Repair Permissions From BMC Do Not Prove Legality Of Structure: Bombay High Court Refuses Relief Against Demolition

 In our view, the repair permissions granted by the BMC, would not by itself, conclusively prove that a structure existed prior to the datum line. Any permission/s granted by the BMC either for alteration or modification a structure, though it may carry a presumption regarding the existence of such structure, cannot conclusively establish that the structure existed prior to the datum line unless the same is independently substantiated by supporting documents. In our view, such a permission granted would only show the abysmal state of BMC affairs. The BMC could not have granted any such permission without ascertaining the legality of the said structure. {Para 16}

17) In our considered view, the concerned Officers who gave such permissions are responsible and the cause of these rampant illegalities in the State. It is imperative for the Officers of the BMC to check as to whether the structure is authorized before granting any such repair permission. The failure per se cannot inure to the benefit of the wrongdoer. A permission to repair a structure, given subsequent to the datum line, cannot prove either its existence prior to datum line or it being authorised. In our view, granting reliefs to the Petitioners would only encourage the public perception that one can construct illegally and regularise the same by obtaining such permissions subsequently. It would render the entire object of the legislature to have a planned development and having the Municipal Act nugatory and otiose resulting in illegalities being confirmed and ratified by subsequent repair permissions.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.3448 OF 2023

 Siesta Industrial & Trading Corporation,  V/s. The Municipal Corporation of  Greater Mumbai, 

CORAM : A. S. GADKARI AND KAMAL KHATA, JJ.

PRONOUNCED ON : 29th April, 2026.

Judgment (Per : Kamal Khata, J) :-

Citation: 2026:BHC-OS:11078-DB

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Supreme Court: Demolition Of House For Crime Of One Person Amounts To 'Collective Punishment' On Entire Family Which Is Impermissible

VIII. PERMISSIBILITY OF THE COLLECTIVE PUNISHMENT

87. Right to life is a fundamental right. As already discussed herein above, with the expanded scope of law, the right to shelter has also been considered as one of the facets of Article 21 of the Constitution. In one structure, various people or maybe even a few families could reside. The question that is required to be considered is, as to whether if only one of the residents of such a structure is an Accused or convicted in a crime, could the authorities be permitted to demolish the entire structure thereby removing the shelter from the heads of the persons who are not directly or indirectly related with the commission of crime.

88. It is a settled principle of criminal jurisprudence as recognized in our country that a person is presumed to be innocent till he is held guilty. In our view, if demolition of a house is permitted wherein number of persons of a family or a few families reside only on the ground that one person residing in such a house is either an Accused or convicted in the crime, it will amount to inflicting a collective punishment on the entire family or the families residing in such structure. In our considered view, our constitutional scheme and the criminal jurisprudence would never permit the same.

89. In this respect, it will be apposite to refer to the following observations of Justice Krishna Iyer in the case of Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor Sabha and Ors.   MANU/SC/0369/1979 : 1979:INSC:244 : (1980) 2 SCC 593:

111. The cardinal distinction in our punitive jurisprudence between a commission of enquiry and a court of adjudication, between the cumulative causes of a calamity and the specific guilt of a particular person, is that speaking generally, we have rejected, as a nation, the theory of community guilt and collective punishment and instead that no man shall be punished except for his own guilt. Its reflection in the disciplinary jurisdiction is that no worker shall be dismissed save on proof of his individual delinquency. Blanket attainder of a bulk of citizens on any vicarious theory for the gross sins of some only, is easy to apply but obnoxious in principle.

 IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 295 of 2022,

Decided On: 13.11.2024

In Re: Directions in the matter of demolition of structures

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: B.R. Gavai, J.

Citation:  MANU/SC/1211/2024.

Read full Judgment here: Click here.

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Supreme Court: Right To Shelter A Facet Of Article 21; State Must Satisfy Why Entire Property Needs To Be Demolished

 VII. RIGHT TO SHELTER

76. There is another angle to this problem. It is not only the Accused who lives in such property or owns such property. If his spouse, children, parents live in the same house or co-own the same property, can they be penalized by demolishing the property without them even being involved in any crime only on the basis of them being related to an alleged Accused person? What is their mistake if their relative is arrayed as an Accused in some complaint or F.I.R.? As is well known, a pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution.

78. The right to shelter is one of the facets of Article 21. Depriving such innocent people of their right to life by removing shelter from their heads, in our considered view, would be wholly unconstitutional.

81. The position is disputed by the learned Counsels appearing on behalf of the Petitioners/applicants. It is stated that the chain of events clearly depicts that the demolition of the houses was an immediate reflection of the persons being implicated in crimes. It was submitted that the time gap between the person being named as an Accused and demolition of his property/properties made it apparent that the punishment of demolition was inflicted by the executive on such person being arrayed as an Accused. It was also submitted that in case of demolition of the property of an alleged Accused, it is difficult to believe that only a single construction belonging to an Accused is unauthorized construction, whereas all other structures in the vicinity are legal and authorized as per local laws.

