MANU/DE/0609/1992

Equivalent Citation: 1992(24)DRJ473, (1993)ILR 1Delhi459, 1993RLR57, 19931RRR647

IN THE HIGH COURT OF DELHI

Civil Writ Petition No. 1089 of 1992
Decided On: 13.10.1992
Appellants: Rohit Talwar and Ors.
Vs.
Respondent: The Municipal Corporation of Delhi and Ors.
Hon'ble Judges/Coram:
D.P. Wadhwa and R.L. Gupta, JJ.
Counsels:
Mukul Rohatagi, Amrita Sanghi, S.K. Luthra, Jayant Bhushan, P.N. Lekhi, Nandini
Sahni and Ashok Kashyap, Advs
Case Note:
Constitution OF INDIA, 1950 - Article 226--Petition seeking mandamas
directing MCD and DDA to stop and prohibit occupier of property from
commencing/carrying on any commercial activity in the property and
restraining him from carrying on unauthorised construction in the property-
-Misuse of premises--the word "misuse" cannot be read in "development"
as used in Clause (d) of Section 2 of Delhi Development Act, 1957--
Petitioner's case more in the realm of tort of nuisance for which remedy is
Civil Suit--However MCD and DDA to initiate actions in accordance with
law--petition dismissed--Sections 30, 31 and 31A of Delhi Development Act
1959--Section 347 of DMC Act 1957.
Held:
There is no ambiguity in the language used in Section 30,and 31A and the word
"misuse" can be read in "development" as used in these sections. These sections,
Therefore, cannot be resorted to for user of the property contrary to the provisions of
the DD Act or in breach of the terms of the lease deed.
The case of the petitioners is more in the realm of tort of nuisance for which they
have to knock at the door of civil court. However, respondents MCD and DDA shall be
bound by their statement that they will initiate actions in accordance with law. That
action on their part certainly brooks no delay.
According to the Clause II(15) of the sub-lease an option is available to the
sublessee to approach the Lesser for permission to use the building for a purpose
other than residential and which conversion may be allowed by the Lesser upon such
terms and conditions as it may impose in its absolute discretion. Similarly, under
section 347 of the DMC Act permission can also be granted by the Commissioner to
change or allow the change of the use of any land or building. With these
observations this petition, Therefore, fails and is dismissed.

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 JUDGMENT
D.P. Wadhwa, J.
(1) The petitioners numbering six by this petition filed under Article 226 of t
(2) The petitioners contend that the land use of the property bearing No. D-1097 and
of their houses as well is residential and it cannot be used for commercial purposes
or use and that will be contrary to the Delhi Development Act, 1957 (DD Act), the
rules and regulations framed there under, under the Master Plan, the Zonal Plan and
the Layout Plan of the colony, all being statutory in nature. They further contend that
use of the property in question for any other purpose except residential is again
illegal and contrary to the provisions of Delhi Municipal Corporation Act, 1957 (DMC
Act).
(3) The immediate cause for filing this petition was that the third respondent was
going to commence the full-scale commercial activity in the property in question in
the nature of safe deposit lockers which would not only be against the provisions of
the DD Act and DMC Act but also would result in a public nuisance. Petitioners further
say that for the purpose of conversion of the residential premises into commercial
one certain unauthorised constructions were also going on in the property. When the
petitioners found that more than 500 lockers were being lifted from truck outside the
property and were being stored therein they immediately wrote letters to the
authorities concerned, but since no action was taken, this petition was filed.
(4) There is no dispute that in the basement of the property the third respondent
proposes to start the activity of safe deposit vaults. Since the property is built on a
plot held on leasehold basis we required the second respondent Delhi Development
Authority to file an affidavit on three points: (1) whether the property in question is
being put to residential use or commercial use fully or partly; (2) whether the alleged
commercial activities are in fact commercial activities in terms of the perpetual lease
respecting the plot in question; and (3) what action Delhi Development Authority
intends to take if it is of the opinion that the alleged activity is a commercial one. We
also wanted a report from the Delhi Development Authority what action it proposed
to take in the matter if it found that any term of the lease deed had been
contravened. In pursuance to our order, Delhi Development Authority filed a
supplementary affidavit. The stand of the Delhi Development Authority is that the
property in question is to be used for a purely residential purpose as per the sub-
lease executed on 2 July 1981 in favor of the sub-lessee Bimla Devi Sachdeva.
Reference has been made to clause 11(15) of the terms and conditions of the sub-
lease which provides that -
"THE sub-lessee shall not without the written consent of the Lesser carry on,
or permit to be carried on, on the residential plot or in any building thereon
any trade or business whatsoever or use the same or permit the same to be
used for any purpose other than that of private dwelling or do or suffer to be
done therein any act or thing whatsoever which in the opinion of the Lesser
may be a nuisance, annoyance or disturbance to the Lesser, the Lessee and
other sub-lessee and- persons living in the neighborhood: Provided that, if
the Sub-Lessee is desirous of using the said residential plot or the building
thereon for a purpose other than that of private dwelling the Lesser may
allow such change of user on such terms and conditions, including payment
of additional premium and additional rent, as the Lesser may in his absolute

