: 1 : 1523-11-fa=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1523 OF 2011 WITH CIVIL APPLICATION NO. 3151 OF 2011 IN FIRST APPEAL NO. 1523 OF 2011 Anuj Krishnakumar Madhok .. Appellant v/s. The Municipal Corporation of Greater Mumbai .. Respondents ......... Mr. Anand A Pande for the appellant Mr. Vinod Mahadik for respondents ......... CORAM : A.V. NIRGUDE, J DATE : 12th DECEMBER,2011. P.C. : 1. By consent, at admission stage this appeal is taken up for final disposal. This appeal is filed against the Judgment and Order dated 6th July, 2011 passed by the learned Judge, City Civil Court, Dindoshi, Bombay dismissing Suit No.264 of 2009 filed by the appellant challenging the Notice given by the respondent Corporation under Section 53 (1) of the Maharashtra Regional Town : 2 : 1523-11-fa=.sxw Planning Act, 1966 (for short MRTP Act). It is common ground that the appellant is the proprietor of his business by name M/s. Lord Krishna Impex. He acquired the suit premises, a residential flat in the name of his proprietary firm. 2. It is his case that since 1992 he has been using this flat for his residence as well as conducting his business. On or about 29th March, 2007, he received the suit Notice under Section 53(1) of the MRTP Act, in which it was alleged by the Assistant Commissioner of the Corporation that “Whereas it has been reported to me that you have instituted change of user of the premises i.e. from residential flat to commercial office without permission, required under the MRTP Act. You are, therefore, called upon to discontinue the said unauthorized user and to restore the flat to its original position as per the plan approved by the Corporation.” 3. Admittedly, the appellant submitted a reply to this Notice on 27th April, 2007 that he has not been using this flat as his office. He says that he has been using it as his residence. He also made certain : 3 : 1523-11-fa=.sxw allegations that at some once instigation, the Notice was issued etc. Despite of receiving this reply, no action was taken on it and it is the case of the appellant that the Corporation Officers came threatening to his flat on 27th July, 2007. Therefore, the suit was filed on 30th April, 2007 for challenging the legality of the Notice and the intended action proposing to it. The respondent Corporation did not file any written statement despite of serious allegations made against their officers. They did not even say that the suit is not maintainable under Section 140 of the M.R.T.P. Act. The learned Judge dismissed the suit recording a finding on facts that the appellant could not prove that he has not been using the flat for his business activity. On going through the impugned judgment, it is noticed that no one including the learned Counsel appearing for the appellant in the lower Court paid any attention to the provisions of Section 53, more particularly, Sub-Section 3 of the Section 53. Section 53 reads as under. “53. Power to require removal of unauthorised development :- (1) Where any development of land has been carried out as indicated in sub-section (1) of section : 4 : 1523-11-fa=.sxw 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 specified, therein after the service or the notice, to take such steps as may be specified in the notice, (a) in cases specified in clause (a) or (c) of sub-section (1) of section 52, to restore the land to its condition existing before the said development took place. (b) in cases prescribed in clauses (b) or (d) of sub-section (1) of section 52, to secure compliance with the conditions or with the permission as modified: Provided that, where the notice requires the discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also. (2) In particular, such notice may, for purposes of sub- section (1), require - (a) the demolition or alteration of any building or works; (b) the carrying out on land of any building or other operations; or (c) the discontinuance of any use of land. (3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any : 5 : 1523-11-fa=.sxw use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of buildings or works or the continuance of such use. (4) The foregoing provisions of this Chapter shall, so far as may be applicable apply to an application made under sub- section (2). (5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other part of the land, as the case may be and thereupon, the owner shall be required to take steps specified in the notice under sub-section (1) as respects such other buildings, works or part of the land. (6) If 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 with, the planning Authority may - : 6 : 1523-11-fa=.sxw (a) 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; and (b) where the notice requires the demolition or alteration of any building or works carrying out of any building or other operations, itself cause the restoration of the land to its conditions before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the Planning Authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations; and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue. (7) Any person prosecuted under clause (a) of sub- section (6) 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 fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees for every day during which such offence continues after conviction for the first : 7 : 1523-11-fa=.sxw commission of the offence.” 