82. Though the learned SG may be right in submitting that in some cases it may be by sheer coincidence that the properties which were in breach of local municipal laws governing them also happen to belong to the Accused persons, however, when a particular structure is chosen all of a sudden for demolition and the rest of the similarly situated structures in the same vicinity are not even being touched, mala fide may loom large. In such cases, where the authorities indulge into arbitrary pick and choose of the structures and it is established that soon before initiation of such an action an occupant of the structure was found to be involved in a criminal case, a presumption could be drawn that the real motive for such demolition proceedings was not the illegal structure but an action of penalizing the Accused without even trying him before the court of law. No doubt, such a presumption could be rebuttable. The authorities will have to satisfy the court that it did not intend to penalize a person Accused by demolishing the structure.

83. While considering the issue with regard to the demolition of the houses which are required to be demolished for breach of the local laws, we find that the principle of the Rule of law needs to be considered even in the municipal laws. There may be certain unauthorized constructions which could be compoundable. There may be certain constructions wherein only part of the construction is required to be removed. In such cases, the extreme step of demolition of the property/house property would, in our view, be disproportionate.

84. As already discussed herein above, the right to shelter is one of the facets of Article 21 of the Constitution. If the persons are to be dishoused, then for taking such steps the concerned authorities must satisfy themselves that such an extreme step of demolition is only available and other options including compounding and demolition of only part of the house property are not available. 

86. It is also to be noted that the construction of a house has an aspect of socio-economic rights. For an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations. A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future. Having a house or a roof over one's head gives satisfaction to any person. It gives a sense of dignity and a sense of belonging. If this is to be taken away, then the authority must be satisfied that this is the only option available.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 295 of 2022,

Decided On: 13.11.2024

In Re: Directions in the matter of demolition of structures

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: B.R. Gavai, J.

Citation:  MANU/SC/1211/2024.

Read full Judgment here: Click here.

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Supreme Court guidelines regarding demolition of construction by public Authorities- Bulldozer justice

IX. DIRECTIONS

90. In order to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State, we find it necessary to issue certain directions in exercise of our power Under Article 142 of the Constitution. We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum. We are further of the view that even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens would not fall on the authorities if they hold their hands for some period.

91. At the outset, we clarify that these directions will not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law.

A. NOTICE

i. No demolition should be carried out without a prior show cause notice returnable either in accordance with the time provided by the local municipal laws or within 15 days' time from the date of service of such notice, whichever is later.

ii. The notice shall be served upon the owner/occupier by a registered post A.D. Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question.

iii. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice.

iv. To prevent any allegation of backdating, we direct that as soon as the show cause notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate of the district digitally by email and an auto generated reply acknowledging receipt of the mail should also be issued from the office of the Collector/District Magistrate. The Collector/DM shall designate a nodal officer and also assign an email address and communicate the same to all the municipal and other authorities in charge of building Regulations and demolition within one month from today.

v. The notice shall contain the details regarding:

a. the nature of the unauthorized construction.

b. the details of the specific violation and the grounds of demolition.

c. a list of documents that the noticee is required to furnish along with his reply.

d. The notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place;

vi. Every municipal/local authority shall assign a designated digital portal, within 3 months from today wherein details regarding service/pasting of the notice, the reply, the show cause notice and the order passed thereon would be available.

B. PERSONAL HEARING

i. The designated authority shall give an opportunity of personal hearing to the person concerned.

ii. The minutes of such a hearing shall also be recorded.

C. FINAL ORDER

i. Upon hearing, the designated authority shall pass a final order.

ii. The final order shall contain:

a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof;

b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor;

c. if the designated authority finds that only part of the construction is unauthorized/non- compoundable, then the details thereof.

d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available.

D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER.

i. We further direct that if the statute provides for an appellate opportunity and time for filing the same, or even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof. The order shall also be displayed on the digital portal as stated above.

ii. An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. Only after the period of 15 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the unauthorized construction, and if the same is not stayed by any appellate authority or a court, the concerned authority shall take steps to demolish the same. It is only such construction which is found to be unauthorized and not compoundable shall be demolished.

iii. Before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two Panchas.

E. PROCEEDINGS OF DEMOLITION

i. The proceedings of demolition shall be video-graphed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process. Video recording to be duly preserved.

ii. The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal.

92. Needless to state that the authorities hereinafter shall strictly comply with the aforesaid directions issued by us.

93. It will also be informed that violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution.

94. The officials should also be informed that if the demolition is found to be in violation of the orders of this Court, the officer/officers concerned will be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 295 of 2022,

Decided On: 13.11.2024

In Re: Directions in the matter of demolition of structures

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: B.R. Gavai, J.

Citation:  MANU/SC/1211/2024.

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Whether the court should interfere in notice issued by Municipal Corporation for demolition of dilapidated structure?

This Court has examined the notice dated 18.11.2020, issued by respondent Nos. 3 and 4. It prima facie does not appear to be issued in a mechanical manner. There is reference made to the area of two storied structure, the condition of the structure as being bad and at various places even the walls having cracks in the said structure. It is then stated that demolition of the structure is necessary for larger good and to avoid any danger to human life. A structural audit report dated 27.10.2020 is on the record on the file of respondent Nos. 3 and 4 and having applied the same, the said notice has been issued. {Para 20}

