Before concluding it would be necessary to note that in the
present case, the ad-interim relief was refused by the City Civil Court
primarily in view of Section 515A, but also on the ground that
corrective machinery is available in the form of a representation
before the Grievance Redressal Committee. The circular that has
been issued by the Commissioner of the Mumbai Municipal
Corporation on 4 June 2013 for the setting up of a Grievance
Redressal Committee was as a result of the directions issued by this
Court to the effect that there should be an appropriate mechanism for
redressal of grievances pertaining to unauthorized constructions. The
aim of the circular is to redress grievances received from a
complainant in respect of action/ non-action on unauthorized
constructions. The circular provides in Clause-2.3 that the zonal
committee shall not pass any order which will stop/stay the notice
action initiated by the designated officer and the on going notice
action will continue and be brought to its logical conclusion.
Similarly, clause-6.5 requires the owner/occupier against whom a
complaint is made to be called to attend the hearing. The circular,
therefore, provides a remedy to citizens to complain against
unauthorized structures. Be that as it may, the City Civil Court was
on its interpretation of Section 515A justified in coming to the
conclusion as it did on the bar of jurisdiction.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.1709 OF 2013
Abdul Razzaq Sunesra Petitioner
versus
Municipal Corporation of Greater Mumbai
CORAM : DR.D.Y.CHANDRACHUD AND
S.C.GUPTE, JJ.
DATE : 17 July 2013
Citation;2013(6) ALLMR297 Bom
1. Rule. Learned counsel for the Respondents waive service. By
consent, the Rule is made returnable forthwith. The writ petition is
taken up for hearing and final disposal, by consent and on the request
of learned counsel.
2. The challenge in these proceedings is to Section 515A of the
Mumbai Municipal Corporation Act, 1888 which is brought on the
statute by Maharashtra Act No.II of 2012. The Act received the
assent of the President and was published in the gazette on 13 March
2012.
3. The dispute in the present case relates to a structure constructed
on a plot of land bearing CTS No.50/A at S.V.Road, Borivali (W),
Mumbai-400 092. A notice was issued by the Municipal Corporation
on 28 May 2013 under Section 351 of the Act on the ground that the
structure is unauthorized. An order was passed on 17 June 2013
requiring the removal of the structure on the ground that it is
unauthorized. This order was passed by the Designated Officer after
furnishing to the Petitioner an opportunity of showing cause. The
Petitioner filed a suit before the City Civil Court. Ad-interim relief
was declined by an order dated 26 June 2013 both on the ground that
in view of the amendment brought about to insert Section 515A,
notices issued under Sections 351 and 354A could not be questioned
in a civil court and on the ground that a grievance redressal machinery
has been provided under a circular issued by the Municipal
Corporation.
4. Section 515A provides as follows :
"515A : Bar of jurisdiction :
Save as otherwise provided in this Act, any notice
issued, order passed or direction issued by the
Designated Officer, under section 351 or 354A shall not
be questioned in any suit or other legal proceedings."
5. The challenge to the constitutional validity of Section 515A is
on the following grounds which have been urged at the hearing :
(i) No requirement of a hearing has been stipulated in subsection
1(A) of Section 351 and in Section 354A;
(ii) Before initiation of an action under Sections 351 and
354A, a designated officer must be satisfied that the structure is
unauthorized and he may pass an order of demolition;
(iii) Prior to the insertion of Section 515A, access to the civil
courts was not barred, whereas, as a result of the bar of jurisdiction
contained in the newly added provision, no civil suit can lie for the
purposes of questioning an order, notice or direction issued under
Section 351 or Section 354A of the Act;
(iv) Even though a structure is unauthorized, the statute does
not mandate that it shall be demolished since under sub-section 2 of
Section 351, the designated officer may require the removal of the
structure. An adequate machinery has not been provided in the statute
for adjudication of all issues that may arise in the context of an action
initiated against an unauthorized construction and consequently the
bar of jurisdiction under Section 515A is arbitrary, and violative of
Article 14 of the Constitution.
6. When the petition came up for hearing, it appeared to the Court
that in the interests of justice it would be necessary to resolve the
issue of the constitutional validity of Section 515A in order to set at
rest the uncertainty arising out of the maintainability of civil suits
across the State and in particular in the city of Mumbai in regard to
notices, directions or orders under Section 351 and Section 354A.
The amending act, it must be noted, has brought about similar
amendments to Mumbai Municipal Corporation Act, 1888 and the
Bombay Provincial Municipal Corporations Act, 1949. In that view
of the matter, we issue notice to the learned Advocate General. The
learned Advocate General has appeared before the Court and has
accepted the notice. We have accordingly heard the learned Advocate
General in defense to the challenge to the constitutional validity of the
provisions.
7. On behalf of the State it has been submitted by the learned
Advocate General that :
(i) The requirement of compliance with the principles of
natural justice does not necessitate a personal hearing. The principles
of natural justice require an opportunity to a person who is affected by
the proposed action of the State or its authority to put forth a defense
and a due and adequate consideration of the defense. In the present
case, both Sections 351 and 354A contain safeguards for the issuance
of a notice, an opportunity to show cause and require a judicious
application of mind by the designated officer to the cause which is
shown;
(ii) It is well settled that the jurisdiction of a Court under
Section 9 of the Code of Civil Procedure, 1908 to entertain and try an
action of a civil nature can be barred by statute. Where the statutory
provision enacts an express bar, as in this case, an analysis of the
adequacy of the remedy is not decisive in itself;
(iii) In any event, an adequate remedy is provided in Section
351 and Section 354A and recourse to the writ jurisdiction under
Article 226 of the Constitution would be available against an order
passed under those provisions; and
(iv) Absence of an appellate remedy does not render a
provision unconstitutional.
Hence, it has been urged that Section 515A is constitutional.
