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PETITIONER: SMT. MUKUL RANI VARSHNEI & ORS.

       Vs.

RESPONDENT: DELHI DEVELOPMENT AUTHORITY & ANR.

DATE OF JUDGMENT19/09/1995

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) MUKHERJEE M.K. (J)

CITATION:  1995 SCC  (6) 120        JT 1995 (6)   681  1995 SCALE  (5)456

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The appellants  let out the property in question to M/S Tufted Carpets  and Woolen  Industries Limited (subsequently the name  of the  tenants was  changed  to  M/S  Trans  Asia Carpets  Ltd.)  in  July,  1978.  The  tenants  applied  for permission to  respondent No.1,  for using the said property for commercial  purposes, known  as non-conforming  purpose. Permission was  granted and  extended from  time to  time by respondent No.1 till September 1981, though the tenants kept representing to  the authorities  for extension  of time  to stop the  use of  the premises  for commercial  purposes. In January, 1983  the appellants  received a  show cause notice dated 3rd December, 1982 from respondent No.1 asking them to show cause  as to  why they  should not  be  prosecuted  for violating Section  14 of  the Delhi  Development  Act,  1957 (hereinafter referred  to as the Act) on the ground that the appellants had  permitted the tenant-company to use the said property in  contravention of  the provisions  of the Master Plan and the Zonal Development Plan of Delhi. The appellants replied to  the show  cause notice  stating that they had no information that  the  tenant  was  using  the  property  in contravention of  the plan  without permission of respondent No.1 and  asserted that they had not given any permission to the tenants to use the property for non-conforming purposes. The appellants  were, thereafter,  asked by  respondent No.1 that  the  tenants  should  be  stopped  from  misusing  the property within  15 days from the date of the communication, failing which  prosecution under  Section 29(2)  of the  Act would be launched against the appellants. This communication from  respondent   No.1  is  dated  24th  March,  1983.  The appellants once  again through their letter dated 12th April 1993,  controvered   the  allegations   contained   in   the communication and  reiterated what  they had  stated in  the reply to the show cause notice. They also, on the same date, through their  counsel sent  a notice  to the tenant calling

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upon it  to immediately  stop  the  commercial  use  of  the property. While  the matter  rested  thus,  prosecution  was launched against  the appellants for violation of Section 14 of the  Act punishable  under Section  29(2) of the Act. The learned  trial  Magistrate  convicted  the  appellants  vide judgment  dated  1st  April  1985  and  imposed  a  fine  of Rs.1500/- on  each of  the four  appellants. The  appellants preferred an  appeal against  their conviction  and sentence before the  Additional Sessions Judge, New Delhi but without any success  and their  appeals were  dismissed on 17th July 1989. The  revision petitions filed by the appellants before the High  Court were  dismissed in  limine. By special leave granted by this Court, the appellants are before us.      We have  heard learned  counsel  for  the  parties  and perused the record. Section 14 of the Act provides:      "14. User  of   land  and  buildings  in      contravention  of   plans  -  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 plant:           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."      From a  bare reading of the Section, it is obvious that a person  can be  said to  violate the  Plan, if  he uses or permits to be used the property otherwise than in conformity with the  Master/Zonal Plan.  The  allegations  against  the appellants is  that they had permitted the tenant to use the property for  commercial purposes in violation of the Master Plan.      There is  no legal  evidence led  by the prosecution to show that  the appellants  had permitted  the property to be used by  the tenant in violation of the Master Plan for non- conforming purposes. The only witness who appeared on behalf of the respondent before the trial court in support of their case, Shri  Shamimudeen, Junior  Engineer, DDA, PW2, deposed that the  tenant had  told him that he had been permitted by the appellants  to use the property for commercial purposes. This is  hear-say evidence  and clearly  not admissible. The tenant was  not examined  as a  witness  in  the  case.  PW2 expressed total  ignorance as  to  whether  the  tenant  was actually using  the property as commercial property with the permission  of  the  landlord  or  not.  No  other  oral  or documentary evidence  was led  in support  of the allegation against the  appellant. Thus,  in the  absence of  any legal evidence to  show that  permission had  been granted  by the appellants  to   the  tenant   to  use   the   property   in contravention of  the Master  Plan,  no  conviction  of  the appellants could have been recorded by the trial court.      The courts  below thus  fell in error in convicting the appellants without any legal evidence on the record.      The appeal  consequently succeeds.  The conviction  and sentence of  the appellant  is set aside and they are hereby acquitted. The  fine which  has been  paid by  the appellant shall be refunded to them.

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