{"id":262754,"date":"2006-10-11T00:00:00","date_gmt":"2006-10-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/muni-suvrat-swami-jain-s-m-p-vs-arun-nathuram-gaikwad-ors-on-11-october-2006"},"modified":"2015-12-15T08:41:35","modified_gmt":"2015-12-15T03:11:35","slug":"muni-suvrat-swami-jain-s-m-p-vs-arun-nathuram-gaikwad-ors-on-11-october-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/muni-suvrat-swami-jain-s-m-p-vs-arun-nathuram-gaikwad-ors-on-11-october-2006","title":{"rendered":"Muni Suvrat-Swami Jain S.M.P. … vs Arun Nathuram Gaikwad & Ors on 11 October, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Muni Suvrat-Swami Jain S.M.P. … vs Arun Nathuram Gaikwad & Ors on 11 October, 2006<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: Dr. Ar. Lakshmanan, Tarun Chatterjee<\/div>\n
           CASE NO.:\nSpecial Leave Petition (civil)  9049 of 2006\n\nPETITIONER:\nMuni Suvrat-Swami Jain S.M.P. Sangh\n\nRESPONDENT:\nArun Nathuram Gaikwad & Ors.\n\nDATE OF JUDGMENT: 11\/10\/2006\n\nBENCH:\nDr. AR. Lakshmanan & Tarun Chatterjee\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Dr. AR. Lakshmanan, J.\n<\/p>\n
Leave granted.\n<\/p>\n
This appeal is directed against the final judgment and
\norder dated 23.02.2006 passed by the High Court of
\nJudicature at Bombay in Writ Petition No. 2841 of 2005
\nwhereby the High Court while allowing the writ petition
\ndirected the Municipal Corporation to demolish the entire
\nillegal and unauthorized construction carried on by
\nrespondent Nos. 3-17 on entire CTS No. 206, 206(1 to 9),
\nKurla Part-IV, New Mill Road, Kurla (W), Mumbai.
\n The short facts leading to the filing of the above appeal
\nas stated in the S.L.P. are as under:-\n<\/p>\n
Shri Fernandes and others (hereinafter referred to as
\nOriginal owners) owned a plot of land bearing C.T.S. No.206
\nand 206\/1 to 9 and CTS No.212 and 212\/1 to 4, N.A. Survey
\nNo.764 & 768, of Village\/Taluka, Kurla, Mumbai, Suburban
\nDistrict, consisting of two bungalows and one chawl of 8
\ntenements.  It is to be noted that there is only one entrance to
\nthe property from A.H. Wadia Marg (New Mill Road) through a
\nstrip of land about 12 feet wide (hereinafter referred to as
\n‘access road’). The tenants\/occupants used the said access
\nroad to access their respective premises, including the writ
\npetitioner before the High Court (Respondent No.1 herein),
\nwho was a tenant of chawl no.523\/7 of C.T.S no 1 to 9 in the
\naforesaid property.\n<\/p>\n
Shri Fernandes entered into Development Agreement
\nwith Shri Ghag of Sadhana Builders in order to develop the
\nproperty.  A proposal for approval of proposed temple complex
\nat CTS No.206, 206\/1 to 9 was submitted before the BMC.
\nThe construction of temple was completed and the
\ninstallation of idol ceremony (Prathishta) took place.  It is to be
\nnoted that the respondent no.1 participated in the celebration
\nand did not make any complaint regarding the construction of
\nthe temple.\n<\/p>\n
The original owner sold the aforesaid property
\n(hereinafter referred to as the ‘trust property’) to the appellant,
\na public trust, by a deed of conveyance, where Mr. Ghag was a
\nconfirmation party.  When the property was conveyed to the
\nappellant the aforesaid property consisted of four shops, eight
\nresidential premises, Jain temple, Upashraya, Pravachan hall
\nand open space.  It is to be noted that the easementary rights
\nfrom A.H.Wadia Marg (New Mill Road) through the access road
\nof about 12 feet wide were also conveyed to the appellants.
\nOne Mr. Ismail Yakob Payak, the developer of the plot
\nadjacent to the Trust property i.e. plot of land bearing CTS No.
\n205, N.A.No.765, 766, 767 started construction on the said
\nplot (hereinafter referred to as the ‘developer’).
\nThe said developer constructed a building of ground plus
\n6 floors known as “Saiba Palace”. After constructing the said
\nbuilding the developer dug the land beneath the access road
\nand tried to instill a gate at the entrance of the access road.
\nThe appellant Nos.1 to 11 filed a suit being suit No.1478
\nof 2005 in the City Civil Court at Bombay for declaration and
\ninjunction.\n<\/p>\n
The developer in an attempt to pressurize the appellants
\ninto not prosecuting the said suit had setup respondent no.1
\nherein (a tenant of the Trust property) to initiate proceedings
\nagainst the appellants. According to the appellants, the fact
\nthat the respondent no.1 was setup is clear from the following-\n<\/p>\n
a) though the construction of the temple was completed in the
\nyear 2001, the respondent no.1 who was a tenant of the
\npremises did not complain about the unauthorized
\nconstruction till the appellants herein filed a suit against the
\ndeveloper; b) that the respondent no.1 had participated in the
\ncelebration of idol installation; c) the advocates of the
\ndeveloper as well as the Respondent no.1 were same; d) that
\nthe respondent no.1 and the developer belong to the same
\nNationalist Congress Party.\n<\/p>\n
Respondent No.1 through its advocate gave a
\nrepresentation to Municipal Commissioner about the
\nunauthorized structure\/temple. The respondent no.1 also
\nwrote several letters of complaints to Hon’ble Ministers,
\nAssistant Commissioner of Police, Deputy Chief Minister,
\nCommissioner of Police, Inspector General of police, Editors of
\nNewspaper etc.