8. Sub-sections 1 and 1A of Section 351 provide as follows :
"351. Proceedings to be taken in respect of buildings or
work commenced contrary to section 347 :
(1) The Commissioner shall, by notification in the
Official Gazette, designate an officer of the Corporation
to be the Designated Officer for the purposes of this
section and of sections 352, 352A and 354A. The
Designated Officer shall have jurisdiction over such
local area as may be specified in the notification and
different officers may be designated for different local
areas.
1A. If the erection of any building or the execution of
any such work as is described in section 342, is
commenced contrary to the provisions of section 342 or
347, the Designated Officer, unless he deems it
necessary to take proceedings in respect of such
building or work under section 354, shall :
(a) by written notice, require the person who is
erecting such building or executing such work, or has
erected such building or executed such work, or who is
the owner for the time being of such building or work,
within seven days from the date of service of such
notice, by a statement in writing subscribed by him or
by an agent duly authorized by him in that behalf and
addressed to the Designated Officer, to show sufficient
cause why such building or work shall not be removed,
altered or pulled down; or
(b) shall require the said person on such day
and at such time and place as shall be specified in such
notice to attend personally, or by an agent duly
authorized by him in that behalf, and show sufficient
cause why such building or work shall not be removed,
altered or pulled down.
Explanation : "To show sufficient cause" in this subsection
shall mean to prove that the work mentioned in
the said notice is carried out in accordance with the
provisions of section 337 or 342 and section 347 of the
Act."
Under sub-section 1A of Section 351, the designated officer is
empowered to act in a situation where the erection of a building or the
execution of any work of the nature referred to in Section 342 is
commenced contrary to the provisions of Section 342 or Section 347.
Section 342, inter alia, applies where additions, alterations or repairs
are sought to be carried out to a building in which event a notice of
intent has to be furnished to the Commissioner of the nature and the
extent of the intended work, among other things. Section 347, inter
alia, provides that no person shall commence such work without
furnishing a notice of intent and without the approval of the
Commissioner (or if the Commissioner has failed to intimate his
disapproval within the period prescribed). Before the designated
officer initiates steps under Section 351, he is required to issue a
written notice calling upon the person who is erecting a building or
executing the work or to the person who has erected a building or
executed the work to show sufficient cause why the building or the
work should not be removed, altered or pulled down. Under clause
(b) of sub-Section 1A of Section 351, an enabling provision has been
made by which the designated officer may call upon a person to
whom a notice is addressed, to attend personally to show cause. The
explanation stipulates that the expression `to show sufficient cause'
shall mean to prove that the work mentioned in the notice has been
carried out in accordance with Sections 337, 342 or 347. If the person
fails to show sufficient cause to the satisfaction of the designated
officer, the officer may remove, alter or pull down the work.
9. This provision, as noted in the judgment of the Supreme Court
in Muni Suvrat-Swami Jain S.M.P. Sangh Vs. Arun Nathuram
Gaikwad and others1 confers an enabling power on the
Commissioner and a discretion if sufficient cause is not shown,
whether or not to demolish the unauthorized construction. Similarly
under Section 354A, if the designated officer is satisfied that the
erection of a building or execution of a work has been unlawfully
commenced or is being unlawfully carried on, he may issue a notice
to stop such erection of work forthwith. Sub-section 2 of Section
354A provides as follows :
1 (2006)8-SCC-590 - Paragraph 57 on pages 611 and 612
"354A. Power of Designated Officer to stop erection of
building or work commenced or carried on unlawfully.-
(2) If the erection of the building or execution of the
work is not stopped as required by the Designated
Officer or permission approved by the competent
authority in favour of the erection of the building or
execution of the work is not produced within twentyfour
hours from the service of notice referred to in subsection
(1), the Designated Officer may, without further
notice, remove or pull down the building or work and
the expenses thereof shall be paid by the said person or
owner of the building or work. The Designated Officer
may also direct that any person directing or carrying out
such erection or work shall be removed by any police
officer from the place where the building is being
erected or the work is being executed."
10. Sub-section 2 of Section 354A deals with a situation where the
erection of a building or execution of a work is not stopped upon
receipt of a notice or where the person to whom the notice is
addressed does not produce the approval of the competent authority
within 24 hours. In such a case, the designated officer is authorized,
without further notice, to remove or pull down the building or the
work. Section 354A evidently applies to emergent situations where
the designated officer considers it necessary to stop work which has
been unlawfully commenced or work which has been unlawfully
carried out despite issuance of a stop work notice.
11. Ordinarily a civil court under the provisions of Section 9 of the
Code of Civil Procedure, 1908, shall have the jurisdiction to try
all suits of a civil nature excepting suits of which cognizance is
either expressly or impliedly barred. The conferment of jurisdiction
on civil courts to try suits of a civil nature is, therefore, subject to a
law which may be enacted by the competent legislature either
expressly barring the jurisdiction or impliedly taking away the
jurisdiction of the Court. There is nothing uncommon, as a first
principle of law, in a competent legislature barring the jurisdiction of
a civil court to entertain a civil suit of a specified nature. The
legislature in the State of Maharashtra has introduced Section 515A to
exclude the jurisdiction of the civil court in matters involving
demolition of unauthorized constructions in order to obviate the
inordinately long delays that were occasioned in the taking of steps
against illegal structures and constructions due to the pendency of
suits before the civil courts. The legislature was entitled to take
cognizance of these delays and to enact a suitable statutory provision.
In the judgment in Dhulabhai etc. Vs. State of Madhya Pradesh
and another2, the Supreme Court summarized the principles of law
governing the interpretation of finality clauses and statutory
provisions ousting the jurisdiction of civil courts. In regard to the
express bar of jurisdiction, the principle enunciated in the judgment of
the Supreme Court is as follows :
"35(2). Where there is an express bar of the
jurisdiction of the court, an examination of the scheme
of the particular Act to find the adequacy or the
sufficiency of the remedies provided may be relevant
but is not decisive to sustain the jurisdiction of the civil
court.
