Decided on May 23,1983


Cited Judgements :-



H.L.Anand, J. - (1.)These petitions u/8. 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 preiaises 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 bad 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 10,000.00 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 condilions with regard to further payment in terms of the policy.

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