R.N. Aggarwal
(1) Smt Bhagwanti Malhotra was tried in the court of Shri G.S. Mann, Judicial Magistrate, Delhi, on a charge under section 29(2) of the Delhi Development Act. The Magistrate found the accused guilty of the offence charged with and sentenced her to a fine of Rs. 500.00 and in default of payment of fine to undergo simple imprisonment for three months. Again the order of the Magistrate, the accused want in revision to the Sessions Judge. The revision was heard by Sh.K.S.Sidhu, Additional Sessions Judge, who dismissed the revision petition. The
(2) The Delhi Development Act was enacted in the year 1957 and it extended to the whole of the Union Territory, Section 7 case a duty on the Authority to carry out a civic survey and prepare a Master Plan for Delhi. Sub-section (2) of section 7 provided that the Master Plan shall define the various Zones which Delhi may be divided into for the purposes of development and indicate the manner in which the land in each Zone is proposed to be used. Sub-clause (b) of sub-section (2) provided that the Master Plan shall serve as basic pattern of framework within which the zonal development plans of the various zones may be prepared. Sub-section (3) provided that the Master Plan may provide for any other matter which is necessary for the proper development of Delhi. Section 8 provided that simultaneously with the preparation of the Master Plan or as soon as may be thereafter, the Authority shall proceed with the preparation of zonal development plan for each of the zones into which Delhi may be divided. Section 9 and 10 provide for submission of plans to the Central Government for approval and for procedure to be followed in the preparation and approal of plans. Section 11 provides for the date on which the plans shall come into operation. Section 11A provides for the modifications to the Master Plan and the zonal development plans. Section 12 provides that as soon as may be after the commencement of the Act, the Central Government may, by notification in the Official Gazette, declare any area in Delhi to be a development area for the purposes of this Act. Sub-section (2) of section 12 provides that save as otherwise provided in this Act, the Authority shall not undertake or carry out any development of land in any area which is not a development area. The section further provides that after the commencement of the Act, no person or body (including the Government) shall carry out development in any area unless permission has been taken as provided therein. Sub-section (4) provides that after coming into operation of any of the plans in any area, no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans Section 13 provides that every person or body desiring to obtain the permission referred to in section 12 shall make an application in writing to the Authority in such form and containing such particulars in respect of the development to which the application relates as may be prescribed by regulations. Section 14 prohibits the user of land and buildings in contravention of plans. The said section reads as: -
'14,After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan : Provided thai it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force.'
Sections 15, 22A in Chapter V deal with acquisition and disposal of land. Sections 23 to 27 deal with finance, accounts and audit. Supplemental and miscellaneous provisions find place in Chapter VII. Section 29 deals with penalties. Section 29(2) of the Act, which makes the user an offence punishable with a fine, is as follows :
'(2)Any person who uses any land or building in contravention of the provisions of Section 14 or in contravention of any terms and conditions prescribed by regulations under the proviso to that section shall be punishable with fine which may extend to five thousand rupees and in the case of a continuing offence, with further fine which may extend to two hundred and fifty rupees for every day during which such offence continues after conviction for the first commission of the offence.'
Section 30 provides that where any development has been commenced or is being carried on or has been completed in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in Section 12 or in contravention of any conditions subject to which such permission, approval or sanction has been granted in relation to a development area, any officer of the Authority empowered by it in this behalf may, in addition to any prosecution that may be instituted under this Act, make an order directing that such development shall be removed by demolition etc. Section 31 provides for power to stop development.
(3) Shri Attri contended that in the Master Plan the zone in which the building in question is situated is indicated as 'residential' and the land having been built in conformity with the defined land user of the zone, no infringement of the Master Plan was made by putting the building to a use different from the defined land use. Shri Attri further contended that it was for the zonal development plan to specify the use of the building and the owner of it would fall within the ambit of Section 14 only if he used, or permits to be used, the building in contravention of the zonal plan.
(4) I have carefully read the provisions of Section 14 and, in my view, the language employed in Section 14 read with the other relevant provisions of the Act does not permit the interpretation sought to be given to it by the learned counsel. It is not disputed that with a view to regulate the development and use of land and building in Delhi, a civic survey of Delhi was carried out and a Master Plan was promulgated by the Authority under Section 7 of the Act. The Master Plan which came into force on 1st September, 1962, defines the various zones into which Delhi was divided for the purposes of development and indicated the manner in which the land in each zone was proposed to be used. The zone in which the building in question is situated was proposed to be used as 'residential'. The petitioner had let out the premises and permitted it to be used for commercial purposes. This is in contravention of the Master Plan.
(5) The contention of Shri Attri that the Master Plan only refers to the land use and not to the use of the buildings that may be constructed thereon has no merit. Section 2(1) provides that the expression 'land' shall have the meaning assigned to it in Section 3 of the Land Acquisition Act, 1894. Section 3 of the Land Acquisition Act defines the term 'land' as follows:-
'......(A)the expression 'land' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth......'.