Where there is no express exclusion the
examination of the remedies and the scheme of the
particular Act to find out the intendment becomes
2 AIR-1979-SC-78
necessary and the result of the inquiry may be decisive.
In the latter case it is necessary to see if the statute
creates a special right or a liability and provides for the
determination of the right or liability and further lays
down that all questions about the said right and liability
shall be determined by the Tribunals so constituted, and
whether remedies normally associated with actions in
civil courts are prescribed by the said statute or not."
12. In the present case, there is an express bar on the jurisdiction of
the civil court in Section 515 A to entertain a suit calling into question
any notice, order or direction issued under Sections 351 and 354A.
Hence, in view of the law laid down in Dhulabhai (supra), an
examination of the scheme of the Act to find the adequacy or the
sufficiency of the remedies provided may be relevant but is strictly
speaking, not decisive. Be that as it may, under Section 351,
sufficient safeguards have been provided by the legislature to ensure
that the determination by the authority is subject to the observance of
statutory parameters. The statute incorporates requirements to ensure
that the procedure is fair and that the outcome of the inquiry
is based on objective considerations. The conditions which are
imposed by the statute ensure firstly that before action is taken, a
written notice must be issued to the person who is erecting a building
or executing a work. Following the issuance of a notice, the statute
secondly mandates that an opportunity to show sufficient cause must
be granted in the form of a statement in writing. Thirdly the
designated officer is empowered in an appropriate case to allow the
person to whom the notice is issued, to show cause in person or
through an agent. Fourthly, the designated officer is required to apply
his mind whether the person to whom a notice was issued, has or has
not failed to show sufficient cause to his satisfaction. The satisfaction
of the designated officer is not a subjective satisfaction but is a
satisfaction which has to be arrived at objectively after appreciating
the contents of the defense and the cause which has been shown. The
officer must, in particular, apply his mind whether work of the
description which is mentioned in Section 342 has been commenced
contrary to the provisions of Section 342 or Section 347. The officer
is thereupon vested with the discretion on whether or not to demolish
the structure. This discretion is again a discretion which has to be
exercised judiciously and not arbitrarily. Reasons must be recorded in
the order of the designated officer. Reasons provide an assurance
against an arbitrary exercise of power and allow the decision to be
challenged and scrutinized under Article 226 of the Constitution.
13. The absence of an appellate remedy against the decision of an
administrative officer does not render a statutory provision
unconstitutional. This was settled by the judgment of the Supreme
Court in Organo Chemical Industries and another Vs. Union of
India and others3. In the concurring judgment of Justice Krishna
Iyer, the principle was set out as follows :
"34. ... ... ... ... An appeal is a desirable
corrective but not an indispensable imperative and
while its presence is an extra check on wayward orders
its absence is not a sure index of arbitrary potential. It
depends on the nature of the subject matter, other
available correctives, possible harm flowing from
wrong orders and a wealth of other factors."
3 (1979)4-SCC-573
14. In a subsequent judgment in M/s.Babubhai & Co. and others
Vs. State of Gujarat and others4, the same principle was elucidated
in the following observations :
"6. It cannot be disputed that the absence of a
provision for a corrective machinery by way of appeal
or revision to a superior authority to rectify an adverse
order passed by an authority or body on whom the
power is conferred may indicate that the power so
conferred is unreasonable or arbitrary but it is obvious
that providing such corrective machinery is only one of
the several ways in which the power could be checked
or controlled and its absence will be one of the factors
to be considered along with several others before
coming to the conclusion that the power so conferred is
unreasonable or arbitrary; in other words mere absence
of a corrective machinery by way of appeal or revision
by itself would not make the power unreasonable or
arbitrary, much less would render the provision invalid.
Regard will have to be had to several factors, such as,
on whom the power is conferred - whether on a high
official or a petty officer, what is the nature of the power
- whether the exercise thereof depends upon the
subjective satisfaction of the authority or body on whom
it is conferred or is it to be exercised objectively by
reference to some existing facts or tests, whether or not
it is a quasi-judicial power requiring that authority or
body to observe principles of natural justice and make a
speaking order etc; the last mentioned factor particularly
ensures application of mind on the part of the authority
or body only to pertinent or germane material on the
record excluding the extraneous and irrelevant and also
subjects the order of the authority or body to a judicial
review under the writ jurisdiction of the Court on
grounds of perversity, extraneous influence, malafides
and other blatant infirmities. Moreover all these factors
4 (1985)2-SCC-732
will have to be considered in the light of the scheme of
the enactment and the purpose intended to be achieved
by the concerned provision. If on an examination of the
scheme of the enactment as also the purpose of the
concerned provision it is found that the power to decide
or do a particular thing is conferred on a very minor or
petty officer, that the exercise thereof by him depends
on his subjective satisfaction, that he is expected to
exercise the power administratively without any
obligation to make a speaking order then, of course, the
absence of a corrective machinery will render the
provision conferring such absolute and unfettered power
invalid. But it is the cumulative effect of all these
factors that will render the provision unreasonable or
arbitrary and liable to be struck down. ... ..."
15. The Supreme Court has repeatedly cautioned against the
dangers of unauthorized construction and encroachments. In
Pratibha co-operative Housing Society Limited and another Vs.
State of Maharashtra and others5, the Supreme Court observed as
follows :
"6. ... ... ... the tendency of raising
unlawful constructions and unauthorized encroachments
is increasing in the entire country and such activities are
required to be dealt with by firm hands. Such unlawful
constructions are against public interest and hazardous
to the safety of occupiers and residents of multistoreyed
buildings. ... ... ..."
16. In Dipak Kumar Mukherjee Vs. Kolkata Municipal
Corporation6, the Supreme Court has cautioned of the danger posed
by illegal and unauthorised constructions to planned development.
