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Bombay HC quashes criminal complaint against flat owner alleged of using property for commercial use

As per the FIR, registered by the junior engineer of the civic body, at the Khar Police Station, the allegation of using his apartment for commercial use was made against Rajkumar Hiranand Devnani and another person.

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Bombay HC quashes criminal complaint against flat owner alleged of using property for commercial use
Bombay High Court
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After nearly 15 years, the Bombay High Court quashed and set aside a criminal prosecution initiated against a Khar-based housing society member by the municipal corporation over allegedly using his house for commercial use.

Justice Mridula Bhatkar while declaring the sentence imposed of one month imprisonment by a magistrate court in the year 2002 as illegal said, "Appreciation of the lower courts is not correct because the absence of evidence of residence shall not necessarily amount to commercial use of the said premises. A person may not be residing at a particular location but, may be using that area to study or to just rest. In such a case, regular household articles may not be found in the said premises. Therefore, it does not amount to conversion of a residential into a commercial premise."

As per the FIR, registered by the junior engineer of the civic body, at the Khar Police Station, the allegation of using his apartment for commercial use was made against Rajkumar Hiranand Devnani and another person. Most of the witnesses, who were examined during the trial, were members of the society. The witnesses said that inspection of the flat revealed presence of computer tables and chairs; there were no utensils, clothes, or other household. Thus, it was being used for commercial purpose.

The magistrate court and the sessions court which heard the appeal filed by Devnani had drawn inference based on the testimonies of the witnesses to hold that the accused had committed offence under section 53 (7) of MRTP Act. The accused had claimed that the society had demanded an exorbitant transfer fee — 4 per cent of the total market value of the flat. However, since they refused to pay the said amount, the society initiated this prosecution by providing the BMC with false information, Devnani said.

The court after going through the evidence set aside the conviction and clarified that the society cannot charge a transfer fee that exceeds Rs 25, 000. However, as per the petitioner's case, he was asked to pay 4 per cent of the market value of the said premises, which is nearly Rs 1 lakh. The court called the demand illegal.

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