MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS. versus M/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD. on 24 October 2019

[2019] 16 S.C.R. 971

971

MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS.A v.

M/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD.

(Civil Appeal No.7627 of 2019)

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OCTOBER 24, 2019

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Mumbai Municipal Corporation Act (Bom.III of 1988) –ss.342 and 351 – The Municipal Corporation demolished thestructure in exercise of powers vested in it, but in violation of theprocedure prescribed – The High Court directed the ‘owner/occupier’ of the building to reconstruct the demolished structure –Held: The action of demolition without following the procedureprescribed by law is illegal – If a structure is an illegal structure,even though it has been demolished illegally, such a structure shouldnot be permitted to come up again – If the Municipal Corporationviolates the procedure while demolishing the building but thestructure is totally illegal, some compensation can be awarded and,in all cases where such compensation is awarded the same shouldinvariably be recovered from the officers who have acted in violationof law – However, the illegal structure cannot be permitted to be re-erected – If a structure is a legal structure, it would be prudent topermit the structure to be built in accordance with the existing by-laws – Directions can be issued to the authorities to issue requisitepermission for construction of a legal structure within a time boundperiod of about 60 days – This may vary from case to case dependingupon the nature of the structure and the area where it is being built.

The Mumbai Municipal Corporation Act (Bom.III of 1988) –Advantage of advancement in technology – Geomapping and 3Dvisual information – Since the old buildings do not have plans it isdifficult to find out whether the construction carried out is actuallytenantable repairs or the structures are being constructed /reconstructed for which permission is required – Held: Till the Stateframes any law in this regard, it is directed that before anyconstruction/reconstruction, or repair not being a tenantable repairis carried out, the owner/occupier/builder/ contractor/architect, in C

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Afact all of them should be required to furnish a plan of the structureas it exists – This map can be taken on record and, thereafter, theconstruction can be permitted – This information should also be inthe form of 3D visual information, in the nature of photographs,videos etc – Further, Municipal Corporations directed to getgeomapping done where the population is 50 lakhs or more andBgeo-photography of the areas under their jurisdiction – Once onehas the whole city geomapped it would be easy to control illegalconstructions.

Disposing of the appeals, the Court

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HELD: 1. The main dispute is with regard to the 2[nd]direction in Sopan Maruti Thopte and Another v. Pune MunicipalCorporation and Another which provided that demolition of thebuilding structure can be done only after giving 15 days’ noticeto the affected person. [Para 10] [985-B]D

Conclusion

2. It was pointed out by the respondents that the seconddirection in Sopan’s case requiring 15 days’ notice to be given tothe affected person before demolition of the structure, is stillvalid and, therefore, 2 notices are required to be given viz.,(i) ashow cause notice of 7 days in terms of Section 351 (1A) of theEMumbai Municipal Corporation Act [Bom. III of 1888] and; (ii)notice of 15 days in terms of Sopan’s case. It is also submittedthat the judgment in Sopan’s case holds the field till date, andthis Court agrees with the respondent that in terms of directionno.2 in Sopan’s case, 15 days’ notice has to be given beforeFdemolishing the structure. This Court is not oblivious to the factthat Sub-section (2) of Section 351 does not lay down any timelinein this regard. It was in this context that when no timelines werelaid down either for show cause notice or for demolition that theBombay High Court in Sopan’s case, fixed two timelines of 15Gdays each for issuing show cause notice and, thereafter, to takeaction of demolition. The Legislature intervened and the firstperiod has been curtailed from 15 days to 7 days but the seconddirection has not been interfered with by the Legislature.Therefore, that judgment continues to hold the field in this regard.H[Para 12] [985-D-G]

3. This Court does not approve the action of the MunicipalCorporation or its officials in demolishing the structures withoutfollowing the procedure prescribed by law, but the relief whichhas to be given must be in accordance with law and not violativeof the law. If a structure is an illegal structure, even though ithas been demolished illegally, such a structure should not bepermitted to come up again. If the Municipal Corporation violatesthe procedure while demolishing the building but the structureis totally illegal, some compensation can be awarded and, in allcases where such compensation is awarded the same shouldinvariably be recovered from the officers who have acted inviolation of law. However, this Court again reiterates that theillegal structure cannot be permitted to be re-erected.[Para 16] [986-F-H]

4. Assuming that the structure is not illegal then also theCourt will first have to come to a finding that the structure wasconstructed legally. It must come to a clear-cut finding as to thedimensions of the structure, what area it was covering and whichpart of the plot it was covering. Therefore, it would be prudent topermit the structure to be built in accordance with the existingby-laws. Directions can be issued to the authorities to issuerequisite permission for construction of a legal structure within atime-bound period of about 60 days. This may vary from case tocase depending upon the nature of the structure and the areawhere it is being built. [Para 17] [987-A-D]

