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SUPREME COURT OF INDIA
DEEPAK GUPTA, ANIRUDDHA BOSE, JJ.
MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS. – APPELLANT(S)
Versus
M/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD. – RESPONDENT(S)
CIVIL APPEAL NO.7627 OF 2019 WITH CIVIL APPEAL NO. 7626 OF 2019
Decided On : 24-10-2019
(A) Municipal Laws – Demolition of Illegal Structures – Municipal corporations in State of Maharashtra like in any other part of country are vested with power to demolish structures which violate laws and have been built without any building plans or in violation of the laws – Exercise of power of demolition which affects property of citizens of this country must be exercised in an absolutely fair and transparent manner – Rules in this regard must be followed – At the same time, Court has to balance private interest with larger public interest – Cities and towns must be well planned and illegal structures must be demolished – Rule of law comprises not only of principles of natural justice but also provides that procedure prescribed by law must be followed – Rule of law also envisages that illegal constructions which are constructed in violation of law must be demolished and there can be no sympathy towards those who violate law. (Para 2)
(B) Municipal Laws – Illegal Demolition of Structures – Reconstruction of such demolished structure – Demolition of building structure can be done only after giving 15 days’ notice to affected person – Requirement with regard to second notice has not been complied with in either of cases – As such, action of demolition without following procedure prescribed by law is illegal – However, 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 Municipal Corporation violates procedure while demolishing building but 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 officers who have acted in violation of law – However, illegal structure cannot be permitted to be re-erected. [Mumbai Municipal Corporation Act , 1888 – Section 351] (Paras 10, 13, 15 and 16)
(C) Municipal Laws – Illegal Demolition of Structures – Reconstruction of such demolished structure – Blanket orders permitting re-erection will lead to unplanned and haphazard construction – This will cause problems to general public – Even if rights of private individuals have been violated in as much as sufficient notice for demolition was not given, in such cases structures erected in violation of laws cannot be permitted to be re-erected – Till State frames any laws in this regard, before any construction/reconstruction, or repair not being a tenantable repair is carried out, owner/occupier/builder/contractor/architect, all of them should be required to furnish a plan of structure as it exists – This map can be taken on record and, thereafter, construction can be permitted – In such an eventuality even if demolition is illegal it will be easy to know what were dimensions of building – This information should not only be in paper form in nature of a plan, but should also be in form of 3D visual information, in nature of photographs, videos etc – Elaborate directions issued. (Paras 18, 21 and 23)
Facts of the case:
Issue involved in these appeals is whether if a municipal corporation demolishes a structure in exercise of powers vested in it but in violation of procedure prescribed, can High Court direct ‘owner/occupier’ of building to reconstruct demolished structure?
Findings of Court:
All over the country we find that when people raise illegal constructions it is claimed that 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, we see no reason as to why this technology cannot be used by the municipal corporations.
Result : Appeals disposed of in terms.
Based on the provided legal document, here are the key points regarding the demolition of illegal structures and the reconstruction jurisprudence:
1. Power to Demolish and Procedural Fairness * Municipal corporations in Maharashtra and other parts of the country are vested with the power to demolish structures that violate laws, lack building plans, or are constructed in violation of laws. * The exercise of this power, which affects citizens' property, must be absolutely fair, transparent, and in accordance with prescribed rules. * The Court must balance private interests with the larger public interest; while cities must be well-planned and illegal structures demolished, the rule of law requires following due process. * There can be no sympathy for those who violate the law regarding illegal constructions. (!) (!)
2. Prohibition on Reconstructing Illegal Structures * Even if a structure is demolished illegally due to procedural lapses, it cannot be permitted to be reconstructed if the structure itself is illegal. * Blanket orders permitting re-erection lead to unplanned, haphazard construction and cause problems for the general public. * The relief given must be in accordance with the law; permitting the reconstruction of an illegal structure violates the law. * Compensation may be awarded for illegal demolition, but such compensation must be recovered from the officers who acted in violation of the law. (!) (!) (!) (!)
3. Procedure for Demolition (Sopan's Case Directions) * Two-Notice Rule: For structures not falling under emergency categories, a two-notice procedure is required: 1. A show-cause notice giving 7 days (as per Section 351 of the MMC Act) to submit a reply. 2. A second notice giving 15 days to show cause before demolition (as per the Bombay High Court judgment in Sopan Maruti Thopte). * Failure to comply with the requirement of the second notice renders the demolition illegal. (!) (!) (!) (!) * Emergency Notice: If a building is detected in the process of being constructed/reconstructed without valid permission, a short notice of 24 hours can be issued after drawing a panchanama and taking photographs indicating the date. (!) (!) (!)
4. Statutory Provisions (Mumbai Municipal Corporation Act, 1888) * Section 337: Requires notice to the Commissioner before erecting any building (including re-erection or adding floors). * Section 342: Requires notice for additions, changes of user, or alterations/repairs (except "tenantable repairs") involving removal or re-erection of parts of a building. * Section 347: Governs execution of works not amounting to erection; notice is required unless it is tenantable repair. * Section 351: Provides proceedings for buildings/work commenced contrary to Sections 342 or 347. It mandates a 7-day notice to show cause and debars courts from staying proceedings without giving the Commissioner an opportunity to represent. (!) (!) (!) (!)
5. Technology and Geomapping Directives * To determine the dimensions and existence of structures (especially in areas without sanctioned plans), the Court directs the use of advanced technology like Geographic Information Systems (GIS), satellite imagery, drones, and 3D visual information (photographs/videos). * Mandatory Geomapping: Municipal corporations in Maharashtra with a population of 50 lakhs or more must conduct geomapping of their jurisdiction and an area 10 Kms from the boundary within one year. * Pre-Construction Requirement: Until the State frames specific laws, owners/occupiers must furnish a plan of the structure as it exists (including 3D visual info) before any construction/reconstruction/repair (other than tenantable repair) is carried out. (!) (!) (!) (!) (!)
6. Service of Notice * Notices should preferably be served personally. * Electronic service via email or mobile messages is permitted and deemed sufficient. * Notices should include an email ID and phone number for replies to avoid disputes regarding non-service. (!) (!) (!)
JUDGMENT
Deepak Gupta, J.
The issue involved in these appeals is whether if a municipal corporation demolishes a structure in exercise of powers vested in it but in violation of the procedure prescribed, can the High Court direct the ‘owner/occupier’ of the building to reconstruct the demolished structure?
2. The municipal corporations in the State of Maharashtra like in any other part of the country are vested with the power to demolish structures which violate the laws and have been built without any building plans or in violation of the laws. The exercise of the power of demolition which affects the property of the citizens of this country must be exercised in an absolutely fair and transparent manner. Rules in this regard must be followed. At the same time, the Court has to balance the private interest with the larger public interest. Cities and towns must be well planned and illegal structures must be demolished. Rule of law comprises not only of the principles of natural justice but also provides that the procedure prescribed by law must be followed. Rule of law also envisages that illegal constructions which are constructed in violation of law must be demolished and there can be no sympathy towards those who violate law.
3. Before we refer to the statutory provisions, we may make reference to a judgment of the Bombay High Court which appears to be the locus classicus on this subject, as far as the Bombay High Court is concerned. In Sopan Maruti Thopte and Another vs. Pune Municipal Corporation and Another, AIR 1996 Bom 304 the Bombay High Court referred to various provisions of law, and thereafter issued the following directions :
“19. 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 constituted 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 t
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