Final Order 1

Order Details: Copy Judgment
Pdf Text: Cri. Case No. 5500076/PW/2022
The State V/s. Gurvinder Singh & ors
1 (Judgment)
Received on:- 24.05.2022
Registered on:- 24.05.2022
Decided on:- 05.06.2025
Duration:- Y M D
03 00 11
Part 'A'
(Title Page of Judgment)
[Para 44(i) of Chapter VI of Criminal Manual]
IN THE COURT OF JUDICIAL MAGISTRATE (F.C.)
COURT NO.55, VILE PARLE, MUMBAI.
Present :Shri. U. L. Pathak
Date of the Judgment : 05.06.2025
C.C. No.5500076/PW/2022 Exh. 73 /B
CNR No :- MHMM25-004679-2022
Complainant State of Maharashtra
Through: Samtanagar Police Station
REPRESENTED BY Mrs. Jayshri Surve & Mrs. Pramodini Mule
Assistant Public Prosecutors
ACCUSED 1. Delair Singh Ajmani
Age : 52 Yrs. Occ :- Nil
R/o :- 401, Victoria 24/B, Shastri Nagar,
Lokhandwala Complex, Andheri (W),
Mumbai- 400053
2. Gurvinder Singh Trilok Singh Ajmani
Age : 52 Yrs. Occ :- Nil
R/o :- 2001, Royal Empire,
Lokhandwala Complex, Andheri (W),
Mumbai- 400053
REPRESENTED BY Ld. Adv. P. N. Kothari for accused.
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2 (Judgment)
Part 'B'
[Para 44(ii) of Chapter VI of Criminal Manual]
Date of offence On or before 03/05/2018
Date of FIR 09/05/2018
Date of Chargesheet/Complaint 24/05/2022
Date of Framing of Charges/Particulars 18/08/2023
Date of commencement of evidence 26/10/2023
Date on which judgment is reserved ___
Date of the Judgment 05/06/2025
Date of the Sentencing Order, if any ___
----Accused Details----
Rank
of
the
Accu
sed
Name of
Accused
Date
of
Arrest
Date
of
Releas
e on
Bail
Offences
charged
with
Whether
acquitted
or
convicted
Senten
ce
Impos
ed
Period
of
Detenti
on
Underg
one
during
Trial for
purpose
of
Section
428,
Cr.P.C.
1 Delair
Singh
Ajmani
15/09
/2022
15/09
/2022
The
offence
punisha
ble
under
section
53 (7) of
the
MRTP
Act.
Acquitted -------- -------
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The State V/s. Gurvinder Singh & ors
3 (Judgment)
2 Gurvinder
Singh
Trilok
Singh
Ajmani
15/09
/2022
15/09
/2022
The
offence
punisha
ble
under
section
53 (7) of
the
MRTP
Act.
Acquitted -------- -------
Part 'C'
[Para 44 (iii) of Chapter VI of Criminal Manual]
LIST OF PROSECUTION/DEFENCE/COURT WITNESSES
A. Prosecution/Complainant :
RANK NAME NATURE OF EVIDENCE
P.W. No.1 Vilind Premaji Mandavakar Informant
P.W. No.2 Rohit Kanak Kumar Trivedi Executive Engineer
P.W. No.3 Amol Ramdas Meshram Designated Officer
P.W. No.4 Sandesh Shantaram Gharat Building Mukadam
P.W. No.5 Nandlal Chagan Lokhande Investigating Officer
P.W. No.6 Abhimaniyu Arjun Jadhav Investigating Officer
B. Defence Witnesses, if any :
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT WITNESS,
MEDICAL WITNESS, PANCH
WITNESS, OTHER WITNESS)
----- ----- -----
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C. Court Witnesses, if any :
RANK NAME NATURE OF
EVIDENCE
(EYE WITNESS,
POLICE WITNESS,
EXPERT WITNESS,
MEDICAL WITNESS,
PANCH WITNESS,
OTHER WITNESS)
----- ----- -----
LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS
A. Prosecution :
Sr.No. Exhibit Number Description
1. Exhibit-20 Authority of PW-1
2. Exhibit-21 Inspection report
3. Exhibit-22 Notice
4. Exhibit-23 Notice report
5. Exhibit-24 2nd inspection report
6. Exhibit-25 Speaking order
7. Exhibit-26 Report
8. Exhibit-27 FIR
9. Exhibit-33 Authority of PW-12
10. Exhibit-34 Sanction
11. Exhibit-40 Authority of PW-3
12. Exhibit-45 Authority of PW-4
13. Exhibit-46 & 47 Service reports
14. Exhibit-53 to 57 Correspondence letters
B. Defence :
Sr.No. Exhibit Number Description
--------- --------- -------
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C. Court Exhibits :
Sr.No. Exhibit Number Description
--------- --------- -------
D. Material Objects :
Sr.No. Material Object
Number
Description
--------- --------- -------
JUDGMENT
(Delivered on this 05th day of June, 2025)
The accused are charged for the offence punishable under
section 53 (7) of the Maharashtra Regional and Town Planning Act,
1966 (in short the 'MRTP Act').
