1. Unauthorized construction — Demolition notice — Dispute over existence of structure prior to statutory cutoff date. (Para 2 )
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1996 Supreme(SC) 775
1996(4) Supreme 602
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Kantaprasad D. Patel -Appellant
versus
Municipal Corporation of Greater Bombay & Ors. -Respondents
Civil Appeal No. 7498 of 1996
(Arising out of SLP (C) No. 7962 of 1995)
Decided on 15-4-1996
Important Points
The court affirmed that municipal authorities are justified in ordering the demolition of structures if the owner fails to prove they were constructed prior to April 1, 1962, or with lawful permission, upholding the authority's power to review and correct previous orders regarding illegal constructions.
Subject
Administrative Law - Judicial Review
Headnote
REVIEW-Notice for demolition-Appellant claimed that structure was existing prior to 1.4.1962-Deputy Municipal Commissioner directed him to retain a shed-Other structures were directed to be demolished-After 5 years, notice was issued to demolish that shed-Shed was constructed after 1.4.1962 as found by High Court-Authority was rightly justified in exercising power of review-No illegality in order warranting interference.
Held : It must be established as a fact that the appellant has title to the property and construction was made bona fide in compliance of lawful permission or prior to April 1, 1962. It is an admitted fact that even the lease deed does not contain any recital as regards the existence of any structure. Learned counsel sought to reply (sic rely) upon an order passed by the Civil Court and also the affidavit of the lessor filed in 1966 to show the existence of the shed. It would be obvious that the shed was constructed after April 1, 1962 as found by the High Court. Under those circumstances, the authority was rightly justified in exercising that power. We do not find any illegality in the order warranting interference. (Para 3)
Legal Category Hierarchy
Table of Contents
2. Whether a superior authority possesses the power to review and set aside an order passed by a subordinate officer. (Para 3 )
3. Failure to prove title or existence of structure prior to the cutoff date justifies the exercise of review power by the authority. (Para 3 )
4. Review of a subordinate's order is permissible where the claimant fails to establish the factual basis for the legality of the construction. (Para 3 )
5. Appeal dismissed. (Para 4 )
6. Can a superior administrative authority review an order passed by a subordinate officer?
Yes, the court held that such a review is not a nullity and is justified when the authority finds that the legal requirements for retaining a structure have not been met. (Para 3 )
7. What must a party prove to legally retain a structure against a demolition order based on a cutoff date?
The party must establish title to the property and prove that the construction was either made bona fide with lawful permission or existed prior to the specified cutoff date. (Para 3 )
ORDER
Leave granted.
We have heard learned counsel on both sides.
2. This appeal by special leave arises from the order of the Division Bench of the High Court of Bombay in Appeal No. 565/92 made on March 3, 1995. The admitted facts are that the appellant claimed to have purchased the disputed site from one A.M. Patil in 1965 and constructed sheds thereon. He also alleged to have had a lease from him. On that basis, he claimed that the structure was existing prior to April 1, 1962. The respondents issued notice to the appellant for demolition. The Deputy Municipal Commissioner initially by order dated January 27, 1983 directed him to retain a shed admeasuring 30" x 30" but other structures were directed to be demolished. After 5 years, notice was issued to the appellant to demolish that shed. Calling the same in question, the appellant filed the writ petition. In Writ Petition No. 1375/88, the learned single Judge had held that the exercise of the power of review should be made bona fide within a reasonable time. After considerable lapse of time, power of review cannot be exercised. The Division Bench has set aside the order holding that there is no evidence on record to show that the appellant had constructed the above structure prior to April 1, 1962. Under those circumstances, the appellant could not be permitted to retain the structure which was illegally constructed.
3. It is sought to be contended for the appellant that the Additional Commissioner has no power to review the order passed by a subordinate officer on January 27, 1983 in the impugned order and, therefore, it is one of nullity. We find no force in the contention. It must be established as a fact that the appellant has title to the property and construction was made bona fide in compliance of lawful permission or prior to April 1, 1962. It is an admitted fact that even the lease deed does not contain any recital as regards the existence of any structure. Learned counsel sought to reply (sic rely) upon an order passed by the Civil Court and also the affidavit of the lessor filed in 1966 to show the existence of the shed. It would be obvious that the shed was constructed after April 1, 1962 as found by the High Court. Under those circumstances, the authority was rightly justified in exercising that power. We do not find any illegality in the order warranting interference.
4. The appeal is accordingly dismissed. No costs.
Appeal dismissed.
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