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Sawhney Bros. v. D.D.A .

Delhi High Court

May 23, 1983

Judgment

Subsequent
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Summary of Opinion — H.L. Anand, J.

Factual and Procedural Background

These are petitions under Section 482 of the Code of Criminal Procedure filed by a common family partnership and its members challenging two complaints lodged by the Delhi Development Authority (DDA). The complaints, brought under Section 14 read with Section 29(2) of the Delhi Development Act, 1957, allege that two premises (referred to in the opinion as A 4 and A-14, Nizamuddin West) which are residential in nature and situated in a predominantly residential locality were being used for commercial purposes contrary to the Master Plan and Zonal Development Plan.

Prior to these complaints, the petitioners had been prosecuted by the DDA in respect of one of the premises (A-14). At that earlier trial the petitioners relied on a public advertisement dated September 18, 1976 issued by the Authority, which invited industrial units in non-conforming areas to register with the DDA or NOIDA and, upon payment of a specified premium, to await allotment of plots/sheds while being allowed to continue present use until possession of alternative accommodation was given. The petitioners produced evidence that they had applied to NOIDA and had deposited Rs. 10,000 in accordance with the advertisement. The trial court accepted that the petitioners' application complied with the terms of the advertisement (noting that the advertisement did not require the applicant to give the address of the premises under misuse and that a party with more than one unit need not apply separately for each unit) and acquitted the petitioners by order dated September 20, 1978. That acquittal was not challenged and became final.

Notwithstanding that earlier acquittal, the Authority instituted the present complaints on identical allegations (the opinion itself states one complaint was "in respect of premises No. A-14, and the other in respect of premises No. A-14; Nizamuddin West" while earlier referring to A 4 and A-14). The petitions before the High Court sought quashing of the proceedings emanating from those complaints.

Legal Issues Presented

Whether the earlier acquittal in respect of misuse of premises A-14 bars fresh prosecution in relation to the same premises.
Whether an offence under Section 29(2) of the Delhi Development Act, 1957 is a continuing offence such that a prior acquittal would not preclude subsequent prosecution.
Whether a subsequent modification of the Authority's policy (advertisement of September 18, 1976) can affect the petitioners' rights where they acted and deposited sums pursuant to the original policy.
Whether permitting prosecution to continue, where petitioners have complied with the policy conditions and undertaken to shift upon allotment, would amount to an abuse of the process of the court.

Arguments of the Parties

Petitioners' Arguments

The petitioners had relied on the DDA's public advertisement of September 18, 1976, had applied for alternative accommodation to NOIDA and had deposited Rs. 10,000 in terms of that policy.
The trial court had accepted those facts and acquitted the petitioners in respect of misuse at A-14; that acquittal is final and should preclude fresh prosecution.
The petitioners undertook that on allotment being made they would shift the activities carried on at both locations to the conforming area; continuing prosecution would thus be an abuse of process.
A vague contention was advanced that the Authority had been filing large numbers of complaints mechanically to pressurise non-conforming users or to collect fines, without verifying whether deposits had been made pursuant to the earlier policy (the Court noted it could not and would not decide this on the existing material).

Authority's Arguments

The Authority accepted it was not seriously disputed that, in view of the earlier acquittal based on misuse of A-14, the petitioners could not be prosecuted regarding that premises, but it was faintly suggested that an offence under Section 29(2) might be a continuing offence and thus not barred by the earlier acquittal.
The Authority contended that its original policy (advertisement of September 18, 1976) had been subsequently modified and that the petitioners' rights could not necessarily survive such modification; it was argued that a subsequent change in policy could impact prosecution and that compounding prior to the change left the matter unaffected by subsequent modifications.
The Authority recognised that if the petitioners had deposited amounts and were awaiting allotment, prosecution could not proceed until the petitioners failed to shift on allotment or otherwise did not comply with policy conditions.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court recited the factual matrix and the earlier trial court's findings: that the petitioners had applied to NOIDA in terms of the DDA's advertisement, had deposited money, and that the advertisement did not require specification of the address of the premises under misuse nor did it require separate applications for multiple units. The earlier trial court's conclusion that the petitioners' case fell within the advertisement's terms led to their acquittal on September 20, 1978, an order which was not challenged and therefore final.

