2006 Supreme(SC) 937

2006(9) Supreme 95
SUPREME COURT OF INDIA
(From Bombay High Court)
Dr. AR. Lakshmanan and Tarun Chatterjee, JJ.
Muni Suvrat-Swami Jain S.M.P. Sangh - Appellant
versus
Arun Nathuram Gaikwad & Ors. - Respondents
Civil Appeal No. 4448 of 2006
(Arising out of SLP (C) No. 9049/2006)
Decided on 11-10-2006
Counsel for the Parties :
For the Appellant : F.S. Nariman, Shyam Diwan, Sr. Advocates, P.H. Parekh, E.R. Kumar, Ms. Shakun Sharma and Kush Chaturvedi (for M/s. P.H. Parekh & Co.), Advocates.
For the Respondent No. 1 : Ranjit Kumar, Sr. Advocate, Santosh Paul, Ms. Vibha Datta Makhija and Lakshmi Raman Singh, Advocates.
For the Respondents 2 & 3 : Pallav Shishodia, Atul Y. Chitale, Mrs. Suchitra Atul Chitale, Ms. Sujeeta Srivastava and Madhup Singhal, Advocates.
For the Intervenor : U.U. Lalit, Sr. Advocate, P.B. Sarpotdar, A.K. Rao, Praji K.L. And Prasanna Balkrishna Sarpotdar, Advocates.

IMPORTANT POINT
Under the Bombay Municipal Corporation Act, if sufficient cause is not shown it is left to the Commissioner’s discretion whether or not to demolish the unauthorized construction and, therefore, the High Court cannot impede the exercise of that discretion by the issuance of mandatory order of demolition.

Headnote:Bombay Municipal Corporation Act, 1988 - Sections 351, 354, 354A - Order of demolition of building - Giving opportunity of hearing to the owner of the building is conditions precedent - Power u/s 351 of the Act has to be exercised only by the Municipal Corporation - High Court could not direct a mandamus for demolition - Original owners owned a plot of land consisting of two bungalows and one chawl of 8 tenements - There is only one entrance to the property, i.e. access road, through a strip of land about 12 ft. wide - Tenants/occupants used the said access road to access their respective premises - Original owner entered into Development Agreement with Builders and a proposal for approval of proposed temple complex was submitted before the Bombay Municipal Corporation - Construction of temple was completed and installation of idol ceremony took place - Original owner sold that trust property to appellant, a public trust - Property conveyed to appellant consisted of four shops, residential premises, Jain temple and open space - Easementary rights through access road were also conveyed to appellants - Developer of plot adjacent to the trust property started construction on the said plot - After constructing the building, the developer dug the land beneath the access road and tried to instill a gate at the entrance of access road - Appellant filed a suit for declaration and injunction - Respondent 1, a tenant in appellant’s property gave a representation to the Municipal Commissioner about unauthorized structure/temple - Writ petition - Bombay Municipal Corporation issued notice to stop the work u/s 354 A of the Act - High Court passed an order directing the Municipal Authorities to demolish entire illegal and unauthorized construction - Whether High Court could direct a mandamus for demolish where it has been left to the discretion of the Commissioner to demolish or not to demolish - (No).

       Held : It is seen that no notice under the provisions of Section 351 has been issued by the Municipal Commissioner in this matter against the appellant. In the special leave petition, it is clearly mentioned by the appellant that the Corporation had issued a notice to stop the work under Section 354A of the BMC Act. No reference is made to any notice under Section 351A of the Act. It is specifically mentioned that the affidavit which was filed on behalf of the Corporation had categorically stated that after the service of stop work notice under Section 354A no work was carried out. Respondent No.1 is fully aware that the provisions of Section 354A of the Act deals with stop work notice whereas the provisions of Section 351 of the Act deals with show cause notice for demolition of unauthorized structure. The grievance of the appellant herein has been that without issuing a notice under Section 351 of the Act and without giving an opportunity to the appellant of being heard the structure of the temple could not be ordered to be demolished by the High Court. 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 advocates 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. The provisions of Section 354A have nothing to do with the question of demolition. It is specifically averred and contended at the time of hearing that respondent No.1 is an agent set up by the developer who is developing the adjoining land and who is interested in dividing the right of way claimed by the appellant through the said adjoining plot.(Para 52)

       Section 351 obliges the Municipal Commissioner in the construction of any building or the execution of any work is commenced contrary to the provisions of the Act to give notice requiring the person doing the work to show cause why it should not be pulled down. The word used in this context is shall. If sufficient cause is not shown it is left to the Commissioners discretion whether or not to demolish the unauthorized construction and, therefore, the High Court, in our opinion, cannot impede the exercise of that discretion by the issuance of a mandatory order. We, therefore, direct the Commissioner to decide the question as to whether he should pass an order for demolition or not.(Para 56)

       The Authorities are entitled to examine and grant such relief as the appellants may be entitled to under the law. The respondent-Commissioner is directed to decide the matter absolutely on merits after affording opportunity to the first respondent herein within 3 months from the date of this judgment. During this period however, no demolition shall be made.(Para 59)