Bombay High Court
R.N. Kulkarni & Others vs V.V. Kanabar And Others on 26 September, 1997
Equivalent citations: 1998(5)BOMCR647, 1998(2)MHLJ128, 1998 A I H C 1192, (1998) 2 MAH LJ 128
Author: S.S. Parkar
Bench: S.S. Parkar
ORDER S.S. Parkar, J.
1. This writ petition under Article 227 of the Constitution of India and under section 482 of Cr. P.C. has been filed by the petitioners who are the three out of five accused against whom process was issued by the learned Metropolitan Magistrate, 17th Court, Mazgaon, Bombay on 5-2-1996 in Case No. 35/S/95. The petition seeks to challenge the said process issued by the learned Metropolitan Magistrate. The process was issued on a private complaint filed by respondent No. 1 for offence under sections 166, 217 and 218 of I.P.C.
2. The grievance made in the complaint of June, 1994 is that the petitioners who are the officers of the B.M.C., such as Assistant Engineer, Ward Officer and Deputy Municipal Commissioner and respondent Nos. 2 and 3 who are the Officers of M.T.N.L. had failed in performing their duty cast on them by the Government under the provisions of the B.M.C. Act and particularly sections 318 to 325 read with sections 471 and 472 of B.M.C. Act. This complaint was filed by the respondent No. 1 as a citizen in the interest of public because according to him the accused who are the officers of the B.M.C. and the M.T.N.L. having failed in their duty and disobeyed the direction of the law, knowing it to be likely that such disobedience would cause injury to members of the public and/or thereby likely to save any person from legal punishment or subject him to a less punishment to which he is liable.
3. It is not in dispute that in the month of November, 1993, the B.M.C. had given permission to the M.T.N.L., Bombay, to do digging work on Shivda Champsey Marg, St. Mary's Road and Love Lane at Bombay for the purpose of laying down new cable and pipe lines and construction of chambers. As per the B.M.C. Act and particularly the aforesaid provisions viz. sections 318 to 322 digging any street or road in Bombay cannot be done without the permission from B.M.C. That permission seems to have been obtained on 2nd November, 1993. The grievance made in the complaint is that after that work of laying down cable etc. was completed by the M.T.N.L., the M.T.N.L.'s authorities had not restored the street to its former position which caused nuisance and injury to the right of the members of the public. Section 324(1) of the B.M.C. Act casts an obligation on the person to whom permission is granted under section 322 by B.M.C. Commissioner to open or break up the soil or pavement of any street, to complete the work and reinstate and make good the street or pavement so opened or broken up without delay to the satisfaction of the Commissioner. Sub-section (2) of section 324 provides that in case any person who is authorised to dig or open the street does not reinstate and make good the street or pavement so opened or broken up, the Commissioner may restore such street or pavement, and the expenses incurred by the Commissioner in so doing shall be paid by the said person who was duty bound to reinstate the street under section 324(1) of the B.M.C. Act. Section 324 of the B.M.C. Act reads as follows :
"324.(1) Every person to whom permission is granted under section 322 to open or break up the soil or pavement of any street, or who, under other lawful authority, opens or breaks up the soil or pavement of any street, shall with all convenient speed complete the work for which the same shall be opened or broken up, and fill in the ground and reinstate and make good the street or pavement so opened or broken up without delay, to the satisfaction of the Commissioner.
(2) If the said person shall fail to reinstate and make good the street or pavement as aforesaid, the Commissioner may restore such street or pavement, and the expenses incurred by the Commissioner in so doing shall be paid by the said person."