\nThe appellant filed an interim application Notice of
\nMotion No.1201 of 2005 in Suit No. 1478 of 2005 for grant of
\nad interim relief. After hearing the parties City Civil Court
\npassed the following order:-\n<\/p>\n
“The Defendants have constructed part of their compound
\nwall. The plaintiff’s agree that the defendants shall extend
\nthat constructing leaving 6ft. from the otla on the rear of the
\nfour shops in the Plaintiff’s property.\n<\/p>\n
The defendants shall construct their compound wall as shown
\nin blue extending it from the wall already constructed leaving
\n6ft. space from the otla on the rear of the shops of the
\nplaintiffs as shown in blue in the sketch plan Ex-A to the
\nplaint.\n<\/p>\n
The plaintiffs shall be entitled to have access through the
\ndefendant’s property for only pedestrian traffic (including
\nPalkhis) pending the suit.\n<\/p>\n
N\/M is disposed off accordingly. NOC<\/p>\n
W\/s if filed.”\n<\/p>\n
The aforesaid order was modified and it was added that
\n“By consent order dated 3.5.2005 is without prejudice to the
\nrights and contentions of both parties.”\n<\/p>\n
During the pendency of the said suit, the developer
\nstarted constructing a compound wall on the southern side of
\nthe tenement, whereby the developer encroached upon a part
\nof the land bearing CTS No.212 and reduced the width of the
\naccess road from 12 feet to 6 feet.  He also wrongfully
\nconstructed a gate at the entrance of the Servient Tenement,
\ntouching the land bearing CTS No.212\/1 to 4 and thereby
\nattempted to disturb the free use of the right of way acquired
\nby the trust.\n<\/p>\n
The appellant complained to the authorities about the
\nillegal construction and unauthorized conduct of the
\nrespondents.\n<\/p>\n
In reply, the Municipal Corporation informed the
\npetitioner that as per order of Asst. Joint Municipal
\nCommissioner dated 6.8.2005, the occupation certificate to
\nthe building constructed by the developer and named Saiba
\nPalace shall be issued after the proceedings in court are finally
\ndisposed off and the provisions of access to the subject temple
\nwill also be taken into account.\n<\/p>\n
Respondent no.1 filed a writ petition before the High
\nCourt at Bombay alleging that appellants were in the process
\nof constructing a temple in the extremely crowded area
\nwithout obtaining permission from Municipal Corporation and
\nthat on account of this construction the atmosphere in the
\nlocality has been disturbed and disputes have arisen.  In view
\nof this he sought the following reliefs:\n<\/p>\n
i)\tdirect municipal authorities to demolish the
\nentire unauthorized and illegal construction on
\nCTS no. 206, 206 (1 to 9) called on by the
\npetitioners herein;\n<\/p>\n
ii)\tpending disposal of the writ, injunct the
\npetitioners from carrying on any further
\nconstruction;\n<\/p>\n
iii)\tappointment of court commissioner to visit the
\nproperty and give its report.\n<\/p>\n
It is the case of the appellant that the construction of
\ntemple was not in progress at that time.  Temple was already
\nconstructed in the year 2001.\n<\/p>\n
It is also the case of the appellant that respondent no.1
\nbeing a tenant of Chawl 523\/7 on the trust property claimed
\nthat he recently came to know about the illegal and
\nunauthorized construction in the Trust property, despite his
\nfurther claim in the writ petition that the property was under
\nhis supervision continuously for 12 years and Mr. Ghag had
\nalso executed Power of Attorney on 18.11.1998 in his favour.
\nBombay Municipal Corporation (in short BMC) issued
\nnotice to stop the work under section 354A of BMC Act for
\nconstruction of four RCC columns on the rear side of the
\ntemple.\n<\/p>\n
Appellant submitted an application before BMC for
\nregularization of the temple building.\n<\/p>\n
One of the trustees and the appellant herein Shri Arvind
\nKothari filed counter affidavit to the petition and stated in
\ndetail about the proxy- litigation initiated by the builder and
\nalso the malafides against the respondent no.1. It was also
\npointed out that there had been no infringement of bye-laws
\nrelating to FSI. That lacs of devotees visit the temple.
\nThe respondent no.1 filed a rejoinder before the High
\nCourt in which most of the averments have remained
\nuncontroverted due to either bald denial or no denial. It would
\nbe pertinent to mention that nexus between the developer and
\nthe respondent no.1 largely remained uncontroverted.
\nThe BMC also filed a counter affidavit, wherein it was
\ncategorically stated that after service of a stop-work notice
\nunder section 354-A of the MMC Act, no work was carried out.
\nThe High Court passed an order directing the Municipal
\nAuthorities to demolish entire illegal and unauthorized
\nconstruction carried on by respondent no.3 to 17 on entire
\nCTS No. 206, 206(1 to 9) Kurla part IV, new mill road Kurla
\n(W) Mumbai-400070 despite noting that the issue of
\nregularization was a matter between the respondent and the
\nBMC. The High Court stayed the operation of the order by 4
\nweeks, which was extended for another 4 weeks by order dated
\n5.4.2006. Hence the present appeal by way of SLP has been
\nfiled.\n<\/p>\n
We heard Mr. F.S. Nariman, learned senior counsel
\nappearing for the appellants and Mr. Mukul Rohatgi and Mr.
\nRanjit Kumar, learned senior counsel for the respondent No. 1,
\nMr. Pallav Shishodia, learned counsel for respondent Nos. 2
\nand 3 and Mr. U. U. Lalit, learned senior counsel for the
\nIntervenors.\n<\/p>\n
When the matter came up for admission on 04.07.2006,
\nthis Court observed as under:-\n<\/p>\n
“Issue notice limited to the question as to whether in the city
\nof Bombay governed by the provisions of Section 351 of the
\nMumbai Municipal Corporation Act, 1888 where it has been
\nleft to the Commissioner’s discretion to demolish or not to
\ndemolish, the High Court could direct a mandamus for
\ndemolition.\n<\/p>\n
Mr. Lakshmi Raman Singh, advocate, takes notice for
\nrespondent no.1. Issue notice limited to above question to all
\nother respondents returnable within four weeks. Dasti, in
\naddition is permitted. Learned counsel for the petitioner is
\nalso permitted to serve notice privately by registered
\nA.D.Post. Two weeks time is granted to file counter affidavit.
\nRejoinder, if any be filed within two weeks thereafter. List the
\nmatter for final hearing, by consent of parties, on 10th
\nAugust, 2006.\n<\/p>\n
In the meanwhile, there shall be interim stay of
\ndemolition. It is also made clear that the petitioner shall not
\nmake any further construction until further orders.”\n<\/p>\n
The following submissions were made by Mr. Nariman,
\nlearned senior counsel appearing for the appellants:\n<\/p>\n
1)\tThe High Court proceeded on the erroneous footing
\nthat “The petition is filed pointing out that respondent
\nno.3 to 17 are in the process of constructing a temple
\nin an extremely crowded area.” It was submitted
\nthat the temple was constructed in the year 2001
\nand the temple was not it the process of
\nconstruction.\n<\/p>\n
2)\tThe High Court while replying to the submission of
\nthe appellant that application for regularization was
\npending on the one hand held “that is a matter
\nbetween the Respondent and the Municipal
\nCorporation” and in the same paragraph also held “it
\nis very clear that the construction is illegal, without
\nany authority of law and without any permission of
\nthe Municipal Corporation.” Thus it was submitted
\nthat the High Court assumed the powers granted to
\nthe Municipal Commissioner, under the Bombay
\nMunicipal Corporation Act, 1988 (herein after
\nreferred to as “the Act”) to decide whether the
\nstructure is legal\/illegal without affording an
\nopportunity of hearing to the appellants.  It is
\nsubmitted that issuance of a notice under Section
\n351 of the BMC Act and giving opportunity of
\nhearing to the owner of the building are conditions
\nprecedent for issuing an order for demolition of the
\nbuilding and unless, upon hearing, the Municipal
\nCommissioner holds that the construction on the
\ndisputed property is unauthorized and illegal,
\nquestion of its demolition does not arise.\n<\/p>\n
3)\tThe High Court failed to appreciate that the
\nprovisions of Section 351(2) of the Mumbai
\nMunicipal Corporation Act, 1888 (M.M.C Act) confer
\nvery wide discretionary powers upon the Municipal
\nCorporation to remove, alter or pull down or not the
\nbuilding constructed without complying with the
\nprovisions of Section 342 or 347 of the said Act. It
\nwas submitted that the Court cannot substitute
\nsuch discretion of the Commissioner nor can the
\nwrit Court direct the Commissioner to exercise the
\ndiscretion in a particular manner.\n<\/p>\n
4)\tThe High Court erred in passing a drastic direction
\nfor demolition of a structure\/temple without
\naffording an opportunity of hearing to the appellant
\nespecially when the Municipal Commissioner has
\nthe power to regularize a building constructed and
\nthe application for regularization was pending
\nbefore the Municipal Commissioner. It was
\nsubmitted that there was enough material to show
\nthat the structure of the temple can be regularized.
