1 (Crim WP 852 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 852 OF 2010 Arvind L. Pittie ..Petitioner Vs. The Municipal Corporation of Greater Mumbai & Anr. ..Respondents ----- Mr.V.G. Pradhan, Senior Counsel a/w. Mr. J.S. Kini i/b. Mr.Suresh Dubey for Petitioner Mr.Sandeep Patil i/b. Mrs. V.K. Khatu and Mr. N.A. Shaikh for Respondent No.1 Mr. A.S. Shitole -APP for the State ----- CORAM: V.M. KANADE J. DATED: 12TH AUGUST, 2010 P.C. 1. Rule. Rule is made returnable forthwith by consent of the parties. 2. Heard. 3. By this Petition, the Petitioner is seeking an appropriate writ, order and direction for quashing the order of conviction passed on 20.7.2009 by the learned Metropolitan Magistrate, 41st Court, Shindewadi (Dadar), Mumbai. 2 (Crim WP 852 of 2010) 4. Brief facts of the case are that the Petitioner is an owner of a heritage building and the said building is almost 150 years old. A show cause notice dated 19.4.2007 was issued by the Bombay Municipal Corporation under section 354 of the BMC Act, asking the Petitioner to carry out the repairs to the said building within 30 days from the said date of the show cause notice. The Petitioner gave a reply dated 27.4.2007 and informed the Respondent No.1 that they were appointed architects in the matter and the process of submitting plan to the Respondent No.1 was in progress. It was also pointed out that without cooperation from the tenants, it was not possible to repair the building. Correspondence thereafter, was going on between the Petitioner and the tenants. The Petitioner was also in touch with his architects and consulting engineers. Quotation was also sought by the Petitioner from other agencies for carrying out the repair work. Various other steps were also taken by the Petitioner for starting the repairs to the old heritage building. 5. On 15.4.2008, the Petitioner informed the Respondent No.1 that the plan has been submitted to the Corporation by the Petitioner. In the meantime, 3 (Crim WP 852 of 2010) however, the Respondent No.1 proceeded to file the complaint against the Petitioner in June, 2007. The Petitioner was convicted by the Trial Court by the judgment and order dated 23rd November, 2001. The Petitioner preferred an appeal against the said order of conviction, which is now pending in the Sessions Court. 6. The Petitioner also filed a writ petition on the Original Side of this Court being Writ Petition No. 2055 of 2009 challenging the notice which was issued under section 354 of the BMC Act. The said petition was allowed and permission was given to the Petitioner to move the Municipal Corporation for extension of time and the Municipal Commissioner was directed to take a decision on his application within three months from the date of the order. Accordingly, an application was made by the Petitioner before the Municipal Corporation, who was pleased to grant extension upto 15th May,2010. In the said order also, the Learned Single Judge was pleased to observe that it was open for the Petitioner to take recourse of remedies available to him in accordance with law. The Petitioner also filed Criminal Writ Petition vide No. 180/2010 which was decided on 18th January, 2010. By the said order, the Corporation was given three months 4 (Crim WP 852 of 2010) to decide the representation. Accordingly, the said representation was decided and time was granted to the Petitioner herein. It is an admitted position that in the meantime, the Petitioner was granted occupancy certificate and he has carried out requisite repairs which he was called upon to do by the Corporation and the tenants have now occupied the said premises after repairs were carried out. 7. Shri Pradhan, the learned Senior Counsel appearing on behalf of the Petitioner submitted that pursuant to the notice which was issued and before the extended period of the notice was over, the Petitioner has carried out the repairs and construction has been completed and, as such, the said notice under section 354 of the BMC Act having being complied with the order of conviction does not survive. Secondly, it was submitted that initially though the notice stated that the repairs had to be carried out within 30 days pursuant to the order passed by this Court and further orders passed by the Municipal Corporation, time to carry out repairs was extended and before the expiry of extended period completion certificate has been granted. It is , therefore, submitted that under these circumstances, the order of conviction was liable to be set aside. 5 (Crim WP 852 of 2010) 8. On the other hand, the learned Counsel for the Corporation submitted that the Petitioner ought to have applied for extension of time within 30 days. He submitted that on account of the delay caused by the Petitioner, the present proceedings were initiated and he has been convicted by the Competent Court. It was further submitted that the appeal was pending in the Sessions Court and, therefore, it was not necessary for this Court to interfere with the statutory remedy, which was available to the Petitioner herein. 9. After having heard both the Counsel at length, in my view, this is a fit case for quashing the order of conviction passed by the Learned Magistrate taking in to consideration the subsequent events and more particularly, the two orders which have been passed by this Court in writ petition filed by the Petitioner, as a result of which the time within which the construction was to be completed was duly extended and he has now completed the repairs and, as such, the cause of action for continuation of the criminal proceedings does not survive since the Petitioner had completed the repairs before the expiry of time granted to him under the said show cause notice. This Court while exercising its inherent power vested under 6 (Crim WP 852 of 2010) the provisions of section 482 of the Cr.P.C., to ensure that there is no abuse of process of law and if the Court finds or comes to the conclusion that the continuation of any criminal proceedings would entail hardship or harassment to the Petitioner, the Court has the power to interfere in such cases. 10. In this view of the matter and in view of the subsequent events, the order of conviction cannot be sustained. The Impugned order of conviction passed by the Learned Magistrate therein will have to be quashed and set aside. 11. Writ Petition is, therefore, allowed in terms of prayer clause 76(a). Rule is made absolute. (V.M. KANADE J.)