4. Section 53 makes reference to Section 52 as well as Section 54 of the Act and, therefore, one should read both these Sections as well. They read as under. “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 carries 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 such 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 modified 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 fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a : 8 : 1523-11-fa=.sxw continuing offence with a further daily fine which may extend to two hundred rupees) for every day during which the offence continues after conviction for the first commission of the offence. (2) Any person who continues to use or allows the use of any land or building in contravention of the provisions of a Development plan without being allowed to do so under Section 45 or 47, or where the continuance of such use has been allowed under that section continues such use after the period for which the use has been allowed or without complying with the terms and conditions under which the continuance of such use is allowed, shall, on conviction be punished (with fine which may extend to five thousand rupees;) and in the case of a continuing offence, with a further fine which may extend to one hundred rupees for every day during which such offence continues after conviction for the first commission of the offence.” “54. Power to stop unauthorised development :- (1) Where any development of land as indicated in sub-section (1) of Section 52 is being carried out but has not been completed, the Planning Authority may serve on the owner and the person carrying out the development a notice requiring the development of land to be discontinued from the time of the service of the notice; and thereupon, the : 9 : 1523-11-fa=.sxw provisions of sub-sections (3), (4), (5) and (6) of section 53 shall so far as may be applicable apply in relation to such notice, as they apply in relation to notice under section 53. (2) Any person, who continues to carry out the development of land, whether for himself or on behalf of the owner or any other person, after such notice has been served shall, on conviction (be punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both); and when the non-compliance is a continuing one, with a further fine which may extend to one hundred rupees for every day after the date of service of the notice during which the non-compliance has continued or continues.” 5. In this case, Section 44 is applicable only to the extent that the suit flat is constructed as per certain sanction plan given by the Corporation for erecting a building having residential flats. The sanction plan apparently did not permit any commercial activity in this building or the suit flat. Section 52 provides penal action to be taken against violation of provisions of Section 44. So if it is found that the appellant has been using the flat for commercial purpose, it : 10 : 1523-11-fa=.sxw is contrary to the sanction user of the property, the appellant can be prosecuted under Section 52 of the MRTP Act. Section 53 further provides that if such change is noticed, a notice can be issued to such offender. He has given 30 days time to mead his way and if he fails to do so the action would be taken against him. Section 53 further provides that within those 30 days, the alleged offender is entitled to go before Authority under Section 44 and seek permission to change the user etc. In this case, the appellant was able to make has representation either to assert that he has not changed the user or to seek sanction for change of user. Both these submissions are possible under Subsection 3 of Section 53. Such representation, if made, is required to be decided by the Authority under Section 44 and unless that decided, the notice will not be effective. The appellant admittedly sent his representation on 27th April, 2007 to the notice asserting that he had not effecting any change. The Authority thus was under obligation to verify whether the change is effected or not and was also under obligation to consider whether they should sanction the change of user. This work has not been done despite of submission of reply. Unless this : 11 : 1523-11-fa=.sxw work is done as contemplated under Sub-Section 3 of Section 53, the notice is not effective and no action pursuant to the notice could have been taken. In view of this, learned Judge of the lower Court could have decreed the suit directing the respondent Corporation to render decision on the representation made by the appellant and then take further action, if necessary. The learned Judge could have directed the respondent Corporation not to initiate action as alleged by the appellant until he is communicated the decision on his representation. 6. In view of this, following order is passed. ORDER (i) The appeal should succeed partly. (ii) The impugned Judgment and Order is set aside. The suit is decreed as under. (iii) The Corporation shall not take any penal action under Section 52 and 53 of the M.R.T.P. Act against the appellant until they : 12 : 1523-11-fa=.sxw communicate to him their decision on his representation dated 27th April, 2007 and 4 weeks thereafter. (iv) In view of the order passed in the appeal, Civil Application is disposed of. (A.V. NIRGUDE, J.)