\nThe total area of the plot on which the temple is
\nsituated is 1290.30 sq.mtrs. the area of the existing
\nstructures including the temple is 574.91sq.mtrs
\nand hence within the F.S.I limit of 1, which is
\n44.55% of the permissible F.S.I. This Court in the
\ndecision of Corporation of Calcutta Vs. Mulchand
\nAggarwal AIR 1956 SC 110 has held that if the
\nstructure is not otherwise violative of the Building
\nBye-laws, it need not be demolished. However, the
\nsaid application has now been dismissed by the
\nMunicipal Commissioner by order dated 9.3.2006 in
\nview of the impugned order. An appeal against the
\nsame is pending before the authorities.\n<\/p>\n
5)\tThe High Court erroneously held in para-4 of the
\nimpugned order “ultimately a stop work notice was
\nissued. In the utter disregard of such notice, the
\nconstruction work had proceeded.” It was submitted
\nthat the Corporation itself had filed the affidavit
\nstating “respondent Corporation had visited the site
\nand issued notice under section 354 of MMC Act at
\npresent there is no further construction work found in
\nprogress.”\n<\/p>\n
6)\tThe High Court erred in issuing a direction for
\ndemolition under its writ jurisdiction where
\nmandamus could only be issued directing the
\nadministrative authorities to act in accordance with
\nlaw.\n<\/p>\n
7)\tThe High Court erred in granting prayer of the
\nappellant which seeks direction to demolish entire
\nillegal and unauthorized structure standing on CTS
\nNo.206, 206 (1 to 9) in as much as there are many
\nstructures on the said plot which were constructed
\nprior to the year 1962 and were considered to be
\nheritage.\n<\/p>\n
8)\tThe High Court failed to appreciate the following
\nevidence which clearly showed that the writ petition
\nwas filed by a person who was set up by the
\ndeveloper: (a) though the construction of the temple
\nwas completed in the year 2001, the writ petitioner
\nwho was a tenant of the premises did not complain
\nabout the unauthorized construction till the
\npetitioners herein filed a suit against the developer;\n<\/p>\n
(b) that the writ petitioner participated in the
\ncelebration of idol installation; (c) the advocates of
\nthe developer as well as the writ petitioner are
\nsame; (d) that the writ petitioner and the developer
\nbelong to the same Nationalist Congress Party.
\nAdmittedly, the petitioner was a friend of the
\ndeveloper for 18 years and the complaint against
\nthe present petitioner was made only after civil case
\nwas filed against the builder.\n<\/p>\n
9)\tThe High Court erred in relying on stop work notice
\nto order demolition of the entire structure as the
\naforesaid stop work notice was issued only for
\nstopping the construction of four pillars on the rear
\nside of the temple.\n<\/p>\n
Mr. Nariman also invited our attention to certain
\naverments made in paras 5 and 7 of the writ petition filed by
\nthe first respondent herein being Writ Petition No. 2841 of
\n2005. Our attention was drawn to para 7 of the affidavit
\nwherein the respondent as the writ petitioner stated that
\nrespondent No.2 informed respondent No.1 by letter dated
\n05.10.2005 that they were taking legal action against Jain
\nTemple\/Dervasar as per Section 354A of the Bombay
\nMunicipal Corporation Act.  Learned senior counsel also drew
\nour attention to the counter affidavit filed by respondent No.14
\nto the writ petition and, in particular, paragraph 17.  The
\nrelevant portion reads thus:\n<\/p>\n
“The construction of temple had commenced in or around
\nthe year 1999 and the “Pratishtha” (installation of idol
\nceremony) took place in the year 2001.  The petitioner infact
\njoined the Trust in the celebration relating to Pratistha
\nMahotsav.  The petitioner never made any complaint during
\nthe period of construction or even when the said Pratistha
\nMahotsav took place or around the year 2001.  Pertinently
\nthe petitioner started writing letters to authorities only after
\nthe disputes and differences between the Trust and the said
\nPayak started on account of unauthorized construction and
\nattempted encroachment on the part of the said Payak.”\n<\/p>\n
Our attention was also drawn to the prayer made in the
\nwrit petition No. 2841 of 2005 which reads as follows:-
\n“a)\tThe High Court may be pleased to issued writ of
\nMandamus; any other writ, order or direction in the
\nnature of mandamus directing the respondent No. 1 &
\n2 to demolish the entire unauthorized and illegal
\nconstruction carried on by the respondent Nos. 3 to 17
\non entire CTS No. 206, 206(1 to 9), Kurla Part IV, New
\nMill Road, Kurla (West), Mumbai 400070.\n<\/p>\n
b)\tPending hearing and final disposal of the petition; the
\nrespondent nos.3 to 17 may be restrained by an order
\nof injunction of this court from carrying on any further
\nconstruction on CTS No.206, 206 (1 to 9), Kurla Part
\nIV, New Mill Road, Kurla (West), Mumbai 400070.”\n<\/p>\n
Mr. Nariman, in support of his contention, that the High
\nCourt cannot assume the power granted to the Municipal
\nCommissioner under the Bombay Municipal Corporation Act,
\n1988 (in short “the Act”) to declare whether the structure is
\nlegal or illegal, submitted that issuance of a notice under
\nSection 351 of the Act and giving opportunity to the owner of
\nthe building are conditions precedent for issuing the order for
\ndemolition of the building and unless upon hearing the
\nMunicipal Commissioner holds that the construction on the
\ndisputed property is unauthorized and illegal, question of its
\ndemolition does not arise.  He would further submit that
\nprovisions of Section 351(2) of the Act confer very wide
\ndiscretionary powers on the Municipal Commissioner to
\nremove alter or pull down or not the building constructed
\nwithout complying with the provisions of Section 342 or 347 of
\nthe said Act.  Therefore, he submitted that the High Court
\ncannot substitute such discretion of the Commissioner nor
\ncan the High Court direct the Commissioner to exercise the
\ndiscretion in a particular manner.  In support of the above
\ncontention, learned senior counsel first invited our attention to
\nSection 351 of the Act which reads thus:\n<\/p>\n
“351.  Proceedings to be taken in respect of buildings or
\nwork commenced contrary to section 347 –   (1) If the
\nerection of any building or the execution of any such work as
\nis described in section 342, is commenced contrary to the
\nprovisions of section 342 or 347, the Commissioner, unless
\nhe deems it necessary to take proceedings in respect of such
\nbuilding or work under section 354, shall<\/p>\n
(a)\tby written notice, require the person who is erecting
\nsuch building or executing such work, or has erected
\nsuch building or executed such work, or who is the
\nowner for the time being of such building or work,
\nwithin seven days from the date of service of such
\nnotice, by a statement in writing subscribed by him or
\nby an agent duly authorized by him in that behalf and
\naddressed to the Commissioner, to show sufficient
\ncause why such building or work shall not be removed,
\naltered or pulled down; or <\/p>\n
(b)\tshall require the said person on such day and at such
\ntime and place as shall be specified in such notice to
\nattend personally, or by an agent duly authorized by
\nhim in that behalf, and show sufficient cause why such
\nbuilding or work shall not be removed, altered or pulled
\ndown.\n<\/p>\n
Explanation  “To show sufficient cause” in this sub-section
\nshall mean to prove that the work mentioned in the said
\nnotice is carried out in accordance with the provisions of
\nsection 337 or 342 and section 347 of the Act.\n<\/p>\n
(2)\tIf such person shall fail to show sufficient cause,
\nto the satisfaction of the Commissioner, why such
\nbuilding or work shall not be removed, altered or
\npulled down, the Commissioner may remove, alter
\nor pull down the building or work and the
\nexpenses thereof shall be paid by the said person.