(6) In my view, the definition of the term 'land' would include buildings. Section 14 prohibits the use of any land or building otherwise than in conformity with the Master Plan or the Zonal Plan. Section 7(2)(b) of the Act lays down that the Master Plan shall serve as the basic pattern of framework within which the zonal development plans of the various zones may be prepared. If the land use proposed in the Master Plan is residential, the zonal development plan could not convert the land use as commercial or industrial. A residential, industrial or commercial zone has to be provided with other amenities such as post office, park, recreation centre, shopping area etc. The object of the zonal development plan is to work out the details and provide for amenities essential to the development of a zone-keeping in view its proposed use. The land use in the zonal development plan roust conform to the land use provided in the Master Plan. Any person using or permitting the use of land or building otherwise than in conformity with the Master Plan would be guilty of violating the provisions of Section 14 and would render himself liable to prosecution under Section 29(2) of the Act.
(7) Shri Attri in support of his contention placed reliance on Municipal Corporation of Delhi vs . Kishan Dass, : [1969]2SCR166 . The facts of the cited case were that Kishan Dass and another were the owners of a building situated in the main Chawri Bazar, Delhi. As the building was an old Construction and required urgent and extensive repairs, on October 16, 1965 the owners submitted to the Municipal Corporation plans for its sanction for execution of work consisting of repairs, additions as well as alterations to the said building. The Commissioner of the Corporation informed the owners that their applications for execution of construction work in respect of house nos. 376 to 377 had been refused on the grounds 'that the proposal was under acquisition and also effected in the 'Row' and the land was residential against proposal of commercial'. The owners filed a petition in the High Court under Article 226 of the Constitution praying for the issue of an order or direction in the nature of mandamus directing the Corporation to accord sanction to the plan for execution of work in respect of the building as per their application of October 16, 1965. The contention of the owners was that it was incumbent on the Commissioner of the Corporation under section 566 of the Delhi Municipal Corporation Act, to sanction the plans of a building or execution of a work unless such a building or work contravened any, of the provisions of sub-section (2) of section 366 or section 340 of the Corporation Act. It was stated that the plans submitted by them did not contravene any of the provisions of sub-section (4) of section 366 or section 340 of the Corporation Act and that the order of the Commissioner refusing to accord sanction was illegal and ultra vires. On behalf of the Corporation it was contended that the plans submitted by the respondents did not conform to bye-laws and contravened section 366(2)(a) in respect of the land use and section 340(2) with respect to requisitioning of land by the Delhi Development Authority for their scheme and that the plans were also affected by road widening. The writ petition was allowed by the High Court. Against the judgment of the High Court the Corporation went to the Supreme Court. Before the Supreme Court, the Solicitor General for the Corporation had sought to support the order of the Commissioner on the ground that the plan submitted by the owners was affected by the proposals contained in the master plan in respect of the widening of the road in the area in question. Their Lordships, while dealing with the contentions raised before them, held:-
'IT is certainely not the scheme of the Development Act that the moment a Master Plan has come into operation and if it contains a proposal regarding the width that a road should have, all use of land adjoining the road is prohibited for an indefinite period. The reasonable interpretation, thereforee to be placed on Section 14 will be that if any particular and definite use of land is indicated in a Master Plan, a different use of that land cannot be permitted. Similarly, if a Zonal Development plan provides for a particular use of any land or any building in that Zone, it cannot be put to a different use. If neither of the plans provide for the particular use of any land or building in the area or zone, Section 14-will have no application whatsoever.'
I have carefully gone through the cited authority and, in my view, it is of no help to the petitioner. Their Lordships while interpreting section 14 have observed that if any particular and definite use of land is indicated inthe Master Plan a different use of that land cannot be permitted. In the case in hand, the land use provided in the Master Plan is 'Residential'. The petitioner was given permission to build a residential house. The use of such a building for a purpose other than that allowed in the Master Plan would be a violation of section 14.