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 discretion determine."
(5) DDA says that the proviso does not get attracted in the present case since no
steps for obtaining the permission of Delhi Development Authority had been taken. In
the supplementary affidavit the Delhi Development Authority said that site inspection
was conducted by the field staff of the Delhi Development Authority after our
direction and it was found that the property in question was partly being used for
commercial activities. It was said that the building was complete with a basement,
ground floor, First floor and a barsati and that the basement was being used for
operating safe deposit vaults which was a commercial activity as per the conditions
of the sub-lease. It was also said that carrying on of the activities of operating of
safe deposit vaults could not by any means be considered as use of the house for a
private dwelling only and the alleged activity was in fact a commercial activity. Then
it was stated that on receiving the report showing issue of the plot in question, Delhi
Development Authority sent a show cause notice dated 4 June 1992 to the sub-lessee
whereby she was asked to discontinue the misuse of the plot within thirty days. This
notice was sent on 4 June 1992. Delhi Development Authority then says that a reply
dated 23 June 1992 was received from the sub-lessee, but on examination it was
found that there was no merit in, that reply. The DDA, Therefore, carried out a fresh
site inspection which again revealed presence of safe deposit vaults in the basement.
DDA then said that in case the commercial activity was not immediately stopped it
intended to determine the lease deed executed in favor of Bimla Devi Sachdeva and
to take back the possession of the plot along with building and Fixtures thereon and
in that case the sub-lessee would not be entitled to any compensation whatsoever
nor to the return of the premium paid by her under clause Iii of the sub-lease deed.
Delhi Development Authority then added a rider that its actions were, of course,
subject to the directions as may be given by this Court and the result of the writ
petition. Finally the Delhi Development Authority said that in case the third
respondent continued to use the premises other than for residential purpose the Delhi
Development Authority as Lesser in its absolute discretion intended to
cancel/determine the sub-lease deed and as per Clause 11(17) "the sub lessee shall
on the determination of this sub lease peacefully yield up the residential plot and the
buildings thereon unto the lessee or the Lesser, as may be entitled." The MCD did not
File any answer to show cause notice or reply to the application. Mr. S.K. Luthra,
learned counsel for the MCD, however, said that MCD intended to take action under
section 347 of the Act which provides as under:-
"RESTRICTIONS on uses of buildings - No person shall, without the written
permission of the Commissioner, or otherwise than in conformity with the
conditions, if any, of such permission - (a) use or permit to be used for
human habitation any part of a building not originally erected or authorised
to be used for that purpose or not used for that purpose before any alteration
has been made therein by any work executed in accordance with the
provisions of this Act and the bye-laws made there under; (b) change or
allow the change of the user of any land or building; (c) convert or allow the
conversion of one kind of tenement into another kind. "
(6) During the course of arguments Mr. Jayant Bhushan for the Delhi Development
Authority said that DDA would also take action as per law under the DD Act. The
question then arose if the DDA would as well resort to provisions of sections 30, 31
and 31A of the DD Act. These provisions provide for demolition of building, power to
stop development and power to seal unauthorised development. Mr. Bhushan on
instructions said that as at present DDA has no power to seal the property in case of

