Bakhtiar Sunavala vs The State Of Maharashtra
2023 Latest Caselaw 10666 Bom

2023:BHC-AS:31032-DB


                       Harish
                                                                         APL 979 of 2012.odt

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION
                                   CRIMINAL APPLICATION NO. 979 OF 2012

                Bakhtiar Sunavala
                having his office at 11, Jorawar Bhavan,
                South Wing, 3rd Floor, M. K. Marg, New
                Marin Lines, Mumbai 400020                              ...Applicant

                       V/s.

                1. The State of Maharashtra

                2. Assistant Commissioner, A Ward,
                Municipal Officer, 134- E.S.B.S. Road,
                Near R.B.I. Bldg. Fort, Mumbai-400001.                  ...Respondents

                Mr. Sanjog Parab, Senior Advocate a/w Mr. Santosh Pawar, Mr. Mohan
                Rao, Ms. Sulbha Rane & Ms. Sakshi Baadkar i/b Mr. Mihir Gheewala for
                the Applicant.
                Ms. M. H. Mhatre, APP for the Respondent-State.


                                             CORAM         : A.S. GADKARI &
                                                             SHARMILA U. DESHMUKH, JJ.

RESERVED ON : 5th OCTOBER, 2023.

PRONOUNCED ON : 16th OCTOBER, 2023.

JUDGMENT : (PER SHARMILA U. DESHMUKH, J.)

1. Heard Mr. Sanjog Parab, learned senior Advocate for the

Applicant and learned APP for the Respondent-State. Despite service,

none appears for Respondent No. 2 as such, we have proceeded with the

hearing of the matter.

1/ 6 Harish APL 979 of 2012.odt

2. The present Application has been filed under Section 482 of

the Cr.P.C. seeking quashing of the chargesheet filed before the 41 st

Metropolitan Magistrate's Court at Shindewadi, Dadar, Mumbai in

C.C.No.8/PW/2012 for the offence under Section 53(7) of the

Maharashtra Regional and Town Planning Act, 1966 ("MRTP Act" for

short).

3. Mr. Parab, learned senior Advocate for the Applicant submits

that, the complaint has been lodged by the official of the Mumbai

Municipal Corporation alleging that there has been a change of the user

of the premises occupied by the present Applicant and despite notice

being issued under Section 53(1) of the MRTP Act, the requisition of the

notice was not complied with. He would submit that, the lodgement of

the crime is an abuse of process of law as the Applicant an Advocate and

Solicitor is running a law firm in the said premises as a licensee. He

would further submit that, the sanction granted by the Assistant

Commissioner of Municipal Corporation to prosecute the present

Applicant itself mentions that, the owner of the premises Shivkumar

Sood had been issued a notice dated 17 th November, 1997 for change of

the user and that a proposal has been submitted for regularizing the

change of user in the year 1998. He would further submit that, the

2/ 6 Harish APL 979 of 2012.odt

notice under Section 53(1) of MRTP Act was received by the Applicant

on 24th February, 2010, to which a reply was sent by the owner of the

premises stating that, the premises were used as commercial premises

for the past 15 years and that communications dated 15 th January, 1998

and 16th January, 1998 which were in the nature of Application under

Section 44 of the MRTP Act for regularization of change of user of

premises from residential to commercial have been filed. According to

him, the notice issued to the present Applicant under Section 53(1) of

MRTP Act is not maintainable in law as it called upon the Applicant to

restore the original user of the premises i.e. residential purpose which is

not contemplated under the provisions of Section 53(1) of the MRTP

Act.

4. We have considered the submissions and perused the record.

5. The Applicant has been chargesheeted along with the owner

of the premises for the offence under Section 53(7) of MRTP Act. Sub-

section (7) of Section 53 of the MRTP Act is the charging section for

offence under clause (a) of sub-section (6). Clause (a) of Sub-Section

(6) of Section 53 provides that, within the period specified in the notice

or within the same period after the disposal of the application under

sub-section (4), the notice or so much of it as stands is not complied

3/ 6 Harish APL 979 of 2012.odt

with, the Planning Authority may prosecute the owner for not complying

with the notice and where the notice requires the discontinuance of any

use of land any other person also who uses the land or causes or permits

the land to be used in contravention of the notice.

6. Sub-Section (6) of Section 53 provides for prosecution of the

occupier if the occupier fails to comply with the notice calling upon the

occupier to discontinue the use of land. The factual foundation for

prosecution in the present case is the non-compliance of notice dated

17th November, 1997. In the instant case, the notice annexed at Page No.

39 of the Petition calls upon the Applicant to restore the original user of

the premises i.e. residential purpose. The Applicant being the licensee of

the premises, cannot be called upon to restore the premises to its

original use. Such a notice directing restoration of original use of the

premises is contemplated only to the owner of the premises. Clause (a)

of Sub-Section (6) of Section 53 being clear and specific, the prosecution

of the Applicant is permissible only in event of non compliance of notice

to discontinue the use of land.

7. In the present case, as the notice calls upon the Applicant to

restore the original use of the premises and there is no requisition for

discontinuance of the use of the land, the condition precedent was not

4/ 6 Harish APL 979 of 2012.odt

satisfied. As such there is a legal bar to prosecute the Applicant for non-

compliance of the notice.

8. In addition thereto, the sanction Order itself notes that a

proposal for regularization of the change of user has been pending since

the year 1998. From the material on record, it is not demonstrated that

the Application for regularization has been adjudicated by the Planning

Authority and pending the final determination or withdrawal of the

Application, the mere notice itself does not affect the retention of

buildings or works or the continuance such use as provided in sub-

Section 3 of Section 53. The Applicant, who is the licensee of the

premises, is sought to be prosecuted for use of the premises as

commercial premises which use is in force since past 15 years by the

erstwhile owner/occupier. The notice to restore the original use of

premises is required to be issued to the owner of the premises and not to

the occupier. It is cardinal principle of criminal jurisprudence that, there

cannot be vicarious liability unless the statute specifically provides. We

do not find such a provision exposing the occupier to vicarious criminal

liability for offence committed by the owner. In this context, clause Nos.

1 and 6 of paragraph No. 102 of the decision in the case of State of

Haryana & Ors. vs. Bhajan Lal & Ors. (AIR 1992 SC 604) are squarely

5/ 6 Harish APL 979 of 2012.odt

applicable to the present case.

9. Having regard to the discussion above, the continuance of the

proceeding i.e. C.C.No.8/PW/2012 pending on the file of Metropolitan

Magistrate's Court at Shindewadi, Dadar, Mumbai will amount to abuse

of the process of law.

As such, the Application succeeds and the said case is

quashed.

Rule is made absolute in the above terms.

(SHARMILA U. DESHMUKH, J.) (A.S. GADKARI, J.)

6/ 6 Signed by: Harish V. Chaudhari Designation: PA To Honourable Judge Date: 17/10/2023 19:14:04