When the burden of proof is on the Municipal Corporation to prove that construction is unauthorised?

  It is trite that if a person or an authority alleges that a structure is an unauthorized one, the authorization or the permission must first be placed on record. Thereafter it has to be shown as to how the structure has deviated from the authorization or the permission. Obviously, the initial burden would be on the person or the authority who alleges that the structure is unauthorized. In such circumstances, the most crucial document would be the original or initial authorization / permission. In the present case, respondents have not been able to produce the same to show that the old structure had size of 50' x 25'. On the other hand, Deputy Municipal Commissioner has taken the stand that all the documents including assessment bills etc. produced by the petitioner pertained to the old

structure under assessment No.GN-6255 (1B) which is no longer in existence. He held that no documents could be produced by the petitioner relating to the new structure which was constructed without obtaining permission from the municipal authorities and therefore it is unauthorized. As already discussed above, this

reasoning is absurd in as much as the new structure has been constructed as per order of this Court after the petitioner was given liberty to re-construct the demolished structure since the demolition was found to be ex-facie illegal by this Court. Therefore, by no stretch the re-constructed structure can be construed to be an unauthorized one.{Para 49}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1447 OF 1995

Shri Vadilal Maganlal Trevadia Vs. Bombay Municipal Corporation 

CORAM : UJJAL BHUYAN, J.

Reserved on : JANUARY 16, 2020

Pronounced on : JUNE 09, 2020

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Supreme Court guidelines on demolition of unauthorized construction by Municipal Corporation

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 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.;

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.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7627 and 7626 of 2019

Decided On: 24.10.2019

 Municipal Corporation of Greater Mumbai  Vs.  Sunbeam High Tech Developers Private Ltd.

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation: AIR 2019 SC 5435, 2020 (1) ALLMR (SC) 967,  MANU/SC/1467/2019

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Whether court should accept undertaking given by tenants that they are residing in dilapidated building at their own risk?

 First, there is the matter of occupants offering to give an
‘undertaking’. We are conscious that this approach has gained much
currency, especially in the last few years. It is now more or less
routine for lawyers to blithely offer on behalf of their clients an
‘undertaking to continue in occupation at their own risk’. Mr
Damani says so too. We find this unacceptable on facts. These
tenants/occupants, paying paltry or no rent, have so far paid next to
nothing towards maintenance of the structure that they occupy. We
must notice Section 14 of the Maharashtra Rent Control Act, 1999:
14. Landlords’ duty to keep premises in good repair.
(1) Notwithstanding anything contained in any law for
the time being in force and in the absence of an agreement
to the contrary by the tenant, every landlord shall be bound
to keep the premises in good and tenantable repair.


(2) If the landlord neglects to make any repairs,
which he is bound to make under sub-section (1), within
a reasonable time after a notice of fifteen days is served
upon him by post or in any other manner by a tenant or
jointly by tenants interested in such repairs, such tenant
or tenants may themselves make the same and deduct
the expenses of such repairs from the rent or otherwise
recover them from the landlord:
Provided that, where the repairs are jointly made by
the tenants the amount to be deducted or recovered with
interest by each tenant shall bear the same proportion as the
rent payable by him in respect of his premises bears to the
total amount of the expenses incurred for such repairs
together with simple interest at fifteen per cent per annum
on such amount:
Provided further that, the amount so deducted or
recoverable in any year shall not exceed one-fourth of the
rent payable by the tenant for that year.
(3) For the purposes of calculating the expenses of the
repairs made under sub-section (2), the accounts together
with the vouchers maintained by the tenants shall be
conclusive evidence of such expenditure and shall be
binding on the landlord.
(Emphasis added)
There is absolutely nothing presented to us to indicate that the
Petitioners ever resorted to Section 14(2). It is not as if the building
suddenly became so ruinous overnight. The process had to be
gradual, spanning decades. In all that time, not one of these
occupants or tenants have once cared to take any steps to maintain