2] In short, it is the case of informant – Vilind Premji
Madavkar that he was working as a Junior Engineer in R/South ward of
the Municipal Corporation of Greater Mumbai (for short 'the MCGM').
He lodged a report on 09/05/2019 with the Samtanagar Police Station
alleging therein that he was authorized to detect unauthorized
constructions and dilapidated buildings or making survey or inspection
within the area given to him for discharging his duties.
3] On 23/02/2018 he along with his colleague Assistant
Engineer – Amol Meshram visited the building known as Thakur Mall,
6th Floor, Thakur Village, Kandivali (W), Mumbai for inspection as per
the directions of their senior authority. During the inspection, they
found that certain construction like erecting 11 hotel galas by removing
partition walls etc. were contrary to the Sanctioned Plan. In this way,
the accused had committed violation of the construction permission.
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4] As such, one notice under section 53 (7) of the MRTP Act
dated 24/04/2018 was issued by and under the authority and signature
of the Assistant Engineer/Designated officer thereby directing the
accused to restore the construction strictly as per the Sanctioned Plan of
the offending structures within a period of one month of the receipt of
the notice. The Notice was duly served with the accused through his
authorized employee i.e. Hotel Manager Rocky.
5] After expiry of the stipulated period, the informant again
visited the spot on 13/10/2018 along with the Assistant Engineer and
Designated officer - Amol Meshram and to verify the compliance on the
part of accused. However, the accused has completely failed to comply
with the notice as required. Thus, he put up the said report before the
Designated officer - Amol Meshram for taking further action. After
taking into consideration all the materials, he granted approval to
initiate the action against the accused. On that basis, one written
complaint was given to the Samtanagar Police Station. The informant
further lodged a police report in that regard on 09/05/2019. On the
basis of the report, the police registered the LAC/Crime No.107/2019
on 09/05/2019 under First Information Report (FIR) for the offence
punishable under section 53 (7) of the MRTP Act against the accused.
6] After registration of the crime, the Investigating Officer
visited the disputed site on the same day and made spot panchnama in
presence of panch witnesses recording the then situation and the
structures which were contrary to the Sanctioned Plan. He further
recorded the statement of witnesses. He also obtained the requisite
sanction dated 01/04/2022 from the competent authority to initiate
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proceeding against the accused. Accordingly, the charge-sheet came to
be filed on 24/05/2022.
7] In response to the summons, the accused appeared and
furnished bail bonds. The charge of the accused was framed at Exh.12.
They pleaded not guilty and claimed to be tried at Exh.13 & 14. Their
defence is that of total denial and their false implication in the case.
8] The prosecution has led its evidence and closed its side by
filing Pursis (Exh.67). The statement of accused were recorded at
Exh.68 & 69 respectively. Heard, the Learned APP for the State and
Learned Counsel for the accused.
9] The following points arise for the determination along with
my findings thereon are as under:-
Sr.
No.
Points Findings
1 Has the prosecution proved that the
accused have made construction in
contravention of the Sanctioned
Plan by and thereby committed an
offence punishable under section 53
(7) of the MRTP Act?
No.
2 What order ? The accused are acquitted.
R E A S O N S
AS TO POINT NO.1:-
10] The prosecution in order to bring home the guilt of accused
has examined its authorized person – Mandavkar, Junior Engineer
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(PW-1) at Exh.19. He deposes that he was duly authorized to detect
dilapidated buildings and unauthorized construction through the
inspection and survey and then report thereof to his senior officer for
taking further action. The proved Authority Letter (Exh.20) issued by
the then Municipal Commissioner under the provisions of the MRTP
Act.
11] The proved Authority Letter (Exh.20) discloses that Junior
Engineer Mandavakar (PW-1) was duly authorized to inspect the
buildings and the properties by entering into the same with or without
assistance into or upon any land for the purpose enumerated in section
135 of the MRTP Act and also serve notice and orders. By virtue of the
said authority letter, the further act of Junior Engineer Mandavakar
(PW-1) visiting the shop of accused for the inspection cannot be faulted
with. The accused has also not brought on record any contrary material
on record to discard the Authority Letter (Exh.20) or creates any
reasonable doubt therein. As such, the fact of inspection of the building
of accused by Junior Engineer Mandavakar (PW-1) on 03/05/2018 can
be relied upon.
