Mumbai Municipal Corporation Act (Bom.III of 1988) – ss.342 and 351 – The Municipal Corporation demolished the structure in exercise of powers vested in it, but in violation of the procedure prescribed – The High Court directed the ‘owner/occupier’ of the building to reconstruct the demolished structure – Held: The action of demolition without following the procedure prescribed by law is illegal – If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again – If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law – However, the illegal structure cannot be permitted to be reerected – If a structure is a legal structure, it would be prudent to permit the structure to be built in accordance with the existing bylaws – Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days – This may vary from case to case depending upon the nature of the structure and the area where it is being built. The Mumbai Municipal Corporation Act (Bom.III of 1988) – Advantage of advancement in technology – Geomapping and 3D visual information – Since the old buildings do not have plans it is difficult to find out whether the construction carried out is actually tenantable repairs or the structures are being constructed /reconstructed for which permission is required – Held: Till the State frames any law in this regard, it is directed that before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/occupier/builder/ contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists – This map can be taken on record and, thereafter, the construction can be permitted – This information should also be in the form of 3D visual information, in the nature of photographs, videos etc – Further, Municipal Corporations directed to get geomapping done where the population is 50 lakhs or more and geo-photography of the areas under their jurisdiction – Once one has the whole city geomapped it would be easy to control illegal constructions.
Disposing of the appeals, the Court
HELD: 1. The main dispute is with regard to the 2 nd direction in Sopan Maruti Thopte and Another v. Pune Municipal Corporation and Another which provided that demolition of the building structure can be done only after giving 15 days’ notice to the affected person. [Para 10] [985-B]
2. It was pointed out by the respondents that the second direction in Sopan’s case requiring 15 days’ notice to be given to the affected person before demolition of the structure, is still valid and, therefore, 2 notices are required to be given viz.,(i) a show cause notice of 7 days in terms of Section 351 (1A) of the Mumbai Municipal Corporation Act [Bom. III of 1888] and; (ii) notice of 15 days in terms of Sopan’s case. It is also submitted that the judgment in Sopan’s case holds the field till date, and this Court agrees with the respondent that in terms of direction no.2 in Sopan’s case, 15 days’ notice has to be given before demolishing the structure. This Court is not oblivious to the fact that Sub-section (2) of Section 351 does not lay down any timeline in this regard. It was in this context that when no timelines were laid down either for show cause notice or for demolition that the Bombay High Court in Sopan’s case, fixed two timelines of 15 days each for issuing show cause notice and, thereafter, to take action of demolition. The Legislature intervened and the first period has been curtailed from 15 days to 7 days but the second direction has not been interfered with by the Legislature. Therefore, that judgment continues to hold the field in this regard. [Para 12] [985-D-G]
3. This Court does not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law. If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again. If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law. However, this Court again reiterates that the illegal structure cannot be permitted to be re-erected. [Para 16] [986-F-H]
4. Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear-cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. Therefore, it would be prudent to permit the structure to be built in accordance with the existing by-laws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time-bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built. [Para 17] [987-A-D]
5. The old buildings do not have plans it is difficult to find out whether the construction carried out is actually tenantable repairs or the structures are being constructed/reconstructed for which permission is required. There is no difficulty to find a solution to this problem if the State is inclined to do so. Till the State frames any laws in this regard, this Court directs that before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists. This map can be taken on record and, thereafter, the construction can be permitted. In such an eventuality even if the demolition is illegal it will be easy to know what were the dimensions of the building. This information should not only be in paper form in the nature of a plan, but should also be in the form of 3D visual information, in the nature of photographs, videos etc. All over the country this Court finds that when people raise illegal constructions it is claimed that the said construction has been existing for long. The answer is to get Geomapping done. The relevant technology is Geographic Information System (GIS). If on Google Maps one can get a road view, there is no reason as to why this technology cannot be used by the municipal corporations. [Paras 20, 21 and 22] [988-A-G]
6. Further directions regarding the manner in which the evidence of illegal construction/reconstruction etc., is collected and notices are issued and served. Therefore, the following directions were issued:(1) It will be obligatory for all Municipal Corporations in the State of Maharashtra where the population is 50 lakhs or more to get geomapping and geo-photography of the areas under their jurisdiction done within a period of one year. Geomapping will also be done of an area of 10 Kms. from the boundary of such areas. The records should be maintained and updated by the Municipal Corporations within such time period as the Municipal Corporation deems fit, keeping in mind the specific circumstances of the area under its jurisdiction.
(2) Whenever any new area, which is not already geomapped, is brought under the jurisdiction of a particular municipality, it will be the duty of the concerned Municipal Corporation to ensure that geomapping of the area is conducted and the geomapping records of such area are created at the earliest.
(3) In cases where buildings are already existing and it is alleged by the Municipal Corporation that the building has been constructed in violation of applicable laws:-
3.1. The Commissioner/Competent Authority on coming to know that an illegal building has been constructed, shall issue a show cause notice giving 7 days in terms of Section 351 to the owner/occupier/builder/contractor etc. Along with this notice the Commissioner/Competent Authority shall also send photographs and visual images taken on the site clearly depicting the illegal 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 this Court directs as follows :-
5.1. Wherever possible notice shall be served personally on the person who is raising or has raised the illegal structure including the owner/occupier/builder/contractor/architect etc.;
5.2. Notice, in addition to the traditional mode, can also be sent through electronic means, both by e-mail and by sending a message on the mobile phones. Even a message to a foreman or person-in-charge of the construction at the site will be deemed to be sufficient notice;
5.3. In the notice, the municipal authorities shall also give an e-mail ID and phone number where the noticee can send his reply through e-mail or messaging services. This will hopefully do away with all disputes with regard to alleged non-service of notice.
6. Till the State frames any laws in this regard, this Court directs that before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists. They will also provide an e-mail ID and mobile phone number on which notice(s), if any, can be sent. This map can be taken on record and, thereafter, the construction can be permitted. In such an eventuality even if the demolition is illegal it will be easy to know what were the dimensions of the building. This information should not only be in paper form in the nature of a plan, but should also be in the form of 3D visual information, in the nature of photographs, videos etc. [Para 23] [989-B-H; 990-A-H; 991-AD] Sopan Maruti Thopte and Another v. Pune Municipal Corporation and Another AIR 1996 Bom 304
– approved.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.