DELHI DEVELOPMENT AUTHORITY Vs. AMAR AUTO WORKS

JUDGEMENT

(1.) This appeal has been preferred by the DDA against the order of acquittal passed by the learned Magistrate dated 19th September, 1990. The indictment against the respondent/accused is that it was using premises bearing number 19-20 Corner, Malviya Nagar, New Delhi. It was found that auto repairr under the name and style of M/s Amar Auto Repair was functioning there, in flagrant disregard of provision of Master Plan, which came into force on 1 st September, 1962. According to which, the said property could be used only for residential purposes. Braham Parkash, Surveyor, DDA vide his report dated 15th March, 1984, proved on record as Ex. PW I/A, reported that the premises in dispute were being used for non conforming purposes, by the respondent, a partnership firm. Show-cause notices proved on the record as Ex. PW 1/B, PW 1/C and PW1 D were issued. In his cross-examination Braham Parkash conceded that he had not seen the house tax record. He could not say when the premises were being used for commercial purposes. He could not say whether in the year 1961-1962 the premises in question were being used for commercial purposes. However, the appellant launched a prosecution under Section 14 read with Section 29(2) of Delhi Development Act, 1957 against the respondent.

(2.) Before the trial Court, in order to scrub the charge, the respondent produced copy of the house tax assessment register for the year 1955-1959 Ex. DA, which depicts that there was a wooden shop in premises bearing number 1913-A and 1914. Respondent has also filed a certified copy of Delhi Municipal Corporation record Ex. DY, according to which premises bearing numbers 1913-A and 1914 (Old numbers) and premises bearing numbers 19 & 20 are the same as per D.C. Register for the year 1987-1988. Consequently, the learned Metropolitan Magistrate exonerated the respondent of the above said offence.

(3.) I have heard learned Counsel for the parties. The learned defence Counsel did not pick up a conflict with the above said documents marked as Ex. DA and Ex. DY. These are otherwise per se admissible in evidence under the MCD Act. The argument urged by the learned Counsel for the respondent has the following three prongs. He vehemently argued that onus of proof as per Proviso appended to Section 14 of DDA Act, 1957 and Section 105 of Indian Evidence Act is upon the respondent. He also argued that as per proviso appended to Section 14, the respondent is also liable to prove the extent of the premises i.e. the extent of space, which is meant for commercial purposes. Secondly, he submitted that the respondent/accused has changed the user of premises in question. Lastly, it was pointed out that, although, the respondent has proved that he was using the property in dispute for commercial purposes till 1959, yet the Master Plan came into force w.e.f. 1st September, 1962. He urged that there is no evidence on behalf of the respondent showing that from 1959 till the date of master plan came into force, the above said property was used for commercial purposes.