C R RAMKRISHNA PILLAI Vs. MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) ALL these three petitions have been filed the members of three separate societies viz. Railwaymens Apna Ghar Co-operative Housing society Ltd. , A and B, C and D and E, situated at Shivaji Nagar, Jogeshwari (East), Bombay which are owning three different buildings. All the three petitions have been filed by the members of the said Societies for quashing the prosecutions filed against them for occupying the building without requisite occupation certificates under section 353-A of the B. M. C. Act. Since the point raised in all the three petitions is common they were heard together and are being disposed of by this common judgment.

(2.) SO far as the petitioners in Criminal Writ Petition No. 1246 of 1993 are concerned they had occupied the building in the year 1987 while the petitioners in other two petitions had occupied the buildings in the year 1992. The first petition is filed for quashing the complaints filed under section 353-A of the B. M. C Act in the Metropolitan Magistrates 39th Court, Vile Parle, Bombay. In so far as the other two petitions are concerned the complaints were filed on 19-8-1993 in the same Court. The present petitions have been filed on various grounds, inter alia, stating that the petitioners who are the members of the society were not in the wrong. They were given an impression by the builder, who was the Chief Promoter of the society, that every thing was in order. Reliance is placed on the circular issued by the Builder K. B. Joshi on 11th March, 1987 annexed as Exhibit A to the Petition No. 1246 of 1993 in which it is stated in the very fist paragraph as follows : the occupation certificate for the first phase has since been received although it has been completed by our contractor in 1985. The said circular was issued for the purpose of recovery of assessment taxes from the allottees of the flats. The case of the petitioners is that they had made entire payments to the builder who was the Chief Promoter of the society and they were allowed to occupy the flats in question by the builder and it was the duty of the builder to obtain occupation certificates and, therefore, it is the builder who is liable to be prosecuted and not flat owners who are innocent. Perusal of section 353-A (1) of the B. M. C. Act however, makes it clear that though it is the duty of the employer of the licensed surveyor or person approved by the Commissioner who is allowed to erect a building to send a notice to the Commissioner in his office in writing about the completion of the building and obtain occupation certificate, but sub-section (2) of the said section, in terms, prohibits any person from occupying the building without permission for occupation to be granted by the Commissioner. Thus occupying the flats without occupation certificate is prohibited and, therefore, occupiers are also liable to be punished. The contravention of provisions of section 353-A is liable to be punished under section 471 of the B. M. C. Act for the first offence which imposes penalty of minimum of Rs. 500/- which can extend upto penalty of Rs. 2,500/ -. After the first conviction if the offence is continuing the penalty that can be imposed under section 472 of the Act is from minimum of Rs. 200/- to maximum of Rs. 1000/- per day.

(3.) AFTER reading the complaint it appears that prima facie case has been made out against the petitioners as admittedly at the time of filing of the complaint and even till today the buildings are being occupied without the requisite occupation certificates and, therefore, the complaints cannot be quashed by this Court in its writ jurisdiction. If the petitioners are having anything to contend by way of defence it is always open for them to plead their defence before the trial Court. For instance it was contended by Mr. Parekh, learned Advocate appearing in the first petition that it is within knowledge of the B. M. C. whether the occupation certificates were issued or not in view of the above Circular dated 11th May, 1987 issued to the petitioners by the builder copy whereof is annexed as Exhibit A to the petition. This is a matter of defence which can be raised by the petitioners at the time of their trial because it is the case of the B. M. C. that no occupancy certificates have been issued so far and the buildings in question were occupied and are continued to be occupied without requisite occupation certificates. I am told that the builder was also prosecuted and he admitted his guilt and the penalty was imposed on him.