The court noted the Authority's reluctance to seriously dispute that the earlier acquittal would preclude prosecution in respect of A-14, although the Authority suggested the theoretical possibility that Section 29(2) offences might be continuing. The court observed that the Authority itself accepted that where petitioners had deposited amounts under the policy and were awaiting allotment, prosecution could not proceed until the petitioners failed to shift on allotment or failed to comply with policy conditions.

With regard to A-4, the court observed that A-4 was mentioned in the order of acquittal as a place where the petitioners had a unit; combined with the petitioners' undertaking to shift their activities to conforming areas upon allotment and their compliance with policy conditions, the court found it would be improper and an abuse of the process of the court to allow prosecution to continue at either location.

The court addressed the Authority's contention that its policy had been subsequently modified and that such a change might affect the petitioners' position. The court reasoned that the petitioners had acted pursuant to the original representation, had deposited a substantial sum and agreed to shift upon allotment; a subsequent change in policy could not retrospectively affect rights and obligations already accrued on the basis of the earlier policy. The court also invoked the principle that State action must be fair, just and reasonable and indicated that changing policy to the prejudice of persons who had acted in reliance on the earlier policy would not be just or reasonable.

The court declined to adjudicate on the broader allegation (made vaguely by petitioners) that the Authority was filing large numbers of mechanical prosecutions, noting the existing material did not permit a decision on that contention and expressing the hope that such practices were not occurring.

Holding and Implications

Holding: The petitions (Crl. M(M)621/80 and Crl. M(M)251/80) were allowed and the court quashed the proceedings arising out of Criminal Case No. 285/79 pending before Shri J.P. Sharma, Metropolitan Magistrate, and Criminal Case No. 147/80 pending before Shri M.L. Malik, Metropolitan Magistrate, Delhi.

Implications:

The direct effect is that the specific prosecutions identified in the order are quashed and the petitioners are protected from those proceedings.
The opinion confines itself to the facts and procedural posture of these petitions; it does not purport to establish a broader new precedent beyond applying principles of fairness and finality in the circumstances described (the opinion contains no citation of prior cases and does not discuss broader legal ramifications beyond the case at hand).

Show all summary ...

H.L Anand, J.:— These petitions u/s. 482 of the Code of Criminal Procedure by a common family partnership and its members are directed against two separate complaints filed by the Delhi Development Authority against the petitioners under Section 14 read with Section 29(2) of the Delhi Development Act, 1957 in respect of the two different premises, being A 4 and A-14, Nizamuddin West, on allegation that the aforesaid premises can be used only for residential purpose and are being used by the petitioners for a commercial purpose, contrary to the provisions of the Master Plan and the Zonal Development Plan.

2. The petitioners are admittedly carrying on business in both the premises. Both the premises are also admittedly of a residential nature and situated in a predominantly residential locality. Prior to the institution of the present complaints, the petitioners were prosecuted by the Authority for the aforesaid offence in relation to one of the aforesaid premises, namely, A-14, Nizamuddin West. At the trial of that complaint, the petitioners set up a plea that the petitioners had applied for alternative accommodation both to the Authority and to NOIDA, in terms of the policy of the Authority contained in a public advertisement of September 18, 1976 in which the Authority had represented to the general public that the industrial units from non conforming areas should get themselves registered with the D.D.A or with NOIDA for allotment of plots/sheds by October 15, 1976 after depositing a specified premium for allotment as per the Rules of the Authority and if they did so, they would be allowed to continue the present use till such time as the concerned Authority was in a position to give possession of the plots and/or sheds to such units. It was further urged that the petitioners had also deposited a sum of Rs. 10,000/- in terms of the policy and that the allotment had not as yet been made by NOIDA. Evidence was produced at the trial that such a representation had been made and that the petitioners, whose address at that time was 16-A, Shankar Market, had applied for alternative accommodation to NOIDA and the petitioners had their unit at that time at A-4, Nizamuddin West. The trial court returned the finding on this material that the petitioners had applied to NOIDA for alternative accommodation and that in the advertisement issued by the Authority, it was not a condition that a unit functioning in non-conforming area was to give the address of the premises under misuse or that it could not shift to some other non conforming area. It was further observed that if one party was having more than one unit in non-conforming areas, it was not necessary for it to apply separately for each unit. It was, therefore, held that the absence of the address of premises in question with NOIDA or the Authority at the time of the application for alternative accommodation was of no consequence and the case of the petitioners squarely fell within the four corners of the advertisement. The petitioners were accordingly acquitted by the trial court by an order of September 20, 1978. The order of acquittal was not challenged by the Authority and has, therefore, become final.