21. In this backdrop, there is substance in the reliance placed by the learned counsel appearing for respondent Nos. 3 and 4 on judgement in the case of M/s. Sai Auto Parts and others Vs. State of Maharashtra and Ors. (supra), wherein the Division Bench of this Court has observed that the Court cannot sit in appeal over the satisfaction of the respondent-Corporation in such matters. There is also substance in reliance placed by learned counsel for respondent Nos. 3 and 4 on judgment in the case of Dattatray Ambo Mhatre & Ors. Vs. The State of Maharashtra & Ors.(supra), wherein the Division Bench of this Court observed that the Municipal Corporation is the only authority empowered to make such structural audits and to arrive at a decision to issue such a notice under Section 264 of the said Act, upon being satisfied, that it is necessary in the facts and circumstances of the individual case. Reliance placed on observations made by the Division Bench of this Court in the case of High Court on its own motion (in the matter of Jilani Building at Bhiwandi) Vs. Bhiwandi Nizampur Municipal Corporation & Ors.(supra) is also apposite for the reason that in the said judgment, it has been laid down as to why Courts ought not to interfere in such matters where safety of human lives is involved. It has been emphasized that a life lost is lost forever and the alternative is unimaginable. The learned counsel is also justified in relying upon the observations made by the Division Bench of this Court in the case of Municipal Corporation of Greater Mumbai Vs. State of Maharashtra(supra), wherein, inter alia, it is indicated that tenancy rights and dispute between the landlords and tenants would have nothing to do with a situation covered under Section 264 of the said Act, because what is important in such cases, is the material indicating satisfaction of the concerned authority, while issuing notice.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1871/2022

Decided On: 22.06.2022

Mahadeo  Vs. Vimalbai and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation:  MANU/MH/4921/2022

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Guidelines of Andhra Pradesh High Court (Full bench) for demolition of unauthorized construction by Municipal Corporation

 Having regard to the rampant, illegal and unauthorised constructions raised in the country as observed in State of Maharashtra's case MANU/SC/0335/1991 : [1991] 2 SCR 745 a (supra) before parting with this case, we would like to formulate the following guidelines to be followed by the respondent in respect of illegal constructions. The guidelines should not be treated as exhaustive but only illustrative and the discretion to be exercised by the Corporation in any given case should not be arbitrary or, capricious.

1) In cases where applications having been duly filed in accordance with law, after fulfilling all requirements, seeking permission to construct buildings and permission was also granted by the Corporation, the power of demolition should be exercised by the Corporation only if the deviations made, during the construction are not in public interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations of violations are minor, minimal or trivial which do not affect public at large, the Corporation will not resort to demolition.

2) whatever is stated in guideline number (1) will also equally apply to the permissions deemed to have been granted under Section 437 of "The Act".

3) If no application has been filed seeking permission and the construction is made without any permission whatsoever, it is open to the Corporation to demolish and pull down or remove the said unauthorised structure in its discretion. Otherwise, having regard to the facts and circumstances of the case, it will be putting a premium on the unauthorised construction.

When the Corporation comes to the conclusion, keeping the above guidelines in view, that the construction in question is required to be demolished or pull down, it should follow the procedure indicated below:

(i) The demolition should not be resorted to during festival days declared by the State Government as public holidays excluding Sundays. If the festival day declared by the Government as a public holiday falls on a Sunday, on that Sunday also, the Corporation should not resort to demolition.

(ii) In any case, there should not be any demolition after sun set and before sun rise.

(iii) The Corporation should give notice of demolition as required by the statute fixing the date of demolition. Even on the said date, before actually resorting to the demolition, the Corporation should give reasonable time, depending upon the premises sought to be demolished, for the inmates to withdraw from the premises. If within the time given the inmates do not withdraw, the Corporation may proceed with actual demolition;

These guidelines are laid down in view of the fact that the Corporation is a public authority and its action must be tested on the touchstone of fairness and reasonableness. {Para 36}

 IN THE HIGH COURT OF ANDHRA PRADESH

Writ Petn. No. 10019 of 1993

Decided On: 02.09.1994

3 Aces, Hyderabad Vs.  Municipal Corporation of Hyderabad

Hon'ble Judges:

S.S.M. Quadri, P.L.N. Sarma and B.S. Raikote, JJ.

Author: P.L.N. Sarma, J.

Citation:  MANU/AP/0002/1995

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AP HC: Municipal Corporations should not demolish construction if there are Minor Violations In the Construction Of a Building Which Do Not Affect the Public At Large

In cases where applications having been duly filed in accordance with law, after fulfilling all requirements, seeking permission to construct buildings and permission was also granted by the Corporation, the power of demolition should be exercised by the Corporation only if the deviations made during the construction are not in public interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations or violations are minor, minimal or trivial which do not affect public at large, the Corporation will not resort to demolition.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Writ Petition No. 25816 of 2022

Decided On: 16.08.2022

 E.V. Rama Rao  Vs.  The State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:

Ravi Nath Tilhari, J.

Citation: MANU/AP/1331/2022

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Is notice affixed on the door of premises valid if there is no proof that attempts were made to serve notice personally?

