# [2006] Supp. 7 S.C.R. 118

- **Citation:** [2006] Supp. 7 S.C.R. 118
- **Court:** Supreme Court of India
- **Decided:** 2006-02-23
- **Case number:** Civil Appeal No. 4448 of2006
- **Bench:** Dr. Ar. Lakshmanan, Tarun Chatterjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2006-supp-7-s-c-r-118-21723
- **Pages:** 27

## Headnote

Mumbai Municipal Corporation Act, 1888-SeCTions 351 and 354AWrit Petition alleging unauthori:::ed construction-Notice by Municipal
C Corporation only for stopping the work and not for showing cause as to
demolition-High Court directing demolition of the building-In appeal, held:
D
The determination of the question of demolition of unauthorised structure lies
within discretion of Municipal Authority-High Court cannot impede that
discretion by issuing mandatory order-Municipal Authority directed to
determine the question of demolition-Jurisdiction-Jurisdiction of High Court.
The property in question consisting of two bungalows and I chaw!
was developed as temple complex by the original owner. Respondent No.
I was one of the tenants of the chaw!. The access to the property was
through a 12 feet wide strip of land. The original owner sold the property
to the appellant, a public trust. The easementary rights for the access road
E were also conveyed to the appellants. The developer of the plot adjacent
to the property in question, while developing the land forcibly reduced
the said access by digging about 7 feet wide stretch. Appellants filed a suit
for declaration and injunction. Thereafter, respondent No. I gave several
letters of complaints regarding unauthorized construction of the temple
F to different authorities including Municipal Commissioner. Trial Court
by an interim order permitted access to the property through the access
road. During pendency of the suit, the developer attempted to disturb the
free use of the right of way acquired by the Trust. On complaint, the
Municipal Corporation informed that the occupation certificate to ihe
building constructed by the developer shall be issued after the proceedings
G in court were finally disposed of and provisions of access to the temple
would also be taken into account.
H
Respondent No. I filed a Writ Petition alleging that the appellants
were in the process of constructing the temple without obtaining
118
MUNI Sll\.R . .\T-S\\'..\1'111 JAIN S.~1 P. SANGH r. ARUNN·\THUR..\1\'IGAIKW..\D
J 19
permission from Municipal Corporation and sought for demolition of the A
same. Appellants contended that the property was already constructed five
years ago.
Municipal Corporation issued notice under Section 354 A of Mumbai
Municipal Corporation Act, 1888 to stop the work of the temple. Appellant
submitted an application for regularization of the temple building.
B
High Court by its order directed Municipal Authorities to demolish
entire illegal and unauthorized construction of the temple. Hence the
I
present appeal.
Allowing the appeal, the Court
HELD: I.I. The provisions of Section 354A of Mumbai Municipal
Corporation Act, 1888 deals with stop work notice whereas the provisions
of Section 351 of the Act deals with show cause notice for demolition of
c
unauthorized structure. The power under Section 351 of the Act, has to
be exercised only by the Municipal Commissioner and it is left to the D
Municipal Commissioner under the provisions of Section 351(2) either to
order or not to order the demolition of the alleged unauthorized temple.
No notice under the provisions of Section 351 of the Act has been issued
by the Municipal Commissioner in this matter against the appellant. The
Corporation had issued a notice to stop the work under Section 354A of E
the Act. The affidavit which was filed on behalf of the Corporation had
categorically stated that after the service of stop work notice under Section
354A no work was carried out. In fact, respondent No. I by himself had
requested the Municipal Authorities to take action under Section 351 of
the Act. (141-E-Hj
F
1.2. Section 351 obliges the Municipal Commissioner in the
construction of any building or the execution of any work is commenced
contrary to the provisions of the Act to give notice requiring the person
doing the work to show cause why it should not be pulled down. The word
used in this context is 'shall'. If sufficient cause is not sh

## Text

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A
B
MUNI SUVRAT-SWAMI JAIN S.M.P. SANGH
l'.
ARUN NATHURAM GAIKWAD AND ORS.
OCTOBER 11. 2006
[DR. AR. LAKSHMANAN AND TARUN CHATTERJEE. JJ.]
Mumbai Municipal Corporation Act, 1888-SeCTions 351 and 354AWrit Petition alleging unauthori:::ed construction-Notice by Municipal
C Corporation only for stopping the work and not for showing cause as to
demolition-High Court directing demolition of the building-In appeal, held:
D
The determination of the question of demolition of unauthorised structure lies
within discretion of Municipal Authority-High Court cannot impede that
discretion by issuing mandatory order-Municipal Authority directed to
determine the question of demolition-Jurisdiction-Jurisdiction of High Court.
The property in question consisting of two bungalows and I chaw!
was developed as temple complex by the original owner. Respondent No.
