Mumbai: Court says OC is builder's job, acquits 80-year-old BMC wanted to evict
Publish on : 2021-01-05 12:42:00
The court said that under provisions of the act no building which is being used as a human dwelling should be entered without the consent of the occupier and in the absence of giving a written notice.
MUMBAI: Acquitting an 80-year-old Mulund man who failed to comply with the eviction notice issued by the BMC for residing in a flat without obtaining an occupation certificate, a magistrate court recently said that the responsibility of procuring the document lies only with the builder, developer and architect. The court found that the accused, Avinash Vaidya had not violated section 353 A of The Mumbai Municipal Corporation Act.
“The basic object of section 353A is obtaining completion certificate by the developer and architect. For their failure, the flat owners, who have paid a large amount to the builder to purchase the flat, cannot be held responsible,” the metropolitan magistrate said. The section attracts a fine if one is found guilty.
The court also said that the BMC had no authority to inspect the premises in 2016 without giving prior notice. The court said that under provisions of the act no building which is being used as a human dwelling should be entered without the consent of the occupier and in the absence of giving a written notice. It pointed out that the act provided sufficient reason must be fur nished in their absence.
“In the present case, Mr Avasare (BMC’s sub engineer) has admitted that no such notice was given to the residents of the building, prior to inspection. Therefore, the inspection taken by Mr Avasare without issuing the said notice becomes invalid in the eyes of law,” the court said. Additionally, the court pointed out that in any case 15-day period given in the eviction notice was not a sufficient enough time for anyone find another house in Mumbai.
“Evidence on record reveals that the notice is issued to vacate the flat immediately. Thereafter, second inspection is carried out exactly after 15 days and prosecution is initiated. However, in my view, 15 days period is not at all a sufficient period to find out other premises in a metropolitan city like Mumbai,” the court held. The court also observed that the sub engineer in his deposition only submitted that the flat was occupied by Vaidya.
It held that inspection report nowhere clarified as to how the sub engineer had drawn the inference.
“Even if it is considered that the accused was present in the flat, this fact itself can not prove that it was occupied by him. He may be present in the flat for any other reason like carrying out interior work prior to occupation,” the court said.