5. The old buildings do not have plans it is difficult to findout whether the construction carried out is actually tenantablerepairs or the structures are being constructed/reconstructedfor which permission is required. There is no difficulty to find asolution to this problem if the State is inclined to do so. Till theState frames any laws in this regard, this Court directs that beforeany construction/reconstruction, or repair not being a tenantablerepair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a planof the structure as it exists. This map can be taken on recordand, thereafter, the construction can be permitted. In such aneventuality even if the demolition is illegal it will be easy to knowwhat were the dimensions of the building. This information shouldnot only be in paper form in the nature of a plan, but should also A

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Abe in the form of 3D visual information, in the nature ofphotographs, videos etc. All over the country this Court findsthat when people raise illegal constructions it is claimed that thesaid construction has been existing for long. The answer is toget Geomapping done. The relevant technology is GeographicInformation System (GIS). If on Google Maps one can get a roadBview, there is no reason as to why this technology cannot be usedby the municipal corporations. [Paras 20, 21 and 22] [988-A-G]

6. Further directions regarding the manner in which theevidence of illegal construction/reconstruction etc., is collectedCand notices are issued and served. Therefore, the followingdirections were issued:-

(1) It will be obligatory for all Municipal Corporations inthe State of Maharashtra where the population is 50 lakhs ormore to get geomapping and geo-photography of the areas underDtheir jurisdiction done within a period of one year. Geomappingwill also be done of an area of 10 Kms. from the boundary of suchareas. The records should be maintained and updated by theMunicipal Corporations within such time period as the MunicipalCorporation deems fit, keeping in mind the specific circumstancesof the area under its jurisdiction.E

(2) Whenever any new area, which is not alreadygeomapped, is brought under the jurisdiction of a particularmunicipality, it will be the duty of the concerned MunicipalCorporation to ensure that geomapping of the area is conductedFand the geomapping records of such area are created at theearliest.

(3) In cases where buildings are already existing and it isalleged by the Municipal Corporation that the building has beenconstructed in violation of applicable laws:-G

3.1. The Commissioner/Competent Authority on comingto know that an illegal building has been constructed, shall issuea show cause notice giving 7 days in terms of Section 351 to theowner/occupier/builder/contractor etc. Along with this notice theCommissioner/Competent Authority shall also send photographsHand visual images taken on the site clearly depicting the illegal structure. Photographs and images should digitally display thetime and date of taking the photographs; 3.2. In case the notice is not replied to within the timeprescribed, i.e., 7 days, then the building shall be immediatelydemolished by the Municipal Corporation; 3.3 In case the owner files a reply to the notice, theCommissioner/Competent Authority of the MunicipalCorporation shall consider the reply and pass a reasoned orderthereon. In case the reply is not found satisfactory then the ordershall be communicated in the manner laid down hereinafter tothe owner/occupier/builder/contractor etc. giving him further 15days’ notice before demolition of the property. During this periodthe owner/occupier/builder/contractor etc. can approach theappellate/revisional authority or the High Court.

(4) In those cases where according to the municipalcorporation there is ongoing construction which is being carriedon in violation of the applicable laws:- 4.1. The Commissioner/Competent Authority on comingto know that there is ongoing construction in violation of theapplicable laws shall issue a show cause notice giving 24 hours interms of Section 351 to the owner/occupier/builder/contractor/architect etc. Along with this notice the Commissioner/Competent Authority shall also send photographs and visualimages taken on the site clearly depicting the illegal structure.Photographs and images should digitally display the time and dateof taking the photographs; 4.2. The Commissioner/Competent Authority can also issuean interim ‘stop-construction’ order along with the notice or anytime after issuing the notice. Such order shall also include therelevant pictures of the alleged violation(s). Photographs andimages should digitally display the time and date of taking thephotographs; 4.3. In case the notice is not replied to within the timeprescribed, i.e., 24 hours, then the building shall be immediatelydemolished by the Municipal Corporation;

4.4. In case the owner/occupier/builder/contractor/architectetc. files a reply to the notice, the Commissioner/Competent A

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AAuthority of the Municipal Corporation shall consider the replyand pass a reasoned order thereon. In case the reply is not foundsatisfactory then the order shall be communicated in the mannerlaid down hereinafter to the owner/occupier/builder/contractor/architect etc. giving him further 7 days’ notice before demolitionof the property. During this period the owner/occupier/builder/Bcontractor/architect etc. can approach the appellate/revisionalauthority or the High Court.