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misuse as those provisions would apply when there is unauthorised development
which would mean unauthorised construction and in case of misuse Delhi
Development Authority would proceed under the lease deed to cancel the lease for,
breach of terms thereof and also file prosecution under section 29 of the DD Act. This
stand of DDA led to a great deal of controversy. Mr. Rohtagi said unauthorised
development would also include misuse of the property and this Court, Therefore,
should give ruling on that. He also compared the provisions of the DMC Act and DD
Act on this aspect of the matter. Mr.Rohtagi also said that the argument of Delhi
Development Authority comes to that while it would take action only under the lease
deed for enforcing the terms of the contract when it was statutorily obliged to take
action under the Act for stopping the misuse and sealing the property.
(7) The grievance of the petitioners is two fold: (1) misuse of the property by the
third respondent violates the provisions of the DD Act and DMC Act, and (2) misuse
is of such a nature that it will cause nuisance to the neighbours and in the
neighborhood.
(8) Mr. Lekhi appearing for the third respondent said that the present petition was
not maintainable and the petitioners could not invoke extraordinary jurisdiction of
this Court under Article 226 of the Constitution and if there was any infringement of
the private right of the petitioners they could at best file a civil suit for tort of
nuisance. He also said the petitioners were not motivated by any public interest in
filing this petition and that their action was mala fide inasmuch as in the New Friends
Colony there are numerous properties where commercial activities are being carried
on and the petitioners did not care to take any action. The third respondent detailed
some of these properties in the New Friends Colony where commercial activities were
being carried on and some of these in the D Block itself where the property in
question is situated. We have not been able to find any satisfactory answer to this
averment of the third respondent by the petitioners. At the same time we do not find
any merit in the allegation of the third respondent that the petition is solely
motivated by the first petitioner who allegedly wanted to join the third respondent in
carrying out the activity of running of safe deposit vaults which offer was spurned by
the third respondent.
(9) In reply dated 23 June 1992 of the sub-lessee to the show cause notice, which
we have mentioned above, she has denied if using(?) of the lockers in the premises
in question constituted a commercial activity. She also referred to the new Master
Plan for Delhi which, she said, came into force on 1 August 1990 to contend that she
had a right to start the activity of safe deposit vaults. She also sought to make
distinction between user which is "permissible" and "permitted". Since both the
authorities, i.e., Delhi Development Authority and MCD, intend to proceed against the
third respondent and/or the sub-lessee we cannot certainly foreclose the issue for the
third respondent if the activity of safe deposit vaults is commercial and what would
be the effect of the new Master Plan for Delhi which is stated to have come into force
on 1 August 1990, and also Master Plan Perspective 2000 AD which the sub-lessee
says in her reply allow the premises to be used for the facility of making available the
lockers (private bank) even in residential premises. All these questions will have to
be gone into by the Magistrate before whom complaints might be instituted by the
Delhi Development Authority under section 29 of the DD Act and by the MCD under
section 461 of the DMC Act. Code of Criminal Procedure provides for remedies
including appeals or revisions to the higher courts and inherent power to this Court
under section 482 of that Code. We do not think we should be saying at this stage if
opening of safe deposit vaults is a commercial activity and the applicability of the

