MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS. versus M/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD.
[2019] 16 S.C.R. 971, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Issues
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  MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS.
      v.
M/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD.
(Civil Appeal No.7627 of 2019)
OCTOBER 24, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Mumbai Municipal Corporation Act (Bom.III of 1988) –
ss.342 and 351 – The Municipal Corporation demolished the
structure in exercise of powers vested in it, but in violation of the
procedure prescribed – The High Court directed the ‘owner/
occupier’ of the building to reconstruct the demolished structure –
Held: The action of demolition without following the procedure
prescribed by law is illegal – 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, the illegal structure cannot be permitted to be re-
erected – If a structure is a legal structure, 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.
The Mumbai Municipal Corporation Act (Bom.III of 1988) –
Advantage of advancement in technology – Geomapping and 3D
visual information – Since the 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 – Held: Till the State
frames any law in this regard, it is directed that before any
construction/reconstruction, or repair not being a tenantable repair
is carried out, the owner/occupier/builder/ contractor/architect, in
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fact all of them should be required to furnish a plan of the structure
as it exists – This map can be taken on record and, thereafter, the
construction can be permitted – This information should also be in
the form of 3D visual information, in the nature of photographs,
videos etc – Further, Municipal Corporations directed to get
geomapping done where the population is 50 lakhs or more and
geo-photography of the areas under their jurisdiction – Once one
has the whole city geomapped it would be easy to control illegal
constructions.
Disposing of the appeals, the Court
HELD: 1. The main dispute is with regard to the 2nd
direction in Sopan Maruti Thopte and Another v. Pune Municipal
Corporation and Another which provided that demolition of the
building structure can be done only after giving 15 days’ notice
to the affected person. [Para 10] [985-B]
2. It was pointed out by the respondents that the second
direction in Sopan’s case 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) of the
Mumbai Municipal Corporation Act [Bom. III of 1888] and;  (ii)
notice of 15 days in terms of Sopan’s case. It is also submitted
that the judgment in Sopan’s case holds the field till date, and
this Court agrees with the respondent that in terms of direction
no.2 in Sopan’s case, 15 days’ notice has to be given before
demolishing the structure. This Court is 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 Sopan’s case, 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.
[Para 12] [985-D-G]
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3.  This Court does 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, this Court again reiterates that the
illegal structure cannot be permitted to be re-erected.
[Para 16] [986-F-H]
4.  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. 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. [Para 17] [987-A-D]
5.  The 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.  There is no difficulty to find a
solution to this problem if the State is inclined to do so.  Till the
State frames any laws in this regard, this Court directs that before
any construction/reconstruction, or repair not being a tenantable
repair is carried out, the owner/occupier/builder/contractor/
architect, in fact all of them should be required to furnish a plan
of the structure as it exists.  This map can be taken on record
and, thereafter, the construction can be permitted.  In such an
eventuality even if the demolition is illegal it will be easy to know
what were the dimensions of the building.  This information should
not only be in paper form in the nature of a plan, but should also
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be in the form of 3D visual information, in the nature of
photographs, videos etc.  All over the country this Court finds
that when people raise illegal constructions it is claimed that the
said construction has been existing for long.  The answer is to
get Geomapping done.  The relevant technology is Geographic
Information System (GIS).  If on Google Maps one can get a road
view, there is no reason as to why this technology cannot be used
by the municipal corporations. [Paras 20, 21 and 22] [988-A-G]
6. Further directions regarding the manner in which the
evidence of illegal construction/reconstruction etc., is collected
and notices are issued and served. Therefore, the following
directions were issued:-
(1)  It will be obligatory for all Municipal Corporations in
the State of Maharashtra where the population is 50 lakhs or
more to get geomapping and geo-photography of the areas under
their jurisdiction done within a period of one year. Geomapping
will also be done of an area of 10 Kms. from the boundary of such
areas.  The records should be maintained and updated by the
Municipal Corporations within such time period as the Municipal
Corporation deems fit, keeping in mind the specific circumstances
of the area under its jurisdiction.
(2) Whenever any new area, which is not already
geomapped, is brought under the jurisdiction of a particular
municipality, it will be the duty of the concerned Municipal
Corporation to
ensure that geomapping of the area is conducted
and the geomapping records of such area are created at the
earliest.