5 (1991)3-SCC-341
6 (2013)5-SCC-336
The failure of the State machinery to take prompt action is liable to
give rise to the belief among common citizens that planning law is
enforced against the poor and violations by those in the corridors of
power are ignored. Hon'ble Mr.Justice G.S.Singhvi delivering the
judgment of the Supreme Court observed as follows :
"8. What needs to be emphasised is that illegal and
unauthorised constructions of buildings and other
structures not only violate the municipal laws and the
concept of planned development of the particular area
but also affect various fundamental and constitutional
rights of other persons. The common man feels cheated
when he finds that those making illegal and
unauthorised constructions are supported by the people
entrusted with the duty of preparing and executing
master plan/development plan/zonal plan. The reports
of demotion of hutments and jhugii jhopris belonging to
the poor and disadvantaged section of the society
frequently appear in the print media but one seldom gets
to read about demolition of illegally/ unauthorisedly
constructed multi-stored structures raised by
economically affluent people. The failure of the State
apparatus to take prompt action to demolish such illegal
constructions has convinced the citizens that planning
laws are enforced only against poor and all
compromises are made by the State machinery when it
is required to deal with those who have money power or
unholy nexus with the power corridors."
Taking note of the earlier precedents on the subject, the Supreme
Court held that there should be no judicial tolerance of illegal and
unauthorised constructions. The same principle has been laid down in
another judgment of the Supreme Court in Esha Ekta Apartments
Co-operative Housing Society Vs. Municipal Corporation of
Mumbai7. The Supreme Court considered the provisions specifically
of Sections 44 and 45 and Sections 52 and 57 of the Maharashtra
Regional Town Planning Act, 1966 and observed as follows :
"46. An analysis of the above reproduced provisions
makes it clear that any person who undertakes or carries
out development or changes the use of land without
permission of the Planning Authority is liable to be
punished with imprisonment. At the same time, the
Planning Authority is empowered to require the owner
to restore the land to its original condition as it existed
before the development work was undertaken. The
scheme of these provisions does not mandate
regularisation of construction made without obtaining
the required permission or in violation thereof."
17. The State of Maharashtra and more particularly its urban areas
are plagued by a menace of unauthorized constructions. The object of
introducing Section 515A was to ensure that recourse to civil
remedies is not utilized with a view to abuse the process as would
generally result when those responsible for unauthorized
constructions use every possible means to ensure that a delay takes
place in the disposal of proceedings, once a stay is obtained. In this
background, the legislative provision cannot be regarded as being
arbitrary.
18. In Organo Chemical Industries (supra), the Supreme Court
dealt with the provisions of Section 14B of the Employees' Provident
Funds and Miscellaneous Provisions Act, 1952, which empowered the
Provident Fund Commissioner to impose damages. The Supreme
7 (2013)5-SCC-357
Court noted that in that case a hearing was given to the affected party;
reasons had to be recorded in awarding damages and the writ
jurisdiction was available to review the order of the Commissioner. .
These were amongst other circumstances which weighed in the
upholding of the provision. Similarly, in M/s.Babubhai (supra), the
provisions of Section 54 of the Bombay Town Planning Act, 1954
were upheld, inter alia, on the ground that the power of summary
eviction was conferred on a responsible body and was required to be
exercised in a objective manner. Besides the quasi judicial power
required observance of the principles of natural justice and the
passing of a speaking order accompanied by the reasons. This,
according to the Supreme Court, would ensure an application of mind
to germane or relevant material. The order was subject to the writ
jurisdiction.
19. Having regard to these well settled principles, it is not possible
to accede to the submission that the bar of jurisdiction which has been
enacted by Section 515A of Mumbai Municipal Corporation Act,
1888, as amended, is arbitrary or unconstitutional. The provisions of
Sections 351 and 354A contain adequate safeguards, both procedural
and substantive, to ensure due notice, an opportunity to represent, the
consideration of the cause shown and an application of mind to
relevant and germane circumstances. A reasoned order must be
passed. The legislature was, in our view, acting in the public interest
in ensuring that the urgent need of taking expeditious action against
unauthorized constructions does not get lost in a maze of dilatory
remedies in civil courts.
20. Before concluding it would be necessary to note that in the
present case, the ad-interim relief was refused by the City Civil Court
primarily in view of Section 515A, but also on the ground that
corrective machinery is available in the form of a representation
before the Grievance Redressal Committee. The circular that has
been issued by the Commissioner of the Mumbai Municipal
Corporation on 4 June 2013 for the setting up of a Grievance
Redressal Committee was as a result of the directions issued by this
Court to the effect that there should be an appropriate mechanism for
redressal of grievances pertaining to unauthorized constructions. The
aim of the circular is to redress grievances received from a
complainant in respect of action/ non-action on unauthorized
constructions. The circular provides in Clause-2.3 that the zonal
committee shall not pass any order which will stop/stay the notice
action initiated by the designated officer and the on going notice
action will continue and be brought to its logical conclusion.
Similarly, clause-6.5 requires the owner/occupier against whom a
complaint is made to be called to attend the hearing. The circular,
therefore, provides a remedy to citizens to complain against
unauthorized structures. Be that as it may, the City Civil Court was
on its interpretation of Section 515A justified in coming to the
conclusion as it did on the bar of jurisdiction.
21. For the aforesaid reasons, we do not find any merit in the
challenge to the constitutional validity of Section 515A of the
Mumbai Municipal Corporation Act, 1881. The petition shall
accordingly stand dismissed. However, in view of the fact that the
Petitioner should, in the interest of justice, be allowed to take recourse
to the remedy of a petition under Article 226 of the Constitution for
challenging the order passed under Section 351, on 17 June 2013, we
direct that action for the implementation of the order shall not
commence for a period of two weeks from today.
(DR.D.Y.CHANDRACHUD, J.)
(S.C.GUPTE, J.)
