Law Web: Supreme Court: Court should not direct re-erection of illegal structure if it was demolished in violation of procedure

That brings us to the main issue before us. Is the writ court

justified in issuing a direction that since the building has been

demolished without following the procedure prescribed by law,

the petitioners before the High Court (Respondents before us) be

permitted to reconstruct the structure albeit using the same

material, and of the same dimensions, as existed earlier? The

second direction given is that before commencing of work of

reconstruction, the petitioner shall serve a notice to the

designated officer. It has further been observed by the High

Court that the reconstruction of the structure on the basis of its

order will confer no authenticity on the structure. The third

important direction of the High Court provides that if the original

structures were constructed without obtaining development

permission, the structures reconstructed pursuant to the orders

of the Court will also be construed to be constructed without

proper development permission. Hence the Corporation can

initiate action of demolition of the structures, after following the

law laid down in Sopan’s case (supra). We have been told that

this is the regular practice followed in the Bombay High Court,

throughout the State of Maharashtra.

15. We are constrained to observe that we cannot approve of

such directions. The High Court itself is aware that some of

these structures may have been constructed without permission.

If that be so, even if the demolition was carried out without giving

the second notice, why should the party who has violated the law

by raising the construction without obtaining permission be

permitted to raise another illegal structure which only has to be

razed to the ground, after following the procedure prescribed by

law? Why should the Nation’s wealth be misutilised and misused

for raising an illegal construction which eventually has to be

demolished?

16. We make it clear that we do not approve the action of the

Municipal Corporation or its officials in demolishing the

structures without following the procedure prescribed by law, but

the relief which has to be given must be in accordance with law

and not violative of the law. If a structure is an illegal structure,

even though it has been demolished illegally, such a structure

should not be permitted to come up again. If the Municipal

Corporation violates the procedure while demolishing the

building but the structure is totally illegal, some compensation

can be awarded and, in all cases where such compensation is

awarded the same should invariably be recovered from the

officers who have acted in violation of law. However, we again

reiterate that the illegal structure cannot be permitted to be reerected.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7627 OF 2019

MUNICIPAL CORPORATION OF GREATER MUMBAI Vs

M/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD.

Deepak Gupta, J.

Dated:October 24, 2019.

The issue involved in these appeals is whether if a

municipal corporation demolishes a structure in exercise of

powers vested in it but in violation of the procedure prescribed,

can the High Court direct the ‘owner/occupier’ of the building to

reconstruct the demolished structure?

2. The municipal corporations in the State of Maharashtra like

in any other part of the country are vested with the power to

demolish structures which violate the laws and have been built

without any building plans or in violation of the laws. The

exercise of the power of demolition which affects the property of

the citizens of this country must be exercised in an absolutely

fair and transparent manner. Rules in this regard must be

followed. At the same time, the Court has to balance the private

interest with the larger public interest. Cities and towns must be

well planned and illegal structures must be demolished. Rule of

law comprises not only of the principles of natural justice but

also provides that the procedure prescribed by law must be

followed. Rule of law also envisages that illegal constructions

which are constructed in violation of law must be demolished and

there can be no sympathy towards those who violate law.

3. Before we refer to the statutory provisions, we may make

reference to a judgment of the Bombay High Court which appears

to be the locus classicus on this subject, as far as the Bombay

High Court is concerned. In Sopan Maruti Thopte and

Another vs. Pune Municipal Corporation and Another1, the

1AIR 1996 Bom 304

Bombay High Court referred to various provisions of law, and

thereafter issued the following directions :“

19. Hence, on the basis of the law as discussed above, it is

directed that after 1st May, 1996 the Bombay Municipal

Corporation or the Municipal Corporations constituted under

the B.P.M.C. Act would follow the following procedure before

taking action under Section 351 of the B.M.C. Act or under S.

260 of the B.P.M.C. Act.

(i) In every case where a notice under Section 351 of the

B.M.C. Act/under Sec. 260 of B.P.M.C. Act is issued to a

party 15 days’ time shall be given for submitting the

reply. In case the party to whom notice is issued sends

the reply with the documents, and shows cause, the

Municipal Commissioner or Deputy Municipal

Commissioner shall consider the reply and if no

sufficient cause is shown, give short reasons for not

accepting the contention of the affected party.

(ii) It would be open to the Commissioner to demolish the

offending structure 15 days after the order of the

Commissioner/Deputy Municipal Commissioner is

communicated to the affected person.

(iii) In case the staff of the Corporation detects the building

which is in the process of being constructed and/or

reconstructed and/or extended without valid permission

from the Corporation, it would be open to the

Commissioner to demolish the same by giving a short

notice of 24 hours after drawing a panchanama at the

site and also by taking photographs of such structure

and/or extension. The photographs should indicate the

date when the same were taken.

(iv) In case where the Municipal Corporation has followed

due process of law and demolished the unauthorised

structure and/or extension, if the same is reconstructed

without valid permission within a period of one year, it

would also be open to the Corporation to demolish the

same by giving a short notice of 24 hours.

