D.D.A Vs. RAJIV KHURANA

JUDGEMENT

(1.) By the present appeal, the appellant challenges the judgment of the Metropolitan Magistrate passed on 01.03.1999 acquitting the respondent of the offence charged under section 29(2) of the Delhi Development Act, 1957, hereinafter referred to as the "DD Act".

(2.) The facts are these. On 01.03.1995, the surveyor of DDA, Shri D.D. Tyagi inspected premises bearing No.A-7, Kirti Nagar, Delhi and found that a furniture showroom under the name and style of M/s. Khurana Furniture was functioning in the ground floor in an area of about 2500 sq. yds. The premises fell in Development Zone No.G-2 of the Master Plan for Delhi and, therefore, could have been used only for residential purposes. There was thus a violation under section 14 of the DD Act, which was punishable under section 29(2) of the said Act. However, before launching prosecution for the violation, sanction for the prosecution had to be obtained as required by section 49 of the DD Act. The sanction was accordingly obtained and a complaint was filed in the court. In support of the complaint, two witnesses were examined by the complainant. The statement of the accused was also recorded under section 313 of the Cr.P.C. He, however, did not lead any witness in his defence.

(3.) A preliminary point which was raised before the Magistrate was to the effect that the prosecution was bad on account of the fact that there was no valid sanction for the same under section 49 of the DD Act since the sanctioning authority had not applied its mind to the facts and circumstances placed before it. This point appealed to the Magistrate. According to him the complaint was filed against the respondent in his capacity as proprietor of M/s. Khurana Furniture on the ground that he was found using the premises for commercial purposes ever since 19.05.1979 when M/s. Khurana Furniture, which was a partnership firm at that time, was convicted by the Metropolitan Magistrate for running a furniture showroom in violation of the Master Plan. The Metropolitan Magistrate in the impugned judgment has also noted that the sanction for the prosecution was granted on the basis of the inspection report dated 01.03.1995, that it was totally silent about the previous conviction of the firm on 19.05.1979 and that it was also silent about the continuing nature of the offence from that date. In these circumstances he held that the complaint cannot go beyond the sanction, but has to conform to it. After noticing the provisions of section 49 and a few authorities on the question of the requirements of a valid sanction for prosecution, he held that the complete facts about the earlier conviction and the continuous misuse of the premises were not placed before the sanctioning authority and, therefore, the complaint, in as much as it proceeds on the basis that the accused is liable to be convicted and fined under the later part of the section 29(2) of the DD Act was invalid and incompetent. He accordingly quashed the complaint and acquitted the respondent of the offence.