1. This is an appeal by the Municipal Corporation of Poona from the order of acquittal passed on revision applications filed by respondents 1 to .6 against the order of conviction and sentence passed by the trial Court.
2. The first six respondents respectively were original accused Nos. 1, 3, 5, 6, 9 and 10. They along with the other accused were members of a co-operative housing Society by name 'Rajeshree Cooperative Housing Society' which was promoted by M/s. B. K. Mhaske and V. S. Apte and some others. B. K. Mhaske was the Architect as well as the contractor,
3. Initially a plan was submitted to the Municipal Corporation Poona in of about 1970 for permission to construct a building consisting of three floors and having six flats. That plan was sanctioned by the Municipal Corporation. Thereafter it appears that the original plan was varied and it was decided to construct eight instead of six flats. Accordingly a revised plan was submitted to the Municipal Corporation sometime in 1971 and the same was sanctioned by the Municipal Corporation.
4. Thereafter, however, without obtaining any sanction or permission from the Municipal Corporation, the Society constructed a building consisting of 12 flats instead of 8 flats as sanctioned under the revised plan and after its completion the members were also given possession thereof and the members occupied them.
5. Accused No. 1 was the Chairman of the Society at the time this prosecution was initiated and accused No. 2 was its Secretary from the beginning. Accused Nos. 3, 5, 6, 8 and 9 are the members while accused Nos. 4 and 7 were licensees from two of the members of the Society.
6. On June 6, 1973, the complainant, who has filed the complaint on behalf of the Municipal Corporation and who is in their service as Overseer in the Town Planning Department, paid a visit to this building and he found that the different flats were occupied by these accused persons although no completion certificate was obtained as required under Section 263 (2) of the Bombay Municipal Corporation Act, 1949, hereinafter referred to as 'the Act'. These accused were, therefore, prosecuted for committing an offence punishable under Section 392 read with Section 263 (2) of the Act for occupying these flats without obtaining completion certificate as required by Section 263 of the Act.
7. The accused pleaded not guilty to the charge. Accused stated that no offence was committed by them inasmuch as the building was constructed strictly according to the sanctioned plan.
8. Accused further contended that accused No. 2, who was the Secretary of the Society, handed over the keys of the flats to them and permitted them to occupy stating that completion certificate was obtained. According to them, they did not suspect that completion certificate was not obtained, but believed the word of accused No. 2 inasmuch as the other members had also occupied the blocks.
9. Accused No. 4 stated that he was a mere licensee of the original member and was not therefore liable. Accused No. 8 stated that he himself was not a member but his daughter was a member.
10. The trial Court convicted accused No. 2, who was Secretary of the Society under Chap. XIX read with Chap. XII Clause 6 (1) of the Schedule to the Act read with Section 392 of the Act and also convicted accused Nos. 1, 2, 3, 5, 6, 9 and 10 under Section 263 (2) read with Section 392 of the Act. Accused Nos. 4 and 8 were acquit-ed. Accused No. 7 was ordered to be tried separately.
11. Against this order respondents 1 to 6 went in revision to the Court of Session.
12. The Additional Sessions Judge took the view that under Section 263 the person who was responsible to obtain certificate of completion and for occupation from the Municipal Corporation was the person who applied for permission to construct the building and for commencement certificate and since in this case it was the Society that had applied for permission, the accused, who were members of the Society, were not liable. However, since accused No. 2 Laxminarayan was admittedly the Secretary of the Society, his conviction and sentence for the offence under Section 392 read with Section 263 (2) of the Act and under Schedule Chap. XIX read with Schedule Chap. XII Clause 6 (1) of the Act was maintained. The conviction of the first six respondents, however, was set aside and they were acquitted.
13. On this appeal Mr. Agarwal submitted that under Section 263 (2) of the Act, any person who occupies a building or part of a building without obtaining completion certificate from the Municipal Corporation is liable to be punished under Section 392. According to him mens rea is not an essential ingredient of the offence inasmuch as the prohibition contained in Section 263 (2) is a regulatory provision enacted in public interest. He further submitted that the view taken by the Additional Sessions Judge that the person who was under an obligation to obtain completion certificate under Section 263 is one who had applied for permission to erect the building and who had applied for commencement certificate is erroneous.
14. On the other hand, Mr. Khare, who appears for some of the respondents, contended that the view taken by the Additional Sessions Judge was correct. He further submitted that the respondents 1 to 6 believed the representation made by the Secretary of the Society that a certificate of completion had been Obtained from the Corporation and that, therefore, there was no objection to occupy the premises.
Thursday, 13th Oct., 1977.
15. He further submitted that the respondents 1 to 6 therefore did not possess guilty knowledge as they were not aware of the fact that completion certificate and permission to occupy the premises was not obtained. In this connection he pointed out that these respondents were even shown a certificate of completion issued by the Architect and they therefore honestly believed that they could occupy the premises.
16. Section 253 (1) of the Act requires every person who intends to erect a building to give notice to the Commissioner of his intention to do so in the prescribed form. Section 257 requires every person who intends to erect a new building or to execute any such work, to do so under such supervision and through such qualified agency and subject to such conditions and restrictions as may be prescribed by the by-laws.
17. Then Section 263 (1) requires every person within one month after the completion of the erection of a building to deliver to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by the by-laws signed and subscribed in the manner prescribed and he is also required to give to the Commissioner all necessary facilities for the inspection of such building or of such work and is also required to apply for permission to occupy the building.
