Municipal Corporation Of Greater ... vs Wasudev D. Pilgaonkar And Ors
2016 Latest Caselaw 361 Bom

                                                            RJ WP 971 OF 2012.doc




                                                                               
    vks
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE JURISDICTION




                                                       
                           CRIMINAL WRIT PETITION NO.971 OF 2012

          Municipal Corporation of Greater Mumbai                    ]
          Through Mr. Arjun H. Jaiswar,                              ]




                                                      
          Legal Assistant P/N ward                                   ] .... Petitioner
          M.M.C. Legal Department, Mahapalika                        ]    (Original
          Marg, Mumbai 400 001                                       ] complainant)
                Versus
          1. Wasudev D. Pilgaonkar,                                  ]




                                              
             Ramnath Prasad, 18th road                               ]
             Khar (W), Mumbai 400 052ig                              ]
                                                                     ]
          2. Mrs. Arundhati A. Phadnis                               ]
             Block No.3 Malang Prasad                                ]
                                   
             Liberty Garden Road No.1,                               ]
             Malad (W), Mumbai 400 064                               ]   Respondents
                                                                     ]   (Respondent
          3. Mrs. Sumita P. Nagarsekar                               ]   Nos 1 to 3
             Block No.4 Malang Prasad                                ]   Original
            


             Liberty Garden Road No.1                                ]    Accused)
             Malad (West), Mumbai 400 064                            ]
         



                                                                     ]
          4. State of Maharashtra                                    ]

          Mrs. Surekha Sonawane I/by Mr. K. N. Gaikwad, for the petitioner B.M.C





          Mr. Ketan A. Chothani, for respondent Nos 1 too 3.
          Mr. A.S. Shitole,APP for the state.


                                    CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.





           RESERVED FOR ORDER ON: 29TH FEBRUARY 2016.
           ORDER DELIVERED ON                : 7TH MARCH 2016

          JUDGMENT :

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1. Heard learned counsel for the parties.

2. Rule.

3. Rule is made returnable forthwith with consent of both

parties.

4. This writ petition questions the legality, validity and propriety

of the order dated 16.5.2011, passed by the Additional Sessions Judge,

Greater Bombay, in Criminal Revision Application No.1257 of 2010,

thereby quashing the process issued against respondents herein, for the

offence punishable under Section 475A(1)(a) of the Mumbai Municipal

Corporation Act, 1888, by Court of Metropolitan Magistrate, 39th Court,

Parle, Mumbai, in Criminal Case No.6759/SS of 2010.

5. Facts of the writ petition are to the effect that respondent Nos

1 to 3, are the owners of the property i.e. building bearing No.51, Malang

Prasad, Liberty Garden Road No.1, Malad (West), Mumbai. On 1 st June,

2010, Junior Engineer "P" North ward of Mumbai Municipal Corporation,

Greater Bombay, inspected the premises of respondents and found that

the structure of the building was in a ruinous condition. It was likely to fall

and therefore, dangerous to the persons occupying the same or from

passing nearby. Therefore, Junior Engineer prepared the inspection report

and after seeking directions from higher authorities, issued notice under

Section 354 of the MMC Act, calling upon the respondents to carry out

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necessary repairs which were enumerated in the said notice within 30

days from the receipt of notice. The said notice was duly served on the

respondents on 17.6.2010 and 7.7.2010. The Junior Engineer again

inspected the said premises on 25th August 2010 and found that

respondents had failed to comply with the requisitions made in the notice

and thereby committed an offence punishable under Section 475(A)(1)(a)

of MMC Act. Therefore, Criminal Case was filed against respondents

under Section 475(A) (1)(a) read with Section 354 of the MMC Act, before

the trial Court. The trial Court, by its order dated 15.9.2010, was pleased

to issue process against the respondents.

6. Being aggrieved by the order of issuance of process,

respondents herein filed Criminal Revision Application No.1257 of 2010,

before the Sessions Court at Greater Mumbai. By its judgment and order

dated 16.5.2011, learned Sessions Judge was pleased to allow the said

Revision Application and quashed the process issued against the

respondents.