(3) In cases where buildings are already existing and it is
alleged by the Municipal Corporation that the building has been
constructed in violation of applicable laws:-
3.1. The Commissioner/Competent Authority on coming
to know that an illegal building has been constructed, shall issue
a show cause notice giving 7 days in terms of Section 351 to the
owner/occupier/builder/contractor etc.  Along with this notice the
Commissioner/Competent Authority shall also send photographs
and visual images taken on the site clearly depicting the illegal
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structure.  Photographs and images should digitally display the
time and date of taking the photographs;
3.2. In case the notice is not replied to within the time
prescribed, i.e., 7 days, then the building shall be immediately
demolished by the Municipal Corporation;
3.3 In case the owner files a reply to the notice, the
Commissioner/Competent Authority of the Municipal
Corporation shall consider the reply and pass a reasoned order
thereon.  In case the reply is not found satisfactory then the order
shall be communicated in the manner laid down hereinafter to
the owner/occupier/builder/contractor etc. giving him further 15
days’ notice before demolition of the property.  During this period
the owner/occupier/builder/contractor etc. can approach the
appellate/revisional authority or the High Court.
(4) In those cases where according to the municipal
corporation there is ongoing construction which is being carried
on in violation of the applicable laws:-
4.1. The Commissioner/Competent Authority on coming
to know that there is ongoing construction in violation of the
applicable laws shall issue a show cause notice giving 24 hours in
terms of Section 351 to the owner/occupier/builder/contractor/
architect etc.  Along with this notice the Commissioner/
Competent Authority shall also send photographs and visual
images taken on the site clearly depicting the illegal structure.
Photographs and images should digitally display the time and date
of taking the
photographs;
4.2. The Commissioner/Competent Authority can also issue
an interim ‘stop-construction’ order along with the notice or any
time after issuing the notice. Such order shall also include the
relevant pictures of the alleged violation(s).  Photographs and
images should digitally display the time and date of taking the
photographs;
4.3. In case the notice is not replied to within the time
prescribed, i.e., 24 hours, then the building shall be immediately
demolished by the Municipal Corporation;
4.4. In case the owner/occupier/builder/contractor/architect
etc. files a reply to the notice, the Commissioner/Competent
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Authority of the Municipal Corporation shall consider the reply
and pass a reasoned order thereon.  In case the reply is not found
satisfactory then the order shall be communicated in the manner
laid down hereinafter to the owner/occupier/builder/contractor/
architect etc. giving him further 7 days’ notice before demolition
of the property. During this period the owner/occupier/builder/
contractor/architect etc. can approach the appellate/revisional
authority or the High Court.
(5) In regard to service of notice this Court directs
as follows :-
5.1. Wherever possible notice shall be served personally
on the person who is raising or has raised the illegal structure
including the owner/occupier/builder/contractor/architect etc.;
5.2. Notice, in addition to the traditional mode, can also be
sent through electronic means, both by e-mail and by sending a
message on the mobile phones.  Even a message to a foreman or
person-in-charge of the construction at the site will be deemed
to be sufficient notice;
5.3.  In the notice, the municipal authorities shall also give
an e-mail ID and phone number where the noticee can send his
reply through e-mail or messaging services.  This will hopefully
do away with all disputes with regard to alleged non-service of
notice.
6. Till the State frames any laws in this regard, this Court
directs that before any construction/reconstruction, or repair not
being a tenantable repair is carried
out, the owner/occupier/
builder/contractor/architect, in fact all of them should be required
to furnish a plan of the structure as it exists.  They will also
provide an e-mail ID and mobile phone number on which
notice(s), if any, can be sent.  This map can be taken on record
and, thereafter, the construction can be permitted.  In such an
eventuality even if the demolition is illegal it will be easy to know
what were the dimensions of the building.  This information should
not only be in paper form in the nature of a plan, but should also
be in the form of 3D visual information, in the nature of
photographs, videos etc. [Para 23] [989-B-H; 990-A-H; 991-A-
D]
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Sopan Maruti Thopte and Another v.  Pune Municipal
Corporation and Another AIR 1996 Bom 304
– approved.
Case Law Reference
AIR 1996 Bom 304
   approved
Para 3
CIVIL APPELLATE JURISDICTION : Civil Appeal No.7627
of 2019
From the Judgment and Order dated 26.03.2018 of the High Court
of Judicature at Bombay in Writ Petition No. 2613 of 2017
With
Civil Appeal No.7626 of 2019.
Atmaram N.S. Nadkarni, ASG, Ashish Wad, Ms. Priti Purandare,
Mrs. Jayashree Wad, Sidharth Mahajan, Ms. Sukriti Jaggi, Ajeyo Sharma,
M/s J S Wad And Co., Advs. for the Appellants.
