IN THE COURT OF SESSIONS FOR GR. MUMBAI
AT MUMBAI
REVISION PETITION NO.______ OF 2009
In the matter under S.397 of Criminal Procedure Code
And
In the matter of dismissal of Complaint u/s 203 of Cr. P.C By 2ND ourt, Metropolitan Magistrate xxxxxxx, in C.C. NO. xxxxxxxx
And
In the matter of offence U/s. 3, 4, 5 of Maharashtra Ownership Flat Act, 1963
ABC )
)
, ) ..Petitioner
) Orig. Complainant
V/s.
1) The State of Maharashtra )
2) XYZ
) ..Respondent
) Orig. Accused
MAY IT PLEASE YOUR HONOR
Being aggrieved by the order dated 10th April 2009 passed by Metropolitan Magistrate, 2ND Court, _______, in C.C. No.__________, dismissing the complaint of the Petitioner U/s.203 of Criminal Procedure code, the Petitioner is preferring this revision, challenging the correctness and legality of the order on the following amongst other grounds:-
G R O U N D S
1. on the one hand the Learned Magistrate rightly concluded that clause 7(d), 7(f), 12 & 20 of the agreement to sale did not intend to create any right in favor of purchaser i.e. Complainant on the parking place, open place etc. and that property was remained the property of owner and developer until whole property is transferred to a society, the Learned Magistrate immediately thereafter contradicted himself by recording a finding that as per clause No.12 of the said agreement, the accused has every right to sell the open parking space to the Complainant;
2. the Learned Magistrate failed to appreciate that open car parking space which was required to be transferred to proposed society as per the agreement, could not have been allotted to the Complainant for a consideration;
3. the Learned Magistrate ought to have held that by allotting open parking space to the Complainant for a consideration, the Accused have contravened the provisions of s.3,4,5 of the Maharashtra Ownership Flat Act, 1963 and thereby committed an offence cognizable by him;
4. the Learned Magistrate failed to appreciate that allotment of car parking space for consideration amounts to limiting the common area which has not been specifically mentioned in the agreement and therefore there has been non compliance of the provisions of s. 3 & s. 4 of the Maharashtra Ownership Flat Act, 1963;
5. the Learned Magistrate has erred in coming to a conclusion that he did not find any illegality committed by the Accused by selling the open car parking space to the Complainant despite the fact that the open car parking space was to be conveyed to the proposed society free from any encumbrances;
6. the Learned Magistrate has erroneously concluded that the dispute involved in the complaint is essentially of civil nature;
7. the Learned Magistrate ought to have appreciated that disputes which are essentially of civil nature has been made a punishable offence by the special enactment of Maharashtra Ownership Flat Act 1963;
8. the Learned Magistrate has committed an error by concluding that the Complainant has to file separate litigation against the co operative society for establishing his right over the said open car parking space;
9. the Learned Magistrate failed to appreciate that the Complainant has no right over the said open car parking space purchased by him from the Accused for consideration in view of the fact that the Accused had no right to sell/allot the same to the Complainant;
10. the Learned Magistrate ought to have appreciated that the sale/allotment of open car parking space to the Complainant by the accused is in contravention of s.3 & 4 of the Maharashtra Ownership Flat Act 1963 and hence a prima facie case of commission of offence punishable U/s. 13, 13A & 14 of MOFA 1963 has been made out against the Accused;
11. the Learned Magistrate failed to appreciate that the ratio laid down by the Hon’ble Bombay High Court in the case of Ramagauri Keshvlal Virani V/s. Walkeshwar Triveni Co-op Hsg. Soc. Ltd. AIR 1999 Bom. 385 wherein it has been held that in the light of statutory provisions of section 4 r/w section 10 do not authorize the builder to sell the right over terrace of a building applies with equal force to sale of open car parking space;
12. the Learned Magistrate arbitrarily held that the ratio laid down in that case is not applicable to the present case;
13. the Learned Magistrate failed to appreciate that s. 3 & s. 4 of MOFA 1963 has laid down the various payment/sum/advances/deposits that can be collected by the Accused and that consideration for allotment of open car parking space is not one of them;
14. the Learned Magistrate ought to have held that collection of amount for allotment of open car parking space is in contravention of MOFA 1963 and there fore is a prima facie evidence of commission of the offence within his cognizance.
II) The Petitioner craves leave to add, alter or amend any of the forgoing grounds.
III) The Petitioner submits that no other petition has been filed or is pending in this Hon’ble Court or Hon’ble High Court at Bombay.
IV) The Petitioner submits that the order of dismissal was passed on xxxxxxx and a copy of the same was furnished to the Petitioner on xxxxxxxx and therefore this Petition is within limitation.
VI) The Petitioner therefore prays:-
1. that the order dated xxxxxxxx dismissing the complaint of the Petitioner U/s. 203 of Cr. P.C. by Metropolitan Magistrate 2ND Court, xxxxxx in C.C. No.xxxxxxxxxxx be quashed and set aside after calling for the records and examining the same;
2. that the Learned 2ND Metropolitan Magistrate be ordered to take cognizance of the offence and proceed against the Accused in accordance with law;
3. such further and other orders as the Hon’ble Court may deem fit and proper be passed in the nature and circumstances of the case.
Mumbai
Dated : (Petitioner)
VERIFICATION
I, xyz, the Petitioner above named state and declare on solemn affirmation that whatever stated hereinabove is true and correct to the best of my knowledge and belief.
( XYZ)
Petitioner
Filed on _____ day of ____________ 2009.
(Advocate for the Petitioner)