4. The case of the respondent No. 1 complainant is that the M.T.N.L. who had dug up the street, even after completion of the work, had not reinstated the street and the road for long time, as a result of which the members of the public were put to inconvenience. The grievance is made in the complaint that since the M.T.N.L. authorities did not reinstate the road as required under the law, the complainant had addressed a letter dated 25th March, 1994 to B.M.C. officers as well as the M.T.N.L., officers complaining about it and asking them to reinstate the road. As no action was taken pursuant to the said complaint dated 25-3-94, the complainant wrote a letter to the Commissioner himself. The complainant himself visited the officers concerned including the petitioners and complained to them personally but nothing was done and therefore he filed the complaint in the Metropolitan Magistrate's Court in the month of June 1994. The learned Magistrate after recording the verification of the complainant, in June, 1994, issued process under section 217 of I.P.C. section 217 of I.P.C. section 217 of I.P.C. reads as follows :
"217. Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture---Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
5. After the issue of process three out of the five accused persons filed the present petition challenging the order of issue of process.
6. Mr. Walawalkar appearing for the petitioners first submitted that the complaint does not make out prima facie case against the petitioners. He contended that the necessary facts are not disclosed in the complaint nor the particulars of the ingredients required under section 217 of I.P.C. are mentioned therein and, therefore, the complaint is liable to be quashed.
7. Mr. Walawalkar took me through paragraphs 7 and 8 of the complaint and contended that the complaint has reproduced the words of the sections without giving particulars. In my judgment the said contention is not correct. In para 7 of the complaint it is stated that the complainant had drawn the attention of the authorities to the excavation made by the M.T.N.L. contractors and the violation of section 318 to 322 of the B.M.C. Act, by his letter dated 25-3-1994. According to the complainant the work of digging of the footpaths, streets and roads was going on Shivdas Champsey Marg, St. Mary's Road and Love Lane since November, 1993. The B.M.C., authorities had allowed M.T.N.L. by giving requisite permission undersection 322 but M.T.N.L. did not comply with conditions mentioned in sections 323, 324 and 325 of the B.M.C. Act. It is stated that, it was the duty of the accused persons to reinstate the street and the road after the work of M.T.N.L. was completed but though the work was completed the footpaths and streets were left in the same condition for several months. The complainant also stated that inspite of his complaint to the accused no action was taken to reinstate the roads which has caused injury and inconvenience to public who had to take their vehicles through the road. Similarly, the pedestrians are caused inconvenience because of digging work done on the roads without reinstating them in the former position. According to the complainant the obligation is cast on M.T.N.L. under section 324(1) to reinstate the road which was not carried out and on the failure of M.T.N.L. authorities, the B.M.C. had the power to prosecute those authorities under section 417 of B.M.C. Act. But the B.M.C. authorities also failed in their duty knowing that by their failing to do so they were likely to save, any person from legal punishment, or subject him to a less punishment than that to which he was liable under law.
8. Mr. Walawalkar's objection is that the complainant ought to have mentioned the names of the contractors or workers of M.T.N.L. to whom the B.M.C. authorities are favouring by saving them from legal punishment by not taking action against them. In my view such particulars need not be given in the complaint itself but it would be a matter of evidence. The complaint has been filed in the public interest in order to enforce the right of the public and the complainant has taken pains to approach different authorities by filing complaint and also by personally seeing them to get the roads reinstated but inspite of that no action was taken by the accused. The obligation to reinstate the roads to former position is not on the workers who had dug-up the road but duty is cast on the M.T.N.L officers who had taken the permission and the B.M.C. officials who had given permission to dig the roads. The complaint has been filed against the persons who according to the complainant, were responsible either to give permission and who had taken permission to dig the road, on their failure to restore the roads to their former position after the work was completed.
9. The next contention of Mr. Walawalkar is that the complaint does not mention whether the petitioner-accused are delegated the powers by Commissioner under section 68 of the B.M.C. Act. He points out that there is no averment in the complaint that petitioners had been delegated powers under section 68 of the B.M.C. Act by the Commissioner to give permission under section 322 to the M.T.N.L. Authorities. But it is not disputed either that petitioners could be delegated powers by the Commissioner under section 68 of the B.M.C. Act. Secondly, the petition also does not state that the petitioners-accused were not delegated power under section 68 of the B.M.C. Act by the Commissioner for giving permission as contemplated under sections 318 to 322 of B.M.C. Act.