Chirag M. Shroff, Bharat Zaveri, Ms. Mahima C. Shroff,
Ms.Yashika Verma, Advs. for the Respondent.
The Judgment of the Court was delivered by
DEEPAK GUPTA, J.
1. 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
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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 classics 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 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. Actor 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 15days’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.
1AIR 1996 Bom 304
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(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 with-
out 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.
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HIGH TECH DEVELOPERS PVT. LTD. [DEEPAK GUPTA, J.]
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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 con-
tinuing such violation.”
Statutory Provisions
4. The relevant provisions to deal with the issue in hand are cov-
ered 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 Corpora-
tion.  The phrase ‘to erect a building’ not only means erecting a new
building but also includes within its ambit
re-erection of any building by
demolishing the existing building entirely or erecting any building by re-
moving 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 erec-
tion 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-
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(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 re-erection 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;
 (c) lowering of plinth, foundations or floors;
(d) addition or extension of mezzanine floor or loft; and
(e) flattening of roof or repairing roof with different
material;
(c)  [* * *]
(cc) to make any alteration in a building involving-
(i) the sub-division of any room in such building so as
to convert the same into two or more separate
rooms,
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(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.
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(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 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 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.
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(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.”
Sub-section (1A) was the original sub-section (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.  Sub-section (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.  Sub-section(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 un-
authorised structure is re-erected 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.
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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 sub-section (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 15days’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 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 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.
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14. 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 re-erected.
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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. Sopan’s
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
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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.  Till the State frames any laws in this regard,
we direct that before any construction/reconstruction, or repair not being
a tenantable repair is
carried out, the owner/occupier/builder/contractor/
architect, in fact all of them should be required to furnish a plan of the
structure as it exists.  This map can be taken on record and, thereafter,
the construction can be permitted.  In such an eventuality even if the
demolition is illegal it will be easy to know what were the dimensions of
the building.  This information should not only be in paper form in the
nature of a plan, but should also be in the form of 3D visual information,
in the nature of photographs, videos etc.
22. All over the country we find that when people raise illegal
constructions it is claimed that the said construction has been existing
for long.  The answer is to get Geomapping done.  The relevant technology
is Geographic Information System (GIS).  If on Google Maps one can
get a road view, we see no reason as to why this technology cannot be
used by the municipal corporations.  At the first stage we direct that all
the cities in Maharashtra where the population is 50 lakhs or more the
municipal authorities will get Geomapping done not only of the municipal
areas but also of areas 10 Kms. from the outer boundary.  This can be
done by satellite, drones or vehicles.  Once one has the whole city
geomapped it would be easy to control illegal constructions.  We further
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direct the State of Maharashtra to ensure that sufficient funds are made
available to the municipal corporations concerned and this exercise should
be completed within a period of one year from the date of this order.
23. We also would like to give further directions regarding the
manner in which the evidence of illegal construction/reconstruction etc.,
is collected and notices are issued and served.  We, therefore, issue the
following directions:-
(1)  It will be obligatory for all Municipal Corporations in the State
of Maharashtra where the population is 50 lakhs or more to get
geomapping and geo-photography of the areas under their jurisdiction
done within a period of one year. Geomapping will also be done of an
area of 10 Kms. from the boundary of such areas.  The records should
be maintained and updated by the Municipal Corporations within such
time period as the Municipal Corporation deems fit, keeping in mind the
specific circumstances of the area under its jurisdiction.
(2) Whenever any new area, which is not already geomapped, is
brought under the jurisdiction of a particular municipality, it will be the
duty of the concerned Municipal Corporation to ensure that geomapping
of the area is conducted and the geomapping records of such area are
created at the earliest.
(3)  In cases where buildings are already existing and it is alleged
by the Municipal Corporation that the building has been constructed in
violation of applicable laws:-
3.1. The
Commissioner/Competent Authority on coming to know
that an illegal building has been constructed, shall issue a show cause
notice giving 7 days in terms of Section 351 to the owner/occupier/
builder/contractor etc.  Along with this notice the Commissioner/
Competent Authority shall also send photographs and visual images
taken on the site clearly depicting the illegal structure. Photographs and
images should digitally display the time and date of taking the
photographs;
3.2. In case the notice is not replied to within the time prescribed,
i.e., 7 days, then the building shall be immediately demolished by the
Municipal Corporation;
3.3 In case the owner files a reply to the notice, the
Commissioner/Competent Authority of the Municipal Corporation shall
consider the reply and pass a reasoned order thereon.  In case the reply
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is not found satisfactory then the order shall be communicated in the
manner laid down hereinafter to the owner/occupier/builder/contractor
etc. giving him further 15 days’ notice before demolition of the property.