12] Junior Engineer Mandavakar (PW-1) further deposes that
one oral complaint was received from Bhavesh Kalia alleging therein
that unauthorized construction in the form of amalgamation was
carried out by the then owner – the accused in the building/Hotel –
known as ‘Northen Tadka. In order to ascertain the said allegations, he
visited the said shop on 03/05/2018. During the inspection, he found
that the accused has made additional construction of walls, partition
etc. in the said building just in contravention of the sanctioned plan.
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The duly proved Inspection Report (Exh.21) reflects the said situation
and irregularities as alleged.
13] The accused has not brought on record any contrary
material to discard the evidence of witness on the point of his visit and
observation of irregularities in the actual construction. During course of
arguments, it is submitted that Junior Engineer Mandavakar (PW-1) did
not issue any prior notice of Inspection, however, the said requirement
is not mandatory as per Sections 135 and 136 of the MRTP Act. The
requirement of issuing such prior notice (prior to 24 hours) is found
only in the provided clause (i) and that too in second option and only
when the place is any building used as dwelling house or upon any
enclosed part of garden attached to such building. In the first option,
the entry can be made directly in day time subject to giving sufficient
opportunity to enable women (if any) to withdraw from such place in
every instance and due regard shall always be had, so far as compatible,
with the exigencies of the purpose for which the entry is made, to the
social and religious usages of the occupants of the land or building
entered.
14] In the case in hand, the spot is a business shop (accessible
to public at large) and not dwelling house. Thus, the conditions lying
under provided clause do not apply. Even for the sake of argument, the
spot was considered as dwelling house, there is nothing on record
showing that the Junior Engineer Mandavakar (PW-1) had visited the
building other than in day time while exercising first option of direct
entry. In absence of such materials, the contention of accused that the
entry of Junior Engineer Mandavakar (PW-1) without prior intimation
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The State V/s. Gurvinder Singh & ors
10 (Judgment)
notice of the Inspection held on 03/05/2018 is bad in law will have to
be discarded for want of substance.
15] The accused has further raised objection as to validity of
the inspection report of the Junior Engineer Mandavakar (PW-1) on the
ground that the Inspection Reports (Exh.21 and Exh.24) respectively
are computer/system generated copy and prepared at the office and not
at the site. True that such things are found place in the matter. The
Junior Engineer Mandavakar (PW-1) also admits the same. However, it
can not be ignored that the witness has made inspection at the spot
personally and inserted the observations in the computer system to
make it the official record which is approved one making it part of the
process. There is also no bar to prepare inspection reports (Exh.21 and
Exh.24) in the manner as prepared in the case in hand. What is material
is that whether the situation as observed by the witness are true or
what. The witness himself comes before the Court and confirmed the
said facts on oath. There is also no contrary material to discard his
evidence. Hence, the objection raised by the accused in that regard will
have to be discarded.
16] The accused has also brought on record that the witness
has not personally verified the Sanction Plan. Even if, the witness states
so, it is the matter of record the Sanctioned Plan was granted at the
instances of accused himself. As such, he is supposed to have knowledge
about the same and he should have brought on record that the
modifications as made were either part of the sanction map in his
possession or the subsequent part of revised/amended plan, if any.
However, he has not done so for the reasons best known to him.
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17] Likewise, it is contended that the Junior Engineer has not
collected any independent evidence to show the concern of accused
with the disputed building. When the prosecution alleges that the
building was constructed by the accused after getting sanctioned plan,
he should have re-butted the said contention as the sanction was given
in his name and thus the said fact is well within his special knowledge.
However, he has also failed to do so. In this background and when the
observations made by the responsible authority, they cannot be
disbelieved unless there is any previous enmity lying with the accused.
18] The accused has also not brought on record any other
materials, except the suggestion, on record to discard the Inspection
Report (Exh.21) or creates any reasonable doubt as to its valid
existence. As such, the fact of finding the irregularities in the additional
construction during inspection of the disputed building of accused by
Junior Engineer (PW-1) on 03/05/2018 can be safely relied upon. Thus,
it is clear that the accused has clearly committed breach of sanctioned
plan.
19] Junior Engineer Mandavakar (PW-1) further deposes that
he along with Assistant Engineer/Designated officer Amol Meshram
made inspection on 03/05/2018. On that basis, the Assistant Engineer/
Designated Officer directed to issue Notice under section 53 (1) of the
MRTP Act thereby directing the accused to restore the structure as per
the Sanctioned Plan within a period of 30 days. Accordingly, he
prepared the Notice under section 53 (1) of the MRTP Act under the
signature of Designated Officer and his own.
