M D SAMTANI Vs. ASHARAM M JAIN

JUDGEMENT

(1.) The petitioners are the employees of the Bombay Municipal Corporation and they are accused by respondent No. 1 Asharam M. Jain, Managing Director of M/s. Jain Brothers Vyapar Private Ltd. of having committed theft of the building material after breaking his building open on 17-3-72. Petitioner No. 1 is the Assistant Engineer, petitioner No. 2 is sub-overseer and petitioner No. 3 is the overseer of the Bombay Municipal Corporation. It appears that the officers of the Municipal Corporation detected an unauthorised construction of nine shops on 5-1-71. The unauthorised construction was going on in the property of respondent No. 1. Because it was unauthorised, therefore a notice under section 351 of the Bombay Municipal Corporation Act was served on respondent No. 1 and he was asked to show cause why the structure should not be demolished. Respondent No. 1 replied that he was paying taxes for those structures and that those structures were duly assessed. The Municipal Corporation denied having assessed any of those unauthorised structures.

(2.) Because respondent No. 1 did not respond to the notice served by the Municipal Corporation, therefore, the Municipal Corporation sent its own employees escorted by a Sub-Inspector of Police and two constables on 17-3-72 for the purpose of demolishing the unauthorised structures. After making an inventory of all the articles, they were deposited in the Municipal Depot. The result of all this was a criminal complaint by respondent No. 1 on 21-3-72 against the present petitioner under section 379 read with section 109 I.P.C. The learned Presidency Magistrate before whom the complaint was lodged sent it for inquiry under section 202 of the Criminal Procedure Code to the police. The police reported that the act of demolishing of the property as well as the removal of the same was legal and that no offence of theft had been committed by the petitioners. It was also stated in the report of the police that before the removal of the building material the Bombay Municipal Corporation authorities had made an inventory and had entered the material into the depot book maintained at the depot. The learned Magistrate inspite of this report issued notices to both the parties and after hearing the issued process against the present petitioners under section 379 read with section 109 I.P.C. The petitioners, therefore, are challenging the order in revision.

(3.) The learned Magistrate has not mentioned a single word about the police report and their conclusion. He has therefore, not given a single reason why he was not accepting the conclusion reached by the police. The learned Magistrate, however, in his own way dealt with the validity of the notice under section 351 of the Bombay Municipal Corporation Act and came to the conclusion that the notices served under section 351 of the B.M.C. Act were illegal. It must be mentioned that responder No. 1 in his complaint has completely suppressed the service of notice on him. On the other hand he has mentioned that the structures were demolished without any notice. The notices which were served under section 351 I.P.C. are however on record. They were duly served and the explanation was considered and after that the unauthorised structures were demolished. I would merely mention that his interpretation of the validity of the notice is open to question because he has without considering the implication of section 347 of the Bombay Municipal Corporation Act considered section 68 of the said Act which deals with the powers the commissioner to be exercised by the subordinate Municipal officers.