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2006 DIGILAW 1668 (DEL)

SARDOOL SINGH v. DELHI DEVELOPMENT AUTHORITY

2006-09-18

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) THE learned counsel for the petitioner submitted at the outset that notice was issued in this matter on 07. 07. 2006, confined to the issue that the question of limitation raised by the petitioner before the trial court as also the appellate court, has not been answered by either of them. ( 2 ) I have heard the counsel for the petitioner as well as the counsel for the DDA. It is the petitioner's contention that inspection of the premises in question was done on 10. 03. 1997 and the complaint was filed on 16. 09. 1998. Since the offence under Section 29 (2) of the Delhi Development Authority Act, 1957 (hereinafter referred to as the said Act) is limited to the imposition of fine, the learned counsel for the petitioner submitted that the period of limitation as prescribed under Section 468 (2) (a) of the Code of Criminal procedure, 1973 would be six months. He submitted that the complaint was filed way beyond the period of six months and, therefore, was barred by limitation. It is for this reason that he had raised the point of limitation before the trial Court as well as the Appellate Court, which did not consider this plea raised by the petitioner. ( 3 ) THE fact of the matter is that the petitioner has been convicted for the offence punishable under Section 29 (2) of the said Act and has been sentenced to pay a fine of Rs. 3,000/- and in default to undergo simple imprisonment for 30 days. The petitioner has been found to be the proprietor of m/s. Paul Colour Photo Lab and Studio which was found to be conducting business at premises bearing no. F-14, Kalkaji, New Delhi, which is a residential area. The petitioner having put the said premises to commercial use thereby contravened the provisions of Section 14 of the said Act and, therefore, he was sentenced under Section 29 (2) of the said Act with imposition of a fine of rs. 3,000/- as indicated above. The learned Metropolitan Magistrate had convicted and sentenced the petitioner by his order dated 17. 02. 2003 and the learned Additional Sessions Judge has confirmed the same in appeal by his order dated 13. 04. 2005. 3,000/- as indicated above. The learned Metropolitan Magistrate had convicted and sentenced the petitioner by his order dated 17. 02. 2003 and the learned Additional Sessions Judge has confirmed the same in appeal by his order dated 13. 04. 2005. ( 4 ) THE question of limitation has been raised by the learned counsel for the petitioner but, I find that the same is not open to him in view of the division Bench decision of this court in the case of Oriental Bank of Commerce v. Delhi Development Authority: 1982 CRL. L. J 2230 wherein one of the learned judges (M. L Jain, J) had categorically observed that:-"there should be no doubt that the offence of non-conforming user is a continuing offence and was always regarded so. " The learned judge also held:- "i would, therefore, uphold the contention that the non-conforming user will never be barred by limitation if it continues on the date the court is called upon to take cognizance of the offence. " These views expressed by M. L. Jain, J. have been endorsed by Sachar, j. in his opinion in the same decision wherein he observed:- " I agree with his conclusion and reasons firstly, that the offence is a continuing one and the bar of limitation does not apply. " ( 5 ) IN view of the decision of the Division Bench in the case of Oriental bank of Commerce (supra), it is clear that the offence under which the present petitioner is convicted is a continuing one and the question of limitation as such does not arise particularly because the petitioner is not in a position to state that the said non-conforming user has been discontinued after 10. 03. 1997. In this view of the matter, even though I feel that the courts below ought to have addressed the question of limitation particularly when it was raised by the petitioner, I am not inclined to interfere with the impugned order because of the Division Bench decision that the offence is a continuing one and therefore, the question of limitation would not arise as indicated above. In this view of the matter, this revision petition is dismissed.