Bombay High Court
Nilesh Kishore Shah vs The State Of Maharashtra And Ors on 21 July, 2025
2-WP-590-2025.DOC
2025:BHC-AS:30367
Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.590 OF 2025
Nilesh Kishore Shah ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
Mr. Ashok Kumar Dubey, with Mr. A. N. Mishra, i/b. Savj Law
Solutions, for the Petitioner.
Mr. D. J. Haldankar, APP, for the Respondent No.1-State.
Mr. P. P. Chavan, i/b. Ms. Komal Punjabi, for the Respondent
Nos.2 to 5-BMC.
CORAM Dr. Neela Gokhale, J.
DATED: 21st July 2025
ORAL JUDGMENT:-
1. The Petitioner seeks quashing of the order dated 22 nd
October 2019 whereby process was issued against the
Petitioner for the offence punishable under Section 381A of
the Mumbai Municipal Corporation Act, 1881 ('MMC Act').
2. Heard Mr. Ashok Kumar Dubey, learned counsel for the
Petitioner and Mr. Chavan, learned counsel appearing for the
Respondent Nos.2 to 5.
21st July 2025
2-WP-590-2025.DOC
3. The Petitioner is stated to be a member of the Sai
Govind Co-operative Housing Society and is the owner of Flat
No.503 situated in 'A' Wing on the 5 th Floor of the said
building.
4. A complaint bearing Criminal Case No.5505964/SS/
2019 was filed by the Municipal Corporation, Greater Mumbai
against the Petitioner in the Court of the Metropolitan
Magistrate at Vile Parle (West), Mumbai under Section 381-A
of the Mumbai Municipal Corporation Act, 1888 complaining
that the Petitioner had unauthorizedly kept a single LDPE
water storage tank in the bathroom and W.C. loft which is in
non-mosquito-proof condition and hence, likely to breed
mosquitoes.
5. Pursuant to the said complaint, the Metropolitan
Magistrate issued process against the Petitioner. Aggrieved by
the said order of issuance of process, the Petitioner has filed
the present petition. Mr. Chavan, learned counsel appearing
for the Corporation has tendered the Inspection Report, which
indicates that the water storage tank holding water is likely to
21st July 2025
2-WP-590-2025.DOC
breed mosquitoes and adversely affect public safety and
health at large. Hence, the Corporation directed the
Petitioner to dismantle the said water tank within a period of
seven days from the date of the said notice.
6. Mr. Kumar, learned counsel for the Corporation submits
that the Petitioner was required to seek permission of the
Commissioner before installing the said water storage tank
and having failed to do so, has committed the said offence
under Section 381A of the Act. Section 381-A of the MMC Act
reads as under:
Section 381-A reads as under:
"381-A. Permission for new well, etc.-- (1) No
new well, tank, pond, cistern or fountain shall be dug
or constructed without the previous permission in
writing of the Commissioner.
(2) If any such work is begun or completed without
such permission the Commissioner may either--
(a) by written notice require the owner or other
person who has done such work to fill up or demolish
such work in such manner as the Commissioner shall
prescribe, or
21st July 2025
2-WP-590-2025.DOC
(b) grant written permission to retain such work,
but such permission shall not exempt such owner
from proceedings for contravening the provisions of
sub-section (1)."
7. I have perused the petition and documents on record
with the assistance of both counsel.
8. Admittedly, the Corporation is at liberty to inspect the
flats for the purpose of verifying safety precautions taken by
the flat owners to prevent mosquito breeding and other
matters affecting public health. However, the provision of
Section 381-A of the MMC Act provides that no tank shall be
dug or constructed without the previous sanction of the
Commissioner.
9. In the present complaint, there are no allegations that
the Petitioner has constructed a tank or that there was digging
of any land for the purpose of installation of the tank. The
said tank appears to have been kept in the bathroom by the
Petitioner to store water temporarily, particularly, in times of
water shortage. On a plain reading of Section 381A of the
Act, it is applicable only when there is digging or construction
21st July 2025
2-WP-590-2025.DOC
of the tank. The allegations and averments in the complaint
do not attract the said provision.
10. Mr. Dubey, has brought to my attention an order dated
6th November 2023 passed by this Court in Criminal Writ
Petition No.2759 of 2022 in respect of the similar complaint
filed against him, which was also assailed before this Court.
The process issued in that proceeding was quashed and set
aside by this Court. I have also perused the order. Paragraph
8 of the said order reads thus:
"8. The only remaining question is whether Section
381A of the MMC Act has been violated. The
allegation is not that the petitioner is drawing water
without authorisation and storing it in a water tank.
There are no allegations that the storage tank in the
flat is causing any damage to the stability of the
structure. As per Section 381A of the MMC Act, no
new well, tank, pond, cistern or fountain can be dug
or constructed without the prior written permission
of the Commissioner. However, in this case, there are
no allegations that any tank was constructed or that
the land was dug for the purpose of constructing a
well, pond, or fountain. Clause (a) of Sub-Section 2
of Section 381A of the MMC Act specifies that the
21st July 2025
2-WP-590-2025.DOC
terms 'to fill up' or 'demolish' are in relation to
digging and constructing. Therefore, this Section is
only applicable when there is digging or construction
of a well, tank, etc. The allegations in the present
complaint do not fall under the provisions of Section
381A. None of the ingredients of Section 381A of the
MMC Act are satisfied, which justifies the
discontinuation of the prosecution. It is important to
note that penal statutes are required to be strictly
construed, and hence, the prosecution deserves to be
quashed."
11. In view of the aforesaid discussion, the petition is
allowed in terms of prayer clause 'b', which reads as under:
"(b) After perusing the record and proceedings of the Ld.
Metropolitan Magistrate 55th court, in respect of the
Complaint No. 5505964/SS/2019, for the offences
punishable under section 381A r/w 471 of MMC and the
process issued on 22.10.2019 be quashed and set aside."
(Dr. Neela Gokhale, J)
Signed by: Raju D. Gaikwad
Designation: PS To Honourable Judge 21st July 2025
Date: 22/07/2025 19:12:27
