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 municipal corporation can issue notice for demolition if there is no sanction for construction?

 If the structures are standing from 1961-62, then they are protected structures and the Corporation cannot issue notices to demolish them on the ground that there is no sanction for the construction.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 276 of 2018,

Decided On: 27.06.2018

 Suresh Shankar Rokade Vs. Municipal Corporation of Gr. Mumbai and Ors.

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Whether order passed by court without considering documents filed along with application amounts to perverse order?

 It is the duty of the court to consider the documents filed on record by the party and after considering the same, the Court either accept or reject the document by supplementing the reasons. However, when available documents are not at all considered by the Court and when there is no reference of these documents in the order which is challenged before the appellate court, then in that event, it is always open for the Appellant to criticise the impugned order that it suffers from non-application of mind and the approach of the court below is perverse one. In the present case, the impugned order is one of such orders. The Court below ought to have seen that these documents available on record, which goes to the root of the matter. If the structures are standing from 1961-62, then they are protected structures and the Corporation cannot issue notices to demolish them on the ground that there is no sanction for the construction. In the present case, the plaintiffs pointed out by placing on record two very important documents of the Corporation to show that the structures are standing prior to 1961-62. Therefore, non consideration of these vital documents requires me to record a finding that approach of the court below is perverse and cannot sustain in the eye of law because of non-consideration of vital documents which goes to the root of the matter.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 276 of 2018,

Decided On: 27.06.2018

 Suresh Shankar Rokade Vs. Municipal Corporation of Gr. Mumbai and Ors.

Hon'ble Judges/Coram:

V.M. Deshpande, J.

Citation: 2018(6) MHLJ 357

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Whether municipal corporation can be directed to reconstruct structure if it was illegally demolished?

 Despite request made by Mr. Rao not to pass drastic orders, we do not think that what we are doing is extreme much less illegal. We are doing nothing but following the rule of law. We, therefore, direct that, at the costs, charges and expenses of the KDMC the structures/constructions at the site should be reconstructed and restored to the same position as they were prior to their demolition and within a period of six weeks from today. Mr. Parshuram Kumawat, Designated Officer, "G" Ward, shall be personally liable to reimburse the KDMC with such costs, charges and expenses and must also face disciplinary proceedings, if any, to be launched against him.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 6046, 6047 and 6048 of 2018

Decided On: 26.06.2018

 Jaiprakash Vishwanath Jaiswal Vs. Municipal Corporation of Cities of Kalyan and Dombivali and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari and Bharati H. Dangre, JJ.

Citation: 2018(6) MHLJ 459

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Leading Judgment on procedure to be followed by municipal corporation for demolition of unauthorised construction

 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 con situated under the B. P.M.C. Act would follow the following procedure before taking action under Section 351 of the B.M.C. Act or 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 15 days' 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.

(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:

IN THE HIGH COURT OF BOMBAY

Writ Petns. Nos. 4765 to 4767 of 1995 and A.O. No. 477 of 1994

Decided On: 09.02.1996

Sopan Maruti Thopte Vs. Pune Municipal Corporation and Ors.

Hon'ble Judges/Coram:

M.B. Shah, CJ. and A.V. Savant, J.

Citation: AIR 1996 Bom 304

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Whether municipal corporation can demolish unauthorised construction without following principles of natural justice?

 At this stage without observing anything further on merits of the matter, we are satisfied that no sufficient reason, no opportunity as required under the law revolving around the principles of natural justice has been given. Merely issuing show cause notice itself is not sufficient. The reasoned order as contemplated means application of mind to the documents so supplied as the impugned action/decision ultimately decides and/or take away the rights of the Petitioners to retain the possession of the alleged unauthorised premises as the case is of the existence of the structures prior to 1962. The sections itself entitled the person/party to appear in person or through agent to submit reply and the documents to the show cause notices. The need to give them opportunity in accordance with law therefore also requires to pass reasoned order. This itself means the officer concerned must apply his mind to the documents and the reply by giving all reasonable opportunity to the parties, specially when the order has effect of final decision. There is no further appeal or revision available. The Civil Court's jurisdiction is also barred in view of section 515A of the M.M.C. Act. The officer in question therefore is also required to exercise its authority and/or power judicially, before deciding the rights of the parties/persons. The inherent principles of natural justice, fair play are required to follow by all including the quasi-judicial authority at all stages, including the final decision.

4 Therefore, the requirement of giving full opportunity to prove their case thus cannot be overlooked merely because the sections and the other provisions give/empower authorities/officers of the Respondent - Corporation to initiate action of demolition of "unauthorised premises".

Bombay High Court

Mrs. Lilly P. Pandit vs 2A/488 Ramlal Chawl on 16 January, 2014

Bench: Anoop V. Mohta, A.A. Sayed

Citation:2014(2) MHLJ657

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Whether construction made in breach of status quo order can be protected from demolition?