 Section 239 gives the procedure relating to authentication of service of a valid notice. It is provided by sub-s. (1) that every such notice may be served in the manner provided for the service of summons in the Civil Procedure Code so far as may be applicable. The High Court found that the notice under s. 129 had not been served in accordance with law and no proof was adduced by way of an affidavit of the process server or any other officer of the Municipality that any attempt was made to serve the notices on the petitioners personally. It cannot be and indeed it has not been disputed that notices were not served in accordance with the procedure prescribed for service of summons in the Civil Procedure Code. Even if we (1)-(Civil Appeal No. 493 of 1967) decided on 3.5.1972.accept what Dr. Singhvi says that there was a refusal to, accept the summons and that was the reason for effecting service by affixation the provisions of O.5, R.19 of the Code were not complied with by the filing of an affidavit of the serving officer etc. All that has been pointed out by Dr. Singhvi is that the notices were produced along with the writ petitions which showed that they had been affixed to the premises and that in' the writ petitions it was admitted that notices had been affixed on January 9, 1968 on the properties of the petitioners. We do not consider that any such averment dispensed with the requirement of the statutory provision contained in S. 239 of the Municipal Act in the matter of service of notices.

 Supreme Court of India

State Of Jammu And Kashmir & Ors vs Haji Wali Mohammed And Others on 8 August, 1972

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Whether twenty-four hours notice given by the Municipal corporation for demolition of premises where owners are carrying on business is valid?

Considering that at no previous stage the officers of the Municipality had formed an opinion that the structures in question were in such a dangerous condition or were so dilapidated that they should be demolished the notices which were given and the drastic step of demolition which was desired to be taken in 24 hours on the face of it appeared to be rather harsh and unusual. The time of 24 hours which was given for demolition was so short that in spite of Dr. Singhvi's arguments we have not been persuaded to hold that it was a reasonable time. The petitioners had to make some arrangements for removal of either their goods or business equipment or whatever articles that were lying in these buildings or structures. We have no manner of doubt that the notices issued to the respondents before us did not comply with the provisions of s. 238 of the Municipal Act and the time which was granted was so short that it was not possible for the respondents either to comply with the notices or to take any effective, steps in the matter of filing any appeal or revision to the appropriate authorities. Owing to the non-compliance with the provisions of ss. 239 and 238 of the Municipal Act the action taken by the Municipality in the matter of demolition must be held to be entirely illegal and contrary to law.

 Supreme Court of India

State Of Jammu And Kashmir & Ors vs Haji Wali Mohammed And Others on 8 August, 1972

Author: A Grover

BENCH:GROVER, A.N. PALEKAR, D.G.

Citations: 1972 AIR 2538, 1973 SCR (1) 801

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Is the landlord a proper party in a suit for perpetual injunction for restraining Municipal corporation from demolishing rented premises?

The question is: whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the demolition of which notice under Section 351 was issued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licences would be in jeopardy. It may be that the construction which is sought to be demolished by the Municipal Corporation was made with or without the consent of the landlord or the lessor. But the demolition would undoubtedly materially affect the right, title and interest in the property of the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Corporation for perpetual injunction restraining the Municipal Corporation from demolition of the building.

 Supreme Court of India

M/S. Aliji Momonji & Co vs Lalji Mavji & Ors on 12 July, 1996

Citations: JT 1996 (7) 53, 1996 SCALE (5)485

Author: K Ramaswamy

Bench: Ramaswamy, K.

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Whether a party can claim protection from demolition if he has not complied with requirements of Gunthewari Act?

  As far as Second Appeal Nos. 48 of 2018,35 of 2018, 37 of 2018 & Second Appeal (ST) no.2243 of 2019 are concerned, learned counsel for the appellant would urge that Gunthewari Act prescribes a procedure for regularisation of unauthorised properties at the behest of holder of such unauthorised plots/structures.According to him, amongst other, concerned plot holder is required to place on record documentary proof of ownership or lawful possession of plot, existing lay out plan, plan of existing construction of such plot,rectification plan, an undertaking by the applicant to rectify uncompoundable infringements and demand draft of scheduled bank to cover the amount due as compounding fee and development charges. According to him, as far as appellants in the aforesaid four appeals are concerned, appellant has submitted an application for compounding alongwith location plan of the proposed site and also deposited the amount of compounding fees as is acknowledged by receipt no.1896 issued on 21/01/2010. {Para 10}

12. Learned counsel for the respondent-Corporation, Mr. Patil and other respondents would support the judgment of the Courts below, as according to them, both the Courts below have rightly held that the suit was not maintainable in view of bar under Section 433(A) of the Act.

13. By inviting attention of this Court on the various documents in the backdrop of pleadings, the submissions are, the appellant is trying to take disadvantage of certain procedural steps taken by erstwhile owner. According to him, even if presuming certain steps taken by erstwhile owner under the Gunthewari Act, for regularisation of the structure, the corresponding responsibility and the compliances are not reported. As such, the appellants are trying to take disadvantage of their own fault. As such, it is prayed in the given set of facts and documentary evidence on record, the suit is rightly held to be not maintainable. 

15. The appellant has placed on record acknowledgment depicting payment of Rs. 5275/- on 21/01/2010 under the head of Gunthewari for regularisation. However, this Court is required to take note of the fact that predecessor of the appellant on 16/05/2002 was served with a notice to comply with requirement under the Gunthewari Act and subsequent thereto, certain compliance not stricto sense in accordance with under Section 4 of the Act were sought to be relied. It appears that appellant after payment in 2010, has not complied with other terms of Gunthewari Act. Rather the appellant is trying to shift burden on respondent-Corporation to carve out the case of nullity in law for the issuance of impugned notice by the Corporation.

16. This Court has already observed that appellant cannot take undue advantage of its own wrong as appellant was not diligent in pursuing its case of regularisation under the Gunthewari Act.

