DELHI DEVELOPMENT AUTHORITY Vs. KANTI LAL SUDH

JUDGEMENT

(1.) One Kanti Lal Sudh and Adhikari Lal Sudh residents of D-33, N.D.S.E. Part II, New Delhi, came to be prosecuted for contravention of section 29 (2) of the Delhi Development Act, 1957, before the court of Shri Gulab Tulsiani, Metropolitan Magistrate who after trial gave benefit of doubt to the accused, dismissed the complaint and acquitted them. Aggrieved by this order of acquittal the Delhi Development Authority has come in this acquittal appeal.

(2.) For purposes of convenience we may reproduce brief facts which are that by a report it was brought to the notice of the appellant on 20-5-74 that the aforesaid respondents on or around January 1973 had permitted to be used a building bearing No. D-33, N.D.S.E. Part II, New Delhi to a nonconforming use inasmuch as the office of Kanti Lal & Co. was being run therein. The case of the appellant is that the land/building falls in zone F-3 and it can be used only for residential purposes in accordance with the Master Plan or Zonal Development Plan formulated in respect of this zone. The accused, in short, came to be prosecuted for contravening the provisions of Master Plan or Zonal Development Plan of Zone F-3 as referred to under section 14 of the Delhi Development Act 1957 and made punishable under section 29(2) of the said Act. It would be seen that no dispute was raised in respect of the existence of Resolution No. 8 dated 15-1-58 of D.D.A. authorising the Secretary to institute legal proceedings on behalf of DDA and to grant of previous sanction as required by section 49 of the said Act. A Nofication under section 52 of the said Act had also been filed before the court below.

(3.) At trial two witnesses have been examined by the complainant while the respondents also examined two witnesses in defence. We have heard Mrs. Usha Kumar on behalf of D.D.A. while nobody appeared for the respondents. We have carefully considered the point arising for our decision. The learned trial Magistrate in the operative portion of his order has observed that it is also the case of the complainant that only a ground floor is used for office purpose and the dispute is only whether one room on the ground floor is being used for office purpose being professional man or the whole ground floor as stated by Public Witness 2 Shri Shamim Haider. On examination of this question the learned Magistrate held that it would be unsafe to rely on the sole testimony of Public Witness 2 Shri Shamim Haider in the absence of any corroboration which could have been lent to his version by the persons from whom he had purportedly enquired and who have not been examined. On the basis of this observation the learned Magistrate placing reliance on documents Ext. DW1/A and Ext. DW1/B has jumped to the conclusion that it does create a doubt about the guilt of the accused. The learned Magistrate further goes to state that Public Witness 2 being an interested witness of the complainant does not sufficiently establish the fact that the premises is being used for purposes which otherwise are prohibited under the development plan of the zone. On the basis of evidence led before the learned Magistrate he seems to have concluded that since one room was being used for purposes of professional office by the accused in the ground floor of the premises such use would not constitute contravention in view of the documents Ext. DW 1/A and Ext. DW 1/B.