Compliance with notice and service requirements is essential for lawful demolition actions under municipal regulations.

JUDGMENT :

GAURI GODSE, J.

1. This appeal was heard on 6^th March 2025, and the judgment was reserved. Later on, this court noticed that the appeal was argued based on an unamended Section 354A of the Mumbai Municipal Corporation Act, 1888 (‘said Act’). The said section was amended in the year 2012. Hence, the appeal was listed for directions on 20^th March 2025, and at the request of the respective learned counsels for both parties, the appeal was listed for further hearing on 27^th March 2025. Learned counsels for the parties submitted that the amendment to the Section is only to replace the word ‘Commissioner’ with the word ‘Designated Officer’. Hence, it was submitted that the arguments already made by them would not change due to the amended Section.

2. This appeal is preferred by the plaintiffs to challenge the judgment and order dated 23^rd August 2024 dismissing their application seeking an order of temporary injunction restraining the corporation from taking any action pursuant to the notice impugned in the suit. The suit is filed to challenge the notice dated 21^st October 2020 (‘suit notice’) issued by the corporation under Section 354A of the said Act.

3. The plaintiffs have challenged the suit notice on the ground that they are lawfully occupying their respective structures on the 6^th and 7^th floors in the building in respect of which the corporation has issued the suit notice. Plaintiffs claim that the suit structures have existed since before 1958, and no unauthorised construction was carried out in respect of the building, and only tenable repairs were carried out. By the impugned order, the interim relief of injunction is refused on the ground that demolition work was already carried out by the corporation above the 5^th floor.

SUBMISSIONS ON BEHALF OF APPELLANTS:

4. The submissions made by the learned counsel for the appellants (‘plaintiffs’) are summarised as follows:

a) The suit notice was never served upon the plaintiffs. The plaintiffs’ structures have existed since 1958 and, except for tenable repairs, no unauthorised construction has been carried out as alleged in the suit notice. The description of the offending structure in the suit notice indicates that the corporation has alleged unauthorised reconstruction of the building without permission, and thus, the suit notice directs the owner/occupier/landlord/tenant to stop the erection of the building forthwith. The description of the alleged unlawful work described in the schedule of the suit notice and the sketch indicates that the corporation’s allegation is regarding the reconstruction of the building without permission. The speaking order dated 15^th March 2022 refers to the work order issued by the Mumbai Building Repair and Reconstruction Board, which is a unit of MHADA (Maharashtra Housing and Area Development Authority) for repairs of the building. The speaking order records that the suit notice was issued alleging reconstruction of the building; however, after going through the work order and repair plan of MHADA, the corporation concluded in the speaking order that the building upto the 5^th floor was authorised. The repair plan of MHADA referred to in the speaking order itself indicates that there is no new construction in the building, and only repairs were carried out. The appellants would therefore be entitled to lead evidence to support their contentions that the suit notice is illegally issued, and the appellants’ structures have existed since prior to 1958, and there is no new construction carried out.

b) Section 354A is a drastic provision that enables the corporation to demolish the offending structure/construction if, within 24 hours of the notice, permission is not produced. Therefore, the concerned person who would be affected must be served with the notice. Nothing has been produced on record by the corporation that the owner of the building or the person affected has been served. To support his contention regarding service of notice, learned cou