Delhi Development Authority vs H.S. Kalra and Another

D.R. Khanna, J.

(1) The facts giving rise to this appeal moved by the Delhi Development Authority against the acquittal by Shri Gulab Tulsiani. Metropolitan Magistrate of H. S. Kalracharged u/s 29(2) of the Delhi Development Act (hereinafter referred to be "the Act") are in a narrow compass, and are not much disputed. Premises bearing No. 806. Arjun Nagar,Kotia Mubarakpur, New Delhi, falls within the residential zone as per Master Plan of Delhi, brought into vogue from 1962.A part thereof was being used as a store of a co-operative society. The same being not for residential purpose, had to be treated as non-conforming use under the Master Plan. Before the trial ''court, a certificate from the Assistant Special Registrar of the Co-operative Society Delhi was. tendered which showed that the premises was being used for commercial purpose from 1949.

(2) That apart, a portion of that premises which was being so used for commercial purpose, was given over to the respondentH. S. Kaira, in the year 1968, and he started running a scooter repair shop there.

(3) The Delhi Development Authority, Therefore, commenced prosecution against H. S. Kaira by filing a complaint u/s 29(2) of the Act. It was alleged that he had in contravention of the provisions of section 14 of the Act, had started using the premises for commercial purpose while it could be put to residential use only. The trial court, however, vide its judgment dated 4-6-1975, acquitted the respondent holding that the premises was being used for commercial purpose from 1949.

(4) Section 14 of the Act which was stated to have been violated by the respondent is to the following effect :

"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 inconformity with such plan :Provided that 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."

(5) It is not disputed that so far as the main provision in this section is concerned, the respondent had committed a breach thereof ,and he could be punished u/s 29(2) of the Act. From his side, however, shelter is taken under the proviso to this section and it is asserted that when it has been established on record that the premises was being used for commercial purpose from 1949, which was much before the commencement of the Master Plan. no offence could be treated to have been committed. It has been urged that this proviso which operates asan exception to the main provision contained in section 14 of the Act, renders it lawful to use, upon such terms and conditions as may be prescribed, any building for the purpose and to the extent it was being used on the date on which the Master Plan came into force. The words "the purpose and to the extent for "in this proviso, it is pleaded have reference to non-conforming purpose, viz. residential or commercial, as the case may be, and the word "extent" has implication of the area which was earlier being used for that purpose. Now that it has been proved on the present record that since 1949, the premises was being used for commercial purpose, simply because in a portion thereof a .scooter repair workshop was commenced from 1968, wouldn''t render the user as different from the one carried on earlier.

(6) From the side of the Delhi Development Authority on the other hand, it has been asserted that-the object of introducing the proviso in section 14 of the Act was to not disturb users which had been existing from before the coming into force the Master Plan, and thus to that extent status quo subject to the regulations framed was allowed to be maintained. In the present case, however, it is .pointed out that from 1968 a different purpose and user was introduced when a portion of the premises was converted into a scooter repair workshop from that of cooperative society store. The words "for the purpose and to the extent for"it is pleaded, necessarily postulate that the non-conforming use which ,existed prior to 1962 must continue for the same purpose, and in the present case this was the running of the cooperative store .The introduction of the scooter repair workshop changed that purpose and extent of use, and since this took place in 1968.much after the coming into force of the Master Plan, the proviso was not attracted, and the user could not be treated as permissible or legal.

(7) We have heard the parties and give our due consideration to all the circumstances. So far as the applicability of the proviso to section 5 of the Act, it has been held by a Division Bench of this Court in Criminal Appeal No. 275 of 1976 (Delhi Development Authority v. Sardar Ganga Singh) decided on 11-7-1980.that there was no pre-requisite to its applicability that regulations as mentioned in the proviso should have been framed. A person is ,Therefore, entitled to seek its protection by simply showing that before 1962 the premises was being put to non-commercial use. Adverting Therefore, to the implications of the words'' for the purpose and to the extent for" we are of opinion that the broader context sought to be placed by the respondent cannot be said to be an interpretation not permissible of this proviso. The "purpose "can be treated as one residential or commercial, and the word "extent" can have reference to the area, size of volume of the user. In this view of the matter, once a promises is shown to have been used for commercial purpose from before 1962,simply because the nature of that purpose is changed into another one ,though retaining the commercial character, would not amount to deviation from the purpose. The basic commercial user remains. It may be that on a narrow interpretation placed upon the words "for the purpose and to the extent for", violation of section 14 of the Act can be deduced even where there occurs a change in the nature of one commercial user to another commercial user. We would, however, prefer to adopt the former interpretation .In any case, when criminal or quasi-criminal lability is sought to be imputed on the basis of provisions of law which are capable of two reasonable ''interpretation, the one favorable to the accused must prevail.

(8) We are, Therefore, unable to interfere in this acquittal. The appeal is rejected. Before concluding, we must adversely comment upon .the slipshod manner in which the judgment of the trial court has been written. There are grammatical mistakes and certain sentences do not make much sense. The learned Metropolitan Magistrate should have duly looked into the judgment when it was put before him after typing, and made appropriate corrections where they were required.