(5) In regard to service of notice this Court directsas follows :-C5.1. Wherever possible notice shall be served personallyon the person who is raising or has raised the illegal structureincluding the owner/occupier/builder/contractor/architect etc.; 5.2. Notice, in addition to the traditional mode, can also besent through electronic means, both by e-mail and by sending aDmessage on the mobile phones. Even a message to a foreman orperson-in-charge of the construction at the site will be deemedto be sufficient notice; 5.3. In the notice, the municipal authorities shall also givean e-mail ID and phone number where the noticee can send hisEreply through e-mail or messaging services. This will hopefullydo away with all disputes with regard to alleged non-service ofnotice.

6. Till the State frames any laws in this regard, this Courtdirects that before any construction/reconstruction, or repair notFbeing a tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be requiredto furnish a plan of the structure as it exists. They will alsoprovide an e-mail ID and mobile phone number on whichnotice(s), if any, can be sent. This map can be taken on recordand, thereafter, the construction can be permitted. In such anGeventuality even if the demolition is illegal it will be easy to knowwhat were the dimensions of the building. This information shouldnot only be in paper form in the nature of a plan, but should alsobe in the form of 3D visual information, in the nature ofphotographs, videos etc. [Para 23] [989-B-H; 990-A-H; 991-A-HD]

Sopan Maruti Thopte and Another v. Pune MunicipalCorporation and Another AIR 1996 Bom 304– approved.

Case Law Reference

AIR 1996 Bom 304

approvedPara 3

CIVIL APPELLATE JURISDICTION : Civil Appeal No.7627

of 2019

From the Judgment and Order dated 26.03.2018 of the High Courtof Judicature at Bombay in Writ Petition No. 2613 of 2017

With

Civil Appeal No.7626 of 2019.

Atmaram N.S. Nadkarni, ASG, Ashish Wad, Ms. Priti Purandare,Mrs. Jayashree Wad, Sidharth Mahajan, Ms. Sukriti Jaggi, Ajeyo Sharma,M/s J S Wad And Co., Advs. for the Appellants.

Chirag M. Shroff, Bharat Zaveri, Ms. Mahima C. Shroff,Ms.Yashika Verma, Advs. for the Respondent.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. The issue involved in these appeals is whether if a municipalcorporation demolishes a structure in exercise of powers vested in it butin 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 inany other part of the country are vested with the power to demolishstructures which violate the laws and have been built without any buildingplans or in violation of the laws. The exercise of the power of demolitionwhich affects the property of the citizens of this country must be exercisedin an absolutely fair and transparent manner. Rules in this regard mustbe followed. At the same time, the Court has to balance the privateinterest with the larger public interest. Cities and towns must be wellplanned and illegal structures must be demolished. Rule of law comprisesnot only of the principles of natural justice but also provides that theprocedure prescribed by law must be followed. Rule of law also envisagesthat illegal constructions which are constructed in violation of law must A

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Abe demolished and there can be no sympathy towards those who violatelaw.

3. Before we refer to the statutory provisions, we may makereference to a judgment of the Bombay High Court which appears to bethe locus classics on this subject, as far as the Bombay High Court isBconcerned. In Sopan Maruti Thopte and Another vs. Pune MunicipalCorporation and Another[1], the Bombay High Court referred to variousprovisions of law, and thereafter issued the following directions :- “19. Hence, on the basis of the law as discussed above, it isdirected that after 1[st] May, 1996 the Bombay Municipal Corporationor the Municipal Corporations constituted under the B.P.M.C. Actwould follow the following procedure before taking action underSection 351 of the B.M.C. Actor under S. 260 of the B.P.M.C.Act.

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(i) In every case where a notice under Section 351 of theB.M.C. Act/under Sec. 260 of B.P.M.C. Act is issuedDto a party 15days’time shall be given for submitting thereply. In case the party to whom notice is issued sendsthe reply with the documents, and shows cause, theMunicipal Commissioner or Deputy MunicipalCommissioner shall consider the reply and if noEsufficient cause is shown, give short reasons for notaccepting the contention of the affected party.

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(ii) It would be open to the Commissioner to demolish theoffending structure 15 days after the order of theCommissioner/Deputy Municipal Commissioner isFcommunicated to the affected person.

(iii) In case the staff of the Corporation detects the buildingwhich is in the process of being constructed and/orreconstructed and/or extended without valid permissionfrom the Corporation, it would be open to theGCommissioner to demolish the same by giving a shortnotice of 24 hours after drawing a panchanama at thesite and also by taking photographs of such structureand/or extension. The photographs should indicate thedate when the same were taken.

(iv) In case where the Municipal Corporation has followeddue process of law and demolished the unauthorisedstructure and/or extension, if the same is reconstructedwithout valid permission within a period of one year, itwould also be open to the Corporation to demolish thesame by giving a short notice of 24 hours.

