D N PUNAMIYA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard. Rule. By consent, the rule is made returnable forthwith.

(2.) The petitioner challenges the issue of process by the learned Metropolitan magistrate, 41st Court, Mumbai, in Criminal case No. 45/p/2000.

(3.) Pursuant to the charge-sheet being filed under Section 53 (1) (7) of the Maharashtra regional and Town Planning Act, 1966, hereinafter referred to as "the said Act", for failure to restore a toilet block in the Neelkanth apartments Co-operative Housing Society Ltd. , situated at Gokuldas Pasta Road, Dadar, mumbai, the process came to be issued against the petitioner and one Shri. S. S. Rane. The complaint in that regard was preceded by a notice dated 14-01-2000 from the Development authority addressed to Shri. S. S. Rane, chairman, the accused No. 1 in the said case, calling upon him to restore the said toilet block in the premises of the said society within 30 days from the receipt of the said notice. The notice period expired on 14-02-2000 and yet no steps were taken by Shri. Rane to comply with the said notice, and the Authority therefore lodged the F. I. R. and consequently the said charge-sheet was filed and the process was issued against the said Rane and the petitioner. Upon receipt of the summons, the petitioner took out an application before the learned metropolitan Magistrate for recall of the process or to discharge the petitioner on the ground that no notice as required under Section 53 (1) (7) of the said Act was issued to the petitioner at any point of time and therefore the prosecution against the petitioner was not maintainable. Simultaneously, Shri. Rane also took out another application for his discharge on the ground that the petitioner was the chairman of the concerned housing society at the time the toilet block was demolished and therefore he cannot be prosecuted for non- compliance of the direction by the Authority. By the common order dated 25-09-2001 the learned Metropolitan Magistrate while allowing the application of Shri. S. S. Rane, dismissed the application filed by the petitioner. The matter was carried in Criminal Revision application No. 813 of 2001 before the Court of Sessions at Mumbai, without any success as the same was dismissed by the order dated 10-01-2003. The petitioner, therefore, by this present petition, while challenging the said orders, is seeking to quash the said criminal proceedings against him.