I was one of the tenants of the chaw!. The access to the property was
through a 12 feet wide strip of land. The original owner sold the property
to the appellant, a public trust. The easementary rights for the access road
E were also conveyed to the appellants. The developer of the plot adjacent
to the property in question, while developing the land forcibly reduced
the said access by digging about 7 feet wide stretch. Appellants filed a suit
for declaration and injunction. Thereafter, respondent No. I gave several
letters of complaints regarding unauthorized construction of the temple
F to different authorities including Municipal Commissioner. Trial Court
by an interim order permitted access to the property through the access
road. During pendency of the suit, the developer attempted to disturb the
free use of the right of way acquired by the Trust. On complaint, the
Municipal Corporation informed that the occupation certificate to ihe
building constructed by the developer shall be issued after the proceedings
G in court were finally disposed of and provisions of access to the temple
would also be taken into account.
H
Respondent No. I filed a Writ Petition alleging that the appellants
were in the process of constructing the temple without obtaining
118
MUNI Sll\.R . .\T-S\\'..\1'111 JAIN S.~1 P. SANGH r. ARUNN·\THUR..\1\'IGAIKW..\D
J 19
permission from Municipal Corporation and sought for demolition of the A
same. Appellants contended that the property was already constructed five
years ago.
Municipal Corporation issued notice under Section 354 A of Mumbai
Municipal Corporation Act, 1888 to stop the work of the temple. Appellant
submitted an application for regularization of the temple building.
B
High Court by its order directed Municipal Authorities to demolish
entire illegal and unauthorized construction of the temple. Hence the
I
present appeal.
Allowing the appeal, the Court
HELD: I.I. The provisions of Section 354A of Mumbai Municipal
Corporation Act, 1888 deals with stop work notice whereas the provisions
of Section 351 of the Act deals with show cause notice for demolition of
c
unauthorized structure. The power under Section 351 of the Act, has to
be exercised only by the Municipal Commissioner and it is left to the D
Municipal Commissioner under the provisions of Section 351(2) either to
order or not to order the demolition of the alleged unauthorized temple.
No notice under the provisions of Section 351 of the Act has been issued
by the Municipal Commissioner in this matter against the appellant. The
Corporation had issued a notice to stop the work under Section 354A of E
the Act. The affidavit which was filed on behalf of the Corporation had
categorically stated that after the service of stop work notice under Section
354A no work was carried out. In fact, respondent No. I by himself had
requested the Municipal Authorities to take action under Section 351 of
the Act. (141-E-Hj
F
1.2. Section 351 obliges the Municipal Commissioner in the
construction of any building or the execution of any work is commenced
contrary to the provisions of the Act to give notice requiring the person
doing the work to show cause why it should not be pulled down. The word
used in this context is 'shall'. If sufficient cause is not shown it is left to G
the Commissioner's discretion whether or not to demolish the
unauthorized construction and, therefore, the High Court cannot impede
the exercise of that discretion by the issuance of a mandatory order.
Therefore, the Commissioner is directed to decide the question as to
whether he should pass an order for demolition or not. (143-D-Ff
H
120
SUPREME COURT REPORTS [2006\ SUPP. 7 S.C.R.
A
2. The Authorities are entitled to examine and grant such relief as
the appellants may be entitled to under the law. The respondentCommissioner is directed to decide the matter absolutely on merits after
affording opportunity to the first respondent. 1144-DI
Corporation ofCafrn//a v. Mufchand Agarm1ffa, 1195512 SCR 995 and
B Syed Muzajfar Ali and Ors. v. Afunicipal Corporation of Delhi. I 19951 Supp
4 sec 426, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4448 of2006.
From the final Judgment and Order dated 23.2.2006 of the High Court
C of Judicature at Bombay in Writ Petition No. 2841 of 2005.
F.S. Nariman, Shyam Diwan, P.H. Parekh. E.R. Kumar, Shakum Sharma
and Kush Chaturvedi (for M/s. P.H. Parekh & Co.) for the Appellant.
Ranjit Kumar, Santosh Paul, Vibha Datta Makhija and Lakshmi Raman
D Singh for the Respondent No. I.
Pallav Shishodia, Atul Y. Chitale, Suchitra Atul Chitale, Sujeeta
Srivastava and Madhup Singhal for the Respondent 2 & 3.
U.U. Lalit, P.B. Sarpotdar, A.K. Rao, Praji K.J. and Prasanna Balkrishna
E Sarpotdar for the Intervenor.
The Judgment of the Court was delivered by
DR. AR. LAKSHMANAN, J. Leave granted.
F
This appeal is directed against the final judgment and order dated
23.02.2006 passed by the High Court of Judicature at Bombay in Writ Petition
No. 2841 of 2005 whereby the High Court while allowing the writ petition
directed the Municipal Corporation to demolish the entire illegal and
unauthorized construction carried on by respondent Nos. 3-17 on entire CTS
G No. 206, 206(1 to 9), Kurla Pait-IV, New Mill Road, Kurla (W), Mumbai.