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12 (Judgment)
20] The evidence of Assistant Engineer/Designated officer
(PW-3) supports the facts stated by the informant that he had received a
complaint from Bhavesh Kaliya regarding unauthorized amalgamation
in the building and also issuance of notice (Exh.22). The authority letter
(Exh.40) of Designated officer has also gone on unchallenged.
21] The informant further deposes that the Notice (Exh.22)
issued under section 53 (1) of the MRTP Act was duly served with the
accused as per the acknowledgment dated 15/05/2018 by the accused
through his Representative and Manager Rocky. The endorsement lying
on the notice is sufficient to fortify the contention of informant. The
evidence of Building Mukadam Gharat (PW-4) is also supporting to the
said fact. His authority letter (Exh.45) has also gone unchallenged. The
accused has also not brought on record any contrary material showing
that he has not duly received the notice.
22] No doubt, the accused has further raised objection that
even if the notice was served with some person namely Rocky, he is no
way concern with him. He is neither Supervisor or Manager thereof and
also having documentary evidence to connect him with the accused. No
doubt, the informant has not collected any independent document
establishing his concern with the accused, however, the fact as to receipt
of the notice by the accused through his supervisor at his commercial
address and then facing inquiry of the police with the same status are
sufficient to show his concern with the disputed building. Moreover, the
denial of accused as to his status is also in the form of evasive. The very
statement or suggestion is not supported by any evidence. As such, the
contention of accused that he has no concern with the said building will
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The State V/s. Gurvinder Singh & ors
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have to be discarded holding that he was the Manager of the accused as
claimed by the informant.
23] The accused has further raised objection that even if the
notice was served with the accused, he cannot be connected with the
incident for want of documentary evidence with regard to his title. True
that, the informant has not collected any independent document
establishing his concern with the said building, however, the fact as to
receipt of the notice by the accused in the building and then facing
inquiry of the police in the position of owner is sufficient to show his
concern with the disputed premises. As such, the contention of accused
that he has no concern with the said disputed premises will have to be
discarded holding that he was the owner as claimed by the prosecution.
24] The accused has also brought on record through the cross-
examination of Junior Engineer Madanvkar (PW-1) that he has not
verified the construction plan and other documents of disputed building
from the Building and Proposal Department. Though the informant has
not verified the said fact, the same is not mandatory on him. Moreover,
it is the duty of the person (accused herein) holding the Sanction Plan
to show it whenever a demand is made either by the authority of the
Corporation or any person questioning the validity of the construction.
In this backdrop, the contention of accused will have to be discarded as
well.
25] Junior Engineer Mandavkar (PW-1) further deposes that he
found that the accused has not complied with the Notice dated
09/05/2018. The second Inspection Report dated 13/10/2018 (Exh.24)
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14 (Judgment)
supports the case of prosecution on the point that he has not complied
with the notice. Thereafter, the informant lodged the report on
09/05/2019 and the FIR (Exh.27) was registered. The proved FIR
(Exh.27) also support the said fact. The evidence of Designated Officer
Meshram (PW-3) is also supporting on that point. The accused could
not bring on record any contrary material to rebut the said fact.
26] The further evidence of informant that he personally
pointed out the spot of incident has also gone unchallenged. The
evidence of Investigation Officer API Lokhande (PW-5) also supports the
case of prosecution on the point of taking cognizance into the matter
and then initiating the investigation therein. The evidence of
investigation officer is sufficient to show that the alterations and
amalgamations as recorded in FIR (Exh.27) proved by the informant as
well as Investigating Officer are contrary to the sanctioned plan. No
contrary material brought on record in that regard. Hence, the entire
evidence of Junior Engineer Mandavkar (PW-1) has remained intact and
can be relied upon.
27] The prosecution in order to establish the fact that the
action against accused was taken after getting due sanction from the
competent authority has examined the then Assistant
Engineer/Designated officer Meshram at Exh.39. He deposes that he
was authorized to take action in such matters by virtue of one Authority
Letter (Exh.40) issued by the then Municipal Commissioner – Ajoy
Mehata under section 152 of the MRTP Act. The Authority Letter
(Exh.40) supports the case of prosecution in that regard. The accused
has also not brought on record any contrary material to rebut the
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15 (Judgment)
genuineness of the Authority Letter (Exh.40) or create any reasonable
doubt about the validity thereof.
28] The Assistant Engineer/Designated officer –Meshram (PW-
3) further deposes that on the basis of aforesaid authority he directed to
prosecute the accused by issuing Sanction Letter dated 01/04/2022
(Exh.34). The accused has tried to create doubt as to its validity on the
ground that it does not bear the date of his express acceptance.
