Dena Bank and ors. Vs. Delhi Development Authority - Court Judgment

Excerpt:
the case dealt with an application filed under order 41 rule 27 for the producing the additional documents - the lower appellate court, had dismissed the application - however, it was observed that the documents were authentic - an appeal was filed against the order of the lower appellate court - in view of the facts, appeal was allowed with direction to metropolitan magistrate to record additional evidence - - the building is situated in zone ii which includes residential, commercial as well as industrial user. (5) by way of filing the application, the petitioners wanted to bring and prove on record the agreement of lease dated 14-1-71 between the lesser and the bank as well as the notification dated 27-1-71 showing the opening of their branch at najafgarh road, new delhi.m.k. chawla, j.(1) on the complaint of the delhi development authority u/s. 29(2) read with section 14 of the delhi development act, accused no. 1 dena bank and accused no. 2 shri c.v. garg, the branch manager were prosecuted, convicted and sentenced to pay a fine of rs. 1500.00 each by the order of shri j.p. sharma, metropolitan magistrate, delhi, dated 7-7-1980. by the same order, in case of default of accused no. 2, he was further directed to undergo s.i. for three months and on default of payment of fine by accused no. i, warrants of attachment were directed to be issued against it. in appeal. the order of the metropolitan magistrate was maintained by shri p.s. sharma, addl. sessions judge, delhi, on 7-2-83. (2) in the present revision petition, the petitioners have not only challenged the correctness of the findings of the courts below but have also made a grievance of the dismissal of their application for adducing additional evidence, by the appellate court. (3) the first and the foremost contention of the learned counsel for the petitioner is that by way of filing the application for adducing additional evidence, their intention was to bring on record the documents, the genuineness and authenticity of which was beyond impeachment. by these documents, the petitioners would have brought their case within the purview of proviso to section 14 of the delhi development act. the summarily dismissal of their application has resulted in miscarriage of justice and has prevented them to place the full material before the court. the respondent has opposed the prayer by alleging that the intention of the petitioner in moving the application was to prolong the disposal of their appeal. further more, even if the application is allowed, that will not have any material bearing on the conclusion of the courts below. (4) the case set up by the d.d.a. in their complaint in brief is that m/s. dena bank and its manager are running a bank in property bearing no. a-3. kirti nagar, new delhi, whereas the building could only be used for residential purposes according to the master plan and zonal development plan. this building falls in zone c-ii. the defense of the appellant-respondent is that the bank is being run in the property in dispute for the last many years. the building is situated in zone ii which includes residential, commercial as well as industrial user. there is no contravention of the provisions of the delhi development act, as alleged. (5) by way of filing the application, the petitioners wanted to bring and prove on record the agreement of lease dated 14-1-71 between the lesser and the bank as well as the notification dated 27-1-71 showing the opening of their branch at najafgarh road, new delhi. (6) the contention of the learned counsel for the petitioner is that these two documents came into existence much prior to the coming into force of the zonal plan. if this application had been allowed, the complaint of the d.d.a. would have been dismissed summarily. there appears to be much substance in the submission of the learned counsel for the petitioner, it is not disputed that the zonal development plan of the area in dispute came into force w.e f. 26-10-74. as per the evidence of pw-2, shri satish sharma, assistant engineer, the demarcation of the residential, commercial and industrial areas came into force on the coming into existence of the zonal development plan. before that, according to the master plan, the whole area was earmarked as residential. he goes on to admit that from the plan ex. pw-2/a, he will not be in a position to demarcate the portions which were brought under residential, commercial or industrial use. however, according to him, the building in which dena bank is situated falls within the residential area. it may be that in the complaint itself, the user prescribed under the zonal development plan and the master plan is shown as residential but one cannot lose sight of the fact that the bank was doing its business much before the coming into existence of the zonal development plan. at this stage, i do not propose to express any opinion as to what will be the effect on the conclusion of the courts below if the petitioners are allowed to bring on record and prove the two material documents, but i do not propose to deprive them of their right to place the relevant material before the court. for the present, the authenticity of the documents cannot be doubted. in view of these circumstances, to my mind, it is a fit case in which the lower appellate court should have allowed the petitioners to summon, prove and produce on record the additional evidence. at least it would have given them the satisfaction of placing the relevant material before the court, of whatever worth they may be. (7) as a result of the above discussion, i accept the appeal, set aside the order of the first appellate court and remand the proceedings back to the court of the learned metropolitan magistrate with the direction to record the additional evidence and forward the case to the first appellate court for rehearing of the appeal. the case be disposed of at the earliest convenience of the court concerned.