The short facts leading to the filing of the above appeal as stated in
the S.L.P. are as under:-
Shri Fernandes and others (hereinafter referred to as Original owners)
H owned a plot of land bearing C.T.S. No. 106 and 206/1 to 9 and CTS No.
,...
1'.1UNI SU\'RA.T-S\\':\~11 J:\I:'\ S ~I I' S:\NGll 1·. _·\RUN i\' . .\THl:R .. \i\1 G.\IK\\':\D [L.-1..KSHt-1AN.\N_ .l]
f 2}
212 and 212/J to 4. N.A. Survey No. 764 and 768. ofYillage/Taluka, Kurla. A
Mumbai. Suburban District. consisting of two bungalows and one chawl of
8 tenements. It is to be noted that there is only one entrance to the property
from A.H. Wadia Marg (New Mill Road) through a strip of land about 12
feet wide (hereina1ier referred to as ·access road'). The tenants/occupants
used the said access road to access their respective premises. including the B
writ petitioner before the High Court (Respondent No. I herein). who was a
tenant of chawl No. 52317 of C.T.S no I to 9 in the aforesaid property.
Shri Fernandes entered into Development Agreement with Shri Ghag
of Sadhana Builders in order to develop the property. A proposal for approval
of proposed temple complex at CTS No. 206, 20611 to 9 was submitted C
before the BMC.
The construction of temple was completed and the installation of idol
ceremony (Pra1hishta) took place. It is to be noted that the respondent No.
I participated in the celebration and did not make any complaint regarding
the construction of the temple.
The original owner sold the aforesaid property (hereinafter referred to
as the 'trust property') to the appellant, a public trust, by a deed of conveyance.
where Mr. Ghag was a confirmation party. When the property was conveyed
D
to the appellant the aforesaid property consisted of four shops, eight residential
premises, Jain temple, Upashraya, Pravachan hall and open space. It is to be E
noted that the easementary rights from A.H. Wadia Marg (New Mill Road)
through the access road of about 12 feet wide were also conveyed to the
appellants.
One Mr. Ismail Yakob Payak, the developer of the plot adjacent to the
Trust property i.e. plot of land bearing CTS No. 205. N.A.No. 765, 766, 767
started construction on the said plot (hereinafter referred to as the 'developer').
The said developer constructed a building of ground plus 6 floors known
F
as "Saiba Palace". After constructing the said building the developer dug the
land beneath the access road and tried to instill a gate at the entrance of the G
access road.
The appellant Nos.I to 11 filed a suit being suit No. 1478 of 2005 in
the City Civil Court at Bombay for declaration and injunction.
The developer in an attempt to pressurize the appellants into not H
122
SUPREME COURT REPORTS [20061 SUPP. 7 S.C.R.
A prosecuting the said suit had setup respondent No. I herein (a tenant of the
Trust propeny) to initiate proceedings against the appellants. According to
the appellants. the fact that the respondent No. I was setup is clear from the
following-a) though the construction of the temple was completed in the year
2001. the respondent No. I 11ho was a tenant of the premises did not complain
B about the unauthorized construction till the appellants herein filed a suit
against the developer; b) that the respondent No. I had participated in the
celebration of idol installation; c) the advocates of the developer as well as
the Respondent No. I were same; d) that the respondent No. 1 and the
developer belong to the same Nationalist Congress Party.
C
Respondent No. I through its advocate gave a representation to
Municipal Commissioner about the unauthorized structure/temple. The
respondent No. I also wrote several letters of complaints to Hon'ble Ministers,
Assistant Commissioner of Police, Deputy Chief Minister, Commissioner of
Police, Inspector General of police, Editors of Newspaper etc.
D
The appellant filed an interim application Notice of Motion No. 120 I
of 2005 in Suit No. 1478 of 2005 for grant of ad interim relief. After hearing
the parties City Civil Court passed the following order:-
'The Defendants have constructed part of their compound wall. The
plaintiffs agree that the defendants shall extend that constructing
E
leaving 6ft. from the otla on the rear of the four shops in the Plaintiffs
property.
The defendants shall construct their compound wall as shown in blue
extending it from the wall already constructed leaving 6ft. space from
the otla on the rear of the shops of the plaintiffs as shown in blue in
F
the sketch plan Ex-A to the plaint.
The plaintiffs shall be entitled to have access through the defendant's
property for only pedestrian traffic (including Palkhis) pending the
suit.
G
NIM is disposed off accordingly. NOC
Wis if filed."
The aforesaid order was modified and it was added that "By consent
order dated 3.5.2005 is without prejudice to the rights and contentions of
H both pa11ies."
