Delhi High Court
Delhi Development Authority vs K.P. Shankara And Another on 13 April, 1983
JUDGMENT Aggarwal, J.
1. This judgment shall also dispose of Criminal Appeals Nos. 131/76, 132/76, 263/76, 264/76 and 266/76 since they involve common questions of fact and law.
2. The respondent K. P. Shankara is the owner of the building bearing No. 11 Babar Lane, Bengali Market, New Delhi. On 17th February, 1973 the field staff of the Delhi Development Authority reported that the owner of premises bearing No. 11, Babar Lane was using the said building in contravention of the Master Plan of Delhi. After obtaining sanction for the prosecution on 1st June, 1973, the Secretary, Delhi Development Authority filed a complaint under Section 29(2) of the Delhi Development Act against the respondent. The allegation in Criminal Appeal No. 130 of 1976 is that the respondent had let out one room on the first floor, 11 Babar Lane, New Delhi to M/s. Payen & Co. who were using the said room as an office which is in contravention of the Master Plan. The allegation in the other complaints is similar, only the names of the tenants are different.
3. The respondent in his examination at the trial stated that he had filed a suit against M/s. New Delhi Traders Association (Criminal Appeal No. 131 of 1976) for their eviction and the said suit is pending in the Court of Shri R. Dayal. Regarding Messrs. Payen & Co. (Criminal Appeal No. 130 of 1976) the respondent stated that the said tenant was using the demised premises only for residential purpose. Regarding the tenant Messrs. Tag India (Criminal Appeal No. 266 of 1976) the respondent stated that he had served a notice on Mrs. Poorvi Pandey, Executive Director for vacating the premises and further had also filed a suit for eviction. Regarding Travel Advisers (Criminal Appeal No. 132 of 1976) the respondent stated that they had vacated the building soon after the receipt of notice from the Delhi Development Authority. Regarding the tenant Messrs. Datta Ram Advertising Private Limited (Criminal Appeal No. 263 of 1976) the respondent stated that on receipt of the notice from the Delhi Development Authority he gave notice to the tenant who had since vacated the premises. Regarding the tenant M/s. Oriental Travel Service (Criminal Appeal No. 264 of 1976) the respondent stated that he had given the Barsati floor to the said tenant in 1972 for office-cum-residence and that the dominant purpose was residence. Regarding the Monitoring Services (Criminal Appeal No. 265 of 1976) the respondent stated that they vacated the premises after the notice from the Delhi Development Authority.
4. The trial Magistrate on an appreciation of the evidence found that the building 11 Babar Lane under the Master Plan could only be used for residence and the respondent had permitted the under of the said premises for non-residential purpose; accordingly the Metropolitan Magistrate found the respondent guilty of the offence charged with and sentenced him to a fine of Rupees 1,500/- and in default of payment of fine simple imprisonment for one month, in Criminal Appeal No. 264 of 1976; to a fine of Rs. 1,000/- and in default simple imprisonment for 20 days, in Criminal Appeal No. 131 of 1976 to a fine of Rs. 600/- and in default simple imprisonment for 15 days, in each of the four other appeals to fine of Rs. 400/- and in default of payment of fine to simple imprisonment for 10 days.
5. Against his conviction and sentence the respondent-file appeal in all the cases. The appeals were heard by Shri D. C. Aggarwal, Additional Sessions Judge, who allowed all the appeals on 23rd September, 1975. The learned Additional Sessions Judge, who allowed all the appeal son 23rd September, 1975. The learned Additional Sessions Judge was of the view that Section 29(2) of the Delhi Development Act only punishes the actual user of the property and not the landlord or owner who had let out the premises or permitted the user in contravention of the the Master Plan. We may straightway say that the question whether Section 29(2) only applied to a persons who himself misused or also to the owner landlord who had permitted the misuse was considered in R. P. Kapur v. Delhi Development Authority, 1976. Rajdhani LR 189 : (1976 Cri LJ 1285), and the Bench after a consideration of the relevant sections of the Delhi Development Act, held as under :
"12. Section 14 of the Act prohibits a person not only from using the land himself in contravention of the Master Plan but also from permitting another to use the land. The question for consideration is whether having made such a prohibition under Section 14 of the Act, the intention of the Legislature was to penalise only the actual user of the land and not to penalise the person who permits another to use the land in contravention of the Master Plan. We see no valid reason for inferring such as intention on the part of the Legislature. The very purpose of the prohibition contained in Section 14 of the Act will be defeated if it can be circumvented by permitting another person to use the land in contravention of the Master Plan. A careful reading of the language of Section 14 and sub-section (2) of Section 29 of the Act supports this view. It has to be noticed that the provisions in the main part of Section 14 is a prohibition of the use of any land or building by a person otherwise than in conformity with the plan either (a) by himself or (b) through another person. Section 29(2) of the Act penalises a person who uses any land or building "in contravention of the provisions of Section 14", the said provisions (so far as the main part of Section 14 is concerned), being as land or building otherwise than in conformity with the plans either (a) by himself or (b) through another person. In other words. The main part of Section 14 contains a twofold prohibition and Section 29(2) penalises the contravention of the entire twofold prohibition in the main part of Section 14, i.e. both the contravention by himself and the contravention through another person. As the language used in Section 29(2) clearly brings out the said effect that was intended by the Legislature, the words "or permit to be used" were not repealed in Section 29(2). Thus sub-section (2) of Section 29 of the act applies not only to a person who uses the land in contravention of the Master Plan but also to a person who permits another to use the land in contravention of the Master Plan. This, in our view, is the only reasonable construction to be put on the words used in sub-section (2) of Section 29 of the Act."
