Bombay High Court
M/S Silver Land Developers Pvt.Ltd vs The State Of Maharashtra And Another on 15 March, 2013
Author: S.C. Dharmadhikari
Bench: S.C. Dharmadhikari
*1* apl.408.11.902.doc
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.408 OF 2011
M/s Silver Land Developers Pvt.Ltd.. ..Applicants
-Versus-
The State of Maharashtra and another. ..Respondents
...........
Mr.P.K.Dhakephalkar, Senior Advocate i/by Mr.Sachin Dhakephalkar, for
the Applicants.
Mr.A.S.Shitole, APP, for the Respondent/State.
Mr.B.D.Joshi a/w Ms.Seema Rawade, for the Respondent No.2/BMC.
ig ...........
CORAM: S.C. DHARMADHIKARI, J.
DATE :- 15th March, 2013.
ORAL ORDER :
1 On conclusion of the arguments, this matter is placed today for passing judgment.
2 Rule.
3 The Respondents waive service. By consent, Rule is made returnable forthwith.
4 By this Application under Section 482 of the Code of Criminal Procedure, 1973, the Applicants are seeking to quash and set aside the complaint dated 25.02.2011 filed by the Respondent No.2 (Mumbai Municipal Corporation) before the Metropolitan Magistrate, 42 nd Court, Shindewadi, Mumbai being Case No.4200014/SW/2011 alleging the offence punishable under Section 475A of the Mumbai Municipal Corporation Act, 1888.
5 The complaint has been filed alleging that the premises Parvati Sada, Plot No.148, CTS No.5851, Town Planning Scheme III, Bhanushali Lane, Ghatkopar (East), Mumbai-400077, were inspected and examined by the Junior Engineer/ Sub-Engineer/ Assistant Engineer on ::: Downloaded on - 09/06/2013 19:44:58 ::: *2* apl.408.11.902.doc 17.09.2010. On that inspection and examination, it was found that there are various defects as set out in the notice and copy of which is annexed to the complaint. This notice was issued under Section 354 of the Mumbai Municipal Corporation Act, 1888 and the Applicants/ Accused were called upon to carry out the work of repairs. The Applicants were served with this notice on 12.11.2010. The Junior Engineer/ Sub Engineer/ Assistant Engineer again inspected and examined the premises on 15.02.2011 and it was found that the Applicants/Accused have failed to comply with the requisitions under Section 354 of the Mumbai Municipal Corporation Act, 1888 and that is how it was alleged that they have committed an offence punishable under Section 475A of the Mumbai Municipal Corporation Act, 1888.
6 Upon this complaint being lodged, the Metropolitan Magistrate issued the process and that is how aggrieved thereby the Applicants have approached this Court.
7 For properly appreciating the contentions of the counsel, it will be necessary to refer to the notice issued under Section 354 of the Mumbai Municipal Corporation Act, 1888 dated 12.11.2010. It states that the structure, namely, a portion of the building "Parvati Sadan" of which the Applicants are owners, is in a ruinous condition and likely to fall and dangerous to any person resorting to or passing by the same. In these circumstances the Applicants were called upon to pull down/ demolish the entire ground floor plus first upper floor structure by protecting the rights of the tenants/ occupants of the structure. The necessary precautions for safety of neighbouring structures and their occupants shall be taken while pulling down the offending structure. The Applicants were given certain directions. Thereafter, it is not necessary to refer to the response or reply to such notice as Mr.Dhakephalkar, learned Senior Counsel appearing for the Applicants/ Accused, has raised a legal submission.
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8 The contention of Mr.Dhakephalkar is that assuming
everything against the Applicants and as alleged in the complaint, however, there is no offence committed under Section 475A of the Mumbai Municipal Corporation Act, 1888. He submits that Section 354 of the same Act requires the Commissioner to record a satisfaction in terms thereof and then call upon the parties like the Applicants to take steps as provided therein. On satisfaction of the Commissioner that the building, its walls or other structure and anything affixed to or projecting from any building, wall or other structure, is in a ruinous condition or likely to fall or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, he can direct to pull down, secure or repair such structure subject to the provisions of Section 342 and to prevent all cause of danger therefrom. Mr.Dhakephalkar submits that the complaint in this case alleges that the Applicants were called upon to carry out work of repairs.