-
1'1UNI SU\'RAT-S\\'A~ll JAIN S M.P SANGH r. ARlJN NATllURA1'1 GAIK\\'AD{L...\KSH~1:\NAN.J j
} 2)
During the pendency of the said suit, the developer started constructing A
a compound wall on the southern side of the tenement, whereby the developer
encroached upon a part of the land bearing CTS No. 212 and reduced the
width of the access road from 12 feet to 6 feet. He also wrongfu I ly constructed
a gate at the entrance of the Servient Tenement, touching the land bearing
CTS No. 212/1to4 and thereby attempted to disturb the free use of the right B
of way acquired by the trust.
The appellant complained to the authorities about the illegal construction
and unauthorized conduct of the respondents.
In reply, the Municipal Corporation informed the petitioner that as per C
order of Asst. Joint Municipal Commissioner dated 6.8.2005, the occupation
certificate to the building constructed by the developer and named Saiba
Palace shall be issued after the proceedings in court are finally disposed off
and the provisions of access to the subject temple will also be taken into
account.
Respondent No. I filed a writ petition before the High Court at Bombay
alleging that appellants were in the process of constructing a temple in the
extremely crowded area without obtaining permission from Municipal
Corporation and that on account of this construction the atmosphere in the
locality has been disturbed and disputes have arisen. In view of this he
sought the following reliefs:
(i)
direct municipal authorities to demolish the entire unauthorized
and illegal construction on CTS No. 206, 206 (I to 9) called on
by the petitioners herein;
D
E
(ii) pending disposal of the writ, injunct the petitioners from carrying p
on any further construction;
(iii) appointment of court commissioner to visit the property and give
its report.
It is the case of the appellant that the construction of temple was not
in progress at that time. Temple was already constructed in the year 2001. G
It is also the case of the appellant that respondent No. I being a tenant
of Chaw! 523/7 on the trust property claimed that he recently came to know
about the illegal and unauthorized construction in the Trust property, despite
his further claim in the writ petition that the property was under his supervision H
.t.f
124
SUPRE!'v!E COURT REPORTS [2006] SUPP. 7 S.C.R.
A continuously for 12 years and Mr. Ghag had also executed Power of Attorney
on 18.11.1998 in his favour.
B
Bombay Municipal Corporation (in short BMC) issued notice to stop
the work under section 354A of BMC Act for construction of four RCC
columns on the rear oide of the temple.
Appellant submitted an application before BMC for regularization of
the temple building.
One of the trustees and the appellant herein Shri Arvind Kothari filed
counter affidavit to the petition and stated in detail about the proxy- litigation
C initiated by the builder and also the ma/afides against the respondent No. 1.
D
It was also pointed out that there had been no infringement of bye-laws
relating to FSI. That lacs of devotees visit the temple.
The respondent No. I filed a rejoinder before the High Court in which
most of the averments have remained uncontroverted due to either bald denial
or no denial. It would be pertinent to mention that nexus between the developer
and the respondent No. I largely remained uncontroverted.
The BMC also filed a counter affidavit, wherein it was categorically
stated that after service of a stop-work notice under section 354-A of the
E MMC Act, no work was carried out.
The High Court passed an order directing the Municipal Authorities to
demolish entire illegal and unauthorized construction carried on by respondent
No. 3 to 17 on entire CTS No. 206, 206(1 to 9) Kurla part IV, new mill road
Kurla (W) Mumbai-400070 despite noting that the issue of regularization
F was a matter between the respondent and the BMC. The High Court stayed
the operation of the order by 4 weeks, which was extended for another 4
weeks by order dated 5.4.2006. Hence the present appeal by way of SLP has
been filed.
We heard Mr. F.S. Nariman, learned senior counsel appearing for the
G appellants and Mr. Mukul Rohatgi and Mr. Ranjit Kumar, learned senior
counsel for the respondent No. I, Mr. Pallav Shishodia, learned counsel for
respondent Nos. 2 and 3 and Mr. U. U. Lalit, learned senior counsel for the
Intervenors.
H
When the matter came up for admission on 04.07.2006, this Court
'1l'NI SU\'RAT-SIVAMIJAIN S>l.P. SANGH•·. 'RUN NATHURA~I G.-llKW-IDIL.·\KSHMANAN. 11
J 25
observed as under:-
A
"Issue notice limited to the question as to whether in the city of
Bombay governed by the provisions of Section 351 of the Mumbai
Municipal Corporation Act. 1888 where it has been left to the
Commissioner's discretion to demolish or not to demolish, the High
Court could direct a mandamus for demolition.
B
Mr. Lakshmi Raman Singh, advocate, takes notice for respondent
No. 1. Issue notice limited to above question to all other respondents
returnable within four weeks. Dasti, in addition is permitted. Learned
counsel for the petitioner is also permitted to serve notice privately
by registered A.O. Post. Two weeks time is granted to file counter C
affidavit. Rejoinder, if any be tiled within two weeks thereafter. List
the matter for final hearing, by consent of parties, on 10th August,
2006.