Print Page
present case, the ad-interim relief was refused by the City Civil Court
primarily in view of Section 515A, but also on the ground that
corrective machinery is available in the form of a representation
before the Grievance Redressal Committee. The circular that has
been issued by the Commissioner of the Mumbai Municipal
Corporation on 4 June 2013 for the setting up of a Grievance
Redressal Committee was as a result of the directions issued by this
Court to the effect that there should be an appropriate mechanism for
redressal of grievances pertaining to unauthorized constructions. The
aim of the circular is to redress grievances received from a
complainant in respect of action/ non-action on unauthorized
constructions. The circular provides in Clause-2.3 that the zonal
committee shall not pass any order which will stop/stay the notice
action initiated by the designated officer and the on going notice
action will continue and be brought to its logical conclusion.
Similarly, clause-6.5 requires the owner/occupier against whom a
complaint is made to be called to attend the hearing. The circular,
therefore, provides a remedy to citizens to complain against
unauthorized structures. Be that as it may, the City Civil Court was
on its interpretation of Section 515A justified in coming to the
conclusion as it did on the bar of jurisdiction.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.1709 OF 2013
Abdul Razzaq Sunesra Petitioner
versus
Municipal Corporation of Greater Mumbai
CORAM : DR.D.Y.CHANDRACHUD AND
S.C.GUPTE, JJ.
DATE : 17 July 2013
Citation;2013(6) ALLMR297 Bom
1. Rule. Learned counsel for the Respondents waive service. By
consent, the Rule is made returnable forthwith. The writ petition is
taken up for hearing and final disposal, by consent and on the request
of learned counsel.
2. The challenge in these proceedings is to Section 515A of the
Mumbai Municipal Corporation Act, 1888 which is brought on the
statute by Maharashtra Act No.II of 2012. The Act received the
assent of the President and was published in the gazette on 13 March
2012.
3. The dispute in the present case relates to a structure constructed
on a plot of land bearing CTS No.50/A at S.V.Road, Borivali (W),
Mumbai-400 092. A notice was issued by the Municipal Corporation
on 28 May 2013 under Section 351 of the Act on the ground that the
structure is unauthorized. An order was passed on 17 June 2013
requiring the removal of the structure on the ground that it is
unauthorized. This order was passed by the Designated Officer after
furnishing to the Petitioner an opportunity of showing cause. The
Petitioner filed a suit before the City Civil Court. Ad-interim relief
was declined by an order dated 26 June 2013 both on the ground that
in view of the amendment brought about to insert Section 515A,
notices issued under Sections 351 and 354A could not be questioned
in a civil court and on the ground that a grievance redressal machinery
has been provided under a circular issued by the Municipal
Corporation.
4. Section 515A provides as follows :
"515A : Bar of jurisdiction :
Save as otherwise provided in this Act, any notice
issued, order passed or direction issued by the
Designated Officer, under section 351 or 354A shall not
be questioned in any suit or other legal proceedings."
5. The challenge to the constitutional validity of Section 515A is
on the following grounds which have been urged at the hearing :
(i) No requirement of a hearing has been stipulated in subsection
1(A) of Section 351 and in Section 354A;
(ii) Before initiation of an action under Sections 351 and
354A, a designated officer must be satisfied that the structure is
unauthorized and he may pass an order of demolition;
(iii) Prior to the insertion of Section 515A, access to the civil
courts was not barred, whereas, as a result of the bar of jurisdiction
contained in the newly added provision, no civil suit can lie for the
purposes of questioning an order, notice or direction issued under
Section 351 or Section 354A of the Act;
(iv) Even though a structure is unauthorized, the statute does
not mandate that it shall be demolished since under sub-section 2 of
Section 351, the designated officer may require the removal of the
structure. An adequate machinery has not been provided in the statute
for adjudication of all issues that may arise in the context of an action
initiated against an unauthorized construction and consequently the
bar of jurisdiction under Section 515A is arbitrary, and violative of
Article 14 of the Constitution.
6. When the petition came up for hearing, it appeared to the Court
that in the interests of justice it would be necessary to resolve the
issue of the constitutional validity of Section 515A in order to set at
rest the uncertainty arising out of the maintainability of civil suits
across the State and in particular in the city of Mumbai in regard to
notices, directions or orders under Section 351 and Section 354A.
The amending act, it must be noted, has brought about similar
amendments to Mumbai Municipal Corporation Act, 1888 and the
Bombay Provincial Municipal Corporations Act, 1949. In that view
of the matter, we issue notice to the learned Advocate General. The
learned Advocate General has appeared before the Court and has
accepted the notice. We have accordingly heard the learned Advocate
General in defense to the challenge to the constitutional validity of the
provisions.
7. On behalf of the State it has been submitted by the learned
Advocate General that :
(i) The requirement of compliance with the principles of
natural justice does not necessitate a personal hearing. The principles
of natural justice require an opportunity to a person who is affected by
the proposed action of the State or its authority to put forth a defense
and a due and adequate consideration of the defense. In the present
case, both Sections 351 and 354A contain safeguards for the issuance
of a notice, an opportunity to show cause and require a judicious
application of mind by the designated officer to the cause which is
shown;
(ii) It is well settled that the jurisdiction of a Court under
Section 9 of the Code of Civil Procedure, 1908 to entertain and try an
action of a civil nature can be barred by statute. Where the statutory
provision enacts an express bar, as in this case, an analysis of the
adequacy of the remedy is not decisive in itself;
(iii) In any event, an adequate remedy is provided in Section
351 and Section 354A and recourse to the writ jurisdiction under
Article 226 of the Constitution would be available against an order
passed under those provisions; and
(iv) Absence of an appellate remedy does not render a
provision unconstitutional.
Hence, it has been urged that Section 515A is constitutional.