However, the notice read in its entirety calls upon the Applicants to pull down/ demolish the entire ground floor plus first upper floor structure by protecting the rights of the tenants/ occupants of the structure. 9 Mr.Dhakephalkar submits that Section 475A which is a provision invoked in this case alleging commission of the offence, does not provide for any punishment for failing to abide by a notice of the present nature. If the section is perused carefully, the provision enumerates punishment for failure to comply with a notice issued under Sections 351 and 354. If the notice under Section 354 calls upon a person for restoration of the foundation, plinth or floor, or structural members or load bearing wall, thereby endangering the life and property of any person occupying, resorting to or passing by such building or any other building or place in neighbourhood thereof, then, the offence is stated to have been committed and which provides for punishment of imprisonment. The ::: Downloaded on - 09/06/2013 19:44:58 ::: *4* apl.408.11.902.doc second act which invites punishment is failure to comply with a notice for removing, pulling down the unauthorized work. Mr.Dhakephalkar submits that the notice in this case, if carefully read, is issued by taking recourse to Section 354. But, it alleges that the building, which is in a ruinous condition and likely to fall and dangerous to any person resorting to or passing by the same, is to be pulled down/ demolished. The Applicants were required to pull down or demolish the entire ground floor plus first upper floor by protecting the rights of tenants/ occupants of the structure. If such notice is not complied with, it cannot visit the Applicants with punishment, therefore, no process could have been issued on such complaint. The complaint of the present nature even if taken as it is, does not spell out any offence punishable under Section 475A. For all these reasons, if the Applicants are called upon to face the trial that would be abuse of the process of the Court. The inherent powers of this Court are intended to render justice and prevent the persons like the Applicants from being called upon to face the proceedings which are abuse of the process of the Court.
10 Mr.Joshi, learned Special Counsel appearing for the Respondent No.2/BMC, on the other hand, submits that this notice under Section 354 if not complied with that is an offence punishable under the Act. Mr.Joshi invites my attention to Section 471 in this behalf. He then submits that the Applicants in such cases have remedy under Section 507 of the Mumbai Municipal Corporation Act, 1888. They must approach the Court of Small Causes. There is remedy of the owner of the building or land against the occupiers who prevent compliance of the provisions in the Act. Mr.Joshi relies upon the provision contained in Section 507 and submits that the Applicants ought to have complied with the notice and their failure to do so, invites punishment and therefore, the complaint need not be quashed. The Applicants can even now approach the Court of ::: Downloaded on - 09/06/2013 19:44:58 ::: *5* apl.408.11.902.doc Small Causes and seek appropriate orders and directions against the occupiers. If the occupiers are not cooperating, the Applicants have remedy in the Act, but not resorting to the same, they cannot urge that the complaint does not disclose the commission of any offence. Mr.Joshi has relied upon two decisions of this Court, one reported in AIR 1952 Bombay 146 (State of Bombay v/s Devraj Tulsi and others) and the second is reported in 1971 Bombay Law Reporter 259 (Diwanchand Gupta v/s N.M.Shah).
11 For properly appreciating these contentions, Section 354 has to be reproduced here and which reads as under:-
"354. Removal of structures, etc., which are in ruins or likely to fall.
(1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall or other structure and anything affixed to or projecting from any building, wall or other structure) is in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure or repair such structure (subject to the provisions of section 342), and to prevent all cause of danger therefrom.
(2) The Commissioner may also if he thinks fit, require the said owner or occupier, by the said notice, either forthwith or before proceeding to pull down, secure or repair the said structure, to set up a proper and sufficient hoard or fence for the protection of passers by and other persons, which a convenient platform and hand-rail, if there be room enough for the same and the Commissioner shall think the same desirable, to serve as a footway for passengers outside of such hoard or fence."