18. Admittedly, there is no sanction from the Planning Authority i.e. respondent-Corporation to the structure in question and that being so, the appellant has come out with a case that regularisation proceedings were taken recourse to under Gunthewari Act.

20. Rather the documents produced on record demonstrates that except moving an application, no further steps are taken by the  appellant. Rather the plans which were called by the respondent- Corporation were not submitted. On one hand, the appellant is not pursuing the claim under the Gunthewari Act and on other hand are trying to take disadvantage of their own shortfall.

21. In the aforesaid background, considering the conduct of the appellant, the claim as is sought to be put-forth, based on the judgment in the matter of Akola Municipal Corporation and Yogesh Gada cited supra cannot be termed to be of no assistance. 

26. In view of the aforesaid observations that the predecessor- in-title of the appellant namely Shelke or the appellant himself has not complied with further requirement under the Gunthewari Act, the said ground of seeking protection under the Provisions of Gunthewari Act is not available to the appellant.

27. In the aforesaid background, in my opinion, the view expressed by both the Courts below of non-maintainability of suit, in view of statutory embargo under Section 433 (a) of the Maharashtra Municipal Corporations Act appears to be just and proper.

Bombay High Court

Sau.Sulochana Kantilal Shelke ... vs Shri.Prashant Pannalaji ... on 18 February, 2020

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Bombay HC: The court should refuse to grant a temporary injunction to restrain demolition of construction if it is unauthorized

  It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorised and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorised, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorised and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality. {Para 31}

Bombay High Court

JUSTICE PRITHVIRAJ K. CHAVAN

Shantilal Chhogalalji Doshi & Anr. Vs. Municipal Corporation of Greater Mumbai & ANr.

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Which rules will prevail in case of conflict between rules framed under MRTP Act and building bye-laws?

  In case of any conflict between the rules and regulations as framed under the provisions of the M.R.T.P. Act or the Development Regulation and Scheme Regulations in one hand and the building bye-laws framed by the provisions of Bombay Provincial Municipal Corporation Act, 1949, it is quite clear that regulations made under the MRTP Act would prevail. {Para 28}

Bombay High Court

JUSTICE PRITHVIRAJ K. CHAVAN

Shantilal Chhogalalji Doshi & Anr. Vs. Municipal Corporation of Greater Mumbai & ANr.

APPEAL FROM ORDER NO. 8 OF 2021

18th February 2021

Citation: 2021 NearLaw (BombayHC) Online 177

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Whether court can grant permanent injunction to restrain municipal corporation from demolishing suit house?

  Only question of law which involves is whether the relief of permanent injunction in the nature it is granted is sustainable in law. The learned trial court granted relief of permanent injunction as under:

"(iii) The defendant, its agents and servants are hereby restrained permanently from demolishing the suit house and to that effect permanent injunction is granted."

Ex-facie, in the facts and circumstances of the case, and particularly against the public authority, such relief cannot be granted. It should not have been in the nature of restraining the defendant permanently from taking steps of demolition in any circumstance. If such relief is allowed to operate, it would permanently restrain the defendant from taking steps despite the fact that the plaintiff carries out illegal alteration or construction against provisions of C.N.C. Act. In that view of the matter, the appeal will have to be allowed partly by modifying the Judgment and decree passed by the learned trial court and confirmed by the district judge as under:

Defendant, his agents, servants are permanently restrained from taking steps like demolition etc. of the suit house on the basis of the notice no.238/EPS/Z-10 dated 3.4.2002. {Para 8}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

M.N. GILANI, J.

The City Of Nagpur Municipal Corporation Vs. Shailendra Kumar

Second Appeal No.39 of 2011

15th June, 2012

Citation: 2013(1) ALL MR 850,

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Whether court can direct builder to demolish existing construction if there is subsequent changes in Environment clearance law?

 A Project Proponent is not expected to anticipate the changes in EC regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending. { Para 25}

26. As seen, the NGT in the impugned judgment has protected the completed construction and, on this aspect, we deem it appropriate to endorse the same, by accepting the submission of the appellant’s Counsel and the learned ASG. The four constructed buildings are resultantly to be treated to be under a valid EC with all legal consequences. It is, however, made clear that if any further construction is proposed by the appellant with the sanctioned layout, the same should not be done on the strength of the EC granted on 28.11.2017 by the PCMC. In other words, if the Project Proponent wishes to construct the remaining buildings, they must secure fresh clearance from the competent authority, as per the currently applicable framework. It is ordered accordingly.

Supreme Court

JUSTICE R. SUBHASH REDDY JUSTICE HRISHIKESH ROY

M/S. SAI BABA SALES PVT. LTD. Vs. UNION OF INDIA & ORS.

CIVIL APPEAL NO. 595 OF 2021

26th November 2021

Author: Hrishikesh Roy, J.

Citation: 2021 ALL SCR (ONLINE) 698

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Can the plaintiff prove that his construction was before the datum line based on oral evidence without supporting documentary evidence?