(v) If the offending structure and/or extension which isassessed by the Corporation for two years, notice shallprovide for 15 days’ time to show cause. If the DeputyMunicipal Commissioner comes to the conclusion thathe requires assistance of the party, he may give an oralhearing if he deems fit and proper before passing theorder. It is made clear that oral hearing is not at allcompulsory but it is at the discretion of the authority.

(vi) In any other case the Corporation is directed to issue ashow cause notice in case of any structure and/orextension 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.

20. In case the notice is issued under Sec. 478 of the B.P.M.C.Act, 1949 and if the person has not complied with the requisitionsof the Commissioner, then it would be open to the Commissionerto demolish the unauthorised structure after expiry of 30 days ofthe period specified in the notice for removal of suchconstruction.

21. The Municipal Corporations in the State of Maharashtra wouldfollow the above directions so as to avoid unnecessary litigation.”

After issuing these directions the Court also issued a word ofcaution to courts not to grant interim injunctions protecting illegalconstructions from demolition. We may refer to the followingobservations:- “24. In our view, passing interim orders indiscriminately and with-out apparent and due application of mind, which has the effect ofallowing the plaintiff to continue to enjoy the fruits of his illegalactions including unauthorised construction tends to lower theCourt’s prestige and clearly undermines the Rule of Law.

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A28. Considering the aforesaid decisions it should be borne in mindbefore issuance of an injunction that it is a discretionary and anequitable relief. It is not mandatory that for mere asking suchrelief should be given. It is not a charity at the cost of public.However, we make it clear that the procedure established by lawhas to be followed by the public authorities, whether it be theBState or a local body, including the Municipal Corporations. Atthe 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 illegalityhaving already been committed by the plaintiff and to give licenceCof continuing fruits of such illegality for years. Violators of lawshould not liberally be allowed to take protection of Court of lawby obtaining ad interim injunctions which have the effect of con-tinuing such violation.”

Statutory ProvisionsD

4. The relevant provisions to deal with the issue in hand are cov-ered under Chapter 12 of The Mumbai Municipal Corporation Act [Bom.III of 1888] (hereinafter referred to as ‘the MMC Act’). Section 337 ofthe MMC Act provides that before erecting any building, notice in thisbehalf has to be given to the Commissioner of the Municipal Corpora-Etion. The phrase ‘to erect a building’ not only means erecting a newbuilding but also includes within its ambit re-erection of any building bydemolishing the existing building entirely or erecting any building by re-moving the roof of the existing ground floor structures and adding one ormore upper floors and to complete a dwelling house, originally meant toFbe used as one dwelling house into more than one dwelling houses.Building plans have to be furnished to the Commissioner, in terms ofSection 338.

5. Even with regard to execution of works not amounting to erec-tion of building notice under Section 342 of the MMC Act has to beGgiven to the Commissioner. The relevant portion of the Section reads asfollows:- “342. Notice to be given to the Commissioner ofintention to make additions, etc., to or change of user of, abuilding.

HEvery person who shall intend-

(a) to make any addition to a building, or change of existinguser or

(b) to make any alteration or repairs to a building involvingthe removal, alteration or re-erection of any part of thebuilding except tenantable repairs:

Provided that no lowering of plinth, foundation or floor in a buildingshall be permitted.

Explanation.- “Tenantable repairs” in this section shall mean,only,-

(i) providing guniting to the structural members or walls;

(ii) plastering, painting, pointing;

(iii) changing floor tiles;

(iv) repairing W. C., bath or washing places;

(v) repairing or replacing drainage pipes, taps, manholes andother fittings;

(vi) repairing or replacing sanitary water plumbing, orelectrical fittings; and

(vii) replacement of roof with the same material, but shallnot include,- (a) change in horizontal and vertical existing dimensionsof the structure; (b) replacement or removal of any structural membersof load bearing walls;

(c) lowering of plinth, foundations or floors; (d) addition or extension of mezzanine floor or loft; and (e) flattening of roof or repairing roof with differentmaterial;

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(cc) to make any alteration in a building involving-

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(ii) the conversion of any passage or space in suchbuilding into a room or rooms, or (d) to remove or reconstruct any portion of a buildingabutting on a street which stands within the regular lineof such street, B

shall give to the Commissioner, in a form obtained for this purposeunder section 344, notice of his said intention, specifying the positionof the building in which such work is to be executed, the natureand extent of the intended work, the particular part or parts, ifany, of such work which is or are intended to be used for humanChabitation and the name of the person whom he intends to employto supervise its execution.”