3. Notwithstanding the aforesaid acquittal, the Authority has filed the present complaints on identical allegations, one in respect of premises No. A-14, and the other in respect of premises No. A-14; Nizamuddin West. It was not seriously disputed on behalf of the Authority that in view of the acquittal of the petitioners in the earlier complaint, which was based on the misuse of A-14, Nizamuddin West, the petitioners could not be prosecuted with regard to the said premises. It was, however, faintly suggested that the offence under Section 29(2) was a continuing offence and the acquittal of the petitioners in the earlier complaint could not bar fresh prosecution. It was, however, not disputed that if the petitioners could not be prosecuted because they had deposited the amount in terms of the policy of the Authority and were still awaiting allotment of an alternative accommodation, no further prosecution could be possible until the petitioners failed to move from the premises notwithstanding the allotment or otherwise do not avail of the allotment or fail to comply with the conditions with regard to further payment in terms of the policy.

4. As regards premises No. A-4, it was, however, alleged on behalf of the Authority that the earlier complaint was not concerned with A-4 and the earlier acquittal, therefore, had no impact on the present proceedings with reference to this premises. It was, however, not disputed in the order of acquittal, premises A-4 was also mentioned as a place where the petitioners have a unit. Even otherwise, petitioners having agreed to shift to the conforming area as soon as the allotment has been made and the petitioners having complied with all the conditions laid by the Authority in that behalf, it would be improper for the Authority to prosecute the petitioners in respect of either of the two locations. Counsel for the petitioners undertakes that on the allotment being made, the petitioners would shift their activity, being carried at both the locations, to the conforming area. It would, therefore, be an abuse of the process of the court to allow the petitioners to be prosecuted in such circumstances for either of the locations.

5. Counsel for the Authority, however, sought to distinguish the circumstances of the earlier complaint and to justify the institution of the present proceedings on the ground that the policy announced in the advertisement of September 18, 1976 was subsequently modified by the Authority. The petitioners had acted on the representation of the Authority pursuant to the original policy, had deposited a substantial amount and had agreed to shift on the allotment of alternative accommodation, any subsequent change in the policy could not have retrospective effect or otherwise affect the rights and obligations of the parties. Offence with reference to the misuser stood compounded prior to the change in the policy and the subsequent change in the policy left the compounding unaffected. Even otherwise, all State action must be fair, just and reasonable and any change in policy after the petitioners had acted to their prejudice, pursuant to the earlier policy, could hardly be said to be just and reasonable.

6. A vague suggestion was made on behalf of the petitioners that the Authority had been filing thousands of complaints indiscriminately either with a view to pressurise non-conforming users to shift to conforming areas or to collect heavy fines even though the alternative accommodations have not been made available. It was further urged that the complaints are being filed in a mechanical manner, without even verifying if the non-conforming users had made deposits pursuant to the earlier policy and were waiting for alternative allotment. It would be beyond the scope of the present proceedings for this Court to look into this aspect of the matter. It is also not possible to rule on this contention one way or the other on the existing material. I, however, do hope that these allegations are not true and that the Authority exercises the necessary circumspection before launching large-scale prosecutions.

7. I would, therefore, accept Crl. M(M)621/80 and Crl. M(M) 251/80 and quash the proceedings arising out of Crl. Case No. 285/79 pending in the court of Shri J.P Sharma, Metropolitan Magistrate and Criminal case No. 147/80 pending in the Court of Shri M.L Malik, Metropolitan Magistrate, Delhi.