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provisions of the Master Plan for Delhi which is stated to have come into force w.e.f.
1 August 1990.
(10) After what Mr. Bhushan and Mr. Luthra had said that the authorities both Delhi
Development Authority and MCD would take action in accordance with law the matter
should have ended at that, but that did not appear to have satisfied the petitioners
who said prosecution will have no salutary effect on the third respondent who would
merrily go on with his activity, may be for ten years while the prosecution will not
see the end of the day. Mr. Rohtagi said both the authorities could at once seal the
premises once they were of the view that the activity was a commercial one and that
stand of the authorities that they had no such power was not correct.
(11) It is true that commercial activities in various properties in the New Friends
Colony are being carried on in breach of the land use, the Zonal Plan and the Master
Plan. Simply because the petitioners did not take any action earlier, could they be
debarred from invoking the jurisdiction of this Court will be a question which has
been raised by the third respondent. As we have noted above, the immediate cause
for filing the present petition was when the petitioners found that right next to their
properties commercial activity was going to be started and the authorities did not
wake up in spite of complaints. No doubt petitioners were in their deep slumber when
in their colony in which they reside commercial activities were illegally brought to
fore and they took no action, but that, to our mind, should not be used as a plank by
the third respondent to stop them in their strides now asking the authorities to
perform their statutory duties and to take action in accordance with law. It is not that
as the petitioners earlier did not require the authorities to take action respecting
other properties put to commercial use their present action is necessarily to be
termed malafide. Certainly the third respondent cannot be heard to make such a
submission unless, of course, he can non-suit the petitioners on merit.
(12) We may now examine some of the provisions of both the Acts. Section 347 of
the DMC Act has been reproduced above. Under section 461 of this Act read with the
12th Schedule thereof, a person who contravenes the provisions of section 347 is
liable to suffer simple imprisonment which may extend to six months or with fine
which may extend to Rs.5,000.00 or with both. Section 331 of the DMC Act defines
the expression "to erect a building". Section 331 is the first section of Chapter Xvi
dealing with building regulations and the expression "to erect a building" in Chapter
Xvi means unless the context otherwise requires, to convert into or use as dwelling
house any building which has been discontinued as or appropriated for any purpose
other than a dwelling house [clause (j)] Section 332 prohibits erection of a building
without sanction. Under section 333, every person who intends to erect a building is
to apply for sanction to the Commissioner, MCD, as per the bye- laws. Under section
334, every person who intends to make any additions, alterations or repairs in a
building is also to make an application as per the bye- laws in that behalf. Under
section 336, the Commissioner is authorised to either sanction or refuse to sanction.
It is only after sanction is granted that a person can proceed to commence erection of
the building. Under section 341, while granting sanction the Commissioner is to
specify a reasonable period for completion of the building or work. Under sub-section
(l) of section 343 ,if erection of any building or execution of any work has been
commenced or is being carried on or has been completed without or contrary to the
sanction or in contravention of any condition subject to which such sanction has been
accorded or in contravention of any of the provisions of the Act or bye-laws, the
Commissioner may, in addition to any other action that may be taken under the Act,
make an order directing that such erection or work shall be demolished by the

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person. If the erection or work has not been completed, the Commissioner is
authorised to direct the person concerned to stop the erection or the work (during the
period of notice) till the matter is heard by him after notice to the person as to why
an order for demolition be not made. Under sub-section (2) of section 343, an
Appellate Tribunal is constituted to hear the appeal against the order of the
Commissioner directing demolition of unauthorised erection or work. Jurisdiction of
civil court is barred in the matter. Under section 344, the Commissioner has
otherwise power to require stoppage of the erection of any building or execution of
any work which has been commenced or is being carried on but has not been
completed without or contrary to the sanction or in contravention of any conditions
subject to which sanction had been accorded. If the person concerned defaults, the
Commissioner may require any police officer to remove such person and all his
assistants and workmen from the premises or to seize any construction material, tool,
machinery, scaffolding or other things used in the erection of any building or
execution of any work within such time as maybe specified in the requisition and
such police officer shall comply with such requisition. Section 326 provides as to how
the things so seized can be disposed of. The Commissioner can also direct any police
officer or a Municipal Officer or any other municipal employee to watch the premises
in order to ensure that erection of the building or the execution of the work is not
continued.
(13) These provisions of the DMC Act do not lend substance to the argument of Mr.
Rohtagi that these would be applicable in the case of misuse of the premises and in
the present case for user of the basement for safe deposit vaults as a commercial
activity. For the applicability of sections 343 and 344 of the DMC Act it cannot be
said that the expression "to erect a building" as given in section 331, would include
use of basement in a residential property for commercial activity of running a safe
deposit vaults. As noted above, the expression "to erect a building" has to be seen in
the context of sections 343 and 344. In these two sections the expression aforesaid
has to be in the context of making the construction of a building or making
alterations in the building or carrying on repairs in contravention of the DMC Act and
the bye-laws framed there under, and that is why the removal of the person
concerned, his assistants and workmen from the premises and seizure of the articles
is there. In the case of misuse ,Therefore, the provision which debars a person from
changing or allowing the change of the use of any building or buildings, is
prosecution under section 461 of the Act and punishment prescribed is in the 12th
Schedule of the DMC Act which we have also noticed above.
(14) Referring to the DD Act Mr.Rohtagi said that the 'development' as defined in
clause (d) of section 2 of the Act would include misuse . As usual, section 2 contains
definitions and it starts with the words "In this Act, unless the context otherwise
requires,-"Then under clause (d),"development" with its grammatical variations
means the carrying out of building, engineering, mining or other operations in, on,
over and under land or the making of any material change in any building or land and
includes redevelopment." Clause (e) defines "development area" and means any area
declared to be a development area under sub-section (1) of section 12 of the Act.
Clause (J) define the expression "lo erect" and in relation to any building includes-
(I)any material alteration or enlargement of any building,
(II)the conversion by structural alteration into of place for human habitation
of any building not originally constructed for human habitation,