6. An analysis of this Section clearly indicates that if any additionis to be made to the building or existing use of the building is to bechanged then notice is required to be given to the Commissioner beforeDsuch addition or change is made. Even for making any alteration orrepair to a building which involves the removal, or alteration of any partof the building, permission is required except for tenantable repairs whichhave been specifically defined in the explanation of this Section. Theproviso lays down that no lowering of plinth, foundation or floors in theEbuilding shall be permitted. Tenantable repairs have been defined andwe need not dwell on what are tenantable repairs for the purpose ofdeciding these cases. We would, however, like to emphasise that evenin case of repairs not falling within the category of tenantable repairs,notice will have to be given to the Commissioner and permission is to betaken and then only work can be commenced in terms of Section 347.F7. We are mainly concerned with Section 351 which reads asfollows :- “351. Proceedings to be taken in respect of buildings orwork commenced contrary to section 347.

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(1) The Commissioner shall, by notification in the Official Gazette,designate an officer of the Corporation to be the DesignatedOfficer for the purposes of this section and of sections 352, 352Aand 354A. The Designated Officer shall have jurisdiction oversuch local area as may be specified in the notification and differentHofficers may be designated for different local areas.

MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAMHIGH TECH DEVELOPERS PVT. LTD. [DEEPAK GUPTA, J.]

(1A) If the erection of any building or the execution of any suchwork as is described in section 342, is commenced contrary tothe provisions of section 342 or 347, the Designated Officer,unless he deems it necessary to take proceedings in respect ofsuch building or work under section 354, shall- (a) by written notice, require the person who is erectingsuch building or executing such work, or has erectedsuch building or executed such work, or who is theowner for the time being of such building or work, withinseven days from the date of service of such notice, bya statement in writing subscribed by him or by an agentduly authorized by him in that behalf and addressed tothe Designated Officer, to show sufficient cause whysuch building or work shall not be removed, altered orpulled down; or (b) shall require the said person on such day and at suchtime and place as shall be specified in such notice toattend personally, or by an agent duly authorized by himin that behalf, and show sufficient cause why suchbuilding or work shall not be removed, altered or pulleddown.

Explanation. - “To show sufficient cause” in this sub-sectionshall mean to prove that the work mentioned in the said noticeis carried out in accordance with the provisions of section 337or 342 and section 347 of the Act.

(2) If such person shall fail to show sufficient cause, to thesatisfaction of the Designated Officer, why such building or workshall not be removed, altered or pulled down, the DesignatedOfficer may remove, alter or pull down the building or work andthe expenses thereof shall be paid by the said person. In case ofremoval or pulling down of the building or the work by theDesignated Officer, the debris of such building or work togetherwith other building material, if any, at the sight of the construction,belonging to such person, shall be seized and disposed of in theprescribed manner and after deducting from the receipts of suchsale or disposal, the expenditure incurred for removal and sale ofsuch debris and material, the surplus of the receipts shall bereturned by the Designated Officer, to the person concerned.

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A(3) No court shall stay the proceeding of any public noticeincluding notice for eviction, demolition or removal from any landor property belonging to the State Government or the Corporationor any other local authority or any land which is required for anypublic project or civil amenities, without first giving theBCommissioner a reasonable opportunity of representing in thematter.”

Sub-section (1A) was the original sub-section (1). It appears thatif the erection of any building or the execution of any work is commencedcontrary to the provisions of Section 342 or 347 then the designatedCofficer shall issue written notice calling upon the builder, occupier, ownerto submit his reply within 7 days from the service of notice to showcause as to why such a building should not be demolished. The designatedofficer can also require the person to appear before him personally on atime and date fixed by him. The Explanation is important. It lays downDthat ‘sufficient cause’ would mean that the work is being carried out inaccordance with the provisions of Sections 337 or 342 and 347 of theMMC Act. This means that required permission before the constructionhas to be obtained and if the person, within 7 days, is not able to producesuch permission, then the designated officer can take steps to removethe building. Sub-section (2) provides that if the noticee does not showEcause or the designated officer is not satisfied with the reply filed, thenthe building can be removed or pulled out. Sub-section(3) debars thejurisdiction of civil courts to stay proceeding of any such public notice.

8. Dealing with the issues relating to building under constructionFand/or reconstruction and/or extension without valid permission theBombay High Court in Sopan’s case (supra) had directed that a shortnotice of 24 hours be issued after drawing a panchnama at the site andalso by taking photographs of such structure and/or extension. It wasalso ordered that the photographs should indicate the date when thesame were taken.Direction 4 provided that if after demolition the un-Gauthorised structure is re-erected without valid permission within a periodof 1 year then also notice of only 24 hours would be required. We arenot directly concerned with directions 5 and 6.In Sopan’s case (supra),nodirection was given that if the offending structure is demolished illegallythe same should be permitted to be reconstructed. The reconstructionHjurisprudence seems to have developed at a later stage.

