DELHI DEVELOPMENT AUTHORITY Vs. DEVI DASS MALHAN

JUDGEMENT

(1.) This is an appeal against the Judgement dated October 26, 1977 of a Metropolitan Magistrate by which he had acquitted the respondent of an offence punishable under S. 29(2) read with S.14 of the Delhi Development Act. The case of the complainant in brief was that on May 20, 1976 Public Witness 2 an official of the DDA had visited the premises in question and found a shop being run in the said premises. The reason of the said premises for running a shop was stated to be in violation of the Master Plan as well as the Zonal Development Plan. Public Witness 2 appeared in the witness box and located the building at point x in the plan Ex.P7. The learned Magistrate appears to have acquitted the respondent on the ground that it was not established by the DDA that the building which was found to be used for a non- conforming purpose had been properly located in the map Ex. P7. We are afraid that the finding of the learned Magistrate is not in consonance with law. A similar question had arisen before a Division Bench of this Court on March 30, 1980 in Delhi Development Authority Vs. N.K. Somani, Crl, Appeal 152/76, wherein it was held that the official of the DDA located the building on the map is the only way to prove the location of the building and if his statement remains unchallenged in this connection the location of the building by the witness in the map should be accepted.

(2.) One of the pleas raised before the Metropolitan Magistrate by the respondent was that the respondent had been using this building for non-conforming purpose even prior to the enforcement of the Master Plan and had examined two witnesses in this connection. The learned Magistrate has not believed the statements of any of the two witnesses and has given reasons because the respondent had failed to produce any documentary evidence to show that the premises were being used for commercial purposes since prior to the enforcement of the Master Plan we have no reason to differ with the finding of fact recorded by the learned Magistrate in this connection. The learned Magistrate has also observed in his judgement that it is not prove that Zone F.9 of the Master Plan is meant for non-residential buildings. The finding of the learned Magistrate is not in accordance with law because the. Master Plan has provided different zones and has clearly mentioned about a particular zone to be residential or commercial. It is true that in a particular residential zone after the Zonal Development Plan is brought into existence certain areas could be earmarked for commercial activity but until the Zonal Development Plan particularises a particular area in a zone to be used for commercial purposes the user of the land in that particular zone for commercial purposes otherwise would be in violation of the Master Plan. It is not the case of the respondent that in the Zonal Development Plan the building in question has been earmarked for non-commercial purposes. In view of the above we hold that the judgement of the learned Magistrate cannot be sustained and appears to be against law. So, we allow this appeal and set aside the judgement and convict the respondent for the said offence.

(3.) Counsel for the respondent states at the Bar that the respondent has stopped the misuser and has shifted from that place. Keeping in view this fact we impose a fine of Rs. 500.00 on the respondent and in default to undergo simple imprisonment for a period of one month. The fine be deposited within one week from today with the lower court.