\nIn case of removal or pulling down of the building
\nor the work by the Commissioner, the debris of
\nsuch building or work together with one building
\nmaterial, if any, at the sight of the construction,
\nbelonging to such person, shall be seized and
\ndisposed off in the prescribed manner and after
\ndeducting from the receipts of such sale or
\ndisposal, the expenditure incurred for removal and
\nsale of such debris and material, the surplus of
\nthe receipt shall be returned by the
\nCommissioner, to the person concerned.\n<\/p>\n
(3)\tNo Court, shall stay the proceeding of any public
\nnotice including notice for eviction, demolition or
\nremoval from any land or property belonging to
\nthe State Government or the Corporation or any
\nother local authority or any land which is required
\nfor any public project or civil amenities, without
\nfirst giving the Commissioner a reasonable
\nopportunity of representing in the matter.”
\nIn support of the above legal submission, learned senior
\ncounsel first relied on the judgment of the Bharucha, J. dated
\n10.08.1983 in Writ Petition No. 1286 of 1990 of the Bombay
\nHigh Court wherein the learned Judge held:
\n“Section 351 obliges the Municipal Commissioner, if the
\nconstruction of any building or the execution of any work is
\ncommenced contrary to the provisions of the Act, to give
\nnotice requiring the person constructing or doing the work to
\nshow cause why it should not be pulled down.  The word
\nused in this context of “shall”.  If sufficient cause is not
\nshown, the Commissioner “may” remove, alter or pull down
\nthe building or work.  It is left to the Commissioner’s
\ndiscretion whether or not to demolish the unauthorized
\nconstruction if sufficient cause is not shown.  The court
\ncannot impede the exercise of that discretion by the issuance
\nof a mandatory order”.\n<\/p>\n
The above judgment was followed in Abdul Rehman
\nSiddique and Others vs. Ahmed Mia Gulam Mohuddin
\nAhmedji and another<\/a>, 1996 (2) Mh. L.J. 1042 at 1047
\nwherein a learned Single Judge of the Bombay High Court
\nheld thus:\n<\/p>\n
“9.Such discretion of the Commissioner or such authority
\ncannot be substituted by the court nor can court direct the
\ncommissioner or such authority to exercise discretion in a
\nparticular manner. If the discretion by the commissioner or
\nsuch authority appears to have not been exercised in
\naccordance with law then court can only call upon the
\nCommissioner or such authority to consider the matter
\nafresh in accordance with law.\n<\/p>\n
10.\tI am fortified in my view by the judgment of this court
\nin Writ Petition No. 1286 of 1980, Bilkishbhai Moizbhai Vasi
\nand others, petitioners v. Municipal Corporation for Greater
\nBombay and 3 others, respondents decided on 10.08.1983. In
\nthe said judgment Hon’ble Justice S.P.Barucha (as he then
\nwas) has considered the provisions of section 351 of the
\nBMC Act vis-a-via the obligation of the commissioner or the
\nauthority delegated such power to demolish the
\nunauthorized construction. Barucha, J. held thus:-\n<\/p>\n
“Section 351 obliges the Municipal Commissioner, if the
\nconstruction of any building or the execution of any work is
\ncommenced contrary to the provisions of the Act, to give
\nnotice requiring the person constructing or doing the work to
\nshow cause why it should not be pulled down.  The word
\nused in this context of “shall”.  If sufficient cause is not
\nshown, the Commissioner “may” remove, alter or pull down
\nthe building or work.  It is left to the Commissioner’s
\ndiscretion whether or not to demolish the unauthorized
\nconstruction if sufficient cause is not shown.  The court
\ncannot impede the exercise of that discretion by the issuance
\nof a mandatory order”.\n<\/p>\n
10-A. Apparently, therefore, the direction given and the order
\npassed by the City Civil Court and impugned in the present
\nappeal making the notice of motion absolute in terms of
\nprayers (b) and (d) impedes the exercise of discretion of the
\ncommissioner or the authority delegated such power. The
\nmandate issued to defendant no.1 in issuing notice in
\nrespect of the structures to defendant Nos. 2 to 31 is clearly
\nimpediment in the exercise of the discretionary power of the
\ncommissioner or for that matter the authority delegated such
\npower. Such mandatory order and that too pending trail of
\nthe suit where it is yet to be tried whether the alleged
\nconstruction is unauthorized or not cannot be said to be
\njustified.”\n<\/p>\n
In Syed Muzaffar Ali and Others vs. Municipal
\nCorporation of Delhi, 1995 Supp (4) SCC 426, This Court in
\nparas 4 & 5 held as under:\n<\/p>\n
“However, it is to be pointed out that the mere departure
\nfrom the authorised plan or putting up a construction
\nwithout sanction does not ipso fact and without more
\nnecessarily and inevitably justify demolition of the structure.
\nThere are cases and cases of such unauthorized
\nconstructions.  Some are amenable to compounding and
\nsome may not be.  There may be cases of grave and serious
\nbreaches of the licensing provisions or building regulations
\nthat may call for the extreme step of demolition.
\nThese are matters for the authorities to consider at the
\nappropriate time having regard to nature of the
\ntransgressions.  It is open to the petitioners to move the
\nauthorities for such relief as may be available to them at law.
\nThe petitioners may, if so advised, file a plan indicating the
\nnature and extent of the unauthorized constructions carried
\nout and seek regularization, if such regularization is
\npermissible.  The dismissal of the petitions will not stand in
\nthe way of the authorities examining and granting such relief
\nas the petitioners may be entitled to under law.  The
\npetitioners may move the authorities in this behalf within
\none week for such compounding or regularization and also
\nfor stay of demolition pending consideration of their prayer.
\nDuring the period of one week from today, however, no
\ndemolition shall be made.”\n<\/p>\n
In U.P. State Road Transport Corporation and
\nAnother vs. Mohd. Ismail and Others<\/a>, (1991) 3 SCC 239,
\nthis Court in paras 11 & 12 at page 244 observed as under:-\n<\/p>\n
11.\tThe view taken by the High Court appears to be
\nfallacious. The discretion conferred by Regulation 17(3)
\nconfers no vested right on the retrenched workmen to get an
\nalternative job in the Corporation. Like all other statutory
\ndiscretion in the administrative law, Regulation 17(3) creates
\nno legal right in favour of a person in respect of whom the
\ndiscretion is required to be exercised — other than a right to
\nhave his case honestly considered, for an alternative job by
\nthe Corporation.\n<\/p>\n
12.\tThe High Court was equally in error in directing the
\nCorporation to offer alternative job to drivers who are found
\nto be medically unfit before dispensing with their services.
