DELHI DEVELOPMENT AUTHORITY Vs. MAHARAJA HOTEL KAMLESH KUMARI

JUDGEMENT

(1.) These appeals are directed against judgments dated April 17,1979 of a Metropolitan Magistrate by which he had acquitted the respondents. It appears that two separate complaints had been brought, one against M/s Maharaja Hotel, a partnership concern comprising of partners M.K. Sachdeva, Parvesh Sachdeva, Krishna Wati, Kamlesh Kumari and Ram Parkash Devi on the allegation that they have used the property No.A-37, Vishal Enclave, New Delhi, for non conforming purpose inasmuch as the said premises falls in Zone G9 of the Master Plan and the land in the said zone could be used for residential purposes. According to the complaint the said premises were found to be used for hotel. A second complaint was filed against Smt. Kamlesh Kumari, being the owner of the said property having permitted the said non conforming user of the said premises. The first contention raised in these appeals are barred by limitation. Under S. 378(5) of the Criminal Procedure code if an appeal is brought against acquittal in which a public servant is the complainant then the limitation provided is six months. Otherwise the appeal against the acquittal has, to be brought in within sixty days. The short question which arises for consideration is whether the complainant in the said two appeals can be deemed to be a public servant or not. The point is not res integra inasmuch as the same question arose for consideration in three Division Bench judgements of this Court. In one of the judgements i.e. D.D.A.v.Punjab National Bank XX (1981)DLT 353, the view taken was that the complanant in such a case is the DDA and thus the DDA being not a public servant the larger period of limitation provided in the said Section is not available to the DDA. In the later judgment in case of Oriental Bank of Commerce v. D. D. A., 23(1983)DLT (SN)46, a view had been taken that not only the DDA but also the officer authorised to file the complaint on behalf of the DDA is the complainant for the purposes of S.378(5) and the said officer being a public sersant the period of limitation applicable is six months and not sixxty days. Both these judgements are slated to be under challenge in appeals in the Supreme Court. In Delhi Development Authority v. K.P. Shankra Rao and another, 24(1983)DLT 47,a similar question arose for decision and the Division Bench preferred to agree with the reasons given in the case of Oriental Bank Of Commerce (supra). On first principle also we think that the view expressed in Oriental Bank of Commerce (supra), is proper. It is true as contended by the learned counsel for the respondent that the complaint is filed on behalf of the DDA after DDA has delegated the authority to the Secretary to file the complaint on its behalf and the complaint also shows that the DDA is the complainant and the Secretary who has been authorised to file the said complaint on behalf of the DDA has signed the complaint as Secretary. The purpose of providing the longer period of limitation when the complaint is by public servant is quite obvious. It takes some amount of time for considering the matter at various levels of hierarchy of officers in order to decide whether an appeal should be filed or not in a particular case and that consumes obviously a lot of time. The DDA itself cannot act on its own. It has to act through its various officers and when the DDA authorised a particular officer to file a complaint on its behalf, for all intents and purposes the officer who is so authorised and files the complaint is also to be treated as a complainant may be on behalf of the DDA. For this reason the view expressed in the case of Oriental Bank of Commerce (supra) and in the case of K.P. Shankra (supra),that the longer period of six months provided for filing an appeal against acquittal would be available in such cases is more sound and we follow the said judgement and hold that these two appeals are within time.

(2.) Now coming to the merits of the case, the learned Magistrate appeas to have held that offence is not made out against the respondents inasmuch as in the Master Plan at page 48 provision has been made for carrying out specific commercial activity even in the residential zone in absence of any business in Zonal Development Plan having come into existence pin-pointing the particular areas in a particular residential zone for commercial activity the officer of using the premises for non-conforming purposes cannot be brought home to the respondents. There is fallacy in the reasonsing of the learned Magistrate. The Master Plan has carved out Delhi in different zone and in the zone in which the property in question is located is obviously a residential zone as is evident from the Master Plan as proved by Public Witness 2 but the mere fact that no Zonal Development Plan has into existence does not mean that the persons using the land or a building falling in the said residential zone can put to use the land and the building for any purpose other than the residential in the hope that in case Zonal Development Plan comes into existence the said building or land can be incorporated in an area to be earmarked for commercial activities. The resort to permissible user in residential zones a contemplated on page 48 of the Master Plan can be had only where special permission has been taken from the DDA for using the particular land or building for such permitted user in the residential zone. No such permission has been taken by the respondents for putting theis building to nonconforming use. This point also siands settled in Delhi Development Authority v. National Tonnage Club of Farmers and another, 24(1983) DLT 211.

(3.) The next question which arises for consideration is whether the premises have been used for commercial purposes or not. The case set up by the prosecution was that a hotel was seen running in the said premises. The Magistrate on an appraisal of the evidence has given a finding that in fact only a lodging house was being run in the premises. The question which arises tor consideration is whether the running of the guest house in the said premises is a non conforming user or not. This point also stands settled by a Division Bench judgment of this Court in A. N. Shervani and another v. Lt. Governor & Others, 38(1989) DLT 357. In paras 16 and 17 the Division Bench has given various reasons which we need not reproduce, for coming to the conclusion that running of a guest house or a lodging house in a residential area is a commercial user and not a residential user. We agree with those reasons, It has been pointed out by the counsel for the appellant that in para 15 the Division Bench observed that Single Bench judgement of this Court given in the case of Bawa Holiday Home and another v. D.D.A., 1981(2) DLT (SN) 59, taking the view that ranning of guest house/lodging house is a residential use has been over-ruled by the Supreme Court by its judgment dated April 18, 1986 and by a judgement of this Court given in J.K. Katyal v. Lt. Governor, decided on July 27, 1989 wherein the running of a guest house is held to be a commercial activity. Be that as it may the reason given by the Division Bench in paras 16 and 17 for holding the view that running of a guest house or a lodging house is a commercial activity appear to be sound reasons and we agree with the same and hold that in a residential building or land the running of a lodging house/guest house is a non-conforming use.