The Bombay High Court recently set aside the order of a sessions court and metropolitan magistrate court sentencing two persons to jail for a month over charges that they made commercial use of their residential premises.
“A person may not be residing in a particular premises and may be using that premises for studying or just for resting, so regular household articles may not be found in the said premises and, therefore, it cannot be a conversion of residential into commercial premises,” the High Court observed.
The petitioners, Rajkumar Devnani and another person, had challenged the order passed by a sessions court in 2003, confirming the order of conviction and sentence under Section 53(7) of the Maharashtra Regional and Town Planning (MRTP) Act passed by the metropolitan magistrate.
In 2000, complainant D B Bhagat, a junior engineer with the BMC, had lodged a complaint at Khar police station against Devnani and another person for “change of user of the residential premises into commercial premises”. Bhagat had visited flat No. 4 of Ramdevi Cooperative Housing Society in Khar and, on inspection, found that “the residential flat of the accused had been converted into office premises”.
Bhagat noted that office furniture like computer, chairs and tables were there instead of household furniture. Subsequently, notice was issued to the accused. Before the magistrate court, the accused said the housing society had demanded exorbitant transfer fees of 4 per cent of the total market value of the flat. When they refused to pay the amount, out of vengeance, the society got them prosecuted through the BMC by giving a false report to the civic body about change of user, they claimed.
The magistrate court, however, found the accused guilty and sentenced them to one month imprisonment with fine of Rs 5,000 each. The order was upheld by the session judge.
Justice Mridula Bhatkar, however, held that “appreciation of the evidence by the learned metropolitan magistrate and also the learned sessions judge is not as per law”. Both judges have jumped to the conclusion that absence of proper chain of circumstances showed there is a change of user from residence to commercial use, Justice Bhatkar said.