In the meanwhile, there shall be interim stay of demolition. It is
also made clear that the petitioner shall not make any further D
construction until further orders."
The following submissions were made by Mr. Nariman, learned senior
counsel appearing for the appellants:
(1) The High Court proceeded on the erroneous footing that "The E
petition is filed pointing out that respondent Nos. 3 to 17 are in
the process of constructing a temple in an extremely crowded
area." It was submitted that the temple was constructed in the
year 2001 and the temple was not it the process of construction.
(2) The High Court while replying to the submission of the appellant F
that application for regularization was pending on the one hand
held "that is a matter between the Respondent and the Municipal
Corporation" and in the same paragraph also held "it is ve1y
clear that the construction is illegal, without any authority of
law and without any permission of the Municipal Corporation." G
Thus it was submitted that the High Court assumed the powers
granted to the Municipal Commissioner, under the Bombay
Municipal Corporation Act, 1988 (hereinafter referred to as "the
Act") to decide whether the structure is legal/illegal without
affording an opportunity of hearing to the appellants. It is
submitted that issuance of a notice under Section 35 l of the H
A
B
c
D
E
F
G
H
126
SUPREME COURT REPORTS 12006] SUPP. 7 S.C.R.
BMC Act and giving opportunity of hearing to the owner of the
building are conditions precedent for issuing an order for
demolition of the building and unless, upon hearing, the Municipal
Commissioner holds that the construction on the disputed property
is unauthorized and illegal, question of its demolition does not
arise.
(3) The High Court failed to appreciate that the provisions of Section
351 (2) of the Mumbai Municipal Corporation Act, 1888 (M.M.C
Act) confer very wide discretionary powers upon the Municipal
Corporation to remove, alter or pull down or not the building
constructed without complying with the provisions of Section
342 or 347 of the said Act. It was submitted that the Court
cannot substitute such discretion of the Commissioner nor can
the writ Court direct the Commissioner to exercise the discretion
in a particular manner.
(4) The High Court erred in passing a drastic direction for demolition
ofa structure/temple without affording an opportunity of hearing
to the appellant especially when the Municipal Commissioner
has the power to regularize a building constructed and the
application for regularization was pending before the Municipal
Commissioner. It was submitted that there was enough material
to show that the structure of the temple can be regularized. The
total area of the plot on which the temple is situated is 1290.30
sq.mtrs. the area of the existing structures including the temple
is 574.91 sq.mtrs and hence within the F.S.I limit of l, which is
44.55% of the permissible F.S.I. This Court in the decision of
Corporation of Calcutta v. Mulchand Aggarwal, AIR (1956) SC
110 has held that if the structure is not otherwise violative of the
Building Bye-laws, it need not be demolished. However, the said
application has now been dismissed by the Municipal
Commissioner by order dated 9.3.2006 in view of the impugned
order. An appeal against the same is pending before the
authorities.
(5) The High Court erroneously held in para-4 of the impugned
order "ultimately a stop work notice was issued. In the utter
disregard of such notice, the construction work had proceeded."
It was submitted that the Corporation itself had filed the affidavit
stating "respondent Corporation had visited the site and issued
~IUNI Sll\R·I T-S\\'.IMI l·llN S.~1 ~ SANGH,._ .,RUN N..\ Tl ll 'R·\~I G..\IK\V..\D [LAKSMM..\N..\N l )
J 2 7
no/ice under section 35.:/ of MfvfC Act ut presenl !here is nv A
firrther construction workfound in progress."
(6) The High Court erred in issuing a direction for demolition under
its writ jurisdiction where mandamus could only be issued
directing the administrative authorities to act in accordance with
law.
B
(7) The High Court erred in granting prayer of the appellant which
seeks direction to demolish entire illegal and unauthorized
structure standing on CTS No. 206, 206 (I to 9) in as much as
there are many structures on the said plot which were constructed
prior to the year 1962 and were considered to be heritage.
c
(8) The High Court failed to appreciate the following evidence which
clearly showed that the writ petition was filed by a person who
was set up by the developer: (a) though the construction of the
temple was completed in the year 200 I, the writ petitioner who
was a tenant of the premises did not complain about the D
unauthorized construction till the petitioners herein filed a suit
against the developer; (b) that the writ petitioner participated in
the celebration of idol installation; (c) the advocates of the
developer as well as the writ petitioner are same; ( d) that the writ
petitioner and the developer belong to the same Nationalist
Congress Party. Admittedly, the petitioner was a friend of the E
developer for 18 years and the complaint against the present
petitioner was made only after civil case was filed against the
builder.
(9) The High Court erred in relying on stop work notice to order
demolition of the entire structure as the aforesaid stop work notice F
was issued only for stopping the construction of four pillars on
the rear side of the temple.