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 (III)the conversion into more than one place for human habitation of a
building originally constructed as one such place,
(IV)the conversion of two or more places of human habitation into a greater
number of such places,
(V)such alterations of a building as affect an alteration of its drainage or
sanitary arrangements, or materially affect its security,
(VI)the addition of any rooms, buildings, houses or other structures to any
building, and
(VII)the construction in a wall adjoining any street or land not belonging to
the owner of the wall, of a door opening on to such street or land; "
'Section 6 of the Act gives the objects of the Delhi Development Authority'.-
"THE objects of the Authority shall be to promote and secure the
development of Delhi according to plan and for that purpose the Authority
shall have the power to acquire, hold, manage and dispose of land and other
property, to carry outbuilding, engineering, mining and other operations, to
execute works in connection with supply of water and electricity, disposal of
sewage and other services and amenities and generally to do anything
necessary or expedient for purposes of such development and for purposes
incidental there to'.- Provided that save as provided in this Act, nothing
contained in this Act shall be construed as authorising the disregard by the
Authority of any law for the lime being in force. "
(15) SUB-SECTION (4) of section 12 prescribes that after the coming into operation
of any of the plans in any area no development shall be undertaken or carried out in
that area unless such development is also in accordance with such plans. Section 14
prohibits user of land and buildings in contravention of plans. What the petitioners
say in the present case is obviously contravention of section 14 of the Act by the
third respondent as well as the sub-lessee. Section 29 prescribes penalties and sub-
section (2) of this section is as under:-
"ANY person who uses any land or building in contravention of the provisions
of section 14 or in contravention of any terms and conditions prescribed by
regulations under the proviso to that section shall be punishable with fine
which may extend to five thousand rupees and in the case of a continuing
offence, with further fine which may extend to two hundred and fifty rupees
for every day during which such offence continues after conviction for the
first commission of the offence. "
(16) Under section 30, the competent authority is authorised to order demolition of
building. Section 31 describes as to when power to stop development can be
exercised. Section 31A deals with a situation when power to seal unauthorised
development can be exercised, and then section 31B prescribes constitution of
Appellate Tribunal, and under section 31B there is a right of appeal to the Appellate
Tribunal when order is made either under section 30(1), or 31(1), or 31A of the Act.
Mr. Rohtagi strenuously argued that the term "development" in these three sections
would include user of the building in contravention of plans, and, thus, power could
be exercised to stop misuse and to seal the property. There is no dispute that it
would be a case of contravention of section 14 if what the petitioners say is correct,

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and the third respondent and sub-lessee certainly liable to prosecution under section
29 of the Act. There is a breach not only of the terms of the lease deed but also
section 14 stands contravened. Too much stress was laid that the property be sealed
under section 31 of the Act as it was stated that the prosecution would take a great
deal of time to conclude and that would not deter the third respondent from carrying
on his illegal activity. Of course, it was also argued that power under section 31
should also be exercised to stop the misuse and further order should be made by the
authority under section 30 which deals with ordering of demolition of building.
(17) Sections 30,31 and 31A are as under :-
30. Order of demolition of building. - (1) Where any development has been
commenced or is being carried on or as been completed in contravention of
the master plan or zonal development plan or without the permission,
approval or sanction referred to in section 12 or in contravention of any
conditions subject to which such permission, approval or sanction has been
granted, - (i) in relation to a development area, any officer of the Authority
empowered by it in this behalf, (ii) in relation to any other area within the
local limits of a local authority, the competent authority thereof may, in
addition to any prosecution that may be instituted under this Act, make an
order directing that such development shall be removed by demolition, filling
or otherwise by the owner there of or by the person at whose instance the
development has been commenced or is being carried out or has been
completed, within such period (not being less than five days and more than
fifteen days from the date on which a copy of the order of removal, with a
brief statement of the reasons Therefore, has been delivered to the owner or
that person) as may be specified in the order and on his failure to comply
with the order, the officer of the Authority or, as the case maybe, the
competent authority may remove or cause to be removed the development
and the expenses of such removal shall be recovered from the owner or the
personal whose instance the development was commenced or was being
carried out or was completed as arrears of land revenue: Provided that no
such order shall be made unless the owner or the person concerned has been
given a reasonable opportunity to show cause why the order should not be
made. (I-A) If any development in an area other than a development area
has been commenced or is being carried on or has been completed in
contravention of the master plan of zonal development plan or without the
approval or sanction referred to in Section 12 or in contravention of any
conditions subject to which such approval or sanction has been granted and
the competent authority has failed to remove or cause to be removed the
development within the time that maybe specified in this behalf by the
Administrator or the Union Territory of Delhi, the Administrator may, after-
observing such procedure as may be prescribed by rules made in this behalf,
direct any officer to remove or cause to be removed such development and
that officer shall be bound to carry out such direction and any expenses of
such removal may be recovered from the owner or the person at whose
instance the development was commenced or was being carried out or was
completed as arrears of land revenue. (2)........ (2-A) Any person aggrieved
by the direction of the Administrator under sub-section (1- A) may appeal to
the Central Government within thirty days from the date thereof, and the
Central Government may after giving an opportunity of hearing to the person
aggrieved , either allow or dismiss the appeal or may reverse or vary any
part of the direction. (3) The decision of the Central Government on the

