IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3871 OF 2021 Hansa B. Kanakia .... Petitioner versus The State of Maharashtra & Ors. .... Respondents …....

• Mr. Ashok Kumar Dubey a/w Anil Kumar Pandey i/b. SAVJ.

Law Solutions, Advocate for Petitioner.

• Mr. M. G. Patil, APP for the State/Respondent.

• Smt. Madhuri More, Advocate for MCGM (Respondent Nos.2 to 5).

CORAM : SARANG V. KOTWAL, J.

DATE : 16th JUNE, 2023 P.C. :

1. Rule.

2. Rule is made returnable forthwith with consent of the parties.

3. The Petitioner has challenged the order dated

16/09/2019 passed by the Court of Metropolitan Magistrate, 55th Court, Vile Parle, Mumbai, in CC No.5505245/SS/2019 u/s 381A r/w 471 of Mumbai Municipal Corporation Act, 1888 (for short ‘MMC Act’).

Nesarikar

4. Heard Mr. Ashok Kumar Dubey, learned counsel for the Petitioner, Smt. Madhuri More, learned counsel for Corporation and Mr. M. G. Patil, learned APP for the State.

5. The complaint was filed by the Assistant Law Officer of Mumbai Municipal Corporation. The allegations are that the Petitioners are the members of the respective societies which are located on plot of land near Punjab National Bank, Mathuradas Road, Kandivali (W), Mumbai. The allegations in the complaint are that the inspection was carried out by one Rajendra Sunil Sankhe working in that ward who was delegated those powers by the Deputy Municipal Commissioner u/s 68 of the Mumbai Municipal Act. He carried out the inspection of the Petitioner’s flat and he found that the Petitioner had kept unauthorized single LDPE water storage tank holding water on the bathroom and the WC loft and was in non-mosquito proof condition and hence was likely to breed mosquitoes.

6. According to the complaint, thus, the Petitioner had committed offence punishable u/s 381A r/w 471 of the MMC Act. This complaint was filed on 16/09/2019. On that very day learned Magistrate issued process u/s 381A r/w 471 of MMC Act. The said process is under challenge. Learned counsel for the Petitioner submitted that the order itself shows total non- application of mind on the part of the learned trial Magistrate. The complaint is filed in a most casual manner. It was actually filed to cause harassment to the Petitioners which is clear from the affidavit-in-reply filed by the Respondents.

7. Learned counsel for the Respondents submitted that the offence is clearly made out and the learned Magistrate has passed the correct order after applying his mind.

8. I have considered these submissions. The affidavit-in-

reply filed by the Respondents mentions in paragraph No.4 that the Municipal Corporation had received a complaint from one Sandip V. Tanna of Shree Sai Consultant regarding the unauthorized bore well in the society and loft tanks installed in many flats in the said society.

9. The affidavit-in-reply itself shows that the inspection was carried out and subsequent prosecution is launched at the behest of the said person. Learned counsel for the Petitioners submitted that the two societies have a dispute going on with the said builder and there are other suits pending in the City Civil Court at Dindoshi, between the society and the builder for conveyance. The present prosecution is a result of this dispute and hence it is a malafide prosecution.

10. Having considered the nature of the allegations and the affidavit-in-reply, I am of the opinion that there is considerable force in the submission that it is a malafide prosecution. The affidavit-in-reply itself mentions that the entire process was initiated after the builder had given his complaint to the Municipal Corporation. Vague allegations are made that unauthorized storage tank was kept and it was in non-mosquito proof condition and hence was likely to breed mosquitoes therein. In this connection sections 381A and 381-B of the MMC Act are important. Section 471 is the Penal Section of the said Act. Sections 381A and 381-B of the MMC Act read thus:

“381A – Permission for