Mr. Nariman also invited our attention to ce1tain averments made in
paras 5 and 7 of the writ petition filed by the first respondent herein being
Writ Petition No. 2841 of 2005. Our attention was drawn to para 7 of the G
affidavit wherein the respondent as the writ petitioner stated that respondent
No. 2 informed respondent No. I by letter dated 05.10.2005 that they were
taking legal action against Jain Temple/Dervasar as per Section 354A of the
Bombay Municipal Corporation Act. Learned senior counsel also drew our
attention to the counter affidavit filed by respondent No. 14 to the writ H
128
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A petition and. in particular, paragraph 17. The relevant portion reads thus:
''The construction of temple had commenced in or around the year
1999 and the ''Pratisluha'' (installation of idol ceremony) took place
in the year 200 I. The petitioner in fact joined the Trust in the
celebration relating to Pratistha Mahotsav. The petitioner never made
B
any complaint during the period of construction or even when the
said Pratistha Mahotsav took place or around the year 200 I. Pertinently
the petitioner started writing letters to authorities only after the disputes
and differences between the Trust and the said Payak started on account
of unauthorized construction and attempted encroachment on the part
C
of the said Payak."
D
E
Our attention was also drawn to the prayer made in the writ petition
No. 2841 of 2005 which reads as follows:-
"(a) The High Court may be pleased to issue writ of Mandamus; any
other writ, order or direction in the nature of mandamus directing
the respondent Nos. I and 2 to demolish the entire unauthorized
and illegal construction carried on by the respondent Nos. 3 to
17 on entire CTS No. 206, 206(1 to 9), Kurla Part IV, New Mill
Road, Kurla (West), Mumbai 400070.
(b) Pending hearing and final disposal of the petition; the respondent
nos.3 to 17 may be restrained by an order of injunction of this
court from carrying on any further construction on CTS No. 206,
206 (I to 9), Kurla Part IV, New Mill Road, Kurla (West),
Mumbai 400070."
Mr. Nariman, in support of his contention, that the High Comt cannot
F assume the power granted to the Municipal Commissioner under the Bombay
Municipal Corporation Act, 1988 (in sho1t "the Act") to declare whether the
structure is legal or illegal, submitted that issuance of a notice under Section
351 of the Act and giving opportunity to the owner of the building are
conditions precedent for issuing the order for demolition of the building and
G unless upon hearing the Municipal Commissioner holds that the construction
on the disputed property is unauthorized and illegal, question of its demolition
does not arise. He would further submit that provisions of Section 351 (2) of
the Act confer very wide discretionary powers on the Municipal Commissioner
to remove alter or pull down or not the building constructed without complying
with the provisions of Section 342 or 34 7 of the said Act. Therefore, he
H submitted that the High Court cannot substitute such discretion of the
l\lUNI SU\K.\T-SW:\~11 JAIN S.~1-P S.-\NGH 1·. :\RUN NATHURA~1 G:\IK\\'AD!l .. -\KSllMANAN.J.]
129
rW
,
Commissioner nor can the High Court direct the Commissioner to exercise A
the discretion in a particular manner. In support of the above contention,
learned senior counsel first invited our attention to Section 351 of the Act
which reads thus:
.. 351. Proceedings to be taken in respect of buildings or work
commenced co11tra1y to section 347--( l) If the erection of any building B
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
Commissioner, 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 C
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 D
the Commissioner. 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 E
sufficient cause why such building or work shall not be removed,
altered or pulled down.
faplanation - "To show sufficient cause" in this sub-section 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
~~w~~~
F
(2) If such person shall fail to show sufficient cause, to the satisfaction
of the Commissioner, why such building or work shall not be
removed, altered or pulled down, the Commissioner may remove,
alter or pull down the building or work and the expenses thereof G
shall be paid by the said person. In case of removal or pulling
down of the building or the work by the Commissioner, the
debris of such building or work together with one building
material, if any, at the sight of the construction, belonging to
such person, shall be seized and disposed off in the prescribed
manner and after deducting from the receipts of such sale or H
130
A
SUPREf'vlE COURT REPORTS [2006] SUPP. 7 S.C.R.
disposal, the expenditure incurred for removal and sale of such
debris and material, the surplus of the receipt shall be returned
by the Commissioner, 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
B
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."
C
In support of the above legal submission, learned senior counsel first
relied on the judgment of the Bharucha, J. dated l 0.08.1983 in Writ Petition
No. 1286of1990 of the Bombay High Court wherein the learned Judge held:
"Section 351 obliges the Municipal Commissioner, ifthe construction
of any building or the execution of any work is commenced contrary
D
to the provisions of the Act, to give notice requiring the person
constructing or doing the work to show cause why it should not be
pulled down. The word used in this context of "shall". If sufficient
cause is not shown, the Commissioner "may" remove, alter or pull
down.the building or work. It is left to the Commissioner's discretion
E
whether or not to demolish the unauthorized construction if sufficient
cause is not shown. The court cannot impede the exercise of that
discretion by the issuance of a mandatory order".
