DEEPAK GUPTA, ANIRUDDHA BOSE
MUNICIPAL CORPORATION OF GREATER MUMBAI – Appellant
Versus
SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD. – Respondent
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
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