7. While challenging the order of Revisional Court, submission

of learned counsel for the petitioner is that Revisional Court has totally

ignored the provisions of Section 507 of MMC Act. It is urged that the

Revisional Court has quashed the process issued against respondents,

only on the grounds that the tenants who are occupying the said structure

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are not co-operating the respondents, in carrying out necessary repairs of

the said building. According to Revisional Court, therefore, respondents

cannot be held liable for non co-operation of the tenants and fastened with

the criminal liability of prosecution under Section 475(A)(1)(a) of the

MMC Act. According to learned counsel for the petitioner, Revisional

Court, failed to appreciate that respondents had failed to avail the remedy

available to them under Section 507 of the MMC Act. It is urged that both

the owners and occupier-tenants are attributing blame on each other, but

no-one is taking any steps to comply with the requisitions made in the

notice issued by the petitioner under Section 354 of the MMC Act.

8. It is further urged that by the notice, respondents are called

upon to carry out certain requisitions, like to cut shrubs grown on the

external face of the building and to provide adequate propping below the

balcony, chajas and passage and the dangerous members of the building

in order to avoid mishap. To carry out those repairs neither the co-

operation from the tenants nor vacant possession of the building was

required. Hence as per learned counsel for the petitioner, respondents

cannot escape from criminal liability for non compliance of the requisitions

made in the notice issued under Section 354 of the Act. According to

learned counsel for the petitioner, therefore, the impugned order passed

by the Revisional Court quashing process issued against respondents at

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the threshold itself being illegal, is required to be set aside.

9. Per contra, learned counsel for respondents had supported

the impugned order of the Revisional Court, by submitting that the

petitioners are not coming before the Court with clean hands. It is urged

that prior to the impugned notice dated 17.6.2010, petitioners had earlier

also issued one notice under Section 354 of the MMC Act on 27th January,

2010. The said notice was replied by the respondents through their

advocate on 22nd February, 2010 and it was pointed out that the building is

old and dilapidated being more than 40 years old, respondents had issued

notice to the tenants placing on record true and correct facts, damage to

the building caused due to the additions and alterations and had called

upon tenants to vacate the premises by terminating their tenancy. Tenants

became aggrieved thereby and issued notice to the petitioners on

25.5.2010, raising contention that it is not necessary to vacate the building

or to hand over the possession as the repairs to the building can be

carried out without doing so. According to learned counsel for

respondents, on the receipt of those notices from tenants, petitioners had

changed the stand and called upon the respondents to carry out repairs

alone and not to pull down the building. As per learned counsel for

respondents, copy of inspection report conducted earlier by the Junior

Engineer before issuance of notice dated 27th January 2010, was not

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supplied to the respondents despite their making application under Right

to Information Act. It is urged that as the tenants are not co-operating with

the respondents for carrying out necessary repairs nor handing over

vacant possession of the building, respondents are helpless and in such

situation, holding them liable for penal consequences for their failure to

comply with the requisitions made in the notice dated 17.6.2010 issued

under Section 354 of the Act is clearly an abuse of process of law; hence

Revisional Court has rightly quashed the said process.

10. In order to appreciate these rival submissions advanced by

learned counsel for petitioner and respondents, it would be useful to refer

to the provisions of Section 354 of the MMC Act. For easy and ready

reference, the provision is reproduced below.

"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 conditions, 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 and to prevent all cause of danger therefrom.

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(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, with a convenient platform and handrail, 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".

11.

A bare perusal of these provisions indicate that under this

Section, the Commissioner of Municipal Corporation has been conferred

with wide powers to ensure safety of citizens and further to ensure that

the old and dilapidated structures which are in ruinous condition do not

cause any loss of life or property. Sub section (1) of section 354 further

makes it clear that if at any time, it appears to the Commissioner that any

structure is in ruinous condition or in any way dangerous to the persons

occupying or passing by such structure or any other structure in the

property thereof, the Commissioner may by written notice require the

owner or occupier of such structure to pull down, secure or repair such

structure and to prevent all cause of danger therefrom.

