JUDGMENT
Malik Sharief-Ud-Din, J.
(1) This appeal is directed against the order dated 9th of October 1980 of the learned Metropolitan Magistrate by which he dismissed a complaint under Section 29(2) read with Section 14 of the Delhi Development Act and acquitted the respondent who was accused of the commission of the crime.
(2) The brief facts are that on 9th of October 1978 the field staff of the Delhi Development Authority found the respondent has permitted the building M-291, Greater Kailash-11, New Delhi, to be used for non-conforming purposes by running a unit of ready-made garments. The aforesaid building falls in zone No. F-9 and according to the scheme of Master Plan it could only be used for residential purposes as envisaged by Section of the Delhi Development Act, 1957.
(3) Before we proceed further, we may take notice of the stand that the respondent bad taken before the trial court during his statement under Section 313 Cr PC. The crux of the stand taken by the respondent is that the basement was being used for non-conforming purpose. He, however, took the shelter behind the fact that the zonal Development Plan of the area is not in force. Further, he took the stand that the premises was let out after seeking permission under Section 11of the Delhi Rent Control Act and that he did not permit the misuse and had also given notice to the tenant for misusing the premises.
(4) The learned Metropolitan Magistrate has believed the testimony the prosecution witnesses that the building in question falls in zone No. F-9 of the Master Plan for Delhi and could be used for residential purposes alone. In the zonal Development Plan. Public Witness . 2 Mr. V K. Tuli, Junior Engineer, has been identified the location of the building at point ‘X’ indicated by mark ‘A’ in the zonal Development Plan Ex. PW2/E. The learned counsel for the respondent in the trial court look the plea that since there was no specific user of the basement prescribed in the Master Plan for Delhi and the zonal Development Plan of the area bad not come into force the accused could not be held responsible for the offence. The learned Metropolitan Magistrate also observed that since the Master Plan does not make mention of any specific user of the basement in a residential house, no criminal liability can be foisted upon the respondent and it cannot be held that the respondent was using the basement or permitting its use for non-conforming purpose. On this short observation, the learned Magistrate dismissed the complaint and acquitted the accused.
(5) Now, before we proceed further in the matter we would like to mention that the respondent had taken refuge behind the permission granted to him under Section 21 of the Delhi Rent Control Act. We have gone through the permission, which is on the original file, according to which it was only ground floor that was permitted to be let out and that too for residential purpose only. There is no mention of the basement and, in fact, in the agreement between the tenant and the respondent it was specifically mentioned that it is the ground floor having entrance from the rear that was being leased out to the tenant and that too for the residential purpose. The respondent in his statement under Section 313 Cr. P.C had admitted that the basement was being used for non-conforming purpose though be takes shelter behind the fact that the Zonal Development Plan has not come into force in the area.
(6) We may at once say that this case is straightaway covered by a judgment of this court in Criminal Appeal No. 56 of 1981 D.D.A. v.M/f. Rajiv Trading Co. & Ors. delivered on 6th of September 1990- by a Bench comprising of S.B. Wad and MK. Chawla, JJT. As to the fact that even the owner who permitted the user for non-conforming use is covered by Section 29(2) of the Delhi Development Act, Mrs Usha Kumar has relied upon a Division Bench judgment of this court in Delhi Development Authority v. K.P. Shankara & Anr , 24 (1983) Delhi Law Times 79 with which we agree. Now the short question that jn fact requires our consideration is as to whether the Master Plan or the Zonal Development Plan is required to lay down the use of each and every house or it is meant to generally earmark the use of the area and if that be so what is its effect on this case. In Criminal Appeal No. 56 of 1981 (supra) this court made the following observations and we quote this with approval : “IT may be seen from the Master Plan that it covers the entire territory of Delhi and for planned development of Delhi details the areas which, can be used for industries, areas which are commercial areas, areas which are residential areas, areas which are to be left out as green belts and so On. It divides the territory of Delhi into different zones. The Zonal Plan, in detail, specifies the purpose of the land use according to different localities. It is an admitted fact that the Zonal Plan for the area in which Tilak Marg is situated lays down (bat the land use is residential use The permission for construction granted to the owner of the land under Section 13 and the building plans that are sanctioned in relation to such residential areas are essentially for the purposes of residence and no other purpose Although it is so, there is largo scale abuse of the land use and conversion of the land and buildings for non-conforming use. The learned Metropolitan Magistrate has not correctly appreciated as to what is meant by Master Plan and Zonal Plan. By their very conception they arc the plans for huge parts of the territory of Delhi and similar localities. They are not meant for specifying the use of a particular building or a part of a building. The Master Plan and the Zonal Plan particularly lay down what are the residential areas. For proper town planning it is necessary that residential areas are separately demarcated and used only for that and no other purpose. If in the residential areas the industries are allowed to grow or widespread commercial activities are permitted there will be hazards of pollution, noise, heavy vehicular traffic etc. This would affect the peace and health of the citizen staying in the residential areas.”
'It was farther observed that : "THE learned Magistrate clearly erred in his comprehension of the requirements of Section 14 of the Delhi Development Act." The judgment further made observations that : "EVEN if according to the administrative circulars the residential bull" dings can be used also for purposes incidental to the residence which can only mean that it can be used for parking of cars or for sorting bii goods. So also, where a professional such as a doctor, lawyer or architect is residing in the building he can have a small office located in the basement and these uses can only be described as incidental use to that of residence. The activities which arc out and out commercial activities or industrial activities do not conform to the requirements of the building plans which are sanctioned on the basis of the zonal plans. The learned Magistrate has stated that the zonal plan or the master plan do not specifically lay down the user of the basement. This is clearly a misconception. By the same token neither the Master Plan nor the Zonal Plan state the user for the ground floor or the other stories of the building. If a building is sanctioned for residential purpose in a residential area, every part of it, including a basement, has to be used for residential purposes or for the purpose incidental to it."
(7) We fully agree with these observations as according to us also the residential areas where buildings come up can only be used for residential purpose and basement is no exception. This is also recognised by the administrative orders which clearly allow the use of basement in these residential houses only for purposes incidental to residence. That clearly shows that use of the premises for widespread commercial activities is prohibited. The present case, in our view, is also covered by the judgment of this court In Criminal Appeal No. 56 of 1981. We, therefore, allow this appeal, set aside the judgment of the court below and hold the respondent guilty under Section 14 read with Section 29(2) of the Delhi Development Act. The respondent is sentenced to payment of fine of Rs. 1500.00 . We direct that the non-conforming use of the premises shall be discontinued forthwith and in case of the continued use of the basement for non-conforming purpose the respondent shall pay a fine of Rs. 50.00 for each day’s violation until its discontinuation.