12 A bare perusal of the same indicates that the Commissioner has been conferred several powers. The Commissioner has to ensure that ::: Downloaded on - 09/06/2013 19:44:58 ::: *6* apl.408.11.902.doc the dangerous structures do not cause any loss of life or property. A perusal of sub-section (1) of Section 354 leaves in no manner of doubt that if the Commissioner is satisfied that any structure is in a ruinous condition or likely to fall or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, then, he call upon the owner or occupier of such offending structure to pull down, secure or repair such structure. The primary object of Section 354 is the safety of public and to secure that object, the Commissioner has been given very wide powers.
The notice when issued, has to be complied with. The non compliance of such notice may visit the parties like the Applicants, on whom it is served, with several other consequences, but the question before me is whether any process on a complaint alleging offence punishable under Sections 471 or 475A can be issued.
13 In that context, Section 471 and to the extent relevant reads thus:-
"471. Certain offences punishable with fine. "Whoever--
(a) contravenes any provision of any of the sections, sub-
sections or clauses mentioned in the first column of the following table, or of any regulation made thereunder; or
(b) fails to comply with any requisition lawfully made upon him under any of the said sections, sub-sections or clauses, shall be punished, for each offence, with fine which may extend to the amount mentioned in that behalf in the third column of the said table (subject, however, to a minimum fine which shall not be less than fine mentioned in the fourth column of the said table.) Explanation:- The entries in the second column of the said table headed "Subject" are not intended as definitions of the offences described in the sections, sub-
::: Downloaded on - 09/06/2013 19:44:58 :::*7* apl.408.11.902.doc section and clause mentioned in the first column, or even as abstract of those sections, sub-sections and clauses, but are inserted merely as reference to the subjects of the sections, sub-sections and clauses, the numbers of which are given in the first column."
Sr. Section Subject Fine which may Minimum fine
No. Sub-section be imposed which shall be
or clause imposed
(1) (2) (3) (4) (5)
86 Section 354AA, Erection or re-erection of Twenty Four thousand
sub-section (7) any building in thousand rupees.
contravention of the rupees.
declaration.
87 Section 354RK, Construction or re- Ten thousand Two thousand
sub-section (8) construction of building
ig rupees. rupees.
within any re-development
area without permission.
14 A bare perusal thereof, would indicate that whoever
contravenes any provision of any of the sections, sub-sections or clauses mentioned in the first column of the table or of any regulation made thereunder or fails to comply with any requisition lawfully made upon him under any of the provisions, shall be punished for each such offence with fine which may extend to the amount mentioned in the third column of the table.
15 The entry pertaining to Section 354 is to be found at Sr.Nos.86 and 87. Sr.No.86 refers to Section 354AA sub-section (7) whereas Sr.No.87 refers to Section 354RK sub-section (8). However, Section 354 does not find place in Section 471 which provides for punishment of fine.
16 As far as the offences under the Indian Penal Code are concerned, they are provided by Section 473 of the Mumbai Municipal Corporation Act, 1888, but in this case, there is no allegation that the ::: Downloaded on - 09/06/2013 19:44:58 ::: *8* apl.408.11.902.doc Applicants have contravened any provisions of the Indian Penal Code or have committed any offence punishable under the said Code. Reliance is placed upon Section 475A which reads as under:-
"475A. Punishment for commencing work contrary to section 347. (1) A person to whom notice under sections 351 and 354 is served shall, on his failure to comply with the said notice:-
(a) for restoration of the foundation, plinth or floor, or structural members or load bearing wall, thereby endangering the life and property of any person occupying, resorting to or passing by such building or any other building or place in neighbourhood thereof, shall be punished with imprisonment for a term which shall not be less than three months but which may extend upto three years and with a fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees; and in the case of a continuing offence with a further daily fine which may extend to one thousand rupees; or
(b) for removing, pulling down the unauthorised work, shall be punished with imprisonment for a term which shall not be less than one month but which may extend to one year and with a fine which shall not be less than five thousand rupees and in the case of continuing offence with a further daily fine which may extend to fine hundred rupees."
