1 (Crim Rev Appln 142 of 2009) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1688 OF 2010 Ganesh Ramanna Prabhu ...Petitioner Vs. State of Maharashtra and Ors. ...Respondents ----- Mr.J.S.Kini i/b. Mr.Suresh Dubey for Petitioner Mrs.V.R. Bhosale -APP for the State Mr.A.Z.Mookhtiar for Respondent No.2 ----- CORAM: V.M. KANADE J. DATED: 29TH SEPTEMBER, 2010 P.C. 1. By this petition, which is filed under Article 227 of the Constitution of India, the Petitioner is challenging the order passed by the Shri B.H. Sharma, the Additional Chief Metropolitan Magistrate, 24 th Court Borivali, Mumbai dated 2.6.2010 in a proceeding which was initiated by the Respondent No.2 under section 145 of Cr.P.C. 2. In the present case, the Petitioner is a tenant in a building situated at Goregaon (West). The Respondent No.2 is the landlord of the said building. Civil proceedings were initiated by the Petitioner in 2 (Crim Rev Appln 142 of 2009) the City Civil Court, challenging the notice issued by the BMC under section 351 of the M.M.C. Act. In the said proceedings, the notice of motion taken out by the Petitioner was rejected. Against this order, the Petitioner filed A.O. No. 982 of 2009 and an interim order was passed by this Court restraining the BMC from taking any further steps in the matter. Though the proceedings were pending in the City Civil Court, the Respondent filed an application under section 145 of Cr.P.C. and in the said proceeding, the learned Magistrate was pleased to give direction to the Municipal Commissioner. Paragraph 8 of the said order reads as under: “8. The Mumbai Municipal Corporation is directed to issue a suitable notice u/s. 354 MMC Act to the occupier and in the event of initiate to comply with the said notice, shall be at liberty to do the needful in accordance with S-354A of the MMC Act in order to prevent danger, etc., if any, to the public and also to ensure the safety.” Being aggrieved by the aforesaid direction, the Petitioner filed this petition. 3 (Crim Rev Appln 142 of 2009) 3. After having heard both the Counsel at length, in my view, such a direction could not have been given by the Learned Magistrate while exercising its power vested in him under section 145(1). The Learned Magistrate could not have directed the Municipal Corporation to initiate action against the Petitioner under section 354A of the MMC Act that on failure to comply to initiate further proceedings under section 365 of MMC Act, particularly when the proceedings between the BMC and the Petitioner were pending in the Civil Court and an interim order was in favour of the Petitioner passed by this Court. The learned Magistrate has no power to issue such direction to the Municipal Corporation. The Magistrate being a authority created by a statute viz. the Cr.P.C., he does not have any power to pass an orders except those orders which can be passed as provided under the provisions of the Cr.P.C. There is a clear non- application of mind on the part of the Learned Magistrate and, therefore, he has committed an error law which is apparent on the face of record. 4. The impugned order passed by the Learned Magistrate, therefore, is quashed and set aside. It is clarified that it is always open for the Municipal Corporation to take such a step as may be required. 4 (Crim Rev Appln 142 of 2009) The Writ Petition is allowed and disposed of in the aforesaid terms. (V.M. KANADE J.)