9. At this juncture it would be necessary to point out that whenSopan’s case (supra) was decided there was no provision fixing a timeline for filing a reply to the notice. Now,7 days have been fixed to filethe reply in terms of Section 351 sub-section (1A), and, therefore, thefirst direction in Sopan’s case (supra) is no longer operative. TheLegislature has enacted a provision and this direction cannot be said tobe valid any more.

10. The main dispute is with regard to the 2[nd] direction in Sopan’scase (supra) which provided that demolition of the building structure canbe done only after giving 15 days’ notice to the affected person.

11. Shri Atmaram N. Nadkarni, learned Additional Solicitor General,appearing for the appellants submits that by making an amendment toSection 351, providing a period of 7 days for notice to be given, the firstdirection in Sopan’s case (supra) is no longer valid.

12. However, as pointed out by Mr. Bharat Zaveri, learned counselappearing on behalf of the respondents that the second direction inSopan’s case (supra) requiring 15days’notice to be given to the affectedperson before demolition of the structure, is still valid and, therefore, 2notices are required to be given viz.,(i) a show cause notice of 7 days interms of Section 351 (1A) and; (ii) notice of 15 days in terms of Sopan’scase (supra). The learned counsel also submits that the judgment inSopan’s case (supra) holds the field till date, and we agree with thecounsel that in terms of direction no.2 in Sopan’s case (supra), 15 days’notice has to be given before demolishing the structure. We are notoblivious to the fact that Sub-section (2) of Section 351 does not laydown any timeline in this regard. It was in this context that when notimelines were laid down either for show cause notice or for demolitionthat the Bombay High Court in Sopan’s case (supra), fixed two timelinesof 15 days each for issuing show cause notice and, thereafter, to takeaction of demolition. The Legislature intervened and the first period hasbeen curtailed from 15 days to 7 days but the second direction has notbeen interfered with by the Legislature. Therefore, that judgmentcontinues to hold the field in this regard.

13. Admittedly, in both the cases the second notice does not complywith the direction given in Sopan’s case (supra). Therefore, there is nomanner of doubt that the requirement with regard to the second noticehas not been complied with in either of the cases. As such, the action ofdemolition without following the procedure prescribed by law is illegal.

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A14. That brings us to the main issue before us. Is the writ courtjustified in issuing a direction that since the building has been demolishedwithout following the procedure prescribed by law, the petitioners beforethe High Court (Respondents before us) be permitted to reconstruct thestructure albeit using the same material, and of the same dimensions, asexisted earlier? The second direction given is that before commencingBof work of reconstruction, the petitioner shall serve a notice to thedesignated officer. It has further been observed by the High Court thatthe reconstruction of the structure on the basis of its order will confer noauthenticity on the structure. The third important direction of the HighCourt provides that if the original structures were constructed withoutCobtaining development permission, the structures reconstructed pursuantto the orders of the Court will also be construed to be constructed withoutproper development permission. Hence the Corporation can initiate actionof demolition of the structures, after following the law laid down inSopan’s case (supra). We have been told that this is the regular practicefollowed in the Bombay High Court, throughout the State of Maharashtra.D

15. We are constrained to observe that we cannot approve ofsuch directions. The High Court itself is aware that some of thesestructures may have been constructed without permission. If that be so,even if the demolition was carried out without giving the second notice,why should the party who has violated the law by raising the constructionEwithout obtaining permission be permitted to raise another illegal structurewhich only has to be razed to the ground, after following the procedureprescribed by law? Why should the Nation’s wealth be misutilised andmisused for raising an illegal construction which eventually has to bedemolished?

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F16. We make it clear that we do not approve the action of theMunicipal Corporation or its officials in demolishing the structures withoutfollowing the procedure prescribed by law, but the relief which has to begiven must be in accordance with law and not violative of the law. If astructure is an illegal structure, even though it has been demolished illegally,such a structure should not be permitted to come up again. If the MunicipalGCorporation violates the procedure while demolishing the building butthe structure is totally illegal, some compensation can be awarded and,in all cases where such compensation is awarded the same shouldinvariably be recovered from the officers who have acted in violation oflaw. However, we again reiterate that the illegal structure cannot beHpermitted to be re-erected.

17. Assuming that the structure is not illegal then also the Courtwill first have to come to a finding that the structure was constructedlegally. It must come to a clear-cut finding as to the dimensions of thestructure, what area it was covering and which part of the plot it wascovering. In those cases the High Court, once it comes to the conclusionthat the structure which has been demolished was not an illegal structure,may be justified in permitting reconstruction of the structure, but whiledoing so the Court must clearly indicate the structure it has permitted tobe constructed; what will be the length of the structure; what will be itswidth; what will be its height; which side will the doors and windowsface; how many number of storeys are permitted etc. We feel that inmost cases the writ court may be unable to answer all these questions.Therefore, it would be prudent to permit the structure to be built inaccordance with the existing by-laws. Directions can be issued to theauthorities to issue requisite permission for construction of a legal structurewithin a time bound period of about 60 days. This may vary from caseto case depending upon the nature of the structure and the area where itis being built.

