DARSHAN LAL Vs. STATE

JUDGEMENT

(1.) The facts giving rise to this revision petition, in brief, are that the DDA/respondent No.2 filed a criminal complaint against Darshan Lal/petitioner, inter alia, alleging that it had been reported by its field staff vide report dated 23rd April, 1993 that the petitioner being proprietor of M/S Monica Engineering Company on 23rd April, 1993 had put to use 500 sq.ft. accommodation on the ground floor of building bearing No. 131, Old Gupta Colony, Delhi to a non-conforming use by running a manufacturing unit there. Said building falls in Development Zine C-17 and can be used only for residential purpose according to the Master Plan and Zonal Development plan of Zone C-17 as referred to in Section 14 of Delhi Development Authority Act, 1957 (for short the Act). Petitioner had thus committed offence punishable under Section 29(2) of the Act. In support of the complaint, the DDA examined R.S.Rajora/surveyor PW-1 and J.S.Rawat PW-2. In the statement under Section 313 Cr.P.C., the petitioner admitted the running of a manufacturing unit on 23rd April, 1993 under the said name on the ground floor of building No.131 as alleged. However, the defence taken by him as is manifest from the statements of DW-1 Bhanwar Singh, an official of Factory Licensing Department, MCD and DW-3 Ms. Neera Kharbanda, an Inspector in the Directorate of Industries was that he had a licence to run the manufacturing unit since 6th January,1976 and he had been running it since then in the ground floor portion of the said building. Petitioner was, however, convicted under Section 29(2) read with Section 14 of the Act and was sentenced to pay a fine of Rs.4,000.00 by the order dated 5th August, 1995 by a Metropolitan Magistrate. Criminal appeal being No. 99/95 taken out against that order by the petitioner was also dismissed by an Addl. Sessions Judge by the order dated 12th December, 1997 Feeling aggrieved, he has come up in revision.

(2.) It was contended by Sh.B.R.Saini appearing for petitioner that the petitioner had been using the ground floor of building No.131, Old Gupta Colony since January 1976 for commercial purpose and such user having commenced prior to the coming into force of Zonal Development Plan in May 81, the petitioner was entitled to carry on business as before in the absence of any rules and regulations framed by the DDA under the proviso to Section 14 of the Act. As a part of this submission, it was further urged by him that the DDA had failed to prove that the said building could be used only for residential purpose under the Master Plan and the conviction and sentence of the petitioner thus deserves to be set aside. Strong reliance was placed on the decision in M/s White Hill Vs. DDA & Ors., 30(1986) DLT 234. On the other hand, Sh. Vinay Sabharwal appearing for the DDA without seriously disputing the merit of the said former limb of argument, vehemently refuted the correctness of the latter limb of submission. Therefore, the short point which falls for determination in this petition is whether the DDA has been able to prove that the said building No.131 under the Master Plan which came into force in 1962 can be used only for residential purpose.

(3.) Out of the two PWS examined by the DDA, only the deposition of R.S.Rajora PW-1 is relevant. He deposed that on 23rd April, 1993 he inspected building No.131, old Gupta Colony and found a manufacturing unit under the name of M/s Monica Engineering Company functioning on the ground floor in an area of 500 sq.ft. Petitioner is the proprietor of said concern. He located aforesaid building at points 'X' in the Land Use plan Ex.PW-1/E and Zonal Development Plan Ex.PW-1/F. This building falls in Development Zone C-17 of the Master Plan and can be used only for residential purpose. It was not even remotely suggested to this witness in cross-examination that either the said building does not fall in Development Zone C-17 of the Master Plan or that according to Master Plan it can be used for a purpose other than residential. Further, as is manifest from the discussion made towards the end in para No.7 of the Appellate Court order dated 12th December, 1997, it was also not disputed on behalf of the petitioner before the Addl. Sessions Judge that the Master Plan did not permit the commercial use of the said building. Evidently, the petitioner had not disputed before the Courts below that according to the Master Plan said building could be put to use only for residential purpose. That being so, the petitioner cannot be permitted to say now that the DDA has failed to prove that the Master Plan prescribes the use for the said building for residential purpose only. In the full Bench decision of this Court in B.T. Menghni Vs. The DDA, Vikas Bhawan, New Delhi and Ors., AIR 1974 Delhi 159, it was held that if there is a user of any land or building otherwise than in conformity with either the Master Plan or the Zonal Development Plan or any of them after such plan has come into operation, it will be actionable under sub-section (2) of Section 29 of the Act. This legal position was approved by the Supreme Court in the decision in DDA, New Delhi Vs Smt. Lila D. Bhagat & Ors., AIR 1975 SC 495. Since the user of the ground floor portion of the building for running manufacturing unit by the petitioner had commenced much after the coming into force of the Master plan in 1962 which prescribes the use thereof only for residential purpose, the petitioner had violated the Master plan and he had thus been rightly convicted and sentenced under Section 29(2) read with Section 14 of the Act. Decision in M/s. White Hill's case (supra) is of no assistance to the petitioner. Petition thus deserves to be dismissed.