Case: MUNICIPAL CORPORATION OF GREATER MUMBAI Vs. M/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD

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 Sopans 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 Nations 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 re- erected. 17. Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear-cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure, but while doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the doors and windows face; how many number of storeys are permitted etc. We feel that in most cases the writ court may be unable to answer all these questions. Therefore, it would be prudent to permit the structure to be built in accordance with the existing by-laws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built. 18. Blanket orders permitting re-erection will lead to un- planned and haphazard construction. This will cause problems to the general public. Even if the rights of private individuals have been violated in as much as sufficient notice for demolition was not given, in such cases structures erected in violation of the laws cannot be permitted to be re-erected. We must also remember that in all these cases, the High Court has not found that the structures were legal. It has passed the orders only on the ground that the demolition was carried out without due notice. As already indicated above, compensation for demolished structure or even the cost of the new structure to be raised, if any, can be imposed upon the municipal authorities which should be recovered from the erring officials, but in no eventuality should an unplanned structure be permitted to be raised. 19. Times have changed. Technology has advanced. However, the legal fraternity continues to live in a state of status quo. Sopans case (supra) was decided on 09.02.1996. More than two decades have elapsed. The Courts must not be hidebound by old decisions and the law must develop in accordance with changing times. 20. All concerned viz., the State, the Municipal authorities and the High Court need to take note and advantage of advancement in technology. We have been informed that disputes with regard to the dimensions and nature of the structure arise especially in those cases where rural or suburban areas are included at a later stage in the municipalities. Some of these structures have no sanctioned plans. The Development Control and Promotion Regulations for Greater Mumbai, 2034, provide that no permission shall be required to carry out tenantable repairs to the existing buildings which were constructed with the approval of the competent authority, or are in existence since 17.04.1964 in respect of residential structures, and 01.04.1962 in respect of non-residential structures, as required under Section 342 of the MMC Act. We have already noted what is meant by tenantable repairs. This is explained in Section 342 of the MMC Act. Only repairs envisaged in the explanation are permitted to be carried out without permission and all other repairs have to be carried out with permission. Since these old buildings do not have plans it is difficult to find out whether the construction carried out is actually tenantable repairs or the structures are being constructed/reconstructed for which permission is required. 21. There is no difficulty to find a solution to this problem if the State is inclined to do so.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are not oblivious to the fact that Sub-section (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 Sopans 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 regard13. Admittedly, in both the cases the second notice does not comply with the direction given in Sopans 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 illegalThe 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 Sopans case (supra). We have been told that this is the regular practice followed in the Bombay High Court, throughout the State of Maharashtra15. 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 Nations 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 froms who have acted in violation of law. However, we again reiterate that the illegal structure cannot be permitted to be re- erected20. All concerned viz., the State, the Municipal authorities and the High Court need to take note and advantage of advancement in technology. We have been informed that disputes with regard to the dimensions and nature of the structure arise especially in those cases where rural or suburban areas are included at a later stage in the municipalities. Some of these structures have no sanctioned plans. The Development Control and Promotion Regulations for Greater Mumbai, 2034, provide that no permission shall be required to carry out tenantable repairs to the existing buildings which were constructed with the approval of the competent authority, or are in existence since 17.04.1964 in respect of residential structures, and 01.04.1962 in respect of non-residential structures, as required under Section 342 of the MMC Act. We have already noted what is meant by tenantable repairs. This is explained in Section 342 of the MMC Act. Only repairs envisaged in the explanation are permitted to be carried out without permission and all other repairs have to be carried out with permission. Since these old buildings do not have plans it is difficult to find out whether the construction carried out is actually tenantable repairs or the structures are being constructed/reconstructed for which permission is required19. Times have changed. Technology has advanced. However, the legal fraternity continues to live in a state of status quo. Sopans case (supra) was decided on 09.02.1996. More than two decades have elapsed. The Courts must not be hidebound by old decisions and the law must develop in accordance with changing times18. Blanket orders permitting re-erection will lead to un- planned and haphazard construction. This will cause problems to the general public. Even if the rights of private individuals have been violated in as much as sufficient notice for demolition was not given, in such cases structures erected in violation of the laws cannot be permitted to be re-erected. We must also remember that in all these cases, the High Court has not found that the structures were legal. It has passed the orders only on the ground that the demolition was carried out without due notice. As already indicated above, compensation for demolished structure or even the cost of the new structure to be raised, if any, can be imposed upon the municipal authorities which should be recovered from the erring officials, but in no eventuality should an unplanned structure be permitted to be raised17. Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear-cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure, but while doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the doors and windows face; how many number of storeys are permitted etc. We feel that in most cases the writ court may be unable to answer all these questions. Therefore, it would be prudent to permit the structure to be built in accordance with the existing by-laws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built.