the structure. Section 14 of the Rent Act casts a duty on a property
owner to maintain the premises in tenantable repair. But it also gives
tenants the right to force those repairs should the landlord be
recalcitrant. These tenants have done nothing. Their own report
shows that extensive repairs are, even according to them, necessary.
They only say that there is no need to tear down the building. They
do not say the building is in such mint condition that it needs no
repairs at all. Indeed, our experience is that when tenants are asked
to contribute essential repairs, these are resisted and it is only when
the building is so completely dilapidated that there is no option but
to have it evacuated, pull down and reconstructed that such offers of volunteering to pay for repairs come to be made.
29. We do not accept that there is any warrant or support for this
‘undertaking jurisprudence’. After all, what is the nature of such an
undertaking? What is its value? Typically, the undertaking is worded
to say the occupants will continue in occupation at their own risk;
that they will not hold anyone liable if there is a calamity; and that
they agree to be liable for any losses to life or property of third
parties including passers-by. We fail to see the value of such an
undertaking. If it is meant or conceived to be in form of some sort of
generalized, non-specific indemnity, then it is utterly useless.
Should there be a mishap to the person giving the undertaking,
perhaps even a loss of life, then that undertaking, no matter what its
verbiage and legalese, serves no purpose at all. In that situation, it
can never be enforced. To put it pithily, when the ‘undertaker’
meets his maker, he is beyond the reach of the law. Therefore, in our
view, the practice of permitting persons to continue in occupation
on the basis of such undertakings has no warrant in law. In fact, it is

contrary to the specific mandate of the law. These “undertakings”,
in the form noted earlier, may hold none responsible, but does that
absolve the public body from the loss caused to a third party (an
innocent passer-by or one residing in the neighbourhood), or give
the public body complete and total immunity from all legal
proceedings or the consequences of any verdict rendered therein?
The answer is obviously no. It is extremely doubtful whether it can
be urged that an undertaking of this nature described above, even if
filed in and accepted by the Court, releases the MMC from the
statutory obligation and duty it owes to the public at large.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1755 OF 2019

 Mahendra Bhalchandra Shah Vs  Municipal Corporation of
Grater bombay

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Whether court should grant status quo order to demolition notice issued by municipal corporation?

The second aspect is the trend of making an order directing
parties to ‘maintain the status quo’. This is effectively what is sought
even in this writ petition when the petitioners seek from us a writ
commanding the restoration of power and water supply and a
restraint against the forced demolition of the structure. In the case

of a building subjected to a Section 354 notice we do not even
pretend to understand what, if anything, an order of ‘status quo’
(whatever the wording) is supposed to mean. Is it that the building
should continue to degrade and become more ruinous? Or is that
that occupants should continue to be a hazard to themselves or
others or both, contrary to the public law mandate of the statute? Or
is it supposed to be some final determination that the building is not,
in fact, so structurally damaged as to warrant its being pulled down?
If so, then that is a final determination — and one that weight of
precedent says is clearly impermissible — and cannot constitute an
interim or ad interim order.

 We do not suggest that in no case can an order of status quo
ever be made. But it is our considered view that an order of status
quo can be passed only in circumstances that are so sufficiently
precise that both sides and the Court encounter no ambiguity about
the state of affairs that are ordered to be retained as-is.8 The
expression ‘status quo’ means ‘the existing state of affairs’; ‘the
situation that currently exists’;9 or to keep things as they presently
are. It is the nominative form of the prepositional Latin phrase, in
statu quo, literally ‘in the state in which’. In the case of a dilapidated
building, a generalized order of status quo without reference to a
specific or know state of affairs only means that the building should
be allowed to continue to deteriorate further, and that persons are
allowed to continue to occupy the building that has been found to be
8 In Kishore Kumar Khaitan & Anr v Praveen Kumar Singh, (2006) 3 SCC
312, the Supreme Court said it was not proper to order a status quo (there, in
respect of premises) without indicating what the status quo was.
9 Black’s Law Dictionary, 7th Edition.

dangerous not only to themselves but to the general public. Such an
order of status quo itself poses and carries a risk not only to the
occupants themselves but also to others who are not connected with
the present litigation at hand. That stripe of generalized, nonspecific
status quo order in Section 354 cases is contrary to law, to
statute, to precedent, and even logic: there can be no status quo
preventing the monsoon, for instance, or any other force of nature,
nor will it operate to prevent continuing structural degradation over
time. Such a non-specific order of status quo is therefore entirely
impermissible. If necessary, a court will decide the case finally there
and then at the stage of admission (as we have this one).

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1755 OF 2019

 Mahendra Bhalchandra Shah Vs  Municipal Corporation of
Grater bombay


CORAM : S. C. Dharmadhikari & G.S.Patel, JJ.

