The demolition of unauthorized construction without notice and hearing, and the recovery of a deposit under the threat of further demolition, are arbitrary and contrary to the requirements of law, specifically section 351(1) of the Bombay Municipal Corporation Act, 1888.

Headnote:
MUNICIPAL LAW - UNAUTHORIZED CONSTRUCTION - NOTICE AND HEARING - DEPOSIT FOR FAITHFUL COMPLIANCE - LEGALITY - BOMBAY MUNICIPAL CORPORATION ACT, 1888 - SECTIONS 350, 351, 354, 354A.
Fact of the Case:

The petitioner, an occupant of a building in Mumbai, received a notice from the Municipal Corporation of Greater Bombay (MCGB) to carry out repairs to the premises. While the repairs were ongoing, MCGB officers demolished a portion of the structure without notice, claiming it was unauthorized construction. The petitioner was also directed to deposit Rs. 5,000/- for "faithful compliance" of the repair permissions.
Finding of the Court:

The court held that the demolition of the unauthorized construction without notice and hearing was arbitrary and contrary to the requirements of law, specifically section 351(1) of the Bombay Municipal Corporation Act, 1888. The court also found that there was no provision in the Act empowering the authorities to obtain a deposit under the threat of further demolition.
Issues: 1. Whether the MCGB or its officers can demolish any structure without giving any notice and opportunity of hearing to the aggrieved person if it finds such structure as being constructed in excess of the permission or in other words, an unauthorized construction? 2. Whether the MCGB or its officers have the power to direct any owner or occupier of the premises to deposit any amount "for faithful compliance of its directions" in any case, particularly, under threat of demolition?
Ratio Decidendi: 1. The court held that the power of demolition of a structure is a drastic power that cannot be exercised by any officer without notice and hearing. The court emphasized that notice and hearing are the minimum safeguards against abuse or misuse of power and that section 351(1) of the Act lays down an elaborate procedure of notice and hearing before taking any action. 2. The court found that there is no provision in the Act empowering the authorities either to demolish the additional structure (which was not a dangerous structure) without notice and hearing or to obtain a deposit under the threat of further demolition.
Final Decision: The court directed the MCGB to immediately refund the sum of Rs. 5,000/- which it had arbitrarily recovered from the petitioner without any authority of law and retained long for five years with interest at the rate of 12% per annum. The refund must be made within two months from today. So far as the alleged unauthorized construction is concerned, it is made clear that the respondents shall be at liberty to take action in accordance with law after giving proper notice and reasonable opportunity of hearing to the petitioner.

JUDGMENT - Dr. B.P. SARAF, J. :---The writ petitioner is the occupant of a portion of a building on premises No. CTS No. 1044 situated at Devehi Wadi, Versova village, Andheri (West). As the said premises in the petitioner's occupation were in great disrepair, the Assistant Engineer (B F), K-West Ward of Municipal Corporation of Greater Bombay ("Corporation") issued a notice dated 20-12-1986 to the petitioner calling upon him to carry out the repairs to the premises as mentioned in the said notice. In the above notice it was stated that the petitioner should replace the decayed wooden members of the said premises by new ones i.e. wooden posts, beams, joins and side walls, replace damaged C.I. sheets by new C.I. sheets and replace the broken A C sheets of roof by new ones. There was some delay on the part of the petitioner in carrying out the repair in terms of the said notice. However, the petitioner started the repair work in May 1988. While the repairs were going on, on 20-5-1988, some officers attached to K-West Ward of the Corporation came to the site and demolished a portion of the structure on the ground that it was not mentioned in the notice dated 20-12-1986 by which the petitioner had been called upon to carry out the repairs. According to the petitioner, there was no such deviation. He tried to convince the Assistant Engineer and other officers that he was doing exactly what he had been called upon to do. Despite all that, according to the petitioner, the Assistant Engineer called upon him to deposit a sum of Rs. 5,000/- in the office of the Ward Officer, K-West Ward towards faithful compliancce of his directions. The case of the petitioner is that he was threatened by the Assistant Engineer that if the amount of Rs. 5,000/- was not deposited, the entire structure would be demolished and in such a situation, scared of the threat, the petitioner deposited the sum as directed by the Assistant Engineer for which he was given a receipt which is Exhibit-B to the petition. In the said receipt, the receipt of the amount has been shown as a "deposit towards faithful compliance". The repair work was thereafter completed by the petitioner accordingly. Thereafter, on 4-8-1988 the Assistant Engineer attached to the K-West Ward again came to the site of the petitioner and demolished the roof. Faced with such action of the Assistant Engineer, the petitioner himself also removed with great difficulty some of the AC sheets as otherwise all those AC sheets would have been damaged beyond repair. No notice was given to the petitioner before taking up the above action of demolition.

2. The petitioner thereupon approached his advocate and through him wrote a letter dated 8-8-1988 to the Municipal Commissioner and the Executive Engineer (Vigilance) setting out the relevant facts including the fact of recovery of a sum of Rs. 5,000/- from the petitioner made earlier by the Assistant Commissioner in the guise of "deposit towards faithful compliance" without any authority of law. The demolition of the structure by the Assistant Engineer concerned without notice was also questioned. According to the petitioner, on receipt of the copy of the aforesaid letter, the Assistant Engineer met the petitioner and expressed his annoyance. He threatened the petitioner that he would see that the entire structure was completely demolished. Thereafter, the petitioner, through his advocate, worte another letter on 10-8-1988 demanding appropriate action. However, as no action whatsoever was taken by the concerned authorities the petitioner approached this Court by filing the present writ petition challenging the propriety and legality of the actions of the respondent. The petitioner also sought for a direction to the respondents to refund the amount of Rs. 5,000/- illegally collected from him by way of deposit. Prayer was also made for a direction to the respondent Corporation and its officers not to demolish the petitioner's structure without issuing proper n

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1993 Supreme(Bom) 71

IN THE HIGH COURT OF BOMBAYDr. B.P. Saraf, J.Narayan Megha Gohil... Petitioner.VersusMunicipal Corporation of Greater Bombay... Respondents.Writ Petition No. 2580 of 1988, decided on15-2-1993.Advocates appeared :G.V. Murty, for the respondents.

The demolition of unauthorized construction without notice and hearing, and the recovery of a deposit under the threat of further demolition, are arbitrary and contrary to the requirements of law, specifically section 351(1) of the Bombay Municipal Corporation Act, 1888.

IN THE HIGH COURT OF BOMBAY
Dr. B.P. Saraf, J.
Narayan Megha Gohil... Petitioner.
Versus
Municipal Corporation of Greater Bombay... Respondents.
Writ Petition No. 2580 of 1988, decided on15-2-1993.
Advocates appeared :
G.V. Murty, for the respondents.