 As a legal proposition, Mr. Diwan may be right that if evidence of the witness goes unchallenged the court may accept it. But the question is of existence of structure and ownership, and, as discussed by me, earlier, these two aspects cannot be said to have been proved only on the basis of oral evidence of P.W. 2. The plaintiff has to prove that his structure existed prior to 1964. He has no documents of any nature whatsoever for showing the structure to be in existence prior to 1962 and therefore the trial court rightly refused to believe the evidence of P.W. 2 regarding these two aspects. {Para 20}

26. The sum and substance of this discussion is that the plaintiff has no documentary evidence at all to prove that the structure was in existence since prior to 1977 or was in existence on 1.1.1962. The oral evidence of the plaintiff and his witness Kurmi P.W.2, cannot and does not, lead the court to come to the conclusion that the structure was so in existence since 1962. The so-called cross-examination of Pednekar the witness of the Corporation is not an admission and it does not help the plaintiff in any way much less in proving the case of the plaintiff about the structure in existence since 1962. Scores of other documents filed by the plaintiff are not required to be considered because they are subsequent to 1972. Therefore, conclusion is that the trial court was fully justified in holding the crucial issue against the plaintiff. Its finding about the failure of the plaintiff to prove the existence of the structure prior to 1977 or from 1962 are based on facts, sound reasoning and logic, and are not liable to be interfered with on any counts.

 Then in paragraph 12 the Gauhati High Court held that "The power under Section 337 of the Act cannot be utilised and/or used in respect of a building constructed on the own land of a person after completion of the same and after assessed by the Municipal Authority, and this power should be utilised within a reasonable time, though no time limit has been prescribed in section itself."

31. Though this judgment of the Gauhati High Court is repeatedly and strenuously relied upon by Mr. Diwan in support of his submission, it cannot be of any help to the plaintiff for the simple reason that in the case before the Gauhati High Court the construction was made by the person upon his land. That is the distinguishing factor in that case and in the present case the plaintiff - appellant is not the owner of the land. Land upon which the suit structure is there, does not belong to him. The owner is before the court as defendant No.2, who has proved his ownership over the land and therefore if the structure is erected on somebody else's land then the judgment of Gauhati High Court cannot be made applicable. It would amount to giving protection to a trespasser, to legalise an illegal act and would be detrimental to the interest of the owner.

32. Notice under Section 351 was given to the plaintiff. He gave reply with supporting documents. All those were considered and then the order of demolition is passed. Before the trial court, no issue was framed by the court whether the principles of natural justice were not followed by the Authorities nor any such submission was made.

35. Mr. Diwan also contended that order of demolition is a drastic step and particularly if the structure is in existence since 1972 then ordering demolition in 2000, was not at all proper in the circumstances. According to him some other form of penalty could have been imposed and structure could have been regularised.

36. The factual aspect of this matter is that land upon which the structure stands does not belong to the plaintiff. Even BMC has no authority to regularise the structure on somebody else's property. If the property is of the BMC and there is illegal structure, the BMC may in a given case regularise the structure but where the property does not belong to the BMC and the land is owned by somebody else, then even the BMC can not regularise the structure. No other penalty can compensate the real owner. It is equally true that when the plaintiff came before the court his dominant intention was to prevent demolition of the structure pursuant to 351 notice and BMC was concerned with only one aspect i.e. whether the plaintiff has necessary documents to show that the construction which he was making in 2001 is with the permission and on the basis of a sanction plan. The BMC found that there was no sanction plan and second aspect of the matter was that the plaintiff failed to prove before BMC Authorities that his structure was in existence before the datum line.

37. At this juncture, it is necessary to consider one more aspect. According to the plaintiff the suit structure as it was there on the date of filing of the suit has been in existence since 1972. This contention is also false, and, in any event, it is not supported by the document. He tendered, the agreement between him and the vendor Lallu Bhika. Even the agreement of 1972 with Lallu Bhika mentions the suit property as Zopda i.e. hut only. In the assessment extract, this structure is mentioned as CI shed only and the first date of assessment is shown as 1.4.1979. But whereas the photographs tendered by the BMC after part of the structure was demolished, pending appeal, for road widening clearly shows that all the bricks used are absolutely new. This clearly fortifies the case of the BMC that in 2001 the plaintiff constructed four rooms. Obviously this is done by the plaintiff after demolishing the old hut. New structure of the plaintiff, cannot be called as Zopda or hut as is referred in the document of 1972. It cannot be referred as to C.I. shed as is referred in the assessment bill. It is a new construction for which plaintiff has no approved plans nor he has any permission of the BMC for construction.

38. Counsel for the BMC and defendant No.2 submitted that even if all the documents of the plaintiff are accepted, they do not firstly prove that the structure was in existence prior to datum line, that these documents do not prove that the new structure erected by the plaintiff was with the permission of the BMC or on the basis of any approved plan. My attention was drawn to the order of the Commissioner, which is a detailed order, wherein each document of the plaintiff is considered by the Commissioner. In any case, what ultimately comes before the court is important and therefore when plaintiff has miserably failed to prove his title over the property and failed to prove existence of the structure prior to 1972, has failed to prove that when he re-erected the structure in 2001, it was done by him with the permission of the BMC on the basis of sanction and approved plans, then the trial court was fully justified in dismissing the suit and rejecting the claim and contention of the plaintiff.

39. Mr. Diwan also contended that there was no rationale behind fixing the datum line and no action was taken by the BMC from 1972 to 2001. Limitation, in my opinion, in view of the provisions of the BMC Act does not apply in this case. No doubt demolition is a drastic action, but looking to the tendency of the citizens of making illegal construction in the City of Mumbai, which are hundreds and thousands in numbers, BMC is required to be empowered with such drastic action and whether there is a rationale behind fixing the datum line, the court cannot go into this question, because this is a question of policy.