The above judgment was followed in Abdul Rehman Siddique and Ors.
v. Ahmed Mia Gu/am Mohuddin Ahmedji and Anr., (1996) 2 Mh. L.J. 1042
F at 1047 wherein a learned Single Judge of the Bombay High Court held thus:
"9 .... Such discretion of the Commissioner or such authority cannot
be substituted by the court nor can court direct the commissioner or
such authority to exercise discretion in a particular manner. If the
discretion by the commissioner or such authority appears to have not
G
been exercised in accordance with law then court can only call upon
the Commissioner or such authority to consider the matter afresh in
accordance with law.
10. I am fortified in my view by the judgment of this court in Writ
Petition No. 1286 of 1980. Bi/kishbhai Moizbhai Vasi and Ors.,
H
petitioners v. Municipal Corporation for Greater Bombay and 3 Ors.,
..
r-.IUNl SLYRAT-SW.-\~11 JAIN S.f\1 P. S:\?\JGl·l 1·. ARUN NATHURAr-.t G.-\lKWAD [LAKSllMANAN. J J
J 31
~
respondents decided on I 0.08.1983. In the said judgment Hon'ble A
Justice S.P.Barucha (as he then was) has considered the provisions of
section 3 51 of the BMC Act vis-a-via the obligation of the
commissioner or the authority delegated such power to demolish the
unauthorized construction. Barucha. J. held thus:-
"Section 351 obliges the Municipal Commissioner, ifthe construction B
of any building or the execution of any work is commenced contrary
to the provisions of the Act, to give notice requiring the person
constructing or doing the work to show cause why it should not be
pulled down. The word used in this context of "shall". If sufficient
cause is not shown, the Commissioner "may" remove, alter or pull c
down the building or work. It is left to the Commissioner's discretion
whether or not to demolish the unauthorized construction if sufficient
cause is not shown. The court cannot impede the exercise of that
discretion by the issuance of a mandatory order".
I 0-A. Apparently, therefore, the direction given and the order passed D
by the City Civil Court and impugned in the present appeal making
the notice of motion absolute in terms of prayers (b) and ( d) impedes
the exercise of discretion of the commissioner or the authority
delegated such power. The mandate issued to defendant No. I in
issuing notice in respect of the structures to defendant Nos. 2 to 31
is clearly impediment in the exercise of the discretionary power of E
the commissioner or for that matter the authority delegated such power.
Such mandatory order and that too pending trail of the suit where it
is yet to be tried whether the alleged construction is unauthorized or
not cannot be said to be justified."
In Syed Mu:::ajfar Aii and Ors. v. Municipal Corporation of Delhi, F
[1995] Supp 4 SCC 426, this Court in paras 4 and 5 held as under:
"However, it is to be pointed out that the mere departure from the
authorised plan or putting up a construction without sanction does
not ipso fact and without more necessarily and inevitably justify G
demolition of the structure. There are cases and cases of such
-
unauthorized constructions. Some are amenable to compounding and
some may not be. There may be cases of grave and serious breaches
of the licensing provisions or building regulations that may call for
the extreme step of demolition.
H
132
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B
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
These are matters for the authorities to consider at the appropriate
time having regard to nature of the transgressions. It is open to the
petitioners to move the authorities for such relief as may be available
to them at law. The petitioners may, if so advised, file a plan indicating
the nature and extent of the unauthorized constructions carried out
and seek regularization, if such regularization is permissible. The
dismissal of the petitions will not stand in the way of the authorities
examining and granting such relief as the petitioners may be entitled
to under law. The petitioners may move the authorities in this behalf
within one week for such compounding or regularization and also for
stay of demolition pending consideration of their prayer. During the
C
period of one week from today, however, no demolition shall be
D
E
F
made."
In U.P. State Road Transport Corporation and Anr. v. Mohd. Ismail
and Ors., [1991] 3 SCC 239, this Court in paras 11 and 12 at page 244
observed as under:-
11. The view taken by the High Court appears to be fallacious. The
discretion conferred by Regulation 17(3) confers no vested right on
the retrenched workmen to get an alternative job in the Corporation.
Like all other statutory discretion in the administrative law, Regulation
17(3) creates no legal right in favour of a person in respect of whom
the discretion is required to be exercised -
other than a right to have
his case honestly considered, for an alternative job by the Corporation.