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appeal and subject only to such decision the direction under sub-section (1-
A), shall be final and shall not be questioned in any court. (4) The provisions
of this section shall be in addition to, and not in derogation of, any other
provision relating to demolition of buildings contained in any other law for
the time being in force.
31. Power to stop development. - (1) Where any development in any area
has been commenced in contravention of the master plan or zonal
development plan or without the permission, approval or sanction referred to
in Section 12 or in contravention of any conditions subject to which such
permission, approval or sanction has been granted,- (i) in relation to a
development area, the Authority or any officer of the Authority empowered
by it in this behalf, (ii) in relation to any other area within the local limits of
a local authority, the competent authority thereof, may, in addition to any
prosecution that may be instituted under this Act, make an order requiring
the development to be discontinued on and from the date of the service of
the order, and such order shall be complied with accordingly. (2) Where such
development is not discontinued in pursuance of the order under sub-
section (1), the Authority or the officer of the Authority or the competent
authority, as the case may be, may require any police officer to remove the
person by whom the development has been commenced and all his assistants
and workmen from the place of development or to seize any construction
material, tool, machinery, scaffolding or other things used in such
development within such time as maybe specified in the requisition and such
police officer shall comply with the requisition accordingly. (2-A) Any of the
things caused to be seized by the Authority or the officer of the Authority or
the competent authority, as the case may be, under sub-section (2) shall
unless the owner thereof turns up to take back such things and pays to the
Authority, the officer of the Authority or the competent authority, as the case
may be, the charges for the removal or storage of such things, be disposed
of by it or him by public auction or in such other manner and within such
time as the Authority, the officer of the Authority or the competent authority
thinks fit. (2-B) The charges for the removal and storage of the things sold
under sub-section (2- A) shall be paid out of the proceeds of the sale thereof
and the balance, if any, shall be paid to the owner of the things sold on a
claim being made Therefore within a period of one year from the date of
sale, and if no such claim is made within the said period, shall be credited to
the fund of the Authority or the competent authority, as the case may be. (3)
If any development in an area other than a development area has been
commenced in contravention of the master plan or zonal development plan or
without the approval or sanction referred to in Section 12 or in contravention
of any conditions subject to which such approval or sanction has been
granted and the competent authority has failed to make an order under sub-
section (1) or, as the case may be, a requisition under sub-section (2),
within the time that may be specified in this behalf by the Administrator of
the Union Territory of Delhi, the Administrator may, after observing such
procedure as may be prescribed by rules made in this behalf, direct any
officer to make the order or requisition, as the case may be, and that officer
shall be bound to carry out such direction and the order or requisition made
by him in pursuance of the direction shall be complied with accordingly. (4)
After the requisition under sub-section (2) or sub-section (3) has been
complied with, the Authority or the competent authority or the officer to
whom the direction was issued by the Administrator under sub-section (3),