 What is most distressing to note is that on the basis of the said status-quo order, which was binding on the appellant also, the appellant has gone ahead, demolished the existing structure and carried out and completed further construction of four floors. The photographs produced on record by respondent No.1-Municipal Corporation are self-speaking to reveal what was the condition of the suit structure in the year 2014, when  the status-quo order was obtained. It was completely demolished, whereas, now, in the year 2016, when the Officers of respondent No.1-

Municipal Corporation visited the suit premises, they found construction of four floors to be complete. Admittedly, there is not a single document under which the appellant has obtained the permission for construction of four floors. The building already existing was also only of 'ground + 1 floor'. In such situation, it is apparent that whatever construction, which is carried out by the appellant, upto four floors is in breach of the rules and regulations of respondent No.1-Municipal Corporation. It is starkly unauthorized, blatantly illegal and prima facie also in violation of the status-quo order passed by the Trial Court.

24. Needless to state that such illegal and unauthorized construction cannot be protected in any way. Moreover, as pointed out by learned counsel for respondent No.1-Municipal Corporation, the construction carried out is such that it is without plinth and also without usual slabs, but it is only on iron columns. Such construction is hazardous, to say the least, and dangerous to the lives of the occupants and also to the lives of the persons passing nearby or residing adjacent. At-least under the order of the Court, such construction can in no way be protected. Admittedly, this structure is also not occupied and is not in a position to be occupied, as is evident from the photographs dated 19th September 2016 produced  on record by respondent No.1-Municipal Corporation. Therefore, it goes without saying that, when the construction is apparently illegal, carried out in violation of the status-quo order passed by the Court, it is not qualified for protection from this Court.

25. As regards the submission of learned counsel for the appellant that the Notice of Motion and Contempt Petition preferred by respondent No.1-

Municipal Corporation, for breach of the status-quo order, are rejected by the Trial Court, the impugned orders passed by the Trial Court reveal that they were rejected it being the prima facie stage and the evidence will be necessary to prove that there was breach of such order, especially, because the contempt proceedings in the nature of Order XXXIX Rule 2A of CPC are having penal consequences, where it is required to be proved strictly so as to take the necessary penal action or criminal action against the contemnor. However, for the purpose of deciding this Appeal from Order in Notice of Motion, prima facie view has to be taken and this prima facie view is unequivocal that the appellant has carried out construction in violation of the order of status-quo and also against the 'Rules and Regulations of the Development', as prescribed in law. Such construction cannot be protected and hence the impugned order passed by the Trial Court of dismissing the Notice of Motion needs to be upheld and, accordingly, this Appeal from Order stands dismissed with costs.

Bombay High Court

M/S. United Construction vs Municipal Corporation For ... on 22 September, 2016

Bench: Dr. Shalini Phansalkar-Joshi

  Citation:2016(6) ALLMR 610,2017(2) MHLJ270

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Whether court should grant injunction restraining municipal corporation from demolishing of unauthorised construction?

 It is pertinent to note that on 02.12. 2013 also the stop work notice was issued to the appellant informing him to stop the unauthorized work of construction of the structure R.C.C beams and columns which was in progress. Therefore, it is not that the appellant was not aware that he has changed the nature of the suit structure and that too, he has constructed unauthorized structure without getting requisite permission from the Municipal Corporation. The appellant was also given opportunity to show cause as to how structure was authorized. However, in the reply given to the impugned notice, he has failed to do so. Whatever documents which appellant has produced were duly considered by the Designated Officer and while passing order, it was held that those documents do not prove existence of the structure as it was standing on that day at the the site since prior to either the year 1962 or 1972 or even to the year 1999.

16. Under such circumstances, when some illegal and unauthorized structure of ground + first floor R.C.C. is carried out, as described in the impugned notice and the appellant has prima facie failed to prove legality of the said structure, it cannot be said that the trial Court has committed any illegality in refusing the relief of ad-interim injunction so as to warrant interference therein at the hands of this Court. Hence appeal holds no merit and the same stands dismissed.

Bombay High Court

M/S. Masjid Wa Madrasa Fatimatu ... vs Municipal Corporation Of Greater ... on 4 October, 2016

Bench: Dr. Shalini Phansalkar-Joshi

Citation:2016(6) MHLJ800 Bom

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Whether civil suit is tenable when jurisdiction of civil court is expressly barred?

The scope of the exclusionary clauses contained in the statutes has been considered in great detail with reference to the decisions of the superior courts in England and also the decisions of the Supreme Court of India by Justice G.P. Singh (former Chief Justice, M.P. High Court) in "Principles of Statutory Interpretation", 6th edition (1996) at page 475. The law is stated thus:

A review of the relevant authorities on the point leads to the following conclusions:

(1) An Exclusionary Clause using the formula 'an order of the tribunal under this Act shall not be called in question in any Court' is ineffective to prevent the calling in question of an order of the tribunal if the order is really not an order under the Act but a nullity.

(2) Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement of enquiry e.g., when (a) authority is assumed under an ultra vires statute; (b) the tribunal is not properly constituted, or is disqualified to act; (c) the subject-matter or the parties are such over which the tribunal has no authority to inquire; and (d) there is want of essential preliminaries prescribed by the law for commencement of the inquiry.

