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2005 Supreme(Bom) 1057
IN THE HIGH COURT OF BOMBAY
Shriram Ramphal Patel
Versus
Municipal Corporation for Greater Bombay
Decided on : August 16, 2005
Headnote:Bombay Municipal Corporation Act, 1888 - Section 354-A Constitution of India, Article 226 Petitioner seeking writ of mandamus against Municipal Corporation requiring it to re-erect the shed it had demolished Failure on his part to produce necessary materials in support of his claim regarding structure being legal and he being lawful owner and/or possessor thereof In spite of specific direction given to file title document, petitioner had chosen to remain silent about it Merely by issuing licence for repairs of structure, the Corporation had not admitted that petitioner was either owner of the structure or was in lawful occupation thereof Petitioner is therefore not entitled to any relief. The petitioner sought direction by way of writ of mandamus against the respondent-Corporation requiring them to re-erect his shed on the ground that the demolition of the shed was not in accordance with the provisions of law. Apart from mere existence of the structure, it is also necessary for a party complaining about the illegal demolition of the structure to reveal the fact regarding the legality of the structure as well as ownership or lawful occupation thereof. Apart from mere claim that the structure is owned by or belonged to the petitioner, the petitioner has not been able to produce any document, either along with the petition or in the course of arguments to substantiate such claim on the part of the petitioner.
Added to above, it is undisputed fact that the licence for repairs was granted on condition that the petitioner shall demolish the western side of the structure which was not assessed to municipal taxes. It is also undisputed fact that the petitioner did not demolish the said portion of the structure even though carried out repairs to the said structure by taking advantage of the licence granted. While availing the benefits the petitioner did not comply with its obligation attached to the permission granted under the said letter. It is also pertinent to note that the petitioner has not been able to establish that the western side of the structure was assessed to municipal taxes. In fact, it is the case of the respondents that the same had not been assessed to municipal taxes. Being so, the Corporation having issued notice for removal of such structure in terms of the said condition and the petitioner having failed to comply with the said direction, if the Corporation proceeded to demolish the said structure, then the Corporation cannot be blamed of having acted illegally or in contravention of the provisions of law. The petitioner is therefore not entitled to any relief. (1999) 8 SCC 16 Referred.
Bombay Municipal Corporation Act, 1888 - Section 354-A Constitution of India, Article 226 Writ petition Challenging demolition of structure Seeking direction to reconstruct structure Petitioner seeking relief in nature of writ of mandamus has to disclose sufficient factual matrix based on which petitioner can claim to have acquired right which is sought to be denied by respondents. It is also pertinent to note that, in the petition, the petitioner himself has stated in view of the extremely dilapidated condition of the structure, the petitioner approached the respondent No. 1 for necessary permission to repair the said structure. Undoubtedly, it is the duty of the Corporation to ensure that the structure which is in dilapidated condition is either repaired expeditiously or an action is taken to demolish such structure so that no harm is caused to any person on account of such dilapidated condition of a structure situated within the limits of the jurisdiction of the Corporation. Being so, merely because a person approaching the Corporation seeks permission for repairs of a structure, that by itself cannot lead to a conclusion that the person to whom permission is granted is deemed to be the owner or lawful owner of the structure. The action taken by the Corporation was, as a part of its public duty, to ensure safety to the human being in the territory of the Corporation and the same cannot be misconstrued in favour of a person in relation to any structure without establishing a lawful right to such structure by following the procedure known to law.
( 1 ) HEARD. BY the present petition, the petitioner is seeking direction by way of writ of mandamus against the respondent Nos. 1 and 2 requiring them to re-erect the shed of the petitioner to the extent of an area occupying 2000 sq. ft. on the ground that the demolition of the shed was not in accordance with the provisions of law and was without following the due process of law.
( 2 ) IT is the contention of the petitioner that he had been residing on the ground floor of the building known as "sharma building" and carrying on his business of purchase and sale of iron scrap and other miscellaneous business in his own shed situated towards the Northern end of the property known as "sharma Building" and the said shed was extending from the East to the West on the rear side of the said building. It is his further contention that the shed has been duly surveyed in the survey records and has been in existence since prior to 1962. By way of amendment, it was clarified by the petitioner that the shed occupied was an area of 2000 sq. ft. Since the shed was in extremely dilapidated condition, the petitioner approached the respondent No. 1 by letter dated 21st December, 1985 requesting for permission for repairs to the said shed. After persistent effort on the part of the petitioner, permission for repairs was granted to the petitioner by the respondent No. 1 by its letter dated 14th October, 1991 subject to the certain terms and conditions incorporated in the said letter. The petitioner, on his part, by the letter dated 22nd October, 1991 objected for imposition of one of the conditions relating to demolition of rear portion of the said shed on the ground that the said portion of the said shed being not unauthorized structure. Meanwhile, the petitioner also carried out the repairs to the said shed. However, the respondent No. 1 issued a stop work notice under Section 354-A of the bombay Municipal Corporation Act, hereinafter called as "the said Act", on 7th December, 1991 on the ground that under the guise of carrying out the repairs, pursuant to the permission granted to the petitioner, he had been carrying out additions and alterations to the said shed, which was refuted by the petitioner under his letter dated 14th December, 1991. The respondent No. 1 thereafter carried out inspection of the premises through its officers and subsequently under the letter dated 19th december, 1991 withdrew the notice issued under Section 354-A of the said Act. After the completion of repair works, the petitioner was served with the letter dated 10th December, 1993 alleging violation of the terms and conditions of the repair permission granted to the petitioner, and therefore, the petitioner was required to show cause against revocation of the repair permission and necessary action in terms of the provisions of the said Act. The notice was replied by the petitioner under his letter dated 19th April, 1993 denying the allegations against the petitioner. The respondent No. 1 however under letter dated 5th May, 1993 rejected the contention of the petitioner ?nd directed him to demolish the unauthorised structure mentioned under Item nos. 2 and 3 of the letter dated 10th February, 1993. The petitioner again addressed the letter dated 21st May, 1993 to the respondent No. 1 to reconsider the matter while contending that rear portion of the shed was authorised structure and had been in existence prior to 1962. It is further case of the petitioner that inspite of the fact that the structure in question being not unauthorised one, nor it was an extension of the existing structure, the respondent No. 1 demolished the rear western portion of the shed on or about 7th June, 1993. It is further case of the petitioner that the respondent No. 2 thereafter demolished the structure occupying an area of 1700 sq. ft. without any authority of law and without following the due process of law, on 31st march, 1995 when in fact, the present p