DATED : 24TH JUNE 2019

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Bombay High court has upheld constitutional validity of BMC Amendment Act 2009 levying capital value tax

 Our conclusions can be summarized as under:

(i) We uphold the constitutional validity of the provisions of the BMC Act which are under challenge;

(ii) The Capital Value Rules of 2010 shall apply prospectively from the date on which the same were made;

(iii) We strike down rules 20, 21 and 22 of Capital Value Rules of 2010 and 2015. As far as rules 3 and 17 are concerned, we hold that as rule 21 has been struck down, the capital value of properties covered by the said rules shall not be fixed in accordance with rule 21. As a result of striking down of rules 20, 21 and 22, in those cases where the capital value has been finally fixed either by issuing notice under section 162 of the BMC Act or by issuing final bills, the Commissioner or the officer empowered to exercise delegated powers will have to re-determine the capital value in accordance with sub-section (1A) of section 154 and serve a fresh special assessment notice. We hold that if a complaint is filed after service of special assessment notice, the same shall be disposed of only after giving an opportunity of being heard to the assessee filing such complaint. Only after the complaint is disposed of in such a fashion, a final bill can be served.

(iv) As the Municipal Commissioner will require a reasonable time to do the tasks as aforesaid, the interim orders which are operating in these petitions will have to be continued till the service of final bills. We also make it clear that though we are setting aside the final bills issued, no party will be entitled to claim refund of the amounts paid under the interim orders and till the final bills are served, the petitioners will have to pay the amounts as per the interim orders.

(v) This judgment will apply only to the properties subject matter of the petitions in this group except Writ Petition No. 2592 of 2013 and PIL 46 OF 2014. We make it clear that only those special assessment notices and final bills which are specifically challenged will stand set aside. In Writ Petition No. 2592 of 2013, the fresh exercise will have to be undertaken only in relation to the properties in respect of which there is a specific prayer for quashing the notices and bills based on final assessment. The details of properties held by 610 members in the lead petition are not set out. Hence, no relief can be extended to the properties of the said members save and except the properties subject matter of bills and notices which are expressly challenged.

(vi) This judgment will not affect the final bills which are accepted by the concerned owners.

In the High Court of Bombay

(Before A.S. Oka and Riyaz I. Chagla, JJ.)

Writ Petition No. 2592 of 2013

Property Owners Association Vs State of Maharashtra

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Can a citizen take action against BMC for dirty water?

Backdrop: Very often we find a municipal corporation supplying water which is contaminated, and even mixed with sewage. Can a citizen take action against the municipality for negligence in supplying water which is potable and fit for human consumption? This interesting issue has been recently decided by the National Commission in a landmark judgment dated April 20, 2008 in the case of Consumer Education & Research Society (CERS) & Ors. v/s Ahmedabad Municipal Corporation (AMC) & Ors. Case Study: Epidemics of waterborne diseases were a regular occurrence in Ahmedabad since 1978. When an epidemic of cholera and gastro-enteritis broke out it in 1988, CERS filed a consumer complaint which was dismissed for lack of evidence to substantiate that the epidemic was due to contaminated water. However, the Commission recorded the assurance given by the then Advocate General of Gujarat about the proposed steps to be taken to bring about the improvement of hygiene and sanitation in the municipal corporation and for elimination of chances of contamination of water supply. 

    In November 1993, a jaundice outbreak occurred in Ahmedabad which resulted in about 100 deaths and, according to official records, affected 

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Whether it is mandatory to issue statutory notice to municipal corporation if urgent relief is required?

It was firstly contended by the advocate for the appellant that the suit should not have been dismissed for want of notice under section 527 of the BMC Act i.e. the statutory notice before institution of a suit, because the suit had to be filed in urgency. According to the plaintiff, on 25th or 26th May 1979 one Shridharkar, officer of the BMC threatened them that they would demolish the house and take forcible possession. Therefore the suit had to file in hurry to prevent the threat from being executed or materialised. The suit was infact filed on 25th May 1979 and therefore in the circumstances it was not necessary and obligatory on the part of the plaintiff to serve statutory notice under section 527. I find considerable force in this argument and submissions. There are rulings on this point that when the plaintiff wants to seek immediate relief from the court in the form of injunction, it is not necessary for him to issue statutory notice or wait till the statutory notice is served and the period prescribed under section 527 of the Act is over. (to verify) Therefore the dismissal of the suit by the court on that count and with reference to that issue is not proper. The finding in that regard is required to be set aside.

Bombay High Court

Motillal Mahadev Sharma (Since ... vs The Municipal Corporation Of ... on 1 April, 2005

Equivalent citations: AIR 2005 Bom 344, 2006 (2) BomCR 409; 2005 (3) ALL MR869

D.G. Deshpande, J.

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