12. The High Court was equally in error in directing the Corporation
to offer alternative job to drivers who are found to be medically unfit
before dispensing with their services. TI1e Court cannot dictate the
decision of the statutory authority that ought to be made in the exercise
of discretion in a given case. The Court cannot direct the statutory
authority to exercise the discretion in a particular manner not expressly
required by law. The Court could only command the statutory authority
by a writ of mandamus to perform its duty by exercising the discretion
G
according to law. Whether alternative job is to be offered or not is a
matter left to the discretion of the competent authority of the
Corporation and the Corporation has to exercise the discretion in
individual cases. The Court cannot command the Corporation to
exercise discretion in a particular manner and in favour of a particular
person. That would be beyond the jurisdiction of the Court.
H
.•
...
-
.-
t>.IUNI SU\'R:\T-S\\'Afl.111:\IN S.fl.1.P SANGH r ARL'N NATMURAf\tGAIK\\'AD [LAKSHMANAN,J.}
133
Mr. Mukul Rohatgi made elaborate submissions which were later A
suppo1ied by Mr. Ranjit Kumar. senior counsel. He invited our attention to
the counter affidavit on behalf of respondent No. 1. Mr. Rohatgi submitted
that Section 354A is categoric in spelling out the powers of Commissioner
in respect of works unlawfully carried on and in the instant case there is an
unlawful and deliberate mis-representation on the part of the appellants and, B
therefore. the civil appeal is ought to be dismissed on this very ground. He
further submitted that the appellant continued the construction during the
pendency of the petition in the High Court and is continuing to construct
despite the orders of this Court and has covered the site with a cover to
prevent access.
Mr. Rohatgi submitted that despite the several complaints made by the
first respondent - Municipal Corporation of Greater Bombay did nothing to
demolish the illegal structure and that the Municipal Commissioner did not
exercise the power vested in him under the Act to demolish the illegal structure.
c
It is further submitted that the Municipal Commissioner was under a duty and
obligation to order or direct illegal structure to be removed as the same was D
per se illegal and that the Commissioner ought to have ordered demolition as
Municipal Corporation had issued a notice under Section 354A of the Act
and in spite of the same, the respondent had continued with the illegal
construction. Learned senior counsel fu1iher submitted that owing to the
inaction on the part of the Municipal Corporation in demolishing the illegal E
structure, the respondent had no other option but to move the Bombay High
Court by filing the writ petition No. 2841 of2005. He also drew our attention
to the order passed by the High Court which clearly stated that the order of
the High Court dated 21.12.2005 will not prevent the Corporation from taking
any action in accordance with the law if the construction is found to be
unauthorized. After the order of the High Court, the counsel for the first F
respondent sent several letters calling upon the BMC to take action against
the unauthorized construction and despite these letters the BMC failed to take
any action in the matter and ultimately the High Court vide impugned order
directed the Municipal Corporation to demolish the said illegal structure. It
was submitted that the writ petition was filed for inaction of the Municipal G
Corporation and the writ petition was directed to ensure that the authority
performed the duty cast upon it under the Statute and that the High Court on
considering that the Commissioner had not taken any action in respect of the
said illegal structure directed the demolition of the same. Thus, it was submitted
that the order passed by the High Court was a corrective order aimed at
enforcing the law and if the Commissioner declined to use his powers or H
134
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A enforce the law, the High Court was fully competent to enforce the same and
that the writ of the High Cou11 runs superior to the statutory powers of the
Corporation. Concluding his argument, learned senior counsel submitted that
considering the material on record and provisions of the BMC Act, this Cou1t
would hold that the High Court was right in ordering the Municipal
Commissioner to demolish the structure and that when the executive failed
B
c
to perform their duties or erred in performing their duties, the High Court
acting under the extraordinary powers vested under Articles 226 and 227 of
the Constitution of India has the necessary power to direct the executive to
enforce the law as laid down in the statutes and power to order demolition
of illegal structures as the Commissioner has failed to do so.
Mr. Rohatgi also invited our attention to the notice issued by the
Municipal Corporation of the appellants under Section 68 of the MMC Act
directing the appellant to stop the execution of the work forthwith and failing
to produce permission, the Commissioner shall under Section 354A and in
exercise of powers and functions conferred upon him as aforesaid without
D any further notice cause the said building or work to be removed or pull
down at the risk and cost. This notice was issued on 08.06.2005. Our attention
was also drawn to the proceedings issued by the Deputy Chief Engineer
dated 04.03.2006 regarding.regularization of temple on a plot bearing No.
CTS No. 206, 206/1-9 of Village Kurla. The appellant was infom1ed that the
E plan submitted by them are not in consonance with the development, control
and regulation, 1991 and they have not submitted the NOC from the
Commissioner of Police being a place of public worship, their proposal of
regularization of temple was refused. Similar to this effect is the two letters
issued by Brihanmumbai Mahanagarpalika dated 13. I 0.2005 and 12.07.2006
refusing the proposal of the appellant relating to the construction of temple
F on the plot in question.
In support of his contention, learned senior counsel relied on para 15
of the decision of this court in State (Delhi Admn.) v. l.K.