bsb 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 WRIT WRIT WRIT PETITION NO. 717 OF 2007 PETITION NO. 717 OF 2007 PETITION NO. 717 OF 2007 ALONGWITH ALONGWITH ALONGWITH WRIT WRIT WRIT PETITION NO. 718 OF 2007 PETITION NO. 718 OF 2007 PETITION NO. 718 OF 2007 Shri Shiraz M. Moloobhoy ... Petitioner (in both petitions) v/s 1. Shri R.P.Vaidya, Sr.Legal Assistant for Municipal Corporation of Greater Mumbai. 2. State of Maharashtra ... Respondents (in both petitions) Mr.Kapil Dave for the petitioner. Smt.Aliya Khan for the respondent No.1 Corporation. Smt.A.A.Mane, A.P.P. for the respondent No.2 State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 23RD APRIL, 2008 23RD APRIL, 2008 23RD APRIL, 2008 P.C. P.C. P.C.: 1. These petitions have been filed for quashing the process issued to the petitioner in C.C.No.8873/ME/2001 and C.C.No.8874/ME/2001 pending before the Metropolitan Magistrate, 42nd Court, Shindewadi, Dadar, Mumbai. These prosecutions have been launched as the petitioner allegedly violated the provisions of the Mumbai Municipal Corporations Act, 1888. 2. It is contended on behalf of the petitioner that he 2 is not served with the notice of repairs issued under Section 381 of the Mumbai Municipal Corporations Act, although his name has been mentioned in the notice. It is contended that the petitioner was not staying in the building known as "Grosvenor House" and, therefore, the notice issued to him on that address is not good service. It is contended that the petitioner is only the owner of the land on which the building stands and not the owner of the building. It is then contended that in any event the complainant has no grievance against the petitioner since the repairs had already been carried out and, therefore, the prosecution pending against the petitioner should be quashed. 3. An affidavit has been filed by the Mumbai Municipal Corporation in which it is contended that notice has been served on the petitioner in accordance with provisions of Section 484 of the Mumbai Municipal Corporations Act. It is also pointed out that the notice was served on the petitioner’s mother and that is "good service". 4. The learned advocate for the Corporation has drawn my attention to the judgment of this Court in the case of Emperor v/s Merwanji M. Mistry, reported in 1928 Emperor v/s Merwanji M. Mistry, reported in 1928 Emperor v/s Merwanji M. Mistry, reported in 1928 I.L.R. I.L.R. I.L.R. Vol.LII 250, Vol.LII 250, Vol.LII 250, where the Division Bench of this 3 Court has held that a conviction under Section 471 of the Mumbai Municipal Corporations Act must be followed by a legal sentence or an acquittal. An accused person so convicted but found to have abated the nuisance complained of cannot merely be warned and discharged. It is contended that in view of this judgment, there is no question of quashing the proceedings as the prosecution must necessarily end in either acquittal or conviction. It is then contended that all the issues raised on behalf of the petitioner before this Court can always be agitated before the Metropolitan Magistrate’s Court and there is no need to quash the proceedings. 5. These petitions have been filed for recalling the process issued against the petitioner and quashing the complaints filed against the petitioner before the Metropolitan Magistrate. The petitioner had preferred an application for discharge and by order dated 23.4.2004 the Magistrate has rejected that application. There is no prayer in the present petitions challenging that order passed by the learned Magistrate nor has the petitioner preferred any revision to the Sessions Court from that order. 6. One of the contentions raised on behalf of the petitioner is that he has been wrongly implicated in the 4 present cases. It is contended that he has no control over the flats in the building known as "Grosvenor House" because the building is now a condominium and, therefore, he is not responsible for the leakage of water from the terrace flat on the 6th floor to the flats on the 5th floor. 7. In my view, the process issued need not be quashed by exercising the powers of this Court under Section 482 of the Code of Criminal Procedure. These powers are to be exercised only in rare cases where the prosecution has been lodged fundamentally without any basis. The facts in the present case do not give rise to such a conclusion and, therefore, the petitions are rejected.