab Tulsiani. Metropolitan Magistrate of H. S. Kalracharged under section 29(2) of the Delhi Development Act (hereinafter referred to be 'the Act') are in a narrow compass, and arenot much disputed. Premises bearing No. 806. Arjun Nagar,Kotia Mubarakpur, New Delhi, falls within the residential zoneas per Master Plan of Delhi, brought into vogue from 1962.A part thereof was being used as a store of a co-operative society.The same being not for residential purpose, had to be treated asnon-conforming use under the Master Plan. Before the trial 'court, a certificate from the Assistant Special Registrar of the Co-operative Society Delhi was. tendered which showed that the premises was being used for commercial purpose from 1949.

(2) That apart, a portion of that premises which was beingso used for commercial purpose, was given over to the respondentH. S. Kaira, in the year 1968, and he started running a scooterrepair shop there.

(3) The Delhi Development Authority, thereforee, commencedprosecution against H. S. Kaira by filing a complaint under section 29(2) of the Act. It was alleged that he had in contravention of the provisions of section 14 of the Act, had started usingthe premises for commercial purpose while it could be put toresidential use only. The trial court, however, vide its judgmentdated 4-6-1975, acquitted the respondent holding that the premiseswas being used for commercial purpose from 1949.

(4) Section 14 of the Act which was stated to have been violated by the respondent is to the following effect :

'14.After the coming into operation of any of the plansin a zone no person shall use or permit to be usedany land or building in that zone otherwise than inconformity with such plan :Provided that it shall be lawful to continue to use uponsuch terms and conditions as may be prescribed byregulations made in this behalf any land or building.for the purpose and to the extent for and to whichit is being used upon the date on which such plancomes into force.'

(5) It is not disputed that so far as the main provision in thissection is concerned, the respondent had committed a breachthereof, and he could be punished under section 29(2) of theAct. From his side, however, shelter is taken under the provisoto this section and it is asserted that when it has been establishedon record that the premises was being used for commercial purpose from 1949, which was much before the commencement ofthe Master Plan. no offence could be treated to have been committed. It has been urged that this proviso which operates asan exception to the main provision contained in section 14 ofthe Act, renders it lawful to use, upon such terms and conditionsas may be prescribed, any building for the purpose and to theextent it was being used on the date on which the Master Plancame into force. The words 'the purpose and to the extent for'in this proviso, it is pleaded have reference to non-conformingpurpose, viz. residential or commercial, as the case may be,and the word 'extent' has implication of the area which was earlier being used for that purpose. Now that it has been provedon the present record that since 1949, the premises was beingused for commercial purpose, simply because in a portion thereofa. scooter repair workshop was commenced from 1968, wouldnot render the user as different from the one carried on earlier.

(6) From the side of the Delhi Development Authority onthe other hand, it has been asserted that-the object of introducingthe proviso in section 14 of the Act was to not disturb userswhich had been existing from before the coming into force theMaster Plan, and thus to that extent status quo subject to theregulations framed was allowed to be maintained. In the present case, however, it is .pointed out that from 1968 a different purposeand user was introduced when a portion of the premises wasconverted into a scooter repair workshop from that of cooperativesociety store. The words 'for the purpose and to the extent for'.it is pleaded, necessarily postulate that the non-conforming usewhich, existed prior to 1962 must continue for the same purpose,and in the present case this was the running of the cooperativestore. The introduction of the scooter repair workshop changedthat purpose and extent of use, and since this took place in 1968.much after the coming into force of the Master Plan, the provisowas not attracted, and the user could not be treated as permissible or legal.

(7) We have heard the parties and give our due considerationto all the circumstances. So far as the applicability of the provisoto section 5 of the Act, it has been held by a Division Bench ofthis Court in Criminal Appeal No. 275 of 1976 (Delhi Development Authority v. Sardar Ganga Singh) decided on 11-7-1980.that there was no pre-requisite to its applicability that regulationsas mentioned in the proviso should have been framed. A personis, thereforee, entitled to seek its protection by simply showingthat before 1962 the premises was being put to non-commercialuse. Adverting thereforee, to the implications of the words ''forthe purpose and to the extent for' we are of opinion that thebroader context sought to be placed by the respondent cannot besaid to be an interpretation not permissible of this proviso. The'purpose' can be treated as one residential or commercial, andthe word 'extent' can have reference to the area, size of volumeof the user. In this view of the matter, once a promises is shownto have been used for commercial purpose from before 1962,simply because the nature of that purpose is changed into anotherone, though retaining the commercial character, would not amountto deviation from the purpose. The basic commercial user remains. It may be that on a narrow interpretation placed uponthe words 'for the purpose and to the extent for', violation ofsection 14 of the Act can be deduced even where there occursa change in the nature of one commercial user to another commercial user. We would, however, prefer to adopt the formerinterpretation. In any case, when criminal or quasi-criminalliability is sought to be imputed on the basis of provisions of lawwhich are capable of two reasonable 'interpretation, the onefavorable to the accused must prevail.

(8) We are, thereforee, unable to interfere in this acquittal.The appeal is rejected. Before concluding, we must adverselycomment upon .the slipshod manner in which the judgment ofthe trial court has been written. There are grammatical mistakesand certain sentences do not make much sense. The learned Metropolitan Magistrate should have duly looked into the judgment when it was put before him after typing, and made appropriate corrections where they were required.


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