40. It is to be noted that Mr. Diwan had cited some authorities about the testimony of single witness and use of unregistered document for collateral purpose. There is no dispute about this proposition. But in the facts of the case neither the evidence of the single witness can be taken as a proof of the existence of the structure prior to 1972 even if the evidence of witness had gone unchallenged. I have already discussed and noted that illegality and validity of structure are required to be proved on the basis of documentary evidence otherwise that will create chaotic situation where everybody will examine numerable witnesses for proving these facts. There cannot be any substitute for written permission of the BMC for construction nor there cannot be any substitute for approved plan before construction. Therefore, for all these reasons, there is no merit in this Appeal.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.G. DESHPANDE, J.

Namdev Pandurang Panchal Vs. Mumbai Municipal Corpn. Of Gr. Bombay & Anr.

First Appeal No.1241 of 2005

16th September, 2005

Citation: 2005(4) ALL MR 689,2006(1) MHLJ 194

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Can the court strike off the entire notice of demolition issued by the Municipal Corporation if only part of the plaintiff's construction is authorized?

 After considering the entire oral and documentary evidence of the parties, the learned Judge came to the correct conclusion that the ground floor being authorized as being in existence prior to the datum line deserves to be protected against demolishing by virtue of its mention in the impugned notice as well as upon the DMC's order calling upon the Plaintiffs to remove the structure under the notice. The learned Judge has, therefore, protected that portion of the Appellants' structure by the order of injunction and partly decreed the Plaintiffs' Suit.{Para 11}

12. The Plaintiffs not having proved the existence of the first floor as having been constructed along with ground floor and after considering oral evidence of the parties showing even earlier litigation where the son of the 1st Plaintiff filed an Affidavit stating that the landlady allowed horizontal as well as vertical extensions to the structure of all the tenants and upon considering the further oral evidence relating to the permission, if any, granted by the landlady in the year 1992-93, the learned Judge correctly came to the conclusion that the construction of the first floor was unauthorized. Hence, the Suit has not been fully decreed. Upon part decree, it follows that the first floor premises of the Plaintiffs is not protected by the order or injunction in the Suit. Hence, this Appeal.

13. It is contended on behalf of the Appellants by Mr. V. A. Thorat, that once even part of the structure is authorized, the entire impugned notice is required to be struck down. He further contends that the notice cannot survive since atleast the ground floor structure of the Appellants' is seen to be authorized and protected by the order of the Trial Judge in the impugned judgment. That contention is incorrect. The Court can mould the relief in respect of any part of the structure and can consider the validity of a part of an order or notice which has been challenged in the Suit. The judgment and order of the Court is required to be on merits of the claim of the Plaintiff. If the Plaintiff succeeds in proving a part of the claim, the Plaintiff is entitled to have his or her Suit partly decreed. (This is more so, if the impugned action is severable as in this case). If the Plaintiff succeeds in proving the entire claim, the entire Suit would be required to be decreed.

15.  In this case, the Plaintiffs claimed that both the ground and first floors were authorised and hence, claimed the reliefs of declaration and protection of their possession. The reliefs could be granted for the ground floor premises which the Plaintiffs proved to be authorised, but could not be granted for the first floor premises which the Plaintiffs could not prove to be authorised. Upon proof of a part of the suit structure as authorized, the entire notice, therefore, cannot be struck down, just as upon not proving a part of the claim of the Plaintiffs, the entire suit cannot be dismissed. The judgment of the learned Trial Judge is, therefore, correct. No prejudice to the Appellants despite merits of their case is shown. For whatever the Plaintiffs merited, the learned Judge has granted the injunction. Part of the structure, for which no merits were shown, the learned Judge could not have and has not granted any reliefs to the Plaintiffs. The impugned judgment and order is correct.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.S. DALVI, J.

Pushpaben Mulji Kothari & Ors.Vs.Municipal Corporation Of Gr. Mumbai & Ors.

First Appeal No.198 of 2007

11th June, 2007

Citation:  2007(5) ALL MR 73,2007(5) MHLJ 712

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Whether court should grant status quo in the case of Dilapidated buildings?

  This Court in the case of Mahendra Bhalchandra Shah & Ors. Vs. Municipal Corporation of Greater Bombay & Ors. in Writ Petition (L) No. 1755 of 2019 has set out at length the governing principles, in relation to subject issue;

