IMPORTANT POINT
The requirement of serving a notice under section 53(1) of the MRTP Act is a fundamental prerequisite for prosecution under section 53(6), and failure to prove such service results in the dismissal of the case.

JUDGMENT

Jitendra Jain, J. - The present appeal is fled by the State of Maharashtra (original complainant) under section 378 of the Code of Criminal Procedure, 1973 against the order dated 3rd February 2006 passed by the Learned Metropolitan Magistrate, 39th Court, Vile Parle, Mumbai acquitting Respondent (original accused) of the offence under section 53(1) of The Maharashtra Regional and Town Planning Act, 1966 ('MRTP Act').

2. Narrative of Events:

(i) On 27th May 2002, Shri. Sawant, Assistant Municipal Commissioner, H Ward, Bandra, Mumbai 400 050 visited Room No.2, Geetika Co-operative Housing Society, S.V. Road, Santacruz (West), Mumbai 400 054 and found that garage no.2 was being used as a beauty parlour.

(ii) On 10th June 2002, a notice under section 53(1) of the MRTP Act was issued by Shri. Sawant to the Respondent accused directing him to discontinue the use of garage as beauty parlour within one month from the date of notice. The said notice further stated that failure to comply with the same would result into prosecution.

(iii) On 22nd July 2002, a second inspection report was submitted by Shri. Uttam Mulik, offcer of the Municipal Corporation of Greater Mumbai ('MCGM') in which it was recorded that notice dated 10th June 2002 under section 53(1) was served on Respondent accused on 10th June 2002 and the Respondent accused has not stopped the garage from being used as a beauty parlour. There is an endorsement on the second inspection report dated 26th July 2002 to lodge a complaint in the police station.

(iv) On 29th July 2002, a complaint against the Respondent accused under section 53 of the MRTP Act was made by Shri. Sawant to Santa Cruz Police Station alleging change of user from car parking garage no.2 to commercial activity of beauty parlour without obtaining permission from the Municipal Commissioner as required under the MRTP Act. The said complaint further states that notice under section 53 was duly served on the Respondent accused on 10th June 2002 and the period of one month to discontinue the change of use expired on 11th July 2002. It further states that on second inspection dated 22nd July 2002, the Respondent accused had not complied with the notice by stopping the use of garage as beauty parlour and thereby committed an offence under section 53(7) of the MRTP Act and therefore requested the police to take cognizance of the said offence and deal with the accused according to law.

(v) On 10th December 2002, an FIR under section 154 of the Code of Criminal Procedure, 1973 was lodged in which it is stated that the offence has occurred from 27th May 2002 to 10th December 2002. The FIR records that information was received on 12th October 2002. The complaint as per the FIR is made by Shri. Mulik.

(vi) On 10th December 2002, a panchanama was drawn by the police with respect to the inspection of garage no.2 being used as a beauty parlour. The witnesses/panch to the said panchanama as noted therein are Shri. Narendra Gupta and Shri. Bal Lakshman Pandey.

(vii) On 9th May 2003, Assistant Municipal Commissioner granted sanction under section 142 of the MRTP Act to prosecute the Respondent accused for committing offence under section 53(1) of the MRTP Act for taking cognizance by the competent Court.

(viii) Pursuant to above, chargesheet was fled on 10th February 2004 in the Court of Metropolitan Magistrate, 39th Court, Vile Parle, Mumbai and same was numbered as CC No. 17/PW/2004.

3. Proceedings before the Court of Metropolitan Magistrate:

(i) On 13th July 2004, the Magistrate explained the charge to the Respondent accused, the charge being use of car parking garage no.2 as beauty parlour and thereby committing offence under section 53(1) of the MRTP Act.

(ii) The accused Respondent understood the charge read over and explained by the Magistrate and pleaded not guilty to the charge.

(iii) The State led four witnesses as under:

i.a. PW-1, Shri. Mulik, offcer of MCGM.

i .b. PW-2, Shri. Gupta, panch/witness as per the panchanama.