8. Sub-sections 1 and 1A of Section 351 provide as follows :
"351. Proceedings to be taken in respect of buildings or
work commenced contrary to section 347 :
(1) The Commissioner shall, by notification in the
Official Gazette, designate an officer of the Corporation
to be the Designated Officer for the purposes of this
section and of sections 352, 352A and 354A. The
Designated Officer shall have jurisdiction over such
local area as may be specified in the notification and
different officers may be designated for different local
areas.
1A. If the erection of any building or the execution of
any such work as is described in section 342, is
commenced contrary to the provisions of section 342 or
347, the Designated Officer, unless he deems it
necessary to take proceedings in respect of such
building or work under section 354, shall :
(a) by written notice, require the person who is
erecting such building or executing such work, or has
erected such building or executed such work, or who is
the owner for the time being of such building or work,
within seven days from the date of service of such
notice, by a statement in writing subscribed by him or
by an agent duly authorized by him in that behalf and
addressed to the Designated Officer, to show sufficient
cause why such building or work shall not be removed,
altered or pulled down; or
(b) shall require the said person on such day
and at such time and place as shall be specified in such
notice to attend personally, or by an agent duly
authorized by him in that behalf, and show sufficient
cause why such building or work shall not be removed,
altered or pulled down.
Explanation : "To show sufficient cause" in this subsection
shall mean to prove that the work mentioned in
the said notice is carried out in accordance with the
provisions of section 337 or 342 and section 347 of the
Act."
Under sub-section 1A of Section 351, the designated officer is
empowered to act in a situation where the erection of a building or the
execution of any work of the nature referred to in Section 342 is
commenced contrary to the provisions of Section 342 or Section 347.
Section 342, inter alia, applies where additions, alterations or repairs
are sought to be carried out to a building in which event a notice of
intent has to be furnished to the Commissioner of the nature and the
extent of the intended work, among other things. Section 347, inter
alia, provides that no person shall commence such work without
furnishing a notice of intent and without the approval of the
Commissioner (or if the Commissioner has failed to intimate his
disapproval within the period prescribed). Before the designated
officer initiates steps under Section 351, he is required to issue a
written notice calling upon the person who is erecting a building or
executing the work or to the person who has erected a building or
executed the work to show sufficient cause why the building or the
work should not be removed, altered or pulled down. Under clause
(b) of sub-Section 1A of Section 351, an enabling provision has been
made by which the designated officer may call upon a person to
whom a notice is addressed, to attend personally to show cause. The
explanation stipulates that the expression `to show sufficient cause'
shall mean to prove that the work mentioned in the notice has been
carried out in accordance with Sections 337, 342 or 347. If the person
fails to show sufficient cause to the satisfaction of the designated
officer, the officer may remove, alter or pull down the work.
9. This provision, as noted in the judgment of the Supreme Court
in Muni Suvrat-Swami Jain S.M.P. Sangh Vs. Arun Nathuram
Gaikwad and others1 confers an enabling power on the
Commissioner and a discretion if sufficient cause is not shown,
whether or not to demolish the unauthorized construction. Similarly
under Section 354A, if the designated officer is satisfied that the
erection of a building or execution of a work has been unlawfully
commenced or is being unlawfully carried on, he may issue a notice
to stop such erection of work forthwith. Sub-section 2 of Section
354A provides as follows :
1 (2006)8-SCC-590 - Paragraph 57 on pages 611 and 612
"354A. Power of Designated Officer to stop erection of
building or work commenced or carried on unlawfully.-
(2) If the erection of the building or execution of the
work is not stopped as required by the Designated
Officer or permission approved by the competent
authority in favour of the erection of the building or
execution of the work is not produced within twentyfour
hours from the service of notice referred to in subsection
(1), the Designated Officer may, without further
notice, remove or pull down the building or work and
the expenses thereof shall be paid by the said person or
owner of the building or work. The Designated Officer
may also direct that any person directing or carrying out
such erection or work shall be removed by any police
officer from the place where the building is being
erected or the work is being executed."
10. Sub-section 2 of Section 354A deals with a situation where the
erection of a building or execution of a work is not stopped upon
receipt of a notice or where the person to whom the notice is
addressed does not produce the approval of the competent authority
within 24 hours. In such a case, the designated officer is authorized,
without further notice, to remove or pull down the building or the
work. Section 354A evidently applies to emergent situations where
the designated officer considers it necessary to stop work which has
been unlawfully commenced or work which has been unlawfully
carried out despite issuance of a stop work notice.
11. Ordinarily a civil court under the provisions of Section 9 of the
Code of Civil Procedure, 1908, shall have the jurisdiction to try
all suits of a civil nature excepting suits of which cognizance is
either expressly or impliedly barred. The conferment of jurisdiction
on civil courts to try suits of a civil nature is, therefore, subject to a
law which may be enacted by the competent legislature either
expressly barring the jurisdiction or impliedly taking away the
jurisdiction of the Court. There is nothing uncommon, as a first
principle of law, in a competent legislature barring the jurisdiction of
a civil court to entertain a civil suit of a specified nature. The
legislature in the State of Maharashtra has introduced Section 515A to
exclude the jurisdiction of the civil court in matters involving
demolition of unauthorized constructions in order to obviate the
inordinately long delays that were occasioned in the taking of steps
against illegal structures and constructions due to the pendency of
suits before the civil courts. The legislature was entitled to take
cognizance of these delays and to enact a suitable statutory provision.
In the judgment in Dhulabhai etc. Vs. State of Madhya Pradesh
and another2, the Supreme Court summarized the principles of law
governing the interpretation of finality clauses and statutory
provisions ousting the jurisdiction of civil courts. In regard to the
express bar of jurisdiction, the principle enunciated in the judgment of
the Supreme Court is as follows :
"35(2). Where there is an express bar of the
jurisdiction of the court, an examination of the scheme
of the particular Act to find the adequacy or the
sufficiency of the remedies provided may be relevant
but is not decisive to sustain the jurisdiction of the civil
court.