\nThe Court cannot dictate the decision of the statutory
\nauthority that ought to be made in the exercise of discretion
\nin a given case. The Court cannot direct the statutory
\nauthority to exercise the discretion in a particular manner
\nnot expressly required by law. The Court could only
\ncommand the statutory authority by a writ of mandamus to
\nperform its duty by exercising the discretion according to
\nlaw. Whether alternative job is to be offered or not is a
\nmatter left to the discretion of the competent authority of the
\nCorporation and the Corporation has to exercise the
\ndiscretion in individual cases. The Court cannot command
\nthe Corporation to exercise discretion in a particular manner
\nand in favour of a particular person. That would be beyond
\nthe jurisdiction of the Court.\n<\/p>\n
Mr. Mukul Rohatgi made elaborate submissions which
\nwere later supported by Mr. Ranjit Kumar, senior counsel.  He
\ninvited our attention to the counter affidavit on behalf of
\nrespondent No.1.  Mr. Rohatgi submitted that Section 354A is
\ncategoric in spelling out the powers of Commissioner in
\nrespect of works unlawfully carried on and in the instant case
\nthere is an unlawful and deliberate mis-representation on the
\npart of the appellants and, therefore, the civil appeal is ought
\nto be dismissed on this very ground.  He further submitted
\nthat the appellant continued the construction during the
\npendency of the petition in the High Court and is continuing to
\nconstruct despite the orders of this Court and has covered the
\nsite with a cover to prevent access.\n<\/p>\n
Mr. Rohatgi submitted that despite the several
\ncomplaints made by the first respondent – Municipal
\nCorporation of Greater Bombay did nothing to demolish the
\nillegal structure and that the Municipal Commissioner did not
\nexercise the power vested in him under the Act to demolish the
\nillegal structure.  It is further submitted that the Municipal
\nCommissioner was under a duty and obligation to order or
\ndirect illegal structure to be removed as the same was per se
\nillegal and that the Commissioner ought to have ordered
\ndemolition as Municipal Corporation had issued a notice
\nunder Section 354A of the Act and in spite of the same, the
\nrespondent had continued with the illegal construction.
\nLearned senior counsel further submitted that owing to the
\ninaction on the part of the Municipal Corporation in
\ndemolishing the illegal structure, the respondent had no other
\noption but to move the Bombay High Court by filing the writ
\npetition No. 2841 of 2005.  He also drew our attention to the
\norder passed by the High Court which clearly stated that the
\norder of the High Court dated 21.12.2005 will not prevent the
\nCorporation from taking any action in accordance with the law
\nif the construction is found to be unauthorized.  After the
\norder of the High Court, the counsel for the first respondent
\nsent several letters calling upon the BMC to take action
\nagainst the unauthorized construction and despite these
\nletters the BMC failed to take any action in the matter and
\nultimately the High Court vide impugned order directed the
\nMunicipal Corporation to demolish the said illegal structure.
\nIt was submitted that the writ petition was filed for inaction of
\nthe Municipal Corporation and the writ petition was directed
\nto ensure that the authority performed the duty cast upon it
\nunder the Statute and that the High Court on considering that
\nthe Commissioner had not taken any action in respect of the
\nsaid illegal structure directed the demolition of the same.
\nThus, it was submitted that the order passed by the High
\nCourt was a corrective order aimed at enforcing the law and if
\nthe Commissioner declined to use his powers or enforce the
\nlaw, the High Court was fully competent to enforce the same
\nand that the writ of the High Court runs superior to the
\nstatutory powers of the Corporation.  Concluding his
\nargument, learned senior counsel submitted that considering
\nthe material on record and provisions of the BMC Act, this
\nCourt would hold that the High Court was right in ordering
\nthe Municipal Commissioner to demolish the structure and
\nthat when the executive failed to perform their duties or erred
\nin performing their duties, the High Court acting under the
\nextraordinary powers vested under Articles 226 and 227 of the
\nConstitution of India has the necessary power to direct the
\nexecutive to enforce the law as laid down in the statutes and
\npower to order demolition of illegal structures as the
\nCommissioner has failed to do so.\n<\/p>\n
Mr. Rohatgi also invited our attention to the notice issued
\nby the Municipal Corporation of the appellants under Section
\n68 of the MMC Act directing the appellant to stop the
\nexecution of the work forthwith and failing to produce
\npermission, the Commissioner shall under Section 354A and
\nin exercise of powers and functions conferred upon him as
\naforesaid without any further notice cause the said building or
\nwork to be removed or pull down at the risk and cost.  This
\nnotice was issued on 08.06.2005.  Our attention was also
\ndrawn to the proceedings issued by the Deputy Chief Engineer
\ndated 04.03.2006 regarding regularization of temple on a plot
\nbearing No. CTS No. 206, 206\/1-9 of Village Kurla.  The
\nappellant was informed that the plan submitted by them are
\nnot in consonance with the development, control and
\nregulation, 1991 and they have not submitted the NOC from
\nthe Commissioner of Police being a place of public worship,
\ntheir proposal of regularization of temple was refused.  Similar
\nto this effect is the two letters issued by Brihanmumbai
\nMahanagarpalika dated 13.10.2005 and 12.07.2006 refusing
\nthe proposal of the appellant relating to the construction of
\ntemple on the plot in question.\n<\/p>\n
In support of his contention, learned senior counsel
\nrelied on para 15 of the decision of this court in State (Delhi
\nAdmn.) vs. I.K. Nangia and Another, (1980) 1 SCC 258.
\nThe above decision was cited for the proposition that the
\nword may normally imply what is optional but for the reason
\nstated it should in the context in which it appears here should
\nmean must and that there is an element of compulsion and
\nthat its power coupled with a duty.  It deals with the
\nperformance of public duty and that it comes within the
\ndictum of Lord Cairns in Julius vs. Lord Bishop of Oxford
\n(1874-80) 5 AC 214.  The dictum reads thus:-
\n“There may be something in the nature of the thing
\nempowered to be done, something in the object for which it
\nis to be done, something in the conditions under which it is
\nto be done, something in the title of the person or persons for
\nwhose benefit the power is to be exercised, which may couple
\nthe power with a duty, and make it the duty of the person in
\nwhom the power is reposed to exercise that power when
\ncalled upon to do so.”\n<\/p>\n
In Maxwell on Interpretation of Statutes, 11th Edn. at
\npage 231, the principle is stated thus:\n<\/p>\n
“Statutes which authorize persons to do acts for the
\nbenefit of others or, as it is sometimes said, for the public good
\nor the advancement of justice, have often given rise to
\ncontroversy when conferring the authority in terms simply
\nenabling and not mandatory.  In enacting that they “may” or
\n“shall, if they think fit”, or, “shall have power”, or that “it
\nshall be lawful” for them to do such acts, a statute appears
\nto use the language of mere permission, but it has been so
\noften decided as to have become an axiom that in such cases
\nsuch expressions may have  to say the least  a compulsory
\nforce, and so would seem to be modified by judicial
\nexposition.”\n<\/p>\n
Learned senior counsel next cited M.C. Mehta vs. Union
\nof India & Ors<\/a>, 2006 (2) Scale 364.\n<\/p>\n
“Now, we revert to the task of implementation. Despite
\nits difficulty, this Court cannot remain a mute spectator
\nwhen the violations also affect the environment and healthy
\nliving of law-abiders. The enormity of the problem which, to
\na great extent, is the doing of the authorities themselves,
\ndoes not mean that a beginning should not be made to set
\nthings right. If the entire misuser cannot be stopped at one
\npoint of time because of its extensive nature, then it has to
\nbe stopped in a phased manner, beginning with major
\nviolators. There has to be a will to do it. We have
\nhereinbefore noted in brief, the orders made in the last so
\nmany years but it seems, the same has had no effect on the
\nauthorities. The things cannot be permitted to go on in this
\nmanner forever. On one hand, various laws are enacted,
\nmaster plans are prepared by expert planners, provision is
\nmade in the plans also to tackle the problem of existing
\nunauthorised constructions and misusers and, on the other
\nhand, such illegal activities go on unabated openly under the
\ngaze of everyone, without having any respect and regard for
\nlaw and other citizens. We have noticed above the
\ncomplaints of some of the residents in respect of such
\nillegalities. For last number of years even the High Court has
\nbeen expressing similar anguish in the orders made in large
\nnumber of cases. We may briefly notice some of those orders<\/p>\n
Rule of law is the essence of Democracy. It has to be
\npreserved. Laws have to be enforced. In the case in hand, the
\nimplementation and enforcement of law to stop blatant
\nmisuse cannot be delayed further so as to await the so called
\nproposed survey by MCD. The suggestions would only result
\nin further postponement of action against illegalities. It may
\nbe noted that the MCD has filed zonewise\/wardwise abstract
\nof violations in terms of commercialisation as in November,
\n2005. According to MCD, the major violation has been
\ndetermined in respect of those roads where
\ncommercialisation of the buildings is more than 50%.