18. Then Sub-section (2) of Section 263 with which we are immediately concerned provides:
(2) No person shall occupy or permit to be occupied any such building, or use or permit to be used the building or part thereof affected by any work until-
(a) permission has been received from the Commissioner in this behalf, or
(b) the Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate his refusal of the said permission.
19. Reading these three sections together, it is obvious that the liability to give notice of intention to erect a new building, to obtain a certificate of commencement of work of erection and then to give notice of the completion of the erection of a building primarily rests on the person who undertakes to construct the building.
20. In the. present case, the respondents 1 to 6, who were accused Nos. 1, 3, 5, 6, 9 and 10 in the trial Court, were members of the Society. The construction work was undertaken by the Society through its office-bearers. None of these accused, who are respondents to this appeal, were admittedly holding any office in the Society. It, therefore, appears to me that they cannot be held responsible for the failure of the office bearers of the Society to obtain permission for occupation from the Commissioner before they allowed the members to occupy their respective flats.
21. Mr. Agarwal for the appellant-Corporation contended that the words of Section 263 (2) are absolute and a bare reading of these provisions shows that no person, not even a member of the Society, can occupy such building unless permission to occupy has been obtained. He argued that even if the respondents 1 to 6 were not aware of the fact that permission to occupy was not obtained from the Municipal Corporation, the mere fact that they occupied the premises would make them liable irrespective of their mental state. In this connection he relied on State of Gujarat v. D. Pande : 1971CriLJ760 ; and Braham Dutt v. S. Bishan Singh (1976) 78 Bom LR 462.
22. The case before the Supreme Court arose under Section 35 of the Bombay Public Trusts Act. That section in brief required the trustee of a public trust to deposit in the Banks mentioned in that section such trust property consisting of money which was not immediately required for the purposes of public trust. Section 66 of the Public Trusts Act provided for penalty for contravention of any provision of any of the sections mentioned in the first column of the Schedule given in that section. Section 35 is one of the sections mentioned therein and it makes failure to comply with the provisions of Section 35 punishable with a fine not exceeding Rs. 1000/-. The question in that case arose whether mens rea was a necessary ingredient of this offence. Their Lordships observed:
The mens rea means some blameworthy mental condition, whether constituted by knowledge or intention or otherwise. The plain words of the statute are read subject to a presumption, which may be rebutted, that the general rule of law that no crime can be committed unless there is mens rea has not been ousted by the particular enactment. But this rule has several exceptions. The principal classes of exceptions may be reduced to three. One is a class of acts which are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty. Another class comprehends some, and perhaps all, public nuisances. Lastly, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right.
The Court held that the offence under Section 35 (1) of the Bombay Public Trusts Act, 1950, is an absolute one and the Court cannot read into it the requirements of mens rea. It creates a quasi-criminal offence. It was a regulatory pro* vision and was enacted with a view to safeguard the interest of the public regarding trust money. It was also pointed out that the offence being punishable only with fine did not carry with it any stigma.
23. However, it is necessary to point out that the Court observed-
Unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind. But the language of a provision either plainly or by necessary implication can rule out the application of that presumption. The Court may decline to draw that presumption taking into consideration the purpose intended to be served by that provision.
24. In Braham Dutt's case (1976) 78 Bom LR 462 a single Judge of this Court was dealing with a case arising under Section 21 of the Bombay Rents, Hotel and Lodging House Rates Control Act, which required every landlord, upon a notice served upon him by the tenant, to furnish to such tenant within one month of the receipt of such notice full particulars of the amount of standard rent of the premises let to such tenant and of the permitted increases. It further provided in Sub-section (2) that any landlord who failed to furnish such particulars shall be punished with fine which may extend to one thousand rupees. The question which was canvassed was that mens rea was a necessary ingredient of the offence under this section. The Court negatived this contention holding that the offence contemplated by Section 21 of the said Act was not a criminal offence. It further held that though the proceedings contemplated were criminal in form, it was really only a summary mode of enforcing a civil right conferred upon the tenant.
25. In State of Maharashtra v. M.H. George : 1SCR123 which was a case under the Foreign Exchange Regulation Act, the question of mens rea arose and the Court laid down the general principle in the following words:
It is a well settled principle of common law that mens rea is an essential ingredient of a criminal offence. Doubtless a statute can exclude that element, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. To put it differently, there is a presumption that mens rea is an essential ingredient of a statutory offence; but this may be rebutted by the express words of a statute creating the offence or by necessary implication. But the mere fact that the object of a statute is to promote welfare activities or to eradicate grave social evils is in itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of the offence. It is also necessary to enquire whether a statute by putting a person under strict liability helps him to assist the State in the enforcement of the law : can he do anything to promote the observance of the law? ....Mens rea by necessary implication can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law. The nature of mens rea that will be implied in a statute creating an offence depends upon the object of the Act and the provisions thereof.
26. Mr. Agarwal argued that the pro-vision contained in Section 263 of the Act was a regulatory provision intended for the welfare of the public. But the mere fact that the provision is regulatory or the object of the statute is to promote welfare activities is in itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of the offence, as has been held by the Supreme Court in State of Maharashtra v. M.H. George : 1SCR123 .
27. In my view, therefore, the state. of mind of the accused would also be a) material factor to be considered in such cases. It appears to me that to take such a view would not exonerate persons who are really responsible for obtaining completion certificate before allowing the same to be occupied either by themselves or by others and at the same time it will not work hardship to the persons who simply occupy such a building through others, because it would always be possible to hold the person, who is in charge of the building, responsible for permitting other persons to occupy the same or for occupying it himself. It, therefore, appears to me that the order of acquittal must be confirmed.
28. The appeal is dismissed.