18. Blanket orders permitting re-erection will lead to un-plannedand haphazard construction. This will cause problems to the generalpublic. Even if the rights of private individuals have been violated in asmuch as sufficient notice for demolition was not given, in such casesstructures erected in violation of the laws cannot be permitted to bere-erected. We must also remember that in all these cases, the HighCourt has not found that the structures were legal. It has passed theorders only on the ground that the demolition was carried out withoutdue notice. As already indicated above, compensation for demolishedstructure or even the cost of the new structure to be raised, if any, canbe imposed upon the municipal authorities which should be recoveredfrom the erring officials, but in no eventuality should an unplanned structurebe permitted to be raised.

19. Times have changed. Technology has advanced. However,the legal fraternity continues to live in a state of status quo. Sopan’scase (supra) was decided on 09.02.1996. More than two decades haveelapsed. The Courts must not be hidebound by old decisions and the lawmust develop in accordance with changing times.

20. All concerned viz., the State, the Municipal authorities and theHigh Court need to take note and advantage of advancement in AB

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Atechnology. We have been informed that disputes with regard to thedimensions and nature of the structure arise especially in those caseswhere rural or suburban areas are included at a later stage in themunicipalities. Some of these structures have no sanctioned plans. TheDevelopment Control and Promotion Regulations for Greater Mumbai,2034, provide that no permission shall be required to carry out tenantableBrepairs to the existing buildings which were constructed with the approvalof the competent authority, or are in existence since 17.04.1964 in respectof residential structures, and 01.04.1962 in respect of non-residentialstructures, as required under Section 342 of the MMC Act. We havealready noted what is meant by tenantable repairs. This is explained inCSection 342 of the MMC Act. Only repairs envisaged in the explanationare permitted to be carried out without permission and all other repairshave to be carried out with permission. Since these old buildings do nothave plans it is difficult to find out whether the construction carried outis actually tenantable repairs or the structures are being constructed/reconstructed for which permission is required.D

21. There is no difficulty to find a solution to this problem if theState is inclined to do so. Till the State frames any laws in this regard,we direct that before any construction/reconstruction, or repair not beinga tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a plan of theEstructure as it exists. This map can be taken on record and, thereafter,the construction can be permitted. In such an eventuality even if thedemolition is illegal it will be easy to know what were the dimensions ofthe building. This information should not only be in paper form in thenature of a plan, but should also be in the form of 3D visual information,Fin the nature of photographs, videos etc.

22. All over the country we find that when people raise illegalconstructions it is claimed that the said construction has been existingfor long. The answer is to get Geomapping done. The relevant technologyis Geographic Information System (GIS). If on Google Maps one canget a road view, we see no reason as to why this technology cannot beGused by the municipal corporations. At the first stage we direct that allthe cities in Maharashtra where the population is 50 lakhs or more themunicipal authorities will get Geomapping done not only of the municipalareas but also of areas 10 Kms. from the outer boundary. This can bedone by satellite, drones or vehicles. Once one has the whole cityHgeomapped it would be easy to control illegal constructions. We further direct the State of Maharashtra to ensure that sufficient funds are madeavailable to the municipal corporations concerned and this exercise shouldbe completed within a period of one year from the date of this order.

23. We also would like to give further directions regarding themanner in which the evidence of illegal construction/reconstruction etc.,is collected and notices are issued and served. We, therefore, issue thefollowing directions:-

(1) It will be obligatory for all Municipal Corporations in the Stateof Maharashtra where the population is 50 lakhs or more to getgeomapping and geo-photography of the areas under their jurisdictiondone within a period of one year. Geomapping will also be done of anarea of 10 Kms. from the boundary of such areas. The records shouldbe maintained and updated by the Municipal Corporations within suchtime period as the Municipal Corporation deems fit, keeping in mind thespecific circumstances of the area under its jurisdiction.

(2) Whenever any new area, which is not already geomapped, isbrought under the jurisdiction of a particular municipality, it will be theduty of the concerned Municipal Corporation to ensure that geomappingof the area is conducted and the geomapping records of such area arecreated at the earliest.

