R N KULKARNI Vs. V V KANABAR

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India and under section 482 of Cr. P. C. has been filed by the petitioners who are the three out of five accused against whom process was issued by the learned Metropolitan Magistrate, 17th Court, Mazgaon, Bombay on 5-2-1996 in Case No. 35/s/95. The petition seeks to challenge the said process issued by the learned Metropolitan Magistrate. The process was issued on a private complaint filed by respondent No. 1 for offence under sections 166, 217 and 218 of I. P. C.

(2.) THE grievance made in the complaint of June, 1994 is that the petitioners who are the officers of the B. M. C. , such as Assistant Engineer, Ward Officer and Deputy Municipal Commissioner and respondent Nos. 2 and 3 who are the Officers of M. T. N. L. had failed in performing their duty cast on them by the Government under the provisions of the B. M. C. Act and particularly sections 318 to 325 read with sections 471 and 472 of B. M. C. Act. This complaint was filed by the respondent No. 1 as a citizen in the interest of public because according to him the accused who are the officers of the B. M. C. and the M. T. N. L. having failed in their duty and disobeyed the direction of the law, knowing it to be likely that such disobedience would cause injury to members of the public and/or thereby likely to save any person from legal punishment or subject him to a less punishment to which he is liable.

(3.) IT is not in dispute that in the month of November, 1993, the B. M. C. had given permission to the M. T. N. L. , Bombay, to do digging work on Shivda Champsey Marg, St. Marys Road and Love Lane at Bombay for the purpose of laying down new cable and pipe lines and construction of chambers. As per the B. M. C. Act and particularly the aforesaid provisions viz. sections 318 to 322 digging any street or road in Bombay cannot be done without the permission from B. M. C. That permission seems to have been obtained on 2nd November, 1993. The grievance made in the complaint is that after that work of laying down cable etc. was completed by the M. T. N. L. , the M. T. N. L. s authorities had not restored the street to its former position which caused nuisance and injury to the right of the members of the public. Section 324 (1) of the B. M. C. Act casts an obligation on the person to whom permission is granted under section 322 by B. M. C. Commissioner to open or break up the soil or pavement of any street, to complete the work and reinstate and make good the street or pavement so opened or broken up without delay to the satisfaction of the Commissioner. Sub-section (2) of section 324 provides that in case any person who is authorised to dig or open the street does not reinstate and make good the street or pavement so opened or broken up, the Commissioner may restore such street or pavement, and the expenses incurred by the Commissioner in so doing shall be paid by the said person who was duty bound to reinstate the street under section 324 (1) of the B. M. C. Act. Section 324 of the B. M. C. Act reads as follows : 324. (1) Every person to whom permission is granted under section 322 to open or break up the soil or pavement of any street, or who, under other lawful authority, opens or breaks up the soil or pavement of any street, shall with all convenient speed complete the work for which the same shall be opened or broken up, and fill in the ground and reinstate and make good the street or pavement so opened or broken up without delay, to the satisfaction of the Commissioner. (2) If the said person shall fail to reinstate and make good the street or pavement as aforesaid, the Commissioner may restore such street or pavement, and the expenses incurred by the Commissioner in so doing shall be paid by the said person. "