Final Order 1

Order Details: Copy Judgment
Pdf Text: 1 Cri. Case No. 5500102/PW/2023
The State V/s. Ami Shah
Received on:- 06.10.2023
Registered on:- 06.10.2023
Decided on:- 17.03.2025
Duration:- Y M D
02 05 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 :U. L. Pathak
Date of the Judgment : 17.03.2026
C.C. No.5500102/PW/2023 Exh.42/B
CNR No :- MHMM25-005748-2023
Complainant The State of Maharashtra
Through: Kastruba Police Station
Represented by Mrs. Pramodini Mule - Assistant Public Prosecutor
Accused Ami Shripal Shah
Age :41 Yrs. Occ :- Employed
R/o :- 502, Pran Bhauvan M. G. Road,
Borivali (E), Mumbai.
Represented by Ld. Adv. Shefali Mhatre for accused.
Part 'B'
[Para 44(ii) of Chapter VI of Criminal Manual]
Date of offence On or before 13/01/2016
Date of FIR 13/01/2016
Date of Chargesheet/Complaint 06/10/2023
Date of Framing of Charges/Particulars 21/03/2024
Date of commencement of evidence 03/06/2025
Date on which judgment is reserved ___
Date of the Judgment 17/03/2026
Date of the Sentencing Order, if any ___
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The State V/s. Ami Shah
----Accused Details----
Ran
k of
the
Acc
use
d
Name of
Accused
Date
of
Arrest
Date
of
Releas
e on
Bail
Offence
s
charge
d with
Whether
acquitted
or
convicted
Sent
ence
Impo
sed
Period
of
Detenti
on
Underg
one
during
Trial for
purpose
of
Section
428,
Cr.P.C.
1 Ami Shripal
Shah
12/05
/2018
12/05
/2018
The
offence
punish
able
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 Amol Ajabsingh Jadhav Informant - Junior Engineer
P.W. No.2 Sachin Anandrao Patil Investigating Officer
P.W. No.3 Narendrakumar Rajbhar Designated officer
B. Defence Witnesses, if any :
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT WITNESS,
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The State V/s. Ami Shah
MEDICAL WITNESS, PANCH
WITNESS, OTHER WITNESS)
----- ----- -----
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 Copy of authority letter of PW-1
2. Exhibit-21 Copy of inspection report
3. Exhibit-22 Copy of letter
4. Exhibit-23 Copy of notice
5. Exhibit-24 Copy of 2nd inspection report
6. Exhibit-25 Complaint
7. Exhibit-26 FIR
8. Exhibit-31 Letter
9. Exhibit-32 Panchnama
8. Exhibit-33 to 34 Letters
B. Defence :
Sr.No. Exhibit Number Description
--------- --------- -------
C. Court Exhibits :
Sr.No. Exhibit Number Description
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--------- --------- -------
D. Material Objects :
Sr.No. Material Object
Number
Description
--------- --------- -------
JUDGMENT
(Delivered on this 17th day of March, 2026)
The accused is 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- Amol Ajabsingh Jadhav,
Junior Engineer that one complaint was received from one Shaikh Mohd.
Ali by the MCGM Department in respect of unauthorized construction,
therefore he had visited the spot i.e. Ami Co. Op. Housing Society Ltd.,
located at Quarter Road No.8, Borivali (E), Mumbai and found that the
accused as well as other flat holders had carried out development and
made change of user of the same by making unauthorized construction in
their respective flats. The very construction was beyond approved plan
and without obtaining any prior permission from the Competent Authority
as required under the MRTP Act. Hence, the Notice dated 14/09/2015
under section 53 (1) of the MRTP Act was issued to the accused and other
flat holders to remove the unauthorized structure within stipulated period.
3] After expiry of the notice period, the informant visited the
spot of incident on 26/11/2015 and found that the accused and other flat
holders did not comply with the notice requisition. Thereafter, he
reported the said fact to the senior officer for course of action on which he
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directed to initiate prosecution against the accused and others.