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 as the case may be, may depute by a written order a police officer or an
officer or employee of the Authority or local authority concerned to watch the
place in order to ensure that the development is not continued. (5) Any
person failing to comply with an order under sub-section (1) or, as the case
may be, under sub-section (3), shall be punishable with fine which may
extend to two hundred rupees for every day during which the non-
compliance continues after the service of the order. (6) No compensation
shall be claimable by any person for any damage which he may sustain in
consequence of the removal of any development under section 30 or the
discontinuance of the development under this section. (7)....... (8) The
provisions of this section shall be in addition to, and not in derogation of,
any other provision relating to stoppage of building operations contained in
any other law for the time being in force.
-A.Power to seal unauthorised development. -(1) It shall be lawful for the
Authority, or the competent authority, as the case may be, at anytime, before
or after making an order for the removal or discontinuance of any
development under Section 30 or Section 31, to make an order directing the
sealing of such development in the manner prescribed by rules, for the
purpose of carrying out the provisions of this Act, or for preventing any
dispute as to the nature and extent of such development. (2) Where any
development has been sealed, the Authority or the competent authority, as
the case may be, may, for the purpose of removing or discontinuing such
development order the seal to be removed. (3) No person shall remove such
seal except- (a) under an order made by the Authority or the competent
authority under sub- section (2); or (b) under an order of the Appellate
Tribunal or the Administrator of the Union territory of Delhi, made in an
appeal under this Act.
(18) Mr. Rohtagi said that keeping in view the expression "unless the context
otherwise requires" and the object of the DD Act, the authority could exercise power
under sections 30,31 and 31A in the present case as well when there is a misuse
.Reading the definition of "development" as given in clause (d) of section 2,
"misuser" would certainly not come within this expression. If we have to give
different meaning to the term "development" as appearing in the three sections it has
to have that meaning which is understood in common parlance or the dictionary
meaning.
(19) Mr. Rohtagi said the definition of "development" has to be expanded to include
misuse as well. To develop his argument Mr. Rohtagi referred to four decisions of the
Supreme Court in (1) The Vanguard Fire and General Insurance Co. Ltd. Madras v. M/
s Fraser and Ross and another MANU/SC/0196/1960 : [1960]3SCR857 ; (2) Collector
of Customs, Bardoa v. Digvijaysinhji Spinning and Weaving Mills Ltd., Jamnagar
MANU/SC/0365/1961 : 1983ECR2163D(SC) ; (3) The Commissioner of Expenditure-
tax, Gujarat v. Darshan Surendra Parekh MANU/SC/0247/1967 : [1968]69ITR683(SC)
; and (4) National Buildings Construction Corporation Ltd. v. Pritam Singh Gill and
others MANU/SC/0435/1972 : [1973]1SCR40 . We have examined these judgments.
We do not find these to be of any help to the petitioners and we do not wish to
burden our judgment by analysing these judgments. The three sections do not
partake within their scope where there is misuse of the premises in contravention of
the provisions of the DD Act. If we accept what Mr.Rohtagi says it will be rather
giving offence to the language of these sections. When the expression "context
otherwise requires" is used with reference to any provision of the Act and it results in

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absurdity, then the definition given cannot be used and has to be discarded and then
ordinary meaning assigned to it is to be used and not that the definition is to be
expanded to mean something different which legislature itself did not contemplate.
To develop any area of land means to build houses or factories on it especially in
order to make it more useful and profitable and ' development' is the process of
making an area of land more useful or profitable (Collins Co build English Language
Dictionary). We do not find there is any ambiguity in the language used in the three
sections and we do not think the word "misuse" can be read in "development" as
used in these sections. These sections, Therefore, cannot be resorted to for user of
the property contrary to the provisions of the DD Act or in breach of the terms of the
lease deed.
(20) The case of the petitioners is more in the realm of tort of nuisance for which
they have to knock at the door of civil court. However, respondents MCD and DDA
shall be bound by their statement that they will initiate actions in accordance with
law. That action on their part certainly brooks no delay. We may also, however,
mention that according to the Clause 11(15) of the sub-lease aforesaid an option is
available to the sub-lessee to approach the Lesser for permission to use the building
for a purpose other than residential and which conversion may be allowed by the
Lesser upon such terms and conditions as it may impose in its absolute discretion.
Similarly, under section 347 of the DMC Act permission can also be granted by the
Commissioner to change or allow the change of the use of any land or building. With
these observations this petition, Therefore, fails and is dismissed.

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