(3) In cases where buildings are already existing and it is allegedby the Municipal Corporation that the building has been constructed inviolation of applicable laws:- 3.1. The Commissioner/Competent Authority on coming to knowthat an illegal building has been constructed, shall issue a show causenotice giving 7 days in terms of Section 351 to the owner/occupier/builder/contractor etc. Along with this notice the Commissioner/Competent Authority shall also send photographs and visual imagestaken on the site clearly depicting the illegal structure. Photographs andimages should digitally display the time and date of taking thephotographs; 3.2. In case the notice is not replied to within the time prescribed,i.e., 7 days, then the building shall be immediately demolished by theMunicipal Corporation; 3.3 In case the owner files a reply to the notice, theCommissioner/Competent Authority of the Municipal Corporation shallconsider the reply and pass a reasoned order thereon. In case the reply A

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Ais not found satisfactory then the order shall be communicated in themanner laid down hereinafter to the owner/occupier/builder/contractoretc. giving him further 15 days’ notice before demolition of the property.During this period the owner/occupier/builder/contractor etc. canapproach the appellate/revisional authority or the High Court.

B(4) In those cases where according to the municipal corporationthere is ongoing construction which is being carried on in violation of theapplicable laws:- 4.1. The Commissioner/Competent Authority on coming to knowthat there is ongoing construction in violation of the applicable laws shallCissue a show cause notice giving 24 hours in terms of Section 351 tothe owner/occupier/builder/contractor/architect etc. Along with thisnotice the Commissioner/Competent Authority shall also sendphotographs and visual images taken on the site clearly depicting theillegal structure. Photographs and images should digitally display the timeand date of taking the photographs;D

4.2. The Commissioner/Competent Authority can also issue aninterim ‘stop-construction’ order along with the notice or any time afterissuing the notice. Such order shall also include the relevant picturesof the alleged violation(s).Photographs and images should digitallydisplay the time and date of taking the photographs; E4.3. In case the notice is not replied to within the time prescribed,i.e., 24 hours, then the building shall be immediately demolished by theMunicipal Corporation;

4.4. In case the owner/occupier/builder/contractor/architect etc.files a reply to the notice, the Commissioner/Competent Authority ofFthe Municipal Corporation shall consider the reply and pass a reasonedorder thereon. In case the reply is not found satisfactory then the ordershall be communicated in the manner laid down hereinafter to the owner/occupier/builder/contractor/architect etc. giving him further 7 days’notice before demolition of the property. During this period the owner/Goccupier/builder/contractor/architect etc. can approach the appellate/revisional authority or the High Court.

(5) In regard to service of notice we direct as follows :- 5.1. Wherever possible notice shall be served personally on theperson who is raising or has raised the illegal structure including theHowner/occupier/builder/contractor/architect etc.; 5.2. Notice, in addition to the traditional mode, can also be sentthrough electronic means, both by e-mail and by sending a message onthe mobile phones. Even a message to a foreman or person in-chargeof the construction at the site will be deemed to be sufficient notice; 5.3 In the notice, the municipal authorities shall also give ane-mail ID and phone number where the noticee can send his reply throughe-mail or messaging services. This will hopefully do away with all disputeswith regard to alleged non-service of notice.

(6) Till the State frames any laws in this regard, we direct thatbefore any construction/reconstruction, or repair not being a tenantablerepair is carried out, the owner/occupier/builder/contractor/architect, infact all of them should be required to furnish a plan of the structure as itexists. They will also provide an e-mail ID and mobile phone number onwhich notice(s), if any, can be sent. This map can be taken on recordand, thereafter, the construction can be permitted. In such an eventualityeven if the demolition is illegal it will be easy to know what were thedimensions of the building. This information should not only be in paperform in the nature of a plan, but should also be in the form of 3D visualinformation, in the nature of photographs, videos etc.

24. As far as Civil Appeal No. 7627 of 2019 @ SLP(C) No.15909of 2018 is concerned the structure has been rebuilt. That obviouslycannot be un-done now. We, however, direct the municipal corporationto ensure that fresh notice is issued to the respondent and thereafteraction is taken strictly in accordance with law. The whole process shouldbe completed within a period of three months. In case an order adverseto the respondent is passed by the municipal corporation, then therespondent will be at liberty to approach the High Court and raise allgrounds available to it.

25. As far as Civil Appeal No.7626 of 2019 @ SLP(C)No.16489of 2018 is concerned, reconstruction has not been done and, therefore,we partly allow the appeal and set aside the order of the High Court tothe extent it allows reconstruction. We remit the matter to the HighCourt which is requested to proceed in accordance with law laid downin this case.

26. Both the appeals are disposed of in the above terms. TheRegistrar General of the Bombay High Court shall cause copies of thisjudgment to be served upon the Chief Secretary, State of Maharashtra A

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Aas well as Principal Secretary, Urban Development Department, Mumbai,Maharashtra, who will ensure that copy of this judgment is served uponall the municipal corporations in the entire State of Maharashtra. Pendingapplication(s), if any, also stand(s) disposed of.

BAnkit Gyan

Appeals disposed of.