The State of Maharashtra v. Amit Surendra Mittal

(iv) The above witnesses were cross-examined by the Advocate of the Respondent accused.

(v) On 19th January 2006, statement of the Respondent accused was recorded under section 313 of the Code of Criminal Procedure, 1973. The Respondent accused stated that the notice as per Exhibit P-4, that is notice under section 53(1) of the MRTP Act was not given to him. He also denied that the premises was owned by him. The Respondent accused stated that he has been falsely implicated in this case.

4. Judgment of the Metropolitan Magistrate:

(i) On 3rd February 2006, the Metropolitan Magistrate delivered a judgment acquitting the accused under section 248 of the Code of Criminal Procedure, 1973 punishable under section 53(1) of the MRTP Act and cancelled the bond and surety.

(ii) Briefly the reasons as per the Magistrate’s order are that

5 of 15 Shri. Sawant, original Complainant was not examined by the State. The inspection report dated 12th June 2002 is not on record. Notice under section 53(1) is not proved to have been served. PW-1 Shri. Mulik failed to locate the garage on the plan. The Complainant has not proved that the accused is the owner of the premises or is occupying the premises and the statement of the panch/witness that the inspection was not done in their presence.

5. The present appeal is, therefore, fled challenging the above reasoning and fndings of the Metropolitan Magistrate and prayed for reversal of the judgment dated 3rd February 2006.

6. Heard Shri. S.H. Yadav for the Appellant and Shri. S. C. Mangle as amicus curiae for the Respondent and with their assistance have perused the original records of the lower Court which were called for and also which formed part of the appeal paper book. The Appellant prayed for reversal of the acquittal by relying on grounds of appeal and the amicus supported the impugned order of the Magistrate. Analysis and Conclusion:

7. It is important to note the relevant provisions of the MRTP Act for adjudication of the present appeal, which are as 6 of 15 follows:- “52. Penalty for unauthorised development or for use otherwise than in conformity with Development Plan: (1) Any person who, whether at his own instance or at the instance of any other person commences, undertakes or carried out development or institutes, or changes the use of any land - (a) without permission required under this Act; or (b) which is not in accordance with any permission granted or in contravention of any condition subject to which subject permission has been granted;

(c) after the permission for development has been duly revoked; or

(d) in contravention of any permission which has been duly modifed shall, on conviction, [be punished with imprisonment for a term [which shall not be less than one month but which may extend to three years and with fne which shall not be less than two thousand rupees but which may extend to fve thousand rupees, and in the case of a continuing offence with a further daily fne which may extend to two hundred rupees] for every day during which the offence continues after conviction for the frst Commission of the offence.

53. Power to require removal of unauthorised development:- (1) Where development of land has been carried out as indicated in sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, [****] serve on the owner a notice requiring him, within such period, being not less than one month, as may be specifed, therein after the service of the notice, to take such steps as may be, specifed in the notice. (a) in case specifed in clause (a) and (c) of sub-section (1) of section 52, to restore the land to its condition existing before the said development took place, (b) in case specifed in clause (b) or (d) of sub-section (1) of section 52, to secure compliance with the conditions or 7 of 15 with the permission as modifed: Provided that, where the notice requires the discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also. (6) If within the period specifed 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 stand is not complied with, the planning Authority may- (a) prosecute the owner for not complying with the notice; and where the notice requires the discontinuance of any use of land any be used in contravention of the notice;”

8. In my view, the present appeal would require to be dismissed for more than one reason which is analysed by me hereinafter.

9. It is settled position that in criminal proceedings commission of the offence has to be proved beyond reasonable doubt and if there are any doubts then the beneft of doubt has to be given in favour of the accused. It is also settled position that procedural compliance has to be strictly followed by the State and if there is any defect in the same then the accused cannot be held guilty for the alleged offence. Keeping in mind these settled positions, I now propose to deal with the reasoning given by the Metropolitan Magistrate based on the evidence led by the Appellant before the lower Court.

10. Section 52 of the MRTP Act provides for penalty for unauthorised development or for use otherwise than in 8 of 15 conformity with the development plan without permission required under the said Act or which is not in accordance with any permission granted or in contravention of any condition subject to which such permission has been granted, development after the permission has been revoked or in contravention of any permission which has been duly modifed. If any such violation is committed then the person is liable to conviction with imprisonment and fne.

11. Analysis of Sections 53(1) and 53(6):- Section 53(1) of the MRTP Act as it stood prior to 15th April 2017 provided for service of notice on the owner requiring him to restore the land to its condition existing prior to the development under consideration or to secure compliance with the condition or with the permission as modifed. The proviso to Section 53(1) states that where the notice requires the discontinuance of any use of land, the planning authority shall serve a notice on the occupier also. The notice under Section 53(1) of the Act should give the owner/occupier atleast one month for restoration of the land or for compliance of the condition. Section 53(6) provides that if within a period specifed in the notice, if there is a non-compliance with the same then the planning authority may prosecute the owner for complying with the notice and where the notice requires the discontinuance of any use of land then the planning 9 of 15 authority may prosecute any other person also who uses the land in contravention of the notice. Therefore, on a conjoint writing of Section 53(1) and 53(6) of the MRTP Act, the service of notice on the owner or the occupier is sine qua non before the prosecution is launched. In my view, if there is no service of notice as required under Section 53(1), then the planning authority would not be justifed in launching the prosecution.

