Supreme Court: Court should not direct re-erection of illegal structure if it was demolished in violation of procedure

That brings us to the main issue before us. Is the writ court

justified in issuing a direction that since the building has been

demolished without following the procedure prescribed by law,

the petitioners before the High Court (Respondents before us) be

permitted to reconstruct the structure albeit using the same

material, and of the same dimensions, as existed earlier? The

second direction given is that before commencing of work of

reconstruction, the petitioner shall serve a notice to the

designated officer. It has further been observed by the High

Court that the reconstruction of the structure on the basis of its

order will confer no authenticity on the structure. The third

important direction of the High Court provides that if the original

structures were constructed without obtaining development

permission, the structures reconstructed pursuant to the orders

of the Court will also be construed to be constructed without

proper development permission. Hence the Corporation can

initiate action of demolition of the structures, after following the

law laid down in Sopan’s case (supra). We have been told that

this is the regular practice followed in the Bombay High Court,

throughout the State of Maharashtra.

15. We are constrained to observe that we cannot approve of

such directions. The High Court itself is aware that some of

these structures may have been constructed without permission.

If that be so, even if the demolition was carried out without giving

the second notice, why should the party who has violated the law

by raising the construction without obtaining permission be

permitted to raise another illegal structure which only has to be

razed to the ground, after following the procedure prescribed by

law? Why should the Nation’s wealth be misutilised and misused

for raising an illegal construction which eventually has to be

demolished?

16. We make it clear that we do not approve the action of the

Municipal Corporation or its officials in demolishing the

structures without following the procedure prescribed by law, but

the relief which has to be given must be in accordance with law

and not violative of the law. If a structure is an illegal structure,

even though it has been demolished illegally, such a structure

should not be permitted to come up again. If the Municipal

Corporation violates the procedure while demolishing the

building but the structure is totally illegal, some compensation

can be awarded and, in all cases where such compensation is

awarded the same should invariably be recovered from the

officers who have acted in violation of law. However, we again

reiterate that the illegal structure cannot be permitted to be reerected.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7627 OF 2019

MUNICIPAL CORPORATION OF GREATER MUMBAI  Vs

M/S SUNBEAM HIGH TECH  DEVELOPERS PRIVATE LTD. 

Deepak Gupta, J.

Dated:October 24, 2019.

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Whether insolvency proceeding can be started on basis of Foreign decree without following procedure laid down in Law?

The   law   is   settled.
Based upon these settled principles itself I am inclined to observe that
there is no question   of enlarging and or extending  the definition   of
the word “order” and “court” if it is not specifically provided under the
Insolvency Act.    The governing law i.e. the CPC also no where permit
or   provide   to   initiate     such   insolvency     proceedings.     There   is   no
question  of  permitting    the    party  to   invoke     insolvency    provisions
when the CPC   and or insolvency     Act no where permits   to initiate
insolvency   proceedings   based   upon   the   foreign   judgment   and   or
decree.  The concept of foreign court and or judgment is defined and
prescribed  under  the  CPC.    This   itself  means  that  the  concept  and
term “court” as provided under the insolvency Act means an Indian
Court only.   I am declined to accept that the court and or order and
or decree so contemplated under the  insolvency Act means  a foreign
court, foreign judgment or foreign decree.   Such drastic proceedings
just cannot be initiated which have presumption or assumption value
and  or  by  enlarging  definitions    as  sought  to  be contended    by  the
learned   counsel   appearing   for   the   judgment   creditor   in   support   of
initiation   of   such   insolvency   proceedings.     In   my   view   it   is
impermissible     and   it   is   without   jurisdiction.      We   have   to   read
intention   of the legislature   by reading the plain language   used in
the  statute, considering the scheme   and purports of the C.P.C. and
the insolvency Act, apart from the concept of intra­border or national
or international treaties and convention and aspects of   territorial as
well  as  courts'   jurisdiction.      If  the  Act   is  silent  and   if  there   is    no
provision,   there   is  no   question     to   read   or   go   beyond   the   existing
provisions   of   law.       The   court   cannot   read   anything   beyond   the
statutory provisions which has  plain language.   There is no question
to enlarge the meaning   and or putting   something into the statute,
specifically when the provisions  are clear and specific

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN INSOLVENCY
NOTICE OF MOTION NO.  53  OF    2011 
IN 
INSOLOVENCY NOTICE NO.   28  OF   2011 
Abraaj Investment Management Ltd.,  
V/s.
Mr. Neville Tuli s/o. Ramjidas Tuli  ..
CORAM    :    ANOOP  V.  MOHTA, J.

           PRONOUNCED ON : 17 DECEMBER, 2012
Citation;AIR 2013 (NOC)91 bombay

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