\nAccording to it, the major violations in 12 zones are spread
\non 229 roads. Roads on which there are major violations are,
\nthus, known. In respect of these, there is no need for any
\nsurvey or individual notice. Beginning must be made to stop
\nmisuser on main roads of width of 80 ft. or more. The names
\nof these roads can be published in newspapers and adequate
\npublicity given, granting violators some time to bring the
\nuser of the property in conformity with the permissible user,
\nnamely, for residential use if the plans have been sanctioned
\nfor construction of a residential house. In case owner\/user
\nfails to do so, how, in which manner and from which date,
\nMCD will commence sealing operation shall be placed on
\nrecord in the form of an affidavit of its Commissioner to be
\nfiled within two weeks. On consideration of this affidavit, we
\nwill issue further directions including constitution of a
\nMonitoring Committee, if necessary. The issue of
\naccountability of officers and also the exact manner of
\napplicability of Polluter Pay Principle to owners and officers
\nwould be further taken up after misuser is stopped at least
\non main roads. Civil Appeal Nos. 608\/2003 above referred
\nrelates to Ring Road, Lajpat Nagar-II. The other cases relate
\nto areas like Green Park Extn., Green Park Main, Greater
\nKailash, New Friends Colony, Defence Colony, West Patel
\nNagar, etc. These areas are illustrative. The activities include
\nBig Furnishing Stores, Galleries, Sale of Diamond and Gold
\nJewellary, sale of Car Parts etc.”\n<\/p>\n
Learned senior counsel next cited M.I.Builders Pvt. Ltd.
\nvs. Radhe Shyam Sahu and Others<\/a>, (1999) 6 SCC 464 para
\n73 which reads thus:\n<\/p>\n
“The High Court has directed dismantling of the whole
\nproject and for restoration of the park to its original
\ncondition. This Court in numerous decisions has held that
\nno consideration should be shown to the builder or any
\nother person where construction is unauthorised. This dicta
\nis now almost bordering rule of law. Stress was laid by the
\nappellant and the prospective allottees of the shops to
\nexercise judicial discretion in moulding the relief. Such
\ndiscretion cannot be exercised which encourages illegality or
\nperpetuates an illegality. Unauthorised construction, if it is
\nillegal and cannot be compounded, has to be demolished.
\nThere is no way out. Judicial discretion cannot be guided by
\nexpediency. Courts are not free from statutory fetters.
\nJustice is to be rendered in accordance with law. Judges are
\nnot entitled to exercise discretion wearing robes of judicial
\ndiscretion and pass orders based solely on their personal
\npredilections and peculiar dispositions. Judicial discretion
\nwherever it is required to be exercised has to be in
\naccordance with law and set legal principles. As will be seen
\nin moulding the relief in the present case and allowing one of
\nthe blocks meant for parking to stand we have been guided
\nby the obligatory duties of the Mahapalika to construct and
\nmaintain parking lots.”\n<\/p>\n
Mr. Pallav Sisodia, learned counsel for the Corporation
\ninvited our attention to the counter affidavit filed in the writ
\npetition and submitted that the appellant has raised several
\ndisputed questions of fact which cannot and ought not to be
\ngone into by this Court and on that ground alone, the SLP
\ndeserves to be dismissed.  Without prejudice to the aforesaid
\ncontention, he submitted that the owners through their
\narchitect submitted their proposal for the approval of the
\nproposed temple complex along with notice under Section
\n44\/99 of MTP Act and notice under Section 337 of the MMC
\nAct.  Respondent Nos. 2 and 3 vide application dated
\n08.04.1999 and in reply to the same the A.E. vide his letter
\nhad said that the said proposal will be processed further in
\ncompliance with certain documents mentioned in the said
\nletter.  It is submitted that one of the conditions required
\ndocuments to be submitted regarding access roads of
\nadequate width to the property.  It is further submitted that
\nthe Trust has now made an application vide letter dated
\n09.12.2005 through a new architect to the Executive Engineer
\n(BP) ES for regularizing the construction of the temple along
\nwith several documents such as copy of Deed of Trust, copy of
\nthe order and consent terms filed in suit No. 1478 of 2005.  It
\nis further submitted that the said application made to EE (PP)
\nis pending and the same shall be considered as per the
\nprovisions of DC Regulation and other provisions of law.  In
\nthe meanwhile on receipt of complaint respondent Nos. 2 and
\n3 visited the premises at Jain temple and detected that
\nconstruction was in progress at site without permission from
\nthe respondents and hence stop work notice under Section
\n354A of the MMC Act dated 08.06.2005 was issued to the
\nTrustees.  By the said notice, the addressee was called upon to
\nstop the erection of the building\/execution of the said work
\nthat is construction of RCC columns on rear side without
\npermission from the respondents.  The party was also called
\nupon to produce permission\/approval, if any by the competent
\nauthority in respect of the said work within 24 hours from the
\nreceipt of the said notice.  Thereafter on 05.12.2005 the site
\nwas again inspected by the officers of the respondents when it
\nwas noticed that a temple was constructed with marble
\nlocated in front of the existing plot and a shed on the rear side
\nadmeasuring 14.5 metre X 3.10 metre was also constructed as
\ncomposite structure by using MSI Section with angle section
\nand AC sheet roofing within the premises of the shed one
\ncabin admeasuring 6.5 metre X 2.85 metre having the off 2.0
\nmetre is seen and that there is no activity at present
\nconducted in the cabin.  Besides the aforesaid structure there
\nare 4 numbers of RCC columns existing on the site within the
\ntemple premises.\n<\/p>\n
It was further submitted that on receipt of complaint, the
\nrespondents had visited the site and issued notice under
\nSection 354A of the MMC Act and at present there is no
\nfurther construction work.  It was further submitted that the
\nsaid structure being a shrine and as there being no further
\nwork carried out at site and there being pending proposal in
\nrespect of the said structure no further action was initiated by
\nthe authorities pending the said proposal.  It is also submitted
\nthat the application submitted by the applicant, namely,
\nrespondent No.4 shall be considered by the authorities strictly
\non merits and in accordance with the provisions of law.
\nLearned counsel for the Municipal Corporation cited G.J.
\nKanga, Adm. Of Municipal Corpn., Greater Bombay and
\nAnother vs. S.S. Basha<\/a>, 1992 (2) Mh.L.J. 1573 para 35 which
\nreads thus:\n<\/p>\n
“35.  Whether an order of demolition under section 351 is an
\nadministrative order or a quasi-judicial order?  It cannot be
\ndisputed that demolition results in serious civil
\nconsequences.  It leads to loss and destruction of property
\nentailing loss of money.  It renders the occupiers homeless.