12. Service of mandatory notice:- Shri. Sawant has stated that notice under section 53 was served on the accused Respondent on 10th June 2002 and one-month period expired on 11th July 2002, but the accused, as per the second inspection report dated 22nd July 2002, did not discontinue the use of the premises as beauty parlour. The accused in his statement dated 19th January 2006 has denied the notice having been served on him. The Appellant complainant has not led the evidence of Shri. Sawant to prove that the notice under section 53(1) was served on the accused. The service of notice under section 53 of one month is a sine qua non before prosecution is launched under subsection (6). In the evidence of PW-1 Shri. Mulik, he has stated that the notice is signed by Shri. Sawant. PW-1 also stated that the notice for change of use was given to the accused, but who gave it and how it was given have not been proved, and if Shri. Sawant 10 of 15 has served the notice then PW-1 Shri. Mulik cannot give any evidence on this issue since he would not have any personal knowledge of the service. It is also important to note that the notice under section 53(1) dated 10th June 2002 giving one month’s time to the accused to discontinue the unauthorised use bears signatures, but the Appellant complainant has not proved as to whose signature the said notice bears. There is a date of 10th June 2002 below the signature and the time is also recorded, but the Appellant complainant has failed to put any question to the Respondent/accused on this count to prove the service of notice on the accused. Therefore, in the absence of proof of service, the Respondent accused cannot be held guilty of the offence under section 53(1) of the MRTP Act.

13. Ownership or Any person: Prosecution under section 53(6) of the MRTP Act can be launched against owner or “any person” where the notice requires discontinuance of any use of land. The phrase “any person” used in section 53(6) should be read in the context of proviso to section 53(1) and if so read the phrase “any person” used in section 53(6) would mean the “occupier”. Section 2(17) of the MRTP Act defnes “occupier” to include a tenant, an owner in occupation of, or otherwise using the land, a rent-free tenant in any land, and any person in lawful 11 of 15 possession of any land who is liable to the owner compensation for the use and occupation of the land. The Appellant/complainant has not proved that the Respondent/accused is owner or occupier as required by section 53(6) of the Act. The phrase “any person” would mean a person who is using the premises for purpose other than for the purpose shown on the sanction plan. In the instant appeal, the prosecution has not proved as to how the accused is in-charge of the garage which is used as a beauty parlour. Mere presence of the Respondent accused at the premises would not make him liable for prosecution under section 53(6) unless the prosecution proves that the beauty parlour was run by the Respondent accused either as an owner of the premises or as an occupier or in any other capacity. In this connection it is important to note that the Respondent accused on 4th July 2005 had made an application to fle the registration certifcate under the Bombay Shops and Establishments Act, 1948 and assessment certifcate issued by the Municipal Corporation of garage no.2 and no.3. It is noted on the application that the same was objected by the Appellant complainant. However, there is a noting in the Roznama that the said application was allowed. I, however, fail to understand as to why the Appellant complainant did not crossexamine the accused on these documents which were relevant for adjudicating nor was the same referred by the Learned 12 of 15 Magistrate. The registration certifcate under the Bombay Shops and Establishments Act, 1948 appears to have been issued originally to Shri. Surendra Kumar Mittal but thereafter there are notings in red colour bearing the name Shri. Amit Mittal and the place being used as a parlour. It is also important to note that the assessment certifcate dated 15th January 1997 which was taken on record shows that the garage was assessed as a shop and the said certifcate bore the name of Shri. Surendra Mittal. In my view, the lower authority ought to have considered these important documents which would have thrown light in deciding the complaint. Having not done so, the Magistrate has erred in not considering these important documents which would have shown that the Corporation has approved the use of garage as a shop and at the same time the certifcate under the Bombay Shops and Establishments Act, 1948 would have thrown light that the accused is running the business of parlour from garage no.2. However, I leave my views on these documents at this stage without any further adjudication.

14. Identifcation of Garage: It is important to note that PW-1 has produced the original sanction plan of the building but failed to locate the garage on the said plan. Therefore, the Appellant complainant has failed to prove its case in the proceedings before the lower court. 13 of 15

15. Panchnama: On 10th December 2002, a panchanama was drawn by the police in the presence of two witnesses, Shri. Narendra Gupta and Shri. Bal Pandey. Shri. Gupta in his examination in chief stated that the police had asked him to sign the panchanama but he was not aware about the contents of it. He also stated that the panchanama was not drawn in his presence nor was it read over and he had put his signature at the behest of the police. The second witness, Mr. Pandey was not examined at all. Hence the authenticity of the panchanama itself is in doubt. Therefore, even on this ground the present appeal is required to be dismissed.

16. First Information Report (FIR) dated 10th December 2002 was marked as Exhibit P-3. In the said FIR the date of receiving information at the police station is shown as 12th October 2002. The Appellant complainant has not produced before the Magistrate the document dated 12th October 2002 on the basis of which the FIR is sought to be lodged. This also indicates that the Appellant complainant has approached the present complaint in a very casual manner.

17. Conclusion: In view of the above analysis and reasoning, the present Appeal No.1313 of 2007 fled by the Appellant/original complainant against the Respondent/original 14 of 15 accused is required to be dismissed. Bond, if any, furnished by the Respondent/accused stands cancelled and is to be returned. [JITENDRA JAIN, J.] 15 of 15 Designation: PA To Honourable Judge