Headnote:C.P.C. -Order XXXIX, Rule 3-Ex parte stay or interim relief-Granting of.
       Held; not a empty formality.
       Passing interim orders indiscriminately and without apparent and due application of mind, which has the effect of allowing the plaintiff to continue to enjoy the fruits of his illegal actions including unauthorised construction tends to lower the Courts prestige and clearly undermines the Rule of Law.
       The need to see that a prima facie case is made out, before a Court grants an ad interim injunction, cannot but be over emphasised. Prima facie case also should be such that it should appear on record that there is a bonafide contest between the parties and serious question is required to be tried. If the plaintiff has no right, title or interest in the property normally there is no question of granting equitable relief in his favour. The fact of dispute could hardly be a ground.
       It should be borne in mind before issuance of an injunction that it is a discretionary and an equitable relief. It is not mandatory that for mere asking such relief should be given. It is not a charity at the cost of public. However, is the Court make it clear that the procedure established by law has to be followed by the public authorities, whether it be the State or a local body, including the Municipal Corporations. At the same time, the procedural lapses, unintentional or intentional, which do not seriously affect the substantive rights of a person, ought not to result in ad interim orders which protect illegality having already been committed by the plaintiff and to give licence of continuing fruits of such illegality for years. Violators of law should not liberally be allowed to take protection of Court of law by obtaining ad interim injunctions which have the effect of continuing such violation.
       Section 260-See Bombay Municipal Corporation Act, 1988-Sectlon 351.
       Order XXXIX, Rule 3-Ad interim order.
       No ex parte relief should be granted on mere asking content following mandate of Rule 3 of Order XXXIX, C.P.C.
       Section 351-Bombay Provincial Municipal Corporation Ad, 1949Section 260-Scope of.
       If the Legislature intended to provide that in all cases personal hearing was necessary, then there was no necessity of providing separate clauses (a), (b). In clause (a) itself the Legislature could have provided that personal hearing should be given by adding word and at the end of clause (a). Further, after clause (a), the word of is mentioned. This clearly gives a discretion to the Commissioner either to call for the written cause or to give personal hearing.
       The question of issuance of notice under Section 351 of B.M.C. Act or Section 260 of B.P.M.C. Act arises only in case where erection of new building is commenced, or is carried out or addition to the building or repairs to a building is carried out without the approval at required under the provisions of the Act. For erection, if no such sanction is obtained, then it would be un-authorised and in such case a show cause notice along with a statement in writing would be sufficient compliance of the Act and principles of natural justice. It is open to the person receiving notice to show-cause why such building or work should not be removed altered or pulled down. But in those cases where it is disputed whether the construction Was authorized or that the additions, repairs and alterations are carried out in conformity with the rules and regulations then it is open to the Commissioner to consider such case even by giving personal hearing also to the concerned party as provided under clause (b).
       After referring to various circumstances, the Court observed that in the scheme of the provisions of clause (a) of sub-section (I) of Section 351 of the Corporation Act, it is not obligatory on the Municipal Commissioner to give oral or personal hearing to the affected person. The principle of natural justice is not violated because the affected person can make written representation. It was held that giving a notice to show sufficient cause why such building or work should not be removed, altered or pulled would be sufficient compliance with the principles of natural justice. It is in the discretion of the Commissioner to issue notice under clause (b) of sub-section (1) of Section 351 which contemplates an oral or personal hearing with regard to the interpretation of the word or at the end of clause (a), the Court held that the word or could not be interpreted us "und that the clear intention of the statute did not require such a reading.
       Elaborate procedure of notice and hearing has been laid down in sub-section (1). It is only after such" hearing and only on failure of the person concerned to show sufficient cause to satisfy the Commissioner, that the Commissioner can remove, alter or pull down such un-authorised construction. The Court further observed that it is well-settled that where rights of the persons are adversely and prejudicially affected by order made by the authority in the proceedings such person is entitled to pre- decisional notice, The Court also held that only power that can be exercised by the Commissioner without any notice in the power under Section 350 of the Act to make inspection of the construction or work at any time during the creation of the building or execution of the work. Therefore, the Court observed that power of dCIrlOlitiol1 of the structure is a drastic power and such power cannot be exercised by the officers without notice and without hearing and that requirement of notice and hearing to the affected person is not a mere formality or a ritual that the authority concerned has to observe before taking any action. It must be real and reasonable and not a pretence,
       It is apparent that the Court has not discussed clauses (a) and (b) of sub-section (1) of Section 351. The observation of the Court with regard to notice and hearing is a general one because in that came before demolition of the premises no notice was given and it was contended by the Corporation and notice was not required to be given.
       With regard to the principles of natural justice, it has been repeatedly made clear by the Supreme Court that audi alteram partem principle is a part of the principles of natural justice and doctrine of hearing is not extended in every case. Requirement of natural justice cannot be of a uniform mode and cannot be laid down on any strait-jacket formula. It is also held that order may not contain the detailed reasons like the Courts order and the principles of natural justice should not be stretched to make the law lifeless, absurd, stultified as self-defeating.
       The Municipal Commissioner may either call for statement in writing showing cause or give personal hearing to show-cause why the unauthorised construction should not be demolished this would be sufficient compliance with the principles of natural justice and also provisions of Section 351 of the Bombay Municipal Corporation Act or Section 260 of the Bombay Provincial Municipal Corporation Act.
       It should be read broadly which will effectuate the intention of the Legislature and prevent the mischief which is sought to be avoided by the provisions.
       As stated, the object of the provisions of the B.M.C. Act is to regulate the building construction for the safety, health and well being of the inhabitants of the Municipality or the Corporation. The construction also should be according to sanctioned plan or town planning scheme if it is in force. Therefore, also, Section 260 of the B.P.M.C. Act or Section 351 of the B.M.C. Act is required to be broadly interpreted.
       The proposition that personal hearing must be given in all cases before demolishing the premises also cannot be accepted. The section empowers the Commissioner either to call for written statement or give it personal hearing for showing cause why such unauthorised construction should not be demolished, altered or pulled down. It is open to the Commissioner after considering the written statement to give personal hearing, if at all he requires it.
       Hence, on the basis of the law as discussed it is directed after after 1st May, 1996 the Bombay Municipal Corporation or the Municipal Corporations constituted under the B.P.M.C. would follow the following procedure before taking action under Section 351 of the B.M.C. Act or under Section 260 of the B.P.M.C. Act.
       (a) In every case where a notice under Section 351 of the B.M.C. Act/under Section 260 of the 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 Case the Municipal Com~ missioner 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.
       (b) 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.
       (c) III 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.
       (d) In case where the .Municipal Corporation has followed the due process of law and demolished the unauthorised structure und/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.
       (e) 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.
       (f) In any other case the Corporation is directed to issue a show-cause notice in case of any structure and/or extension other than those mentioned in clauses (i) to (iv) above. The Corporation shall provide for 7 days time to show-cause in such a case.