“(a) It is never for a Court in exercise of its limited writ jurisdiction under Article 226 of the Constitution of India to decide whether a particular structure is or is not actually in a ruinous or dilapidated condition;
(b) The rights of tenants/occupants are not harmed by demolition ordered and carried out. These rights are adequately safeguarded by Section 354(5) of the MMC Act and by the provisions of the governing Maharashtra Rent Control Act 1999 which fully occupies the field regarding tenancies of built premises in Maharashtra.
(c) A Writ Court exercising jurisdiction will not substitute its own view for that of technically qualified experts. Equally, the Writ Court will not prefer the view of one expert over another.
(d) In order to succeed a Petitioner before the Court must be able to show that the impugned action suffers from Wednesbury unreasonableness, (Associated Provincial Picture Houses Ltd v Wednesbury Corporation, (1948) 1 KB 223 : 1947 (2) All ER 680.) i.e. it is so unreasonable that no rational person could, having regard to the fact of the case, ever have reached it. There is no scope in such cases for any larger judicial review or invoking the doctrine of proportionality. (State of Madhya Pradesh & Ors v Hazarilal, (2008) 3 SCC 273; Coimbatore District Central Cooperative Bank v Coimbatore District Cooperative Bank Employees Association & Anr, (2007) 4 SCC 669.) In other words the decision must be shown to be utterly perverse, or in excess of authority or manifestly illegal.
(e) It is never sufficient merely to allege mala fides without particulars. While direct evidence may not always be available as proof of mala fides, they must nonetheless be established. In the words of the Supreme Court, allegations of mala fides are more easily made than proved, and the very seriousness of such allegations demands proof of high order of credibility. (Union of India v Ashok Kumar, (2005) 8 SCC 760; Government of Andhra Pradesh & Ors v P Chandra Mouli & Anr, (2009) 13 SCC 272.) Courts are slow to draw dubious inferences from incomplete facts, especially when the imputations are grave and they are made against one who holds an office of responsibility in the administration.(EP Royappa v State of Tamil Nadu, (1974) 4 SCC 3; Indian Railway Construction Co Ltd v Ajay Kumar, (2003) 4 SCC 579.) Mala fides are the last refuge of a losing litigant. (Gulam Mustafa v State of Maharashtra, (1976) 1 SCC 800.) Hence, whenever mala fides are alleged, we will demand proof. In case after case we are told that the provisions of the MCGM Act are being abused by rapacious landlords in connivance with venal officers of the MCGM to order the demolition of the buildings that are otherwise structurally sound. We have yet to come across any such case. The argument is in generalities. Though it is an argument of mala fides, it is always made without any particulars whatsoever and we are asked simply to conjecture that this must be so. The law in regard to allegations of mala fides is well settled and we will draw no such general conclusion.
(f) Further, it is no answer at all, as we have held in Mahendra Bhalchandra Shah, to seek an order of status quo. We have discussed this aspect quite elaborately and have held that no such order can be passed by any Court without specific reference to the actual state of affairs at that moment. There can be no order of status quo against natural elements. It is one in one thing to direct the parties to a contract to maintain the status quo. This may be an order against one person seeking another's eviction. This has no application whatsoever to a situation where the complaint is about the deterioration day by day of the physical condition of a built structure exposed to the elements.
(g) We have also demonstrated in Mahendra Bhalchandra Shah that the entire trend in this Court in the recent past of obtaining undertakings from occupants allowing them to continue in occupation at their own risk is without any basis in law. The MCGM cannot contract out of a statute. An undertaking by a Petitioner to a Court does not absolve the MCGM from its statutory responsibilities or liabilities under that statute. If the undertaking is intended to function as some sort of an indemnity then we have expressed the gravest doubts about any such undertaking ever being enforceable, let alone when the person who gives the undertaking himself or herself suffers an unfortunate mishap.” {Para 14}

15. The structural audit report of the tenants, landlords and inspection report of the TAC were material considerations, on which the Committee concluded that structure is in ruinous condition and required to be pulled down. This Court in the case of Mahendra Shah (Supra), while dealing with the identical arguments has held that it is not open to the Court, to sit in judgment over that satisfaction of the Technical Advisory Committee i.e. to substitute that opinion with its own.

16. Thus, taking into consideration the material before us, we do not see any reason to reject the conclusion reached by the Technical Advisory Committee. The argument that the notices have been issued at the instance of the landlord in collusion with Municipal Official is without any foundation and no particulars of alleged collusion were furnished to this Court in the pleadings or otherwise. In the circumstances, we do not think that we should afford any challenge to this notice, on this ground.

17. In the case of Makarand Dattatreya Sugavkar Vs. Municipal Corporation of Greater Mumbai and Others : (2013) 9 Supreme Court Cases 136 it is held in paragraph no. 20 that,

“The primary object underlying Section 354 is to safeguard the public from the danger of being forced to live in a structure, which includes any building, wall or other structure and which is in a ruinous condition or is likely to fall or is in any way dangerous to any person occupying the same. This section is also intended to protect those who may pass by such structure. A reading of the plain language of Section 489 gives an impression that it is only an enabling provision but if the same is read keeping in view the purpose of its enactment and the setting in which it is placed, it becomes clear that the Commissioner is duty-bound to ensure that the written notice given to the owner or occupier under Section 354(1) is implemented in its letter and spirit. The duty cast upon the Commissioner is in the nature of a public law obligation and in appropriate case, the court can issue direction for its enforcement.”

18. Thus, once it is found that building is in ruinous condition, Corporation owes its duty to take appropriate steps, to ensure and safeguard the public from likely danger. It is to be noted that when there are conflicting opinions of experts opining that the building structure should be pulled down or removed, such opinion cannot be discarded because the primary object of Section 354 is to protect the public at large and the passerby, of a building, which is in ruinous state.

Bombay High Court

JUSTICE SANDEEP K. SHINDE JUSTICE S. C. DHARMADHIKARI

Richard Gasper Mathias & Ors. Vs. The Municipal Commissioner & Ors.

WRIT PETITION NO. 2108 OF 2018

1st August 2019

Author: Sandeep K. Shinde, J.

Citation: 2019(5) ALL MR 377

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