IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3130 OF 2007 Narendra M. Mehta .. Applicant Vs. The Municipal Corporation of Greater Bombay & Anr. .. Respondents Mr.S.U.Kamdar with Mr.N.M.Shah for the applicant. Mrs.Teja Katdare i/by S.H.Ujjainwala & Uday Kedar for the respondent No.1. Mr.Y.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 19th September 2008. : 19th September 2008. : 19th September 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard earlier. The judgment was not dictated as the learned counsel appearing for the 1st respondent sought time to take instructions on a xerox copy of the alleged sanctioned plan produced by the applicant alongwith an affidavit. The learned counsel appearing for the 1st respondent states that as the plan which is produced by the applicant relates to the year 1978, it was not possible to trace the old record and therefore the concerned officer could not give instructions to her. She states that due to Ganapati festival, the officers were on special duty. 2. This is an application under section 482 of the Code of Criminal Procedure, 1973 for quashing the : 2 : 2 : 2 : prosecution initiated at the instance of the 1st respondent for violation of section 347B of the Mumbai Municipal Corporation Act 1888. Under section 471 of the said Act of 1888, contravention of various provisions of the said Act of 1888 is made an offence. 3. On 30th January 2006, the Assistant Engineer of the 1st respondent-corporation issued notice under section 347B of the said Act of 1888 alleging that the applicant has converted room No.17 on the first floor of Bhagyalaxmi building, Kennedy Bridge, Girgaon, Mumbai into commercial use in contravention of section 347B of the said Act of 1888. A reply was issued by the applicant on 13th February 2006 stating that the user of the premises was in confirmity with the terms and conditions of the permission granted by the 1st respondent. The applicant demanded a copy of the extract of the sanctioned plan and assessment details. The applicant stated that he would file a detailed reply to the notice after receiving the said documents. 4. The Assistant Engineer of the 1st respondent replied to the applicant on 15th February 2006 stating that the applicant has failed to produce documentary evidence to prove authorisation for the change of user. It was stated that if compliance was not made, due process of law will be followed. On 21st February 2006, : 3 : 3 : 3 : the applicant submitted a letter to the Assistant Engineer demanding inspection of the documents. A private complaint was filed by the 1st respondent in a Court of the learned Metropolitan Magistrate at Shindewadi, Dadar, Mumbai. The learned Magistrate issued process on the said private complaint. A revision application was preferred by the applicant for challenging the order of issue of process. The said revision application has been rejected by the learned Additional Sessions Judge by order dated 19th April 2007. In this application, the challenge is to the aforesaid orders. 5. The submission of the learned counsel appearing for the applicant is that on plain reading of the complaint, no case of commision of offence was made out and therefore, process could not have been issued. He has placed reliance on the xerox copy of the alleged sanctioned plan filed alongwith a separate affidavit of the applicant. He submitted that the said copy shows that the commercial user of the premises in question was permitted. The submission of the learned counsel appearing for the 1st respondent is that the applicant never produced the alleged sanctioned plan at any stage. She stated that what is produced is a xerox copy of the alleged sanctioned plan and not the original or a certified copy. She submitted that in absence of any : 4 : 4 : 4 : evidence to show that the user for commercial use was permitted, the learned Magistrate was justified in issuing process as a prima facie case was made out. She submitted that no intereference was called for. 6. I have carefully considered the submissions. As of today no finding can be recorded as regards genuineness of a xerox copy of the plan which is produced alongwith the affidavit and therefore I am not considering the said document in support of the case of the applicant. 7. It will be necessary to refer to section 347B of the said Act 1888 which reads thus: "347B.Building 347B.Building 347B.Building for human habitation not to be for human habitation not to be for human habitation not to be used used used as godown, etc.- as godown, etc.- as godown, etc.- No person shall without the written permission of the Commissioner or otherwise than in conformity with the terms of such permission use or permit to be used any building or any part of a building originally constructed or authorised to be used for human habitation as godown, warehouse, workshop, workplace, factory, stable or a motor garage." 8. Section 471 of the said Act of 1888 reads thus: : 5 : 5 : 5 : "[471. 471. 471. Certain offences punishable with fine.- Certain offences punishable with fine.- Certain offences punishable with fine.- Whoever- (a) contravences any provision of any of the sections, sub-sections or clauses mentioned in the first column of the following table, or of any regulation made thereunder; or (b) fails to comply with any requisition lawfully made upon him under any of the said sections, sub-sections or clauses, shall be punished, for each such offence, with fine which may extend to the amount mentioned in that behalf in the third column of the said table [subject, however, to a minimum fine which shall not be less than fine mentioned in the fourth column of the said table.] Section 472 deals with continuing offences under section 471 of the said Act of 1888. 9. Section 347B contemplates that no person shall without written permission of the commissioner or otherwise than in conformity with the terms of such : 6 : 6 : 6 : permission use or permit to be used any building or part of building originally constructed or authorised to be used for human habitation as a godown, warehouse etc. When the 1st respondent is alleging violation of section 347B and commission of offence under section 471 and 472, it was necessary for the 1st respondent to allege that the premises was originally constructed or authorised to be used for human habitation or for residential use. In the notice which is issued prior to the filing of the complaint, the allegation against the applicant is that a residential premises is being used for commercial use. Perusal of the complaint filed by the 1st respondent shows that it is very cryptic and is in a cyclostyled form. The relevant part of the complaint reads thus: "That, upon Inspection and Examination of the premises by J.E. on 18.-1.2006, which owner/occupied by the accused abovenamed, it was found that the Room No.1 on 1st fllor which was used for residential purpose has been convertted into commercial use as described in the Notice No.D/Bldg/JE6/347-B/2059/BF dated 30.01.2006 which is annexed herewith which is part of the complaint." : 7 : 7 : 7 : 10. The offence under section 347B read with sections 471 and 472 of the said Act of 1888 will be complete when it is proved that the premises was originally constructed or authorised to be used for human habitation or that building permission granted provides for the use of the premises for residential purpose, and either contrary to the permission or without permission of the commissioner, the residential premises are converted for commercial use. The necessary ingredient of the offence alleged that the original user of the permises was residential as per the terms of the permission or that the premises was originally constructed or authorised to be used for residence is missing from the complaint. It is not alleged that the permitted user of the premises is only residential. The only allegation is that a premises used for residence has been converted into commercial use. By alleging mere conversion of user the offence will not be complete unless it is alleged that the building was originally constructed or authorised to be used for residence. The Apex Court has repeatedly held that issuing summons in a criminal case is a very serious business and the same cannot be done casually. On the basis of a stereotype/cyclostyled complaint in which certain details were filled in by hand, the learned Magistrate has issued process by ignoring that : 8 : 8 : 8 : necessary ingredients were not incorporated or averred in the complaint. 11. The learned Sessions Judge has observed in paragraph 14 of the judgment that the applicant ought to have tendered document showing that premises in question were authorisedly used as a commercial premises. The learned Sessions Judge has completely ignored that he was dealing with a complaint filed by 1st respondent alleging commission of an offence. The question to be considered was whether taking complaint for its face value, proceedings for commission of an offence under section 471 read with section 472 of the said Act could have been initiated. In my view, on plain reading of the complaint, no case was made out for issuing process and therefore the application must succeed. 12. Hence, I pass the following order: Rule is made aboluste in terms of prayer clause (a). (A.S. Oka, J)