\nIt would, therefore, be futile to term the order an
\nadministrative order and the process leading to the order a
\nquasi-judicial function.  If I were to say, “you be hanged”,
\ncan it be said that this is an administrative order and the
\ntrial leading to the order is a judicial or quasi-judicial
\nprocess.  Just as there is discretion in the matter of passing
\njudicial orders similarly there is discretion in the matter of
\npassing orders under section 351.  A decision under section
\n351 requires a decision whether the offending structure is
\nauthorized or unauthorized.  Whether the whole of it or only
\na part of it is unauthorized, if unauthorized why it is
\nunauthorized, whether it can be tolerated or whether it can
\nbe regularized.  In my view, there lies a large area of
\ndiscretion in the matter of passing orders under section 351.
\nAn order under section 351 leads to civil consequences,
\nthere is a large area of discretion in the matter of passing
\norders under section 351, it is on this ground that the
\nconcerned Municipal authorities are required to follow the
\nprinciples of natural justice.  An order passed under section
\n351, therefore, is a quasi-judicial order and it cannot be
\ntermed an administrative order.  Hence, such an order is
\nneither revisable nor open to review.  Had the Legislature
\nintended to make these orders subject to appeal, revision or
\nreview, it would have so provided in specific terms.
\nProvisions of appeal, revision or review cannot be inferred by
\nimplication.  They have to be provided for in specific terms.
\nThe power of review as is understood in common parlance is
\nthe exercise of a power by the very officer who passed the
\norder and not by his superior officer.  An order can only be
\nmade appealable or revisable by a superior officer.   Hence,
\nin the absence of a specific provision in that behalf, I hold
\nthat the order under section 351 is neither revisable nor
\nreviewable.”\n<\/p>\n
He also cited Mansukhlal Vithaldas Chauhan vs.
\nState of Gujarat<\/a>, (1997) 7 SCC 622 in respect of the question
\nas to whether the High Court could issue a Mandamus of this
\nnature and whether the order of sanction in these
\ncircumstances is valid.\n<\/p>\n
“22.  Mandamus which is a discretionary remedy
\nunder Article 226<\/a> of the Constitution is requested to be
\nissued, inter alia, to compel performance of public duties
\nwhich may be administrative, ministerial or statutory in
\nnature.  Statutory duty may be either directory or
\nmandatory.  Statutory duties, if they are intended to be
\nmandatory in character, are indicated by the use of the
\nwords “shall” or “must”.  But this is not conclusive as “shall”
\nand “must” have, sometimes, been interpreted as “may”.
\nWhat is determinative of the nature of duty, whether it is
\nobligatory, mandatory or directory, is the scheme of the
\nstatute in which the “duty” has been set out.  Even if the
\n“duty” is not set out clearly and specifically in the statute, it
\nmay be implied as correlative to a “right”.\n<\/p>\n
23.  In the performance of this duty, if the authority in
\nwhom the discretion is vested under the statute, does not act
\nindependently and passes an order under the instructions
\nand orders of another authority, the Court would intervene
\nin the matter, quash the order and issue a mandamus to
\nthat authority to exercise its own discretion.”\n<\/p>\n
Mr. U.U Lalit, learned senior counsel appearing for the
\nintervenors(Developers), Ismail Yakub Payak, submitted that
\nthe intervenor seeks neither to support nor challenge the
\nimpugned order dated 23.03.2006 passed by the High Court
\nagainst the appellants but the intention of the intervenor was
\nonly to protect his property CTS 205, 205\/1-34, New Mill
\nRoad, Kurla West from the claims of the appellant’s trust.  It
\nwas further submitted that the intervenor has a direct interest
\nin the matter as he would be affected by order of this Court.
\nRespondent No.1 has also filed I.A. No. 5 of 2006 for
\npermission to place additional documents on record such as
\nthe indenture or conveyance entered into and executed on
\n16.08.2002 between Benjamin Sebastian Fernandes, Thomas
\nmaxim Fernandes and Sadhna Builders etc.
\nWe have given our anxious and careful consideration to
\nthe rival claims made by the respective counsel appearing for
\nthe parties.\n<\/p>\n
Before proceeding further to consider the rival
\ncontentions, it is very useful and pertinent to reproduce the
\nproceedings of the Executive Engineer (Building Proposal)
\nEastern Suburbs dated 16.09.2005 of Brihanmumbai
\nMahanagarpalika which reads thus:\n<\/p>\n
“In connection with the above subject, it is noted that
\nthe Joint Commissioner Municipal Corporation has via Order
\ndated 6th August, 2004 ordered that while issuing
\nOccupation Certificate regarding the building Saiba Palace,
\nthe arrangement for access Road to Jain Temple will be
\nconsidered in accordance with the final order of the Court.”\n<\/p>\n
The above order was issued on 16.09.205 whereas the
\nfirst respondent filed the writ petition in October, 2005 in the
\nBombay High Court. On 20.01.2006, Brihanmumbai
\nMahanagarpalika refused the proposal for regularization of
\ntemple.  Stop work notice was issued on 08.06.2005.  In the
\ncounter affidavit filed by the Corporation in the writ petition
\nNO. 2841 of 2005, the Corporation has stated that since the
\nconstruction work was in progress at site without permission
\nfrom the Corporation Authorities stop work notice under
\nSection 354A of the MMC Act dated 08.06.2005 was issued to
\nthe trustees of the temple and by the said notice the
\naddressees were called upon to stop the erection of the
\nbuilding\/execution of the said work in the construction of RCC
\ncolumns on the rear side in the above address without
\npermission from the authorities.  According to the appellant
\nthe work commenced in the year 2001 whereas the writ
\npetition was filed after 5 years.\n<\/p>\n
When the special leave petition was heard on 04.07.2006,
\nthis Court issued notice limited to the question as to whether
\nthe provisions of Section 351 of the MMC Act where it has
\nbeen left to the discretion of the Commissioner to demolish or
\nnot to demolish, the High Court could direct a mandamus for
\ndemolition.  Respondent No.1 filed a counter affidavit dealing
\nnot only with the limited question but also to deal with various
\nother matters which have no bearing on the said question.
\nRespondent No.1 in the counter affidavit mentioned various
\ndisputed facts.\n<\/p>\n
It is seen that no notice under the provisions of Section
\n351 has been issued by the Municipal Commissioner in this
\nmatter against the appellant.  In the special leave petition, it is
\nclearly mentioned by the appellant that the Corporation had
\nissued a notice to stop the work under Section 354A of the
\nBMC Act.  No reference is made to any notice under Section
\n351A of the Act.  It is specifically  mentioned that the affidavit
\nwhich was filed on behalf of the Corporation had categorically
\nstated that after the service of stop work notice under Section
\n354A no work was carried out.  Respondent No.1 is fully aware
\nthat the provisions of Section 354A of the Act deals with stop
\nwork notice whereas the provisions of Section 351 of the Act
\ndeals with show cause notice for demolition of unauthorized
\nstructure.  The grievance of the appellant herein has been that
\nwithout issuing a notice under Section 351 of the Act and
\nwithout giving an opportunity to the appellant of being heard
\nthe structure of the temple could not be ordered to be
\ndemolished by the High Court.  The power under Section 351
\nof the Act, in our opinion, has to be exercised only by the
\nMunicipal Commissioner and it is left to the Municipal
\nCommissioner under the provisions of Section 351(2) either to
\norder or not to order the demolition of the alleged
\nunauthorized temple.  In fact, respondent No.1 by himself
\nthrough his advocate’s letter dated 16.04.2005 (annexed to his
\ncounter affidavit) requested the Municipal Authorities to take
\naction under Section 351 of the Act.  At the time of admission
\nof this special leave petition, the provision of Section 351 of
\nthe Act was pointed out by the learned senior counsel to show
\nthat the Municipal Commissioner had only been conferred the
\npower under the said provisions to demolish or not to
\ndemolish unauthorized structure and, therefore, the High
\nCourt ought not to have issued a mandamus for demolition of
\nthe temple before any order was passed by the Commissioner
\non the question of demolition.  The provisions of Section 354A
\nhave nothing to do with the question of demolition.  It is
\nspecifically averred and contended at the time of hearing that
\nrespondent No.1 is an agent set up by the developer who is
\ndeveloping the adjoining land and who is interested in dividing
\nthe right of way claimed by the appellant through the said
\nadjoining plot bearing CTS No. 206.\n<\/p>\n
It is also denied that plot No. 206 on which the temple is
\nsituated is a land locked plot.  Both the plots now bearing CTS
\nNo. 206 and the adjoining plot bearing CTS No. 205 developed
\nby the builder (the intervenor) originally belonged to one A.H.
