M K VASURAJ Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) With a view to regulate development and use of land and buildings in Delhi a civic survey of Delhi was carried out and a Master Plan was promulgated by the Delhi Development Authority (hereinafter called the Authority) under section 7 of the Delhi Development Act, 1957 (hereinafter called the Act). The Master Plan, which came into force on 1-9-1962, defined the various zones into which Delhi was divided for the purposes of development and indicated the manner in which the land in each zone was proposed to be used and the stages by which any such development shall be carried out. The Master Plan divided Delhi into various zones such as residential, commercial, industrial etc. The premises situated in each such use zone are to be used only for those purposes and not for other purposes. The premises of the petitioners are situated in residential use zones. They began to be used for commercial purposes after the coming into force of the Master Plan. The dates from which the residential premises begain to be used for commercial purposes or were allowed to be so used by the petitioners .in this and the three connected writ petitions (namely, Civil Writs 225, 226 and 424 of 1969) are alleged to be on 1-10-1968, 19-9-1964, 1-8-1965 and June 1965 respectively in that order. Section 14 of the Act which prohibits such user contrary to the plan is as follows :-

(2.) In our view this contention is supported neither by the provisions of the Act nor by the decision of this Court referred to above. For, the Act makes a clear distinction between (1) development and (2) user of the land and buildings in Delhi. Section 2(d) defines "development" as "the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land and includes redevelopment". It is clear, therefore, that mere user of a building situated in residential use zone for commercial purposes is not development at all. On the other hand, it is only a simple user of the particular premises. Section 12 of the Act authorises the Authority itself to undertake the development of land only in an area which is declared to be a development area. It cannot do so in other areas. Therefore, in these other areas the sanction for development has to be given by the local authority concerned under section 12(3) (ii) "in accordance with the provisions made by or under the law governing such authority", that is to say, under the Punjab Municipal Act, 191 I, by the New Delhi Municipal Committee and under the Delhi Municipal Corporation Act, 1957, by the Municipal Corporation of Delhi. Under section 12(4) no development shall be undertaken or carried out except in accordance with the plans after the coming into operation of any of the plans, namely, the Master Plan and/or the zonal plans, in any area.

(3.) There are, therefore, two distinct prohibitions (apart from others with which we are not concerned) enacted by section 12(4) and by section 14 of the Act. The former prohibits development contrary to the plans, i.e., either the Master Plan or the zonal plan or both. I he latter prohibits user of land and buildings contrary to the Master Plan or the zonal plan or both. Section 29(1) of the Act penalizes development contrary to the plan while section 29(2) penalizes user contrary to the plan. Sanction to prosecute in respect of both these offences, namely, those punishable under section 29(1) and those punishable undersection 29(2) is. however, dealt with only in section 49(1). It is for this reason that both the Authority and the local authority concerned are mentioned as the sanctioning authorities in section 49(1). This docs not mean. however, that in respect of one and the same offence both these authorities are competent to give the sanction, to prosecute. Throughout the scheme of the Act, the spheres of operation of the Authority and the local authority are kept distinct. We have already shown above that section 12 gives. the power of development in a development area to the Authority and the power to. sanction development in other areas to the local authority. The framing of the Master Plan and taking steps to bring it into force is the exclusive function of the Authority. The division of Delhi into various use zones is brought about only by the Master Plan and., therefore, by the Authority. The local authority has nothing to do with it. The implementation of the Master Plan in respect of the user of land and buildings would also therefore be the function of the Authority. The Authority has been given wide powers under scetions 28, 37, 38, 40-A and 52. On the other hand, the power of the local authority is restricted to the sanction to development in the non-development areas and matters connected with such development in sections 12, 29(1), 30(l)(ii), 31(l)(ii), 34(l)(ii) and 53-A. The reason is that the Delhi Development Act, 1957 is primarily implemented by the Authority, the only exception being deveopment in the non-development area which is left to the discretion of the local authority. The local authority can act under the provisions of the Punjab Municipal Act, 1911, and the Delhi Municipal Corporation Act. 1957. It is to be noted that these statutes also do not give any power to the local authorities in Delhi to promulgate and enforce the Master Plan. This is done by the Authority alone under the Act. Under section 6. the objects of the Authority shall be to promote and secure the development of Delhi according to plan and to do everything necessary or expedient for purposes of such develpment and for purposes incidental thereto. The Master Plan is made by the Authority to carry out this object and the enforcement of the provisions regarding the use zones is thus incidental to the development of Delhi. While the development mean the original work of construction etc. according to plan,, the user is to continue the state of affairs after the development is completed. Because the sanction to development in a non-development area is being given by the local authority, it is the local authority which is concerned to see that the development is according to the sanction. Therefore, it is the local authority which takes notice of the breaches of sanction and gives sanction to prosecution under section 49(1) in respect of offences punishable under section 29(1). On the same analogy, the use zones in the Master Plan arc laid down by the Authority who alone is, therefore, concerned in enforcing the user of the premises according to the Master Plan, It would be reasonable to conclude, therefore that it is the Authority alone who would be concerned in 3-685HCD/71 taking note of offences punishable under section. 29(2) as being contraventions of section 14 and, therefore, it is the Authority and not the local authority which would give sanction for the institution of proceedings in respect of offences under section 29(2) as provided for by section 49(1). We, therefore, find that the sanction to prosecute under section 49(1) for offences punishable under section 29(2) is to be given by the Authority and not by the local authority.