Accordingly, the informant initially filed the written complaint dated
07/12/2015 with EOW Yello Gate Police station which was subsequently
transferred to Kastruba Police station on the ground of proper jurisdiction.
Thereafter, the informant lodged report on 13/01/2016 with the Kasturba
Police Station. On the basis of the report, the police registered the
LAC/Crime No.04/2016 on 13/01/2016 for the offence punishable under
section 53 (7) of the MRTP Act against the accused.
4] 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. The spot was shown by the
informant. He further recorded the statement of witnesses. He also
obtained the requisite Sanction Letter dated 17/05/2018 from the
competent authority to further process. Accordingly, the main charge-sheet
against accused as well as other flat holders came to be filed on
04/08/2022.
5] In response to the summons, the accused appeared and
furnished bail bonds. Thereafter, the case was split up and registered
separately against each of the accused by passing below Exh.1 in main
case No. 14/PW/2022. The charge of the accused was framed at Exh.05.
She pleaded not guilty and claimed to be tried at Exh.6. Her defence was
that of total denial and false implication in the case.
6] The prosecution has led its evidence and closed its side by
filing Pursis (Exh.38). The statement of accused was recorded at Exh.40.
Heard the Ld. APP for the State and Ld. Counsel for the accused.
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7] 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 has made development/
construction in contravention of the
Sanctioned Plan and thereby
committed an offence punishable
under section 53 (7) of the MRTP Act?
No.
2 What order ? The accused is acquitted.
R E A S O N S
AS TO POINT NO.1:-
8] The prosecution in order to bring home the guilt of accused
has examined its authorized person – Amol Ajabsing Jadhav (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 dated 13/09/2012 issued by the then
Dy. Municipal Commissioner under the provisions of the Mumbai
Municipal Corporation Act, 1888 (In short ‘MMC Act’).
9] The proved Authority Letter in connected case
No.14/PW/2022 disclose that Junior Engineer was duly authorized to
inspect the flats/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 acts of Junior Engineer
visiting the flats of accused for the inspection cannot be faulted with. The
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accused has also not brought on record any contrary material on record to
discard the Authority Letter or creates any reasonable doubt therein. As
such, the authority of Junior Engineer - Jadhav (PW-1) for inspection of
the flat of accused and others can be relied upon.
10] Junior Engineer - Jadhav (PW-1) further deposes that one
complaint was received from Mohd. Ali Shaikh alleging therein that
unauthorized construction was carried out by the owner – accused and
other flat holders in Ami CHS Ltd., located at Kasturba Road No.8, Borivali
(E), Mumbai and thereby made change of user therein. On that basis, he
personally made inspection of the disputed building on 03/02/2015 and
confirmed the allegations to be true and correct. He found that the major
changes and amalgamations were made in entire flat of the accused as
well as other flat holders which were completely beyond approved plan.
11] Thereafter, he prepared inspection report of the then situation
of the spot and forwarded to the Designated officer for taking further
action. Thereafter, the notice (Exh.23) under section 53 (1) of the MRTP
Act came to be issued against the accused under the authority of Assistant
Engineer - Designated officer- Narendrakumar Rajbhar (PW-3). However,
the accused failed to comply with the notice. The evidence of Assistant
Engineer - Rajbhar (PW-3) is also consistent on that point. The accused
could not rebut the said evidence by bringing on record any contrary
material. The fact as to non compliance of notice was also confirmed by
the Junior Engineer - Jadhav (PW-1) in his further inspection.
12] 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 the Junior Engineer did not issue any prior notice of
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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. As such, the contention of accused in that
regard will have to be discarded.
13] Likewise, it is contended that the Junior Engineers have not
collected any independent evidence to show the concern of accused with
the disputed flat. When the prosecution alleges that the flat in possession
of accused was amalgamated beyond approved plan, he should have
re-butted the said contention as the flat was constructed as per sanctioned
plan which he had received at the time of purchasing his own flat. Hence,
the said fact is well within his special knowledge. However, he has also
failed to disclose such facts. In this background and when the observations
made by the responsible authorities, they cannot be disbelieved unless
there is any previous enmity lying with the accused.