12. The use of words, "if it shall at any time appear to the

Commissioner" imply that the satisfaction of the Commissioner about

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dangerous nature of the structure is only of a prima facie nature. He need

not be convinced or there should not be any reason to believe that the

structure is of a dangerous nature, therefore, standard of satisfaction for

issuance of notice under Section 354 of the MMC Act, is at the very lowest

level and such standard of satisfaction of the Commissioner can be

attained on the material placed before him, like the inspection report of the

Junior Engineer. Here in the case admittedly the averments made in the

complaint reveal that Junior Engineer of "P" North ward has visited the

premises owned by respondents on 1st June, 2010, carried out inspection

of the premises. On perusal of the said inspection report, as can be seen

from the averments made in the notice dated 17.6.2010, the

Commissioner was satisfied about dangerous nature of the structure and

was pleased to call upon the respondents to carry out repairs as set out in

the said notice.

13. The repairs which respondents are called upon to carry out

in the said notice are as follows :-

1. To carry out gunitting work to the R.C.C. beams, columns,

slab, polymer, jacketing and plastering wherever necessary in the consultation with licence Structural Engineer.

2. The work should be carried out under the supervision of licenced structural Engineer. Till then adequate propping must be provided below the balconies, chajas, passage and the

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dangerous members of the building wherever necessary in order to avoid any mishap.

3. To provide new additional reinforcement to the R.C.C.

Members wherever necessary. Also remove the loss plaster and replace with Rich Mortar.

4. To provide External and Internal plastering with water proofing wherever the leakage is noticed. And cracks developed.

5. To cut the shrubs arised/grown up on the external face of the

building.

6. To repair/replace the terrace top to avoid leakage wherever necessary.

7. This issued notice only applicable for authorised structure.

14. Admittedly the said notice was served on the respondents

and they had also replied the said notice, but did not comply with the

same. According to respondents, for carrying out these repairs, co-

operation of the tenants occupying the building was essential. However,

tenants were not co-operating and hence respondents could not comply

with the said notice. However, even a bare perusal of the notice is

sufficient to reveal that some of the repairs could have been carried out

even without vacating of the building by the tenants or even without their

co-operation as those repairs are of external nature, like cutting shrubs

arised/grown up on the external face of the building to provide external

plastering with water proofing wherever leakage was noticed and cracks

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were developed; to remove loose plaster and to replace it with rich mortar;

to repair/replace terrace top to avoid leakage wherever necessary etc.

Therefore, the excuse put up by the respondents that without building

being vacated and for that without co-operation of tenants, they could not

carry out the repairs, is clearly a lame excuse. Respondents had not

made any effort to carry out these repairs also and therefore, some

consequences or liabilities are bound to follow.

15.

Even as regards repair No.1 as stated in the notice i.e. to

carry out gunite work to the beams, columns, slab polymer, plastering

wherever necessary in consultation with licenced Structural Engineering,

eviction of the tenants or vacant possession of premises was not required

as such. Moreover, assuming that for the said work also co-operation of

the tenants was required, adequate remedy is provided to the owner of

the building to get such work done by incorporating section 507 of the

M.M.C Act. The said section reads as follows:-

"507. Remedy of owner of building or land against occupier who prevents his complying with any

provisions of this Act -(1) If the owner of any building or land is prevented by the occupier thereof from complying with any provisions of this Act or of any regulation or by-law made under this Act or with any requisitions made under this Act or under any such regulation or by-law in respect of

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such building or land, the owner may apply to the Chief Judge of the Small Cause Court.

(2) The said Chief Judge, on receipt of any such application, may make a written order requiring the occupier of the

building or land to afford all reasonable facilities to the owner for complying with the said provision or requisition and may also, if he thinks fit, direct that the cost of such

application and order be paid by the occupier.

(3) After eight days from the date of any such order, it shall be incumbent on the said occupier to afford all such reasonable facilities to the owner for the purpose aforesaid

as shall be prescribed in the said order; and in the event of his continued refusal so as to do, the owner shall be discharged, during the continuance of such refusal, from

any liability which he would otherwise incur by reason of his

failure to comply with the said provision or requisition.

16. This section, therefore, clearly provides for the eventuality

where the owner is prevented by the occupier thereof from complying with

the provisions of the Act or of any regulation or by-law made under the Act

or with any requisition under the Act, in such case, the owner can

approach the Chief Judge of Small Cause Court and powers of the Chief

Judge under Section 507(2) of the MMC Act, as can be seen are wide

enough. Even it includes a power to order occupant to vacate premises if

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that is necessary for giving reasonable facility to the owner. Therefore, if it

was really a case that respondents/owner herein were not getting co-

operation of the tenants for carrying out these repairs, the proper course

for them was to apply to the Chief Judge of Small Cause Court.