10. The third submission of Mr. Walawalkar is that it may be a case of negligence or even gross negligence on the part of the officers of the B.M.C. and for that reason they cannot be prosecuted under section 217 of the I.P.C. The complaint however has not been filed on the ground that the officers were negligent. The complainant had made written complaint and as stated in the complaint he had personally visited these officers to ensure that the road was reinstated, yet no action was taken by the B.M.C. authorities either to get the road reinstated or to prosecute the M.T.N.L. authorities in accordance with law. There is no allegation that they were negligent. The allegation is that they have tailed in their duty or failed to obey the direction of law as contemplated by section 217 of I.P.C.
11. Across the bar statement was made on behalf of the B.M.C. that initially the roads were reinstated by the end of December, 1995 and thereafter improvement was made by December, 1996, It is pointed out by Mr. Walawalkar that the affidavit has been filed in this Court by one Ajit Narvade, the Sub-Engineer of B.M.C. who has stated in that affidavit that the initial reinstatement work of the road was done by 22-10-1994. Even taking this date to be true, it was done after the present complaint was filed in the month of June, 1994. Section 217 of the I.P.C. provides for punishment to a person who knowingly disobeys any direction of the law either intentionally or with the knowledge that such act is likely thereby to save any person from legal punishment. The petitioners who are the officers of the B.M.C. can be attributed knowledge at least, if not intention, that by not taking action against the M.T.N.L. authorities they would be saving those persons from legal punishment.
12. In my view the complaint not only makes out prima facie case under section 217 of I.P.C. for which process has been issued, it makes out a prima facie case even under section 166 of the I.P.C. which was invoked by the complainant but for which the process was not issued. Section 166 of I.P.C. provides for punishment to the public servant who disobeys law either with intention or with knowledge that thereby he would cause injury to any person. If the roads are not restored or reinstated after the work was done, certainly it affects and causes injury to the members of the public.
13. Mr. Walawalkar also submitted that no time limit is prescribed within which reinstatement of the road has to be done. He relied on section 324 of B.M.C. Act, under which reinstatement of the road has to be done without delay. This is true, but "without delay" would not mean indefinite delay. It is not disputed that the work had commenced sometime in the month of November ,1993 and the affidavit filed in this Court also mentions that the reinstatement work was done in October, 1994. It will be a matter of evidence to be led on behalf of the petitioners to show that delay was justified but the complaint cannot be stifled at the threshold itself. The respondent No. 1 who has filed this complaint seems to have filed the same bona fide in the interest of the public and he does not have to gain from it. On the contrary he has to devote time and also incur expenses. The complaint has been filed as stated earlier in the public interest with a view to ensure that those who disobeyed the law and especially the public servants should not go scotfree.
14. Mr. Salvi, the learned A.P.P. appearing for the State has supported the case of respondent No. 1 complainant and contended that a prima facie case has been made out by the complainant and, therefore, this petition is liable to be dismissed.
15. In my view a prima facie case has been made out in the complaint and the complaint as it is, does make out a case for prosecution against the petitioners. So far as the B.M.C. Act, is concerned it does provide for penal provisions attended with fine with which we are not concerned in this petition. Needless to say that the observations made in this judgment must not in any way weigh at the trial.
16. In the aforesaid circumstances this writ petition is liable to be dismissed. Hence the petition is dismissed. Rule is discharged. Trial is expedited.
17. Since the petitioners are the officers of the B.M.C. their presence need not be insisted upon in the Lower Court on every date of hearing but only at the time of trial or when otherwise their attendance is necessary, so long as they are represented by their Advocate.
18. Mr. Walawalkar applies for stay of the order for two months. Mr. Kannabar opposes and states that this is too long period. He however, does not seriously object to four weeks time being given. Interim order of stay granted by this Court on 12th July, 1995, shall continue for a period of four weeks from today.
19. Certified copy is expedited.
20. Petition dismissed.