\nWadia.  Before the said plot now bearing CTS No.205 was
\nleased out, the land now bearing CTS No. 206 was sold by
\nA.H.Wadia to one Fernandes who had constructed thereon a
\nnumber of structures including a bungalow as shown in the
\ncity Survey Plan relied upon by the respondent no.1 in the
\nannexure “A” to his writ petition before the High Court. The
\nsaid plan shows that the temple is now located at the same
\nsite where originally the bungalow of Fernandes family was
\nconstructed. The said bungalow had become old and hence it
\nwas renovated in such a manner so as to convert it into a
\ntemple.\n<\/p>\n
Thus the Fernandes family had a right of way of necessity
\nthrough the land now bearing CTS No. 205 adjoining the land
\nbearing CTS No. 206 as shown on the said plan. The said
\naccess was 12 wide and consisted of land bearing CTS No.212
\nand part of CTS No. 205. However, while developing the
\nadjoining land bearing CTS No.205, the developer forcibly
\nreduced the said access by digging about 7′ wide stretch of
\nland earlier used for the said access and encroach upon the
\npart of CTS No. 212 which belongs to the appellant. This right
\nof way has been claimed by the appellants in the suit which
\nthey have filed in the Bombay City Civil court at Bombay being
\nSuit No. 5755 of 2005 which is now pending before the City
\nCivil Court. The said 12′ wide access was the only access
\navailable to the said Fernandes family and the appellant Trust
\nfrom the main road which is now named as A.H.Walia Marg for
\napproaching the property bearing CTS No.206. The said
\nposition is clear from the plans bearing Annexure No. “PP-1”
\nand “P-2″ annexed to the Special Leave Petition.
\nThough the respondent no.1 claims that he has been
\nresiding in a room in the chawl located on the temple plot
\nsince his birth, he has not referred to the existence of the said
\nbungalow on the temple plot owned by the Fernandes family in
\nhis writ petition filed before the High Court.
\nAccording to the appellants, the Municipal Commissioner
\nand his subordinate officers have been made aware that the
\nconstruction of the temple has not violated in any manner the
\nFSI Rule.  However, the proposal submitted for regularizing
\nthe construction of the temple was not granted on account of
\nthe mandatory order issued by the High Court as also on the
\nground that 12 feet access is not available for the temple plot
\nfrom A.H.Wadia Marg.  It is also submitted that in the event of
\nappellant succeeding the suit filed before the Bombay City
\nCivil Court, they would get the 12” vide access to the temple
\nplot in which event it would not be impossible for the
\nappellant to get their proposals approved.  In our opinion,
\nSection 351 obliges the Municipal Commissioner in the
\nconstruction of any building or the execution of any work is
\ncommenced contrary to the provisions of the Act to give notice
\nrequiring the person doing the work to show cause why it
\nshould not be pulled down.  The word used in this context is
\nshall.  If sufficient cause is not shown it is left to the
\nCommissioner’s discretion whether or not to demolish the
\nunauthorized construction and, therefore, the High Court, in
\nour opinion, cannot impede the exercise of that discretion by
\nthe issuance of a mandatory order.  We, therefore, direct the
\nCommissioner to decide the question as to whether he should
\npass an order for demolition or not.\n<\/p>\n
This Court in Corporation of Calcutta vs. Mulchand
\nAgarwalla<\/a>, [1955] 2 SCR 995 was considering an identical
\nquestion under Section 363 of the Calcutta Municipal Act,
\n1923.  This Court held that the word may in Section 363 of the
\nAct does not mean shall and the Magistrate had under that
\nSection discretion whether he should pass an order for
\ndemolition or not.  This Court held that the orders of the
\nCourts below were passed on mistakes and mis-directions
\nand, therefore, could not be supported.  But this Court did not
\nthink that to be a fit case for an order for the demolition of the
\nbuilding in view of certain special circumstances, namely,
\nthough Section 363(2) which directs that no application for
\ndemolition shall be instituted after the lapse of 5 years from
\nthe date of the work did not in terms apply as the proceedings
\nhad been started in time, it was nearly 5 years since the
\nbuilding had been completed and the interest of the public did
\nnot call for its demolition.\n<\/p>\n
As pointed out by this Court in Syed Muzaffar Ali and
\nOthers vs. Municipal Corporation of Delhi (supra) that the
\nmere departure from the authorized plan or putting up of a
\nconstruction without sanction does not ipso fact and without
\nmore necessarily and inevitably justify demolition of the
\nstructure.  There are cases and cases of such unauthorized
\nconstruction and some are amenable to compounding and
\nsome may not be.  According to learned counsel for the first
\nrespondent, the appellants have constructed the temple
\nwithout obtaining any sanction whatsoever.  There is serious
\nbreach of the licensing provisions or building regulations
\nwhich may call for extreme step of demolition.  In our view,
\nthese are matters for the Municipal Commissioner to consider
\nat the appropriate time.\n<\/p>\n
Taking into consideration of all the relevant facts and
\ncircumstances and while deciding the matter, we make it clear
\nthat we are not expressing any opinion on merits of the rival
\nclaims.  The Authorities are entitled to examine and grant
\nsuch relief as the appellants may be entitled to under the law.
\nThe respondent-Commissioner is directed to decide the matter
\nabsolutely on merits after affording opportunity to the first
\nrespondent herein within 3 months from the date of this
\njudgment.  During this period however, no demolition shall be
\nmade.\n<\/p>\n
We also make it clear that the appellant shall not put up
\nany further construction or alter the construction already
\nmade.\n<\/p>\n
The civil appeal therefore stands allowed with the above
\ndirection. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Muni Suvrat-Swami Jain S.M.P. … vs Arun Nathuram Gaikwad & Ors on 11 October, 2006 Author: . A Lakshmanan Bench: Dr. Ar. Lakshmanan, Tarun Chatterjee CASE NO.: Special Leave Petition (civil) 9049 of 2006 PETITIONER: Muni Suvrat-Swami Jain S.M.P. Sangh RESPONDENT: Arun Nathuram Gaikwad & Ors. DATE OF JUDGMENT: 11\/10\/2006 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-262754","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMuni Suvrat-Swami Jain S.M.P. ... vs Arun Nathuram Gaikwad & Ors on 11 October, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/muni-suvrat-swami-jain-s-m-p-vs-arun-nathuram-gaikwad-ors-on-11-october-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Muni Suvrat-Swami Jain S.M.P. ... vs Arun Nathuram Gaikwad & Ors on 11 October, 2006 - 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