Respondents have, however, not done so. It appears that both the

tenants and owners are playing a game of shifting the blame on each

other and as a result the building is remaining in the same ruinous

condition which is likely to be not only dangerous to the owners and

occupants but also to the occupants of the neighbouring building and the

passers-by. Hence the excuse raised by the respondents for not

complying with the requisitions made in the notice issued by the petitioner

under Section 354 of the MMC Act is hardly just or valid.

17. Thus, apparently there is non compliance of the requisition

made in the notice issued under Section 354 of the Act that too without

any just or sufficient cause and without respondents making any efforts to

comply with those requisitions. In such situation, the remedy provided to

the Municipal Corporation to get the compliance done or at least to visit

the consequences on the owner who has committed the default in making

compliance, is under Section 475(A)(1)(a) of the Act. It was informed to

the respondents also in the notice issued under Section 354 of the Act

that if they failed to comply with the requisitions made in the notice, they

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would be liable for prosecution under Section 475(A)(1)(a) of the MMC

Act.

18. The provisions of Section 475(A)(1) (a) and (b) of the Act

clearly provides for punishment on failure to comply with the requisitions

made in the notice issued under Section 351 and 354 of the Act. It reads

as follows :-

"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 beating walls, thereby endangering the life and property of any person occupying, resorting to or passing

by such 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 but

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which may extend to twenty-five thousand rupees and in the case of continuing offence with a further daily fine which may

extend to five hundred rupees).

19. Thus, even a bare perusal of section 475A of the Act makes it

clear that if any person to whom notice under Section 354 is served, fails

to comply therewith, then he is liable to be punished with penal

consequences like imprisonment for a term which shall not be less than

three months but which may extend upto three years and with fine.

20. In the instant case admittedly respondents have, as

aforesaid, failed to comply with the requisitions made in the notice issued

to them under Section 354(a) of the Act, the excuse offered by them for

not complying with the requisitions is found to be without any substance.

In such situation, the prosecution launched against them, for the offence

under Section 475A (1) (a) of the Act, being prima facie just, legal and

correct, at the threshold itself cannot be quashed or set aside.

21. As to the grievances of respondents that they are not served

with copy of Inspection report or subsequent notice calling upon them to

carry out repairs whereas earlier notice was of pulling down the structure,

is issued at the instance of tenants, they are admittedly questions of facts

which can be decided at the time of trial, but at least not in the writ

jurisdiction by this Court.

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22. At this stage, the Court has to only consider whether the

averments made in the complaint prima facie make out ingredients of the

offences. In the instant case, such prima facie ingredients of the offences

being made out, no illegality can be found in the impugned order of the

trial court of issuing process against the respondents.

23. As regards the judgment of Single Judge of this Court dated

15th March, 2013, in Criminal Application No.408 of 2011 in M/s Silver

Land Developers Pvt. Ltd -vs- The State of Maharashtra and

another, quashing the process issued against owners under Section

475A of the MMC Act on failure to comply with the requisitions made

in the notice under Section 354 of the Act, the Municipal Corporation

has challenged the said order in the Apex Court by filing Petition for

Special Leave to Appeal (Cri) No.3883 of 2014. The Apex Court, by its

order dated 24.2.2014, though dismissed the petition, had clarified

that the view taken by the High Court is in the light of notice that was

issued by the petitioners and therefore, the observations in the said

Judgment of Single Judge of this Court are limited only with respect to

the facts of the said case.

24. As regards the present case, the allegations in the

complaint clearly make out case for issuance of process under Section

475A(1) (a) of the Act, for non compliance with the requisitions made

in the notice under Section 354 of the MMC Act and hence the said

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process cannot be quashed or set aside as apparently there is no

illegality found in the order passed by learned Magistrate.

25. Thus, the Writ Petition is allowed. The impugned order

passed by the Revisional Court of quashing process issued against

respondents for the offence punishable under Section 475(A)(1)(a) of

the Act is set aside.

26. Rule made absolute in above terms. s

[DR. SHALINI PHANSALKAR-JOSHI, J.]