Where there is no express exclusion the
examination of the remedies and the scheme of the
particular Act to find out the intendment becomes
2 AIR-1979-SC-78
necessary and the result of the inquiry may be decisive.
In the latter case it is necessary to see if the statute
creates a special right or a liability and provides for the
determination of the right or liability and further lays
down that all questions about the said right and liability
shall be determined by the Tribunals so constituted, and
whether remedies normally associated with actions in
civil courts are prescribed by the said statute or not."
12. In the present case, there is an express bar on the jurisdiction of
the civil court in Section 515 A to entertain a suit calling into question
any notice, order or direction issued under Sections 351 and 354A.
Hence, in view of the law laid down in Dhulabhai (supra), an
examination of the scheme of the Act to find the adequacy or the
sufficiency of the remedies provided may be relevant but is strictly
speaking, not decisive. Be that as it may, under Section 351,
sufficient safeguards have been provided by the legislature to ensure
that the determination by the authority is subject to the observance of
statutory parameters. The statute incorporates requirements to ensure
that the procedure is fair and that the outcome of the inquiry
is based on objective considerations. The conditions which are
imposed by the statute ensure firstly that before action is taken, a
written notice must be issued to the person who is erecting a building
or executing a work. Following the issuance of a notice, the statute
secondly mandates that an opportunity to show sufficient cause must
be granted in the form of a statement in writing. Thirdly the
designated officer is empowered in an appropriate case to allow the
person to whom the notice is issued, to show cause in person or
through an agent. Fourthly, the designated officer is required to apply
his mind whether the person to whom a notice was issued, has or has
not failed to show sufficient cause to his satisfaction. The satisfaction
of the designated officer is not a subjective satisfaction but is a
satisfaction which has to be arrived at objectively after appreciating
the contents of the defense and the cause which has been shown. The
officer must, in particular, apply his mind whether work of the
description which is mentioned in Section 342 has been commenced
contrary to the provisions of Section 342 or Section 347. The officer
is thereupon vested with the discretion on whether or not to demolish
the structure. This discretion is again a discretion which has to be
exercised judiciously and not arbitrarily. Reasons must be recorded in
the order of the designated officer. Reasons provide an assurance
against an arbitrary exercise of power and allow the decision to be
challenged and scrutinized under Article 226 of the Constitution.
13. The absence of an appellate remedy against the decision of an
administrative officer does not render a statutory provision
unconstitutional. This was settled by the judgment of the Supreme
Court in Organo Chemical Industries and another Vs. Union of
India and others3. In the concurring judgment of Justice Krishna
Iyer, the principle was set out as follows :
"34. ... ... ... ... An appeal is a desirable
corrective but not an indispensable imperative and
while its presence is an extra check on wayward orders
its absence is not a sure index of arbitrary potential. It
depends on the nature of the subject matter, other
available correctives, possible harm flowing from
wrong orders and a wealth of other factors."
3 (1979)4-SCC-573
14. In a subsequent judgment in M/s.Babubhai & Co. and others
Vs. State of Gujarat and others4, the same principle was elucidated
in the following observations :
"6. It cannot be disputed that the absence of a
provision for a corrective machinery by way of appeal
or revision to a superior authority to rectify an adverse
order passed by an authority or body on whom the
power is conferred may indicate that the power so
conferred is unreasonable or arbitrary but it is obvious
that providing such corrective machinery is only one of
the several ways in which the power could be checked
or controlled and its absence will be one of the factors
to be considered along with several others before
coming to the conclusion that the power so conferred is
unreasonable or arbitrary; in other words mere absence
of a corrective machinery by way of appeal or revision
by itself would not make the power unreasonable or
arbitrary, much less would render the provision invalid.
Regard will have to be had to several factors, such as,
on whom the power is conferred - whether on a high
official or a petty officer, what is the nature of the power
- whether the exercise thereof depends upon the
subjective satisfaction of the authority or body on whom
it is conferred or is it to be exercised objectively by
reference to some existing facts or tests, whether or not
it is a quasi-judicial power requiring that authority or
body to observe principles of natural justice and make a
speaking order etc; the last mentioned factor particularly
ensures application of mind on the part of the authority
or body only to pertinent or germane material on the
record excluding the extraneous and irrelevant and also
subjects the order of the authority or body to a judicial
review under the writ jurisdiction of the Court on
grounds of perversity, extraneous influence, malafides
and other blatant infirmities. Moreover all these factors
4 (1985)2-SCC-732
will have to be considered in the light of the scheme of
the enactment and the purpose intended to be achieved
by the concerned provision. If on an examination of the
scheme of the enactment as also the purpose of the
concerned provision it is found that the power to decide
or do a particular thing is conferred on a very minor or
petty officer, that the exercise thereof by him depends
on his subjective satisfaction, that he is expected to
exercise the power administratively without any
obligation to make a speaking order then, of course, the
absence of a corrective machinery will render the
provision conferring such absolute and unfettered power
invalid. But it is the cumulative effect of all these
factors that will render the provision unreasonable or
arbitrary and liable to be struck down. ... ..."
15. The Supreme Court has repeatedly cautioned against the
dangers of unauthorized construction and encroachments. In
Pratibha co-operative Housing Society Limited and another Vs.
State of Maharashtra and others5, the Supreme Court observed as
follows :
"6. ... ... ... the tendency of raising
unlawful constructions and unauthorized encroachments
is increasing in the entire country and such activities are
required to be dealt with by firm hands. Such unlawful
constructions are against public interest and hazardous
to the safety of occupiers and residents of multistoreyed
buildings. ... ... ..."
16. In Dipak Kumar Mukherjee Vs. Kolkata Municipal
Corporation6, the Supreme Court has cautioned of the danger posed
by illegal and unauthorised constructions to planned development.