(v) If the offending structure and/or extension which is

assessed by the Corporation for two years, notice shall

provide for 15 days’ time to show cause. If the Deputy

Municipal Commissioner comes to the conclusion that

he requires assistance of the party, he may give an oral

hearing if he deems fit and proper before passing the

order. It is made clear that oral hearing is not at all

compulsory but it is at the discretion of the authority.

(vi) In any other case the Corporation is directed to issue a

show cause notice in case of any structure and/or

extension other than those mentioned in clauses (i) to

(iv) above. The Corporation shall provide for 7 days’ time

to show cause in such a case.

20. In case the notice is issued under Sec. 478 of the B.P.M.C.

Act, 1949 and if the person has not complied with the

requisitions of the Commissioner, then it would be open to the

Commissioner to demolish the unauthorised structure after

expiry of 30 days of the period specified in the notice for

removal of such construction.

21. The Municipal Corporations in the State of Maharashtra

would follow the above directions so as to avoid unnecessary

litigation.”

After issuing these directions the Court also issued a word of

caution to courts not to grant interim injunctions protecting

illegal constructions from demolition. We may refer to the

following observations:“

24. In our view, passing interim orders indiscriminately

and without apparent and due application of mind, which

has the effect of allowing the plaintiff to continue to enjoy

the fruits of his illegal actions including unauthorised

construction tends to lower the Court’s prestige and clearly

undermines the Rule of Law.

xxxx xxxx xxxx

28. Considering the aforesaid decisions it should be borne

in mind before issuance of an injunction that it is a

discretionary and an equitable relief. It is not mandatory

that for mere asking such relief should be given. It is not a

charity at the cost of public. However, we make it clear that

the procedure established by law has to be followed by the

public authorities, whether it be the State or a local body,

including the Municipal Corporations. At the same time,

the procedural lapses, unintentional or intentional, which

do not seriously affect the substantive rights of a person,

ought not to result in ad interim orders which protect

illegality having already been committed by the plaintiff and

to give licence of continuing fruits of such illegality for

years. Violators of law should not liberally be allowed to

take protection of Court of law by obtaining ad interim

injunctions which have the effect of continuing such

violation.”

Statutory Provisions

4. The relevant provisions to deal with the issue in hand are

covered under Chapter 12 of The Mumbai Municipal

Corporation Act [Bom. III of 1888] (hereinafter referred to as

‘the MMC Act’). Section 337 of the MMC Act provides that

before erecting any building, notice in this behalf has to be

given to the Commissioner of the Municipal Corporation. The

phrase ‘to erect a building’ not only means erecting a new

building but also includes within its ambit reerection

of any

building by demolishing the existing building entirely or

erecting any building by removing the roof of the existing

ground floor structures and adding one or more upper floors

and to complete a dwelling house, originally meant to be used

as one dwelling house into more than one dwelling houses.

Building plans have to be furnished to the Commissioner, in

terms of Section 338.

5. Even with regard to execution of works not amounting to

erection of building notice under Section 342 of the MMC Act

has to be given to the Commissioner. The relevant portion of

the Section reads as follows:

“342. Notice to be given to the Commissioner of intention

to make additions, etc., to or change of user of, a

building.

Every person who shall intend(

a) to make any addition to a building, or change of existing

user or

(b) to make any alteration or repairs to a building involving

the removal, alteration or reerection

of any part of the

building except tenantable repairs:

Provided that no lowering of plinth, foundation or floor

in a building shall be permitted.

Explanation."

Tenantable repairs" in this section shall

mean, only,(

i) providing guniting to the structural members or

walls;

(ii) plastering, painting, pointing;

(iii) changing floor tiles;

(iv) repairing W. C., bath or washing places;

(v) repairing or replacing drainage pipes, taps,

manholes and other fittings;

(vi) repairing or replacing sanitary water plumbing,

or electrical fittings; and

(vii) replacement of roof with the same material, but

shall not include,(

a) change in horizontal and vertical existing

dimensions of the structure;

(b) replacement or removal of any structural

members of load bearing walls;

(d) addition or extension of mezzanine floor

or loft; and

(e) flattening of roof or repairing roof with

different material;

(cc) to make any alteration in a building involving(

i) the subdivision

of any room in such

building so as to convert the same into two or

more separate rooms,

(ii) the conversion of any passage or space in

such building into a room or rooms, or

(d) to remove or reconstruct any portion of a

building abutting on a street which stands within the

regular line of such street,

shall give to the Commissioner, in a form obtained for this

purpose under section 344, notice of his said intention,

specifying the position of the building in which such work is

to be executed, the nature and extent of the intended work,

the particular part or parts, if any, of such work which is or

are intended to be used for human habitation and the name

of the person whom he intends to employ to supervise its

execution.”

6. An analysis of this Section clearly indicates that if any

addition is to be made to the building or existing use of the

building is to be changed then notice is required to be given to

the Commissioner before such addition or change is made.

Even for making any alteration or repair to a building which

involves the removal, or alteration of any part of the building,

permission is required except for tenantable repairs which have

been specifically defined in the explanation of this Section. The

proviso lays down that no lowering of plinth, foundation or

floors in the building shall be permitted. Tenantable repairs

have been defined and we need not dwell on what are

tenantable repairs for the purpose of deciding these cases. We

would, however, like to emphasise that even in case of repairs

not falling within the category of tenantable repairs, notice will

have to be given to the Commissioner and permission is to be

taken and then only work can be commenced in terms of

Section 347.