(8) Shri Attri next relied upon Faqir Chand vs . Ram Rattan Bhanot, : [1973]3SCR454 . In my view, this authority is also of no help to the petitioner. The facts in that case were that the respondents in the appeal had taken plots of land on long lease from the Delhi Improvement Trust. Under the terms of the lease the lessees were to put residential buildings on the leased lands and the lessees undertook 'not to use the said land and buildings that may be erected thereon during the said term for any other purpose than for the purpose of residential house without the consent in writing of the said Lesser; provided that the lease shall become void if the land is used for any purpose other than that for which the lease is granted not being a purpose subsequently approved by the Lesser.' The landlords contrary to the terms ofthe lease, leased out portions of the buildings for commercial purposes. The Delhi Development Authority gave notice to the landlords drawing their attention to the provisions ofthe lease and that as they had permitted the buildings to be used for commercial purposes contrary to the terms of the lease deed, the lease was liable to be determined and called upon them to discontinue the use of the land for commercial purposes, failing which they were asked to show cause why their lease should nor be determined and the land, together with the buildings thereon, re-entered upon. without any compensation to them. Thereupon the landlords issued notice to the tenants asking them to stop the commercial use of the buildings. On the failure of the tenants to do so, the landlords filed petitions under the Rent Control Act for their eviction. The Controller dismissed the petitions filed by the landlord and the appeals filed by them were also dismissed. The landlords came in appeal to the High Court. A Division Bench of the High Court consisting of Chief Justice Hardayal Hardy and Mr. Justice V.S. Deshpande, held that the landlords are not estopped from getting possession of the property from the tenants for the reason that they themselves had let it out for commercial purposes. The tenants were given three months time to bring their user in conformity with condition No. 1 (vi) of the lease given by the Improvement Trust to the landlords, and on their failure to do so an order for their eviction shall be passed by the Controller on being moved to do so by the landlords after notice to the tenants. Against the judgment of the High Court, the tenants went in appeal to the Supreme Court. The question that arose for decision before the Supreme Court was: 'Are the landlords estopped or otherwise prohibited from getting possession of the property from the tenants because they themselves had let it out for commercial purposes ?' Their Lordships answered the question against the tenants. In the course of their judgment, their Lordships had made certain observations in para 12 with regard to the applicability of section 14 of the Delhi Development Act. On a review petition by the Delhi Development Authority, their Lordships vide their order dated March 26, 1973 deleted para 12, except the last sentence in that paragraph, and the first sentence in para 13. Their Lordships held that in their opinion Section 14 of the Delhi Development Act had no relevance in deciding the question at issue in the case. I have carefully pursued the judgment of their Lordships and, in my v;ew, it is of no help in deciding the points in controversy in the case in hand.
(9) Shri Attri next contended that the expression 'any of the plans' in section 14 of the Act means both the Master Plan and the Zonal Plan and there being no Zonal Development Plan, prosecution section 29(2) is not legal. This argument has not appealed to me. Sections 9(1) provides that in that section and sections 10, 11, 12 and 14 the word 'plan' means the master plan as well as the zonal development plan for zone. The expression in section 14 'after the coming into operation of any of the plans in a zone' has reference to Master Plan as well as Zonal Plan and not to both the plans together. If any person uses or permits to be used any land or building otherwise than in conformity with the Master Plan or the Zonal Plan, he would be violating section 14. This conclusion is clear from the expression in Section 14 'otherwise than in conformity with such plan'. The word 'such' has reference to the Master Plan as well as the Zonal Plan. For the foregoing reasons, I am of the view that the petitioner having used the building for a purpose other than permitted by the Master Plan had violated section 14 and rendered herself liable to prosecution under section 29(2) of the Delhi Development Act.
(10) Shri Attri next contended that there was no proper sanction for the prosecution of the petitioner under section 20 of the Delhi Development Act. The counsel in support of his contention relied upon Gokalchand Dwarkadas Morarka vs . The King , and Som Nath v. Union of India, : 1971CriLJ1422 . In the first case relied upon by the counsel, the Privy Council held :
'Asanction which simply names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is not a sufficient compliance with clause 23. In order to comply with the provisions of Cl. 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the fact should be referred to on the face of the sanction, but this is not essential since cl. 23 does not require the sanction to be in any particular form. nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction: the prosecution must prove by extraneous evidence that those facts were. placed before the sanctioning authority. The sanction to prosecute is an important matter ; it constitutes a condition precedent to the institution of the prosecution and the government have an absolute discretion to grant or withhold their sanction. They are not concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Where facts are not referred to on the face of the sanction nor is it proved by extraneous evidence that they were placed before the sanctioning authority, the sanction is invalid, and the trial Court would not be a Court of competent jurisdiction. This being so, the defect cannot be cured under S. 537 Criminal P.C., as defect in the jurisdiction of the Court can never be cured under S. 537.'
The same view was taken in Som Nath (Supra) by the Supreme Court.
(11) The rule of law laid down in the cited cases appears to be now well settled. Ex. Pd is the order granting sanction for the prosecution of the petitioner and is in the following terms :- (...)
(12) There is no doubt that the order Ext. Pd granting sanction for the prosecution of the petitioner does not show that the facts constituting the offence with which the petitioner was proposed to be charged were placed before the concerned authority. However, on a perusal of the record, I find there is material on the record that the facts constituting the offence were before the authority granting the sanction. In the case in hand the authority that had granted the sanction for the prosecution is also the complainant. The complaint Ex. P.E is signed by the Secretary, Delhi Development Authority and this was the authority that had granted the sanction under section 49(1). The complaint Ex. P.E and order Ex. P.D are of the same date. On these facts the argument that there was no valid sanction cannot be accepted. In Mohanlal Ram Singh Thakur v. Chief Executive Officer : AIR1962MP17 , on similar facts Mr. Justice Sen held that sanctioning authority and complaining authority being same, no separate sanction was necessary. The argument that there was no proper sanction was not raised before the courts below. Even otherwise I find no merit in this contention. (P.L. Bhandari, Adv.)