6. We may add that one of us (R. N. Aggarwal J.) had the opportunity to consider this very point in two cases : Bhagwanti Malhotra v. Delhi Development Authority, 1973 Rajdhani LR 661 and Vijay Chand Jain v. Delhi Development Authority, Criminal Misc. (Main) No. 97 of 1969 decided on 23rd July, 1973 and in both the said cases it was held that any person using or permitting the use of any land or building otherwise than in conformity with the Master Plan or the Zonal Plan would be guilty of violating the provisions of Section 14 and liable to prosecution under Section 29(2).
7. In Shallinder Kumar Kaintal v. Delhi Development Authority. Criminal Revision No. 315 of 1973 decided on 20th January, 1975 Mr. Justice V. D. Misra (as he then was) went a little further and held that even if there was nothing to show that it was the landlord/owner who had permitted the misuse of the premises in terms of Section 14 but the evidence produced showed that the building is being used for commercial purpose, in that state of affairs it was for commercial purpose, in that state of affairs it was for the landlord/owner to explain the circumstances under which the building came to be used for a commercial purpose.
8. In view of the above discussed authorities, we have no hesitation in holding that the finding of the Additional Sessions Judge that Section 29(2) only punishes the actual user is not legally sound and cannot be sustained.
9. The learned counsel for the respondent raised a preliminary objection that the appeal is barred by time. Sub-section (5) of Section 378 of the Code of Criminal Procedure provides :
"No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal."
10. A reading of the above sub-section shows that where a complainant is a public servant the period of limitation is six months and in every other case the period of limitation in 60 days.
11. The contention of the counsel for the respondent is that in this case the complainant is the Delhi Development Authority, and therefore, the period of limitation would be sixty days and not six months. The counsel in support of his contention relied upon Delhi Development Authority v. Punjab National Bank, (1981) 19 Delhi LT 353. Mr. Justice Rohatgi who spoke for the Bench held that the Secretary of Delhi Development Authority was only acting in a representative capacity and that the Delhi Development Authority was the complainant within the meaning of Section 378(5) of the Code of Criminal Procedure, 1973 and, therefore, the period of limitation would be sixty days and not six months.
12. On the other hand Mrs. Kumar, learned counsel for the Delhi Development Authority contended that the Secretary who filed the complaint is a public servant within the meaning of Section 47 of the Delhi Development Act and, therefore, the period of limitation would be six months. The counsel relied upon a Division Bench judgment reported as Oriental bank of Commerce v. Delhi Development Authority, 1982 Cri LJ 2230 (Delhi) (Mr. Justice Rajinder Sachar and Mr. Justice M. L. Jain). In the said authority it has been held that both the Delhi Development Authority and the public servant who files the complaint will be consider complainant. The learned Judges in the judgment have notice the case Delhi Development Authority v. Punjab National Bank (supra).
13. We may mention that in the case D.D.A. v. Punjab National Bank (1981-19 Delhi LT 353), the Delhi Development Authority has gone in appeal to the Supreme Court and the Supreme Court has stayed the operation of the judgment. We are told that in the second case (Oriental Bank v. D.D.A.) also an appeal has been filed and is pending in the Supreme Court.
14. We have carefully considered both the judgments and we are inclined to agree with the view taken in the case Oriental bank of Commerce (1982 Cri LJ 2230) (Delhi) (supra).
15. For the reasons stated we set aside the order of acquittal and restore the order of the Metropolitan Magistrate dated 15th July, 1975. The respondent is allowed two weeks' time to deposit the find failing which he shall he taken into custody to undergo the imprisonment awarded to him in lieu of non-payment of fine.
16. Appeal allowed.