Judgement Key Points

Key Points: - The notice and hearing requirement under Section 351/B.P.M.C. Act is not mandatory in all cases; it depends on whether the construction was authorized or disputed (!) (!) (!) (!) (!) (!) . - Personal hearing is at the discretion of the Commissioner and is not compulsory if the person can show sufficient cause in writing (!) (!) (!) (!) (!) (!) (!) . - Interim relief or ex parte injunction should not be granted indiscriminately; a prima facie case must be made out, and the right, title, or interest of the plaintiff must be clear (!) (!) (!) (!) (!) (!) . - The procedure after 1st May 1996 requires issuing a notice, allowing 15 days for reply, and providing reasons before demolition unless urgent action is required (!) (!) (!) (!) . - Where there is consent or no genuine dispute, or the plaintiff has no right or title, injunction should not be granted (!) (!) (!) . - In cases of unauthorized construction detected in process, a 24-hour notice may be given for immediate demolition after recording evidence (!) (!) . - Reconstructed unauthorized structures within one year of prior demolition may also be demolished after a 24-hour notice (!) . - Oral hearing is optional and at the discretion of the authority, not compulsory in all cases (!) (!) . - The principles of natural justice require fair play, but the procedure need not be uniform or mechanically followed (!) (!) (!) . - The ultimate aim is to prevent misuse of court reliefs and ensure compliance with the law without undermining the rule of law (!) (!) (!) .

What is the procedure to be followed by Municipal Corporations before demolishing unauthorized construction under Section 351 of the Bombay Municipal Corporation Act or Section 260 of the Bombay Provincial Municipal Corporation Act?

What are the principles governing the grant of interim relief or ex parte injunctions in cases involving unauthorized construction?

What is the right of a person against whom notice is issued under Section 351 or Section 260 regarding show cause and personal hearing?

ORDER

M. B. SHAH, C. J.

1. Heard the learned Counsel for the parties.

2. This group of Writ Petitions, has been referred to Division Bench by A. P. Shah, J. by order dated 11th October, 1995. In referring order it is observed that these matters are required to be decided with some priority because the Courts are virtually flooded with the demolition matters and there are conflicting views expressed by this Court in various decisions mentioned therein. It was also observed that unauthorized structures are mushrooming in this city every day and, therefore, it was stated that the matters may be decided with some priority.

3. Similarly, in Appeal from Order No. 477 of 1994, S. N. Variava, J. has also referred the matter to the Division Bench by observing that following question of law be decided by the Division Bench.

"Whether in the very Scheme of the provisions of Section 351 of the Bombay Municipal Corporation Act, it is obligatory on the Deputy Municipal Commissioner to give a personal or early hearing to the parties after notice under clause (a) of sub-section (1) of Section 351 is issued."

In that order also, the Court has observed that it is well known jn the city of Bombay that unauthorized constructions are regularly put up; when caught out, an application for regularisation is made or suit is filed and stay applied for with an intention to white away the time. Very often the party has no proof, documentary or oral, to show that structure/ work/construction is authorized; even knowing fully well that the work/construction is unauthorized and cannot be justified even without having asked for a personal hearing, in the Court a plea is raised that personal hearing was not given and stay orders are obtained. It is also observed that there cannot be any automatic stay order of demolition merely because it is contended that personal hearing was not given."

4. For deciding the questions involved, we would firstly refer to the relevant provisions of Section 351 of the Bombay Municipal Corporation Act, 1888, hereinafter re- ferred to as the B.M.C. Act, which are as under:

"Sec. 351(1): If the erection of any building or the execution of any such work as is described in Section 342 is commenced contrary to the provisions of Section 347, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work u/s 354, shall--
(a) by written notice, require the person who is erecting such building or executing such work, or has erected such building or executed such work, (or who is the owner for the time being of such building or work) on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or
(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personalty, or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.
(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person."

Section 354 provides for removal of the dangerous structures likely to fall. With regard to that provision, we are not concerned in this reference.

5. Section 260 of the Bombay Provincial Municipal Corporation Act, 1949, hereinafter referred to as the B.q1 P.M.C. Act, 1949, is similar to Section 351 which reads as under:

"Sec. 260: Proceedings to be taken in respect of building or work commenced contrary to rules or by-law (1) if the erection of any building or the execution of any such work as is described in Section 254 is com

Click Here to Read the rest of this document