However, the accused has failed to show that the very requirement is
mandatory in law. He further submitted that the evidence of Assistant
Engineer/Designated officer Meshram (PW-3) cannot be relied upon as
he has not personally inspected the building at the time of first
inspection and thus he has no direct knowledge about commission of
crime. However, the expectation of accused is also unwarranted as there
is no mandate in law that the Designated Officer shall revisit the
disputed premises for his own confirmation after submission of the
Report by his subordinate. Even otherwise, the expectation of accused
that the Designated Officer should discharge the duties of subordinate
besides discharging his own is also illogical having regard to the
administration system lying with the Corporation. As such, the act of
Designated Officer Meshram issuing notice under section 53 (7) of the
MRTP Act or granting sanction to initiate action against the accused on
the basis of reports of his sub-ordinate cannot be faulted with or
doubted on any ground.
29] Consequently, I did not find any infirmity in the evidence of
Designated Officer Meshram to the extent of issuing notice against the
accused and then directing to take action against him. Hence, the
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evidence of Designated Officer Meshram can be relied upon to that
extent. However, the fact remains as to valid sanction to be granted
under section 142 of the MRTP Act in exercise of powers under section
152 of the MRTP Act which can be dealt with in the later part of the
Judgment.
30] The prosecution has further examined the Investigation
Officer (PW6) PSI Jadhav at Exh.52. He also confirms the fact of
commission of crime at the hands of accused during his investigation.
The accused during the cross examination has brought on record that
the investigation officer has not given details as to which part of the
structure was illegal and which was legal. True that, he has not given
such details, however, it cannot be ignored that the substantive
evidence of expert i.e. the authority of corporation (Junior Engineer
Mandavkar) is already on record. He has given the details of the
unauthorized construction in his both Inspection Reports
(Exh.21 and 24). In the light of aforesaid material, I do not find any
ground to discard the evidence of Investigation Officer on that point.
31] In view of the aforesaid materials, it is clear that the
accused has made alterations and amalgamations in the existing
Sanctioned Plan. The very alterations on the part of accused is
apparently in contravention of the sanction plan and thus I do not find
any infirmity in the action of the authorities taken against the accused.
32] Although it has come on record that the accused has made
construction in contravention of Sanction Plan, the further mandatory
provision of granting sanction under section 142 of the MRTP Act
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before registration of the crime is required to be followed in its letter
and spirit having regard to the strictly statutory action. The sanction to
prosecute against the accused under section 142 of this Special Act is
required to be granted at the time lodging the FIR as laid down in the
case of
Mahesh Shivram Puthran V/s. The Commissioner of Police,
Thane (Criminal Writ Petition No.3544/2010) of Hon’ble Bombay High
Court.
33] In the case in hand, the report dated 09/05/2019 was
given to the Samtanagar Police Station which was registered as
LAC/Crime No.107/2019. If the date of lodging FIR is taken into
consideration, the requisite sanction to prosecute the accused as
required under section 142 of the MRTP Act was to be issued on or
before 09/05/2019. However, the Sanction Letter was issued on
01/04/2022 i.e. after 2 years which is apparently after lodging the FIR.
As such, the entire trial vitiates on that ground only.
34] Consequently, the non-compliance of mandatory provision
will be beneficial to the accused and thus the reasonable doubt as to
validity of sanction letter is created in the case in hand. Thus, the
benefit of reasonable doubts will have to be extended in favour of the
accused. Hence, I hold that the prosecution has filed to establish its case
beyond all reasonable doubts. Hence, I answer point no.1 in the
negative.
AS TO POINT NO.2:-
35] As the prosecution has failed to establish its case beyond all
reasonable doubt, the accused will have be acquitted of the offence
punishable under section 53 (7) of the MRTP Act. Needless to say, the
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authorities of corporation is at liberty to recourse the action, if any, for
demolition or removal of the unauthorized structure of the accused if
provided under other provisions of law. Hence, in answer to point no.2,
I pass the following order:-
ORDER
1 The accused are acquitted of the offence punishable under
section 53 (7) of the Maharashtra Regional and Town Planning
Act, 1966, vide section 248 (1) of the Code of Criminal
Procedure, 1973.
2 Their bail bonds shall stand cancelled.
3 The accused are directed to furnish bail in the sum of Rs.
10,000/- each under section 437-A of the Code of Criminal
Procedure, 1973.
Sd/-
(U. L. Pathak)
Judicial Magistrate (F. C.),
Date : 05.06.2025. 55th Court, Vile Parle, Mumbai.
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