17 A bare perusal of the same, would indicate that if a notice is issued under Sections 351 and 354 and a person has failed to comply with a notice for restoration of the foundation, plinth or floor, or load bearing wall, thereby endangering the life and property of any person occupying, resorting to or passing by such building or any other building or place in neighbourhood thereof, then, such person is said to have committed an offence and for which the punishment is imprisonment for a term which shall not be less than three months but which may extend upto three years ::: Downloaded on - 09/06/2013 19:44:58 ::: *9* apl.408.11.902.doc and with a fine which shall not be less than Rs.10,000/-, but which may extend to Rs.50,000/-. If the person fails to remove or pull down the unauthorized work, then, he shall be punished with imprisonment for a term of not less than one month, but which may extend to one year and with a fine not less than Rs.5,000/-.
18 The Complaint in this case against the Applicants reads as under:-
"That upon inspection and examination of the premises by J.E./Sub Engineer/ Asstt. Engg. on 17.08.10 which is owned/occupied by the accused above named, it was found that there were various defects as decribed in the Notice No.N/BF/TP-II/412/354, copy of which is annexed herewith and which is part of the complaint dated 12.11.10.
By their above mentioned Notice under section 354 of the M.M.C. Act, the accused was called upon to carry out the said work for repairs. The notice is duly served on the accused on 12.11.10.
The Junior Engineer/ Sub Engineer again inspected and examined the said premises on 15.02.11 when it was found that the accused have failed on 13.12.10 to comply with the requisition lawfully made upon him under section 354 of the M.M.C. Act and thereby committed an offence punishable under Section 475A of the said Act.
I, therefore, pray that process may accordingly be issued against the said Accused in respect of the said offence, so that he may be dealt with according to the law."
19 Upon perusal thereof, it is evident that same alleges an offence punishable under Section 475A of the Mumbai Municipal Corporation Act, 1888. The complaint read as a whole and taken as it is, does not, to my mind, allege any offence punishable under Section 475A. There is no question of the Applicants' work being termed as unauthorized as the notice under Section 354 does not set out any allegation of that ::: Downloaded on - 09/06/2013 19:44:58 ::: *10* apl.408.11.902.doc kind. The notice calls upon the Applicants to pull down a portion of the structure or demolish it. The failure to comply with it and that act is not made punishable under either clause (a) or (b) of sub-section (1) of Section 475A. Once this conclusion is reached, the process issued by the learned Magistrate cannot be sustained. It is issued on a complaint which does not allege the commission of any offence punishable under Section 475A. Once the complaint does not disclose commission of any offence punishable under this provision, then, there is no alternative but to quash the process and complaint.
20 Before I do so, I must deal with two judgments which have been cited by Mr.Joshi. Mr.Joshi relies upon a judgment of the Division Bench of this Court in Diwanchand Gupta v/s N.M.Shah (supra). That judgment is delivered in a batch of petitions under Article 227 of the Constitution of India and which were directed against the order dated 28.11.1969 passed by the Chief Judge of the Court of Small Causes in two applications filed under Section 507 of the Mumbai Municipal Corporation Act, 1888. The Respondent Nos.2 to 8 in the said Writ Petitions filed these applications in their capacity as owners of the premises. The Applicants stated that they were served with a notice under Section 354 and though they were called upon by a notice to pull down the said building upto the ground level as the building stood in a ruinous condition, but the tenants and occupants/ occupiers failed to vacate the premises and made it impossible for them to comply with the notice under Section 354. It is alleged that they would, therefore, face the complaint alleging commission of offences. The occupiers resisted the applications contending that they were not properly filed, they were belated and malafide. The learned Judge allowed the parties to lead evidence and after considering the oral and documentary evidence, passed an order granting the Applications of the owners and issued directions impugned in those Writ Petitions. The ::: Downloaded on - 09/06/2013 19:44:58 ::: *11* apl.408.11.902.doc argument, therefore, was that the owners could have filed the suits to recover the possession, but they could not have invoked the jurisdiction of the Small Causes Court and claimed reliefs under Section 507 of the Mumbai Municipal Corporation Act, 1888. Turning down this contention, the Division Bench held that if the building is in a ruinous condition and is likely to fall and therefore, is required to be pulled down, then, it is the satisfaction on that count in the Act and which satisfaction of the Court cannot be interfered with in writ jurisdiction. It is in dealing with those contentions, that observations which have been relied upon by Mr.Joshi have been made by the Division Bench. The controversy was, therefore, completely different one. There is a stray observation that consequence of refusal is that the occupants themselves are liable to be prosecuted under Section 507, but what essentially was the argument was as to how the Small Causes Court has jurisdiction and whether that exercise of jurisdiction of the Small Causes Court was vitiated. To my mind, this judgment is of no assistance in resolving the present controversy.