5 (1991)3-SCC-341
6 (2013)5-SCC-336
The failure of the State machinery to take prompt action is liable to
give rise to the belief among common citizens that planning law is
enforced against the poor and violations by those in the corridors of
power are ignored. Hon'ble Mr.Justice G.S.Singhvi delivering the
judgment of the Supreme Court observed as follows :
"8. What needs to be emphasised is that illegal and
unauthorised constructions of buildings and other
structures not only violate the municipal laws and the
concept of planned development of the particular area
but also affect various fundamental and constitutional
rights of other persons. The common man feels cheated
when he finds that those making illegal and
unauthorised constructions are supported by the people
entrusted with the duty of preparing and executing
master plan/development plan/zonal plan. The reports
of demotion of hutments and jhugii jhopris belonging to
the poor and disadvantaged section of the society
frequently appear in the print media but one seldom gets
to read about demolition of illegally/ unauthorisedly
constructed multi-stored structures raised by
economically affluent people. The failure of the State
apparatus to take prompt action to demolish such illegal
constructions has convinced the citizens that planning
laws are enforced only against poor and all
compromises are made by the State machinery when it
is required to deal with those who have money power or
unholy nexus with the power corridors."
Taking note of the earlier precedents on the subject, the Supreme
Court held that there should be no judicial tolerance of illegal and
unauthorised constructions. The same principle has been laid down in
another judgment of the Supreme Court in Esha Ekta Apartments
Co-operative Housing Society Vs. Municipal Corporation of
Mumbai7. The Supreme Court considered the provisions specifically
of Sections 44 and 45 and Sections 52 and 57 of the Maharashtra
Regional Town Planning Act, 1966 and observed as follows :
"46. An analysis of the above reproduced provisions
makes it clear that any person who undertakes or carries
out development or changes the use of land without
permission of the Planning Authority is liable to be
punished with imprisonment. At the same time, the
Planning Authority is empowered to require the owner
to restore the land to its original condition as it existed
before the development work was undertaken. The
scheme of these provisions does not mandate
regularisation of construction made without obtaining
the required permission or in violation thereof."
17. The State of Maharashtra and more particularly its urban areas
are plagued by a menace of unauthorized constructions. The object of
introducing Section 515A was to ensure that recourse to civil
remedies is not utilized with a view to abuse the process as would
generally result when those responsible for unauthorized
constructions use every possible means to ensure that a delay takes
place in the disposal of proceedings, once a stay is obtained. In this
background, the legislative provision cannot be regarded as being
arbitrary.
18. In Organo Chemical Industries (supra), the Supreme Court
dealt with the provisions of Section 14B of the Employees' Provident
Funds and Miscellaneous Provisions Act, 1952, which empowered the
Provident Fund Commissioner to impose damages. The Supreme
7 (2013)5-SCC-357
Court noted that in that case a hearing was given to the affected party;
reasons had to be recorded in awarding damages and the writ
jurisdiction was available to review the order of the Commissioner. .
These were amongst other circumstances which weighed in the
upholding of the provision. Similarly, in M/s.Babubhai (supra), the
provisions of Section 54 of the Bombay Town Planning Act, 1954
were upheld, inter alia, on the ground that the power of summary
eviction was conferred on a responsible body and was required to be
exercised in a objective manner. Besides the quasi judicial power
required observance of the principles of natural justice and the
passing of a speaking order accompanied by the reasons. This,
according to the Supreme Court, would ensure an application of mind
to germane or relevant material. The order was subject to the writ
jurisdiction.
19. Having regard to these well settled principles, it is not possible
to accede to the submission that the bar of jurisdiction which has been
enacted by Section 515A of Mumbai Municipal Corporation Act,
1888, as amended, is arbitrary or unconstitutional. The provisions of
Sections 351 and 354A contain adequate safeguards, both procedural
and substantive, to ensure due notice, an opportunity to represent, the
consideration of the cause shown and an application of mind to
relevant and germane circumstances. A reasoned order must be
passed. The legislature was, in our view, acting in the public interest
in ensuring that the urgent need of taking expeditious action against
unauthorized constructions does not get lost in a maze of dilatory
remedies in civil courts.
20. Before concluding it would be necessary to note that in the
present case, the ad-interim relief was refused by the City Civil Court
primarily in view of Section 515A, but also on the ground that
corrective machinery is available in the form of a representation
before the Grievance Redressal Committee. The circular that has
been issued by the Commissioner of the Mumbai Municipal
Corporation on 4 June 2013 for the setting up of a Grievance
Redressal Committee was as a result of the directions issued by this
Court to the effect that there should be an appropriate mechanism for
redressal of grievances pertaining to unauthorized constructions. The
aim of the circular is to redress grievances received from a
complainant in respect of action/ non-action on unauthorized
constructions. The circular provides in Clause-2.3 that the zonal
committee shall not pass any order which will stop/stay the notice
action initiated by the designated officer and the on going notice
action will continue and be brought to its logical conclusion.
Similarly, clause-6.5 requires the owner/occupier against whom a
complaint is made to be called to attend the hearing. The circular,
therefore, provides a remedy to citizens to complain against
unauthorized structures. Be that as it may, the City Civil Court was
on its interpretation of Section 515A justified in coming to the
conclusion as it did on the bar of jurisdiction.
21. For the aforesaid reasons, we do not find any merit in the
challenge to the constitutional validity of Section 515A of the
Mumbai Municipal Corporation Act, 1881. The petition shall
accordingly stand dismissed. However, in view of the fact that the
Petitioner should, in the interest of justice, be allowed to take recourse
to the remedy of a petition under Article 226 of the Constitution for
challenging the order passed under Section 351, on 17 June 2013, we
direct that action for the implementation of the order shall not
commence for a period of two weeks from today.
(DR.D.Y.CHANDRACHUD, J.)
(S.C.GUPTE, J.)
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