K L BHAGI Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) On 14th January 1985 this petition was listed at No. 6. Earlier when this petition came to be admitted the court also had directed early hearing. Obviously, it was done at the request of the counsel for the petitioner. On 15th January 1985, the petition was listed at No. I but since the petitioner's counsel failed to turn up it was again listed. Unfortunately, even today, neither the petitioner nor his counsel has appeared. In these circumstances I have heard Mr. Makhija, counsel for Delhi Development Act.

(2.) The controversy in this petition falls within a very narrow compass in as much as the grievance of the petitioner is that he was earlier also prosecuted on the basis of the same set of facts and under the same Act for the same offences in respect of the same premises before Shri M.L. Sahni, Metropolitan Magistrate, Delhi, which case was dismissed and in which case he was acquitted on 26-8-1982. The respondent, however, initiated fresh prosecution against the petitioner in respect of the same premises under sections 14 and 29 of the Delhi Development Act 1957 and the allegation against the respondent is that he has permitted the premises, building bearing No. A-6, C.C. Colony, to be put to non-conforming use. It is stated that on the basis of similar allegations the petitioner was acquitted earlier on 26-8-1982 Mr. M.L. Sahni, M.M., Delhi and that the respondent was debarred from prosecuting the petitioner under section 300 Cr.P.C.

(3.) The stand of Delhi Development Act is that at the time when earlier prosecution was initiated the Zonal Development Plan had not come into force. Admittedly, the Zonal Development Plan came into force on 29/29th May 1981 and the previous prosecution initiated against the accused was filed in the year 1980. It would be seen that earlier the case was dismissed and the accused acquitted, on the ground that the building in question falls in built up colony and that the petitioner were issued a licence for storage of cloth in 1980 by the Municipal Corporation in the name of M/s. Darbar India with effect from 1-4-1976 and this licence was valid upto 1-3-1980. This position is not controverted by Mr. Makhija. Mr. Makhija's proposition is that at the time when the previous prosecution was initiated against the petitioner. Zonal Development Plan had not come into force and as per the provisions at page 45 of the Master Plan, pending preparation and enforcement of Zonal Development Plan, Municipal Committee was authorised to permit ad-hoc use of premises in such built up colonies. The position as depicited at page 45 of the Master Plan is clear in as much as, since it was thought that the preparation of Zonal Development Plan and the enforcement therfor was likely to take some time, the necessity for making an ad-hoc arrangement was recognised and that made it necessary to invest the local municipal authority with the power to permit ad-hoc use of such property. It was obviously a temporary hase, and any such non-conforming use permitted by M.C.D. was automatically to come to an end once the Zonal Development Plan comes into force. The only rider seems to be that in the preparation of Zonal Development Plan the land use proposals prepared by the local authorities should form the basis for the permitted land use of such area. The present prosecution against the petitioner was initiated by a complaint dated 28th October 1980, obviously, long after the Zonal Development Plan came into force. That should put an end to the controversy. The earlier acquital of the petitioner was the result of the observations of the court that the nonconforming use of the premises by the petitioner was authorised. After the Zonal Development Plan came into force the admitted position is that the land use of the premises is residential and the ad-hoc authority granted to the Municipal Committee is no more in existence. The authority to permit ad-hoc use has also ended by the enforcement of the statute. That makes it a case which has come into existence on altogether different set of facts and in different circumstances. There is no infringement of section 300 Cr.P.C. The order impugned as such is patently correct arid legal. The petition as such is dismissed. The stay order granted earlier on 22nd October 1984 be vacated. A copy of the order be communicated to the court below. Petition dismissed the question whether a conviction could be recorded under section 7 read with section 16 of the Prevention of Food Adulteration Act even if, a quantity smaller than that required by the Rules to be sent for analysis is sent for the purpose of analysis to the Public Analyst. That question was decided long back in State of Kerala v. Alosserry Mohamrnad (1978)2 SCR 920. Therefore, though the view taken by the courts below is unsupportable, we do not propose to interfere with the ultimate order passed by them.