During this period the owner/occupier/builder/contractor etc. can
approach the appellate/revisional authority or the High Court.
(4) In those cases where according to the municipal corporation
there is ongoing construction which is being carried on in violation of the
applicable laws:-
4.1. The Commissioner/Competent Authority on coming to know
that there is ongoing construction in violation of the applicable laws shall
issue a show cause notice giving 24 hours in terms of Section 351 to
the owner/occupier/builder/contractor/architect etc. Along with this
notice the Commissioner/Competent Authority shall also send
photographs and visual images taken on the site clearly depicting the
illegal structure. Photographs and images should digitally display the time
and date of taking the photographs;
4.2. The Commissioner/Competent Authority can also issue an
interim ‘stop-construction’ order along with the notice or any time after
issuing the notice. Such order shall also include the relevant pictures
of the alleged violation(s).Photographs and images should digitally
display the time and date of taking the photographs;
4.3. In case the notice is not replied to within the time prescribed,
i.e., 24 hours, then the
building shall be immediately demolished by the
Municipal Corporation;
4.4. In case the owner/occupier/builder/contractor/architect etc.
files a reply to the notice, the Commissioner/Competent Authority of
the Municipal Corporation shall consider the reply and pass a reasoned
order thereon.  In case the reply is not found satisfactory then the order
shall be communicated in the manner laid down hereinafter to the owner/
occupier/builder/contractor/architect etc. giving him further 7 days’
notice before demolition of the property.  During this period the owner/
occupier/builder/contractor/architect etc. can approach the appellate/
revisional authority or the High Court.
(5) In regard to service of notice we direct as follows :-
5.1. Wherever possible notice shall be served personally on the
person who is raising or has raised the illegal structure including the
owner/occupier/builder/contractor/architect etc.;
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5.2. Notice, in addition to the traditional mode, can also be sent
through electronic means, both by e-mail and by sending a message on
the mobile phones.  Even a message to a foreman or person in-charge
of the construction at the site will be deemed to be sufficient notice;
5.3 In the notice, the municipal authorities shall also give an
e-mail ID and phone number where the noticee can send his reply through
e-mail or messaging services.  This will hopefully do away with all disputes
with regard to alleged non-service of notice.
(6) Till the State frames any laws in this regard, we direct that
before any construction/reconstruction, or repair not being a tenantable
repair is carried out, the owner/occupier/builder/contractor/architect, in
fact all of them should be required to furnish a plan of the structure as it
exists.  They will also provide an e-mail ID and mobile phone number on
which notice(s), if any, can be sent.  This map can be taken on record
and, thereafter, the construction can be permitted.  In such an eventuality
even if the demolition is illegal it will be easy to know what were the
dimensions of the building.  This information should not only be in paper
form in the nature of a plan, but should also be in the form of 3D visual
information, in the nature of photographs, videos etc.
24. As far as Civil Appeal No. 7627 of 2019 @ SLP(C) No.15909
of 2018 is concerned the structure has been rebuilt.  That obviously
cannot be un-done now.  We,
however, direct the municipal corporation
to ensure that fresh notice is issued to the respondent and thereafter
action is taken strictly in accordance with law.  The whole process should
be completed within a period of three months.  In case an order adverse
to the respondent is passed by the municipal corporation, then the
respondent will be at liberty to approach the High Court and raise all
grounds available to it.
25. As far as Civil Appeal No.7626 of 2019 @ SLP(C)No.16489
of 2018 is concerned, reconstruction has not been done and, therefore,
we partly allow the appeal and set aside the order of the High Court to
the extent it allows reconstruction.  We remit the matter to the High
Court which is requested to proceed in accordance with law laid down
in this case.
26. Both the appeals are disposed of in the above terms.  The
Registrar General of the Bombay High Court shall cause copies of this
judgment to be served upon the Chief Secretary, State of Maharashtra
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as well as Principal Secretary, Urban Development Department, Mumbai,
Maharashtra, who will ensure that copy of this judgment is served upon
all the municipal corporations in the entire State of Maharashtra.  Pending
application(s), if any, also stand(s) disposed of.
Ankit Gyan
                                         Appeals disposed of.