21 As far as another judgment of a Division Bench of this Court in State of Bombay v/s Devraj Tulsi and others (supra) is concerned, the very facts therein would indicate that eight criminal appeals were directed against the order passed by the Presidency Magistrate acquitting the accused. The 08 accused were charged for having committed the offence punishable under Section 471 insofar as they failed to afford to the owners of the premises the facilities as ordered by the Chief Judge of the Small Causes Court for enabling the landlord to comply with municipal requisitions under Section 354 and thereby, they contravened Section 507(3). The 08 accused were tenants and the Municipal Corporation had issued a notice to the landlord to remove the structures which were in ruinous condition. The tenants did not handover possession of the premises to the landlord. In the result, the landlord was unable to comply ::: Downloaded on - 09/06/2013 19:44:58 ::: *12* apl.408.11.902.doc with the requisitions of the Municipal Corporation and he approached the Chief Judge of the Small Causes Court under Section 507 and the Chief Judge made an order on 16.03.1950 directing each of the accused to handover possession to the landlord on or before 16.04.1950. This again they did not do and that is how the tenants again contravened the order of the Chief Judge. This default of the tenants was taken by the Municipal Corporation to be a continuing offence, therefore, they filed a complaint under Section 471 against each one of them and the Presidency Magistrate was of the opinion that the prosecutions were barred under Section 514.
22Mr.Joshi may rely upon paragraphs 4 to 6 of this judgment, but to my mind, none of the observations are of any assistance to him because the Division Bench was dealing with the controversy as to whether the offence allegedly committed by the tenants was continuing one or not. In that regard, the observations relied upon by Mr.Joshi have been made. All this presumes that there was an offence punishable under the Act which was committed and whether it was continuing one or not and whether the complaint filed by the Municipal Corporation was barred by limitation as urged. Even this judgment and observations therein are of no assistance to Mr.Joshi. The Principles of Interpretation of Penal Provisions have been set out in the "Principles of Statutory Interpretation" 13 th Edition 2012 by Hon'ble Justice G.P.Singh in the following words:-
"It is not competent to the court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature. So when in a statute dealing with a criminal offence impinging upon the liberty of citizens, a loophole is found, it is not for Judges to cure it, for it is dangerous to derogate from the principle that a citizen has a right to claim that howsoever much his conduct may seem to deserve ::: Downloaded on - 09/06/2013 19:44:58 ::: *13* apl.408.11.902.doc punishment, he should not be convicted unless that conduct falls fairly within the definition of crime of which he is charged. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. There is all the more reason to construe strictly a drastic penal statute which deals with crimes of aggravated nature which could not be effectively controlled under the ordinary criminal law. Such a statute should not ordinarily be resorted to if the nature of the activities of the accused can be checked and controlled under the ordinary criminal law." (See page 906) 23 As a result of the above discussion, the Criminal Application succeeds. Rule is made absolute in terms of prayer clause (a), which reads thus:-
"(a) This Hon'ble Court be pleased to quash and set aside the complaint/ case No.4200014/SW/2011 filed by the Respondent No.2 U/sec. 475-A of the Mumbai Municipal Corporation Act in the Metropolitan Magistrate's 42nd Court, Dadar, Shindewadi, Mumbai against the Applicants on 25.02.2011."
(S.C. DHARMADHIKARI, J.) ::: Downloaded on - 09/06/2013 19:44:58 :::