(3) Cases of nullity may also arise during the course or at the conclusion of the inquiry, These cases are also cases of want of jurisdiction if the word 'jurisdiction' is understood in a wide sense. Some examples of these cases are (a) when the tribunal has wrongly determined a jurisdictional question of fact or law; (b) when it has failed to follow the fundamental principles of judicial procedure, e.g. has passed the order without giving an opportunity of hearing to the party affected; (c) when it has violated the fundamental provisions of the Act, e.g., when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matters; (d) when it has acted in bad faith; and (e) when it grants a relief or makes an order which it has no authority to grant or make; "as also (f) when by misapplication of the law it has asked itself the wrong question.

With great respect to the learned author, I would adopt the above statement of law, as my own.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2243, 1947, 2071, 2172, 2242, 2255, 2278, 2576 of 2013,

 Mr. Yogesh Megaji Gada Vs.  The Municipal Corporation of Greater Mumbai & Ors. etc. etc.

Hon'ble Judges/Coram:

N.M. Jamdar, J.

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Whether landlord will be a proper party in a suit filed by tenant restraining Municipal Corporation from demolishing a part of tenanted construction?

 Considering the length and breadth of the plaint allegations, one of the issues before the trial Court would be as to whether the alleged construction sought to be demolished is a sanctioned construction or not. The landlords or the owners of the premises would be the better persons to throw adequate light on the controversy. In these circumstances, in my view, the landlords are the proper parties, though the relief is sought only against the Corporation for perpetual injunction restraining the Corporation from demolishing the structure. In Ramesh H. Kundanmal v. Municipal Corporation of Greater Bombay (supra) the Apex Court had pointed out in paragraph 18 of the judgment that the notice did not relate to the structure but to two chattels/structures which were movable on wheels and plates where servicing and/or repairs were done and used for storing implements of the mechanics. Admittedly, respondent No. 2 therein had no interest in those chattels and demolition of the same in pursuance of the notice was not a matter which was to affect the legal rights of the landlord in that case. In the instant case, the landlords would be entitled to place all the facts before the trial Court and, therefore, in my view, the presence of the landlords before the trial Court would be necessary for adjudicating upon the issues effectually and completely.1

Bombay High Court

Adam A. Sorathia And Anr. vs Municipal Corporation Of Greater ... on 11 April, 2001

Equivalent citations: 2002 (4) BomCR 419

Coram: V.C. Daga, J.

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Whether Municipal corporation is obliged to follow due process of law prior to demolition of unauthorised construction?

Mere issuance of notice under the said section is not sufficient to suggest that the due process of law has been followed, inasmuch as after issuance of notice, the concerned person would file response and which response has to be considered by appropriate officer designated for that purpose and that officer is obliged to pass decision, one way or the other. Moreover, such a decision has to be communicated to the affected person giving reasonable opportunity to that person to challenge that decision as permissible by law. There is nothing on record to show that such a course has been followed. Unless such a course was followed, it is not possible to conclude that due process of law has been complied with. If the record placed before the Court suggests that due process of law has not been complied with, then, obviously, the application as preferred by the petitioner deserves to be considered and appropriate orders passed thereon. However, as observed earlier, the Court below has rejected the application on the solitary ground, which is unacceptable for the reasons indicated above.

Bombay High Court

Mangesh Amar Ghorpade vs Kalyan Dombivali Municipal ... on 2 September, 2003

Equivalent citations: 2005 (3) BomCR 483

Khanwilkar A.M., J.

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When High court should not issue a mandamus for the demolition of the unauthorized construction?

 Mere departure from the authorized plan or putting up of a construction without sanction does not ipso fact and without more necessarily and inevitably justify demolition of the structure. There are cases and cases of such unauthorized construction and some are amenable to compounding and some may not be. According to learned counsel for the first respondent, the appellants have constructed the temple without obtaining any sanction whatsoever. There is serious breach of the licensing provisions or building regulations which may call for extreme step of demolition. In our view, these are matters for the Municipal Commissioner to consider at the appropriate time.
The power under Section 351 of the Act, in our opinion, has to be exercised only by the Municipal Commissioner and it is left to the Municipal Commissioner under the provisions of Section 351(2) either to order or not to order the demolition of the alleged unauthorized temple. In fact, respondent No.1 by himself through his advocate's letter dated 16.04.2005 (annexed to his counter affidavit) requested the Municipal Authorities to take action under Section 351 of the Act. At the time of admission of this special leave petition, the provision of Section 351 of the Act was pointed out by the learned senior counsel to show that the Municipal Commissioner had only been conferred the power under the said provisions to demolish or not to demolish unauthorized structure and, therefore, the High Court ought not to have issued a mandamus for demolition of the temple before any order was passed by the Commissioner on the question of demolition.

Supreme Court of India

Muni Suvrat-Swami Jain S.M.P. ... vs Arun Nathuram Gaikwad & Ors on 11 October, 2006

Author: . A Lakshmanan

Citation: AIR2007(SC) 38: 2006(8) SCC590

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