7. We are mainly concerned with Section 351 which reads 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.

(2) If such person shall fail to show sufficient

cause, to the satisfaction of the Designated Officer, why

such building or work shall not be removed, altered or

pulled down, the Designated Officer may remove, alter or

pull down the building or work and the expenses thereof

shall be paid by the said person. In case of removal or

pulling down of the building or the work by the Designated

Officer, the debris of such building or work together with

other building material, if any, at the sight of the

construction, belonging to such person, shall be seized and

disposed of in the prescribed manner and after deducting

from the receipts of such sale or disposal, the expenditure

incurred for removal and sale of such debris and material,

the surplus of the receipts shall be returned by

the Designated Officer, to the person concerned.

(3) No court shall stay the proceeding of any

public notice including notice for eviction, demolition or

removal from any land or property belonging to the State

Government or the Corporation or any other local authority

or any land which is required for any public project or civil

amenities, without first giving the Commissioner a

reasonable opportunity of representing in the matter.”

Subsection

(1A) was the original subsection

(1). It appears that

if the erection of any building or the execution of any work is

commenced contrary to the provisions of Section 342 or 347 then

the designated officer shall issue written notice calling upon the

builder, occupier, owner to submit his reply within 7 days from

the service of notice to show cause as to why such a building

should not be demolished. The designated officer can also

require the person to appear before him personally on a time and

date fixed by him. The Explanation is important. It lays down

that ‘sufficient cause’ would mean that the work is being carried

out in accordance with the provisions of Sections 337 or 342 and

347 of the MMC Act. This means that required permission before

the construction has to be obtained and if the person, within 7

days, is not able to produce such permission, then the

designated officer can take steps to remove the building. Subsection

(2) provides that if the noticee does not show cause or the

designated officer is not satisfied with the reply filed, then the

building can be removed or pulled out. Subsection

(3) debars

the jurisdiction of civil courts to stay proceeding of any such

public notice.

8. Dealing with the issues relating to building under

construction and/or reconstruction and/or extension without

valid permission the Bombay High Court in Sopan’s case (supra)

had directed that a short notice of 24 hours be issued after

drawing a panchnama at the site and also by taking photographs

of such structure and/or extension. It was also ordered that the

photographs should indicate the date when the same were taken.

Direction 4 provided that if after demolition the unauthorised

structure is reerected

without valid permission within a period of

1 year then also notice of only 24 hours would be required. We

are not directly concerned with directions 5 and 6. In Sopan’s

case (supra), no direction was given that if the offending

structure is demolished illegally the same should be permitted to

be reconstructed. The reconstruction jurisprudence seems to

have developed at a later stage.

9. At this juncture it would be necessary to point out that

when Sopan’s case (supra) was decided there was no provision

fixing a time line for filing a reply to the notice. Now, 7 days have

been fixed to file the reply in terms of Section 351 subsection

(1A), and, therefore, the first direction in Sopan’s case (supra) is

no longer operative. The Legislature has enacted a provision and

this direction cannot be said to be valid any more.

10. The main dispute is with regard to the 2nd direction in

Sopan’s case (supra) which provided that demolition of the

building structure can be done only after giving 15 days’ notice to

the affected person.

11. Shri Atmaram N. Nadkarni, learned Additional Solicitor

General, appearing for the appellants submits that by making an

amendment to Section 351, providing a period of 7 days for

notice to be given, the first direction in Sopan’s case (supra) is

no longer valid.

12. However, as pointed out by Mr. Bharat Zaveri, learned

counsel appearing on behalf of the respondents that the second

direction in Sopan’s case (supra) requiring 15 days’ notice to be

given to the affected person before demolition of the structure, is

still valid and, therefore, 2 notices are required to be given viz.,(i)

a show cause notice of 7 days in terms of Section 351 (1A) and;

(ii) notice of 15 days in terms of Sopan’s case (supra). The

learned counsel also submits that the judgment in Sopan’s case

(supra) holds the field till date, and we agree with the counsel

that in terms of direction no.2 in Sopan’s case (supra), 15 days’

notice has to be given before demolishing the structure. We are

not oblivious to the fact that Subsection

(2) of Section 351 does

not lay down any timeline in this regard. It was in this context

that when no timelines were laid down either for show cause

notice or for demolition that the Bombay High Court in Sopan’s

case (supra), fixed two timelines of 15 days each for issuing show

cause notice and, thereafter, to take action of demolition. The

Legislature intervened and the first period has been curtailed

from 15 days to 7 days but the second direction has not been

interfered with by the Legislature. Therefore, that judgment

continues to hold the field in this regard.

13. Admittedly, in both the cases the second notice does not

comply with the direction given in Sopan’s case (supra).

Therefore, there is no manner of doubt that the requirement with

regard to the second notice has not been complied with in either

of the cases. As such, the action of demolition without following

the procedure prescribed by law is illegal.

14. That brings us to the main issue before us. Is the writ court