14] The accused has also not brought on record any other
materials, except the suggestion, on record to discard the Inspection
Report or creates any reasonable doubt as to their valid existence. As such,
the confirmation of the fact of finding the irregularities in the additional
construction during further inspection of the disputed flat by Junior
Engineer - Jadhav (PW-1) can be safely relied upon.
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15] 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 flat, 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
flat. As such, the contention of accused that he has no concern with the
said flat will have to be discarded holding that he was the owner of the
flat as claimed by the prosecution.
16] Junior Engineer - Jadhav (PW-1) further deposes that he
found that the accused has not complied with the Notice dated
14/09/2015. The oral evidence of Junior Engineer - Jadhav (PW-1)
supports the case of prosecution on the point that she has not complied
with the notice. Thereafter, as per the direction of Designated officer, the
informant initially gave written complaint (Exh.25) to the EOW Yello Gate
Police Station against the accused. The said complaint further transferred
to the Kasturba police station within whose jurisdiction the offence was
allegedly committed. Thereafter, the informant lodged the report on
13/01/2016 and the FIR (Exh.26) was registered against the accused as
well other flat holders. The proved complaint & FIR also support the said
fact. The accused could not bring on record any contrary material to rebut
the said fact.
17] The further evidence of informant that he personally pointed
out the spot of incident has also gone unchallenged. The evidence of
Investigation Officer - Sachin Patil (PW-2) also supports the case of
prosecution on the point of setting the police machinery into to motion
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and then initiating the investigation therein. The proved panchnama
(Exh.33) is sufficient to show that the accursed has made the alterations
and amalgamations as recorded in FIR (Exh.26). No contrary material
brought on record in that regard. Hence, the entire evidence of Junior
Engineer- Jadhav (PW-1) has remained intact and can be relied upon.
18] 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 and Designated
officer - Rajbhar (PW-3) at Exh.36. He deposes that he was authorized to
take action in such matters by virtue of one Authority Letter issued by the
then Municipal Commissioner under section 152 of the MRTP Act.
19] The Assistant Engineer - Designated officer – Rajbhar (PW-3)
further deposes that on the basis of aforesaid authority he directed to
prosecute the accused by issuing Sanction Letter (Exh.33). He further
submitted that the evidence of sanctioning authority 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 sanctioning authority 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
sanctioning authority should discharge the duties of subordinate besides
discharging his own is also illogical having regard to the administration
system lying in the Corporation. As such, the act of sanctioning authority
issuing notice under section 53 (1) 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. However, the
fact remains as to proof of his authority in the matter. It is matter of
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record, the prosecution has not proved the authority letter of Designated
officer.
20] 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.
21] 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 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.
22] In the case in hand, one written complaint (Exh.25) was
transferred to the Kasturba Police Station which was initially given to the
EOW Yellow Gate Police station. Further, the police report/FIR was lodged
on 13/01/2016 registration LAC/Crime No 04/2016. 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 13/01/2016. However, the undated Sanction Letter was
issued on 17/05/2018 (as gathered from the date of covering letter) i.e.
after more than one year which is apparently after lodging the FIR. As
such, the entire trial vitiates on that ground only. Besides, the prosecution
has also not duly proved the authority letters of Junior Engineer and
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The State V/s. Ami Shah
Assistant Engineer – Designated officer as required under the provisions of
MRTP Act.
23] Consequently, the non-compliance of mandatory provision
will create reasonable doubt as to validity of sanction letter and also
competent authority of the witnesses. 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:-
24] 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. Hence, in answer to
point no.2, I pass the following order:-
ORDER
1 The accused is acquitted of the offence punishable under section
53 (7) of the Maharashtra Regional and Town Planning Act, 1966,
vide under section 287 of the BNSS Act, 2023.
2 Her bail bonds shall stand cancelled.
3 The accused is directed to furnish bail in the sum of Rs. 10,000/-
with cash surety in the like amount vide under section 481 of the
BNSS Act, 2023.
(U. L. Pathak)
Judicial Magistrate (F. C.),
Date : 17.03.2026. 55th Court, Vile Parle, Mumbai.
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