Muni Suvrat-Swami
Jain S.M.P. Sangh Vs. Arun Nathuram Gaikwad & Ors [2006] Insc 639 (11 October 2006)
Dr.
Ar. Lakshmanan & Tarun Chatterjee Dr. Ar. Lakshmanan, J.
Leave
granted.
This
appeal is directed against the final judgment and order dated 23.02.2006 passed
by the High Court of Judicature at Bombay in Writ Petition No. 2841 of 2005
whereby the High Court while allowing the writ petition directed the Municipal
Corporation to demolish the entire illegal and unauthorized construction
carried on by respondent Nos. 3-17 on entire CTS No. 206, 206(1 to 9), Kurla
Part-IV, New Mill Road, Kurla (W), Mumbai.
The
short facts leading to the filing of the above appeal as stated in the S.L.P.
are as under:- Shri Fernandes and others (hereinafter referred to as Original
owners) owned a plot of land bearing C.T.S. No.206 and 206/1 to 9 and CTS
No.212 and 212/1 to 4, N.A. Survey No.764 & 768, of Village/Taluka, Kurla,
Mumbai, Suburban District, consisting of two bungalows and one chawl of 8
tenements. It is to be noted that there is only one entrance to the property
from A.H. Wadia Marg (New Mill Road) through a strip of land about 12 feet wide
(hereinafter referred to as 'access road'). The tenants/occupants used the said
access road to access their respective premises, including the writ petitioner
before the High Court (Respondent No.1 herein), who was a tenant of chawl
no.523/7 of C.T.S no 1 to 9 in the aforesaid property.
Shri Fernandes
entered into Development Agreement with Shri Ghag of Sadhana Builders in order
to develop the property. A proposal for approval of proposed temple complex at
CTS No.206, 206/1 to 9 was submitted before the BMC.
The
construction of temple was completed and the installation of idol ceremony (Prathishta)
took place. It is to be noted that the respondent no.1 participated in the
celebration and did not make any complaint regarding the construction of the
temple.
The
original owner sold the aforesaid property (hereinafter referred to as the
'trust property') to the appellant, a public trust, by a deed of conveyance,
where Mr. Ghag was a confirmation party. When the property was conveyed to the
appellant the aforesaid property consisted of four shops, eight residential
premises, Jain temple, Upashraya, Pravachan hall and open space. It is to be
noted that the easementary rights from A.H.Wadia Marg (New Mill Road) through the access road of about
12 feet wide were also conveyed to the appellants.
One
Mr. Ismail Yakob Payak, the developer of the plot adjacent to the Trust
property i.e. plot of land bearing CTS No. 205, N.A.No.765, 766, 767 started
construction on the said plot (hereinafter referred to as the 'developer').
The
said developer constructed a building of ground plus 6 floors known as "Saiba Palace". After constructing the said building the developer
dug the land beneath the access road and tried to instill a gate at the
entrance of the access road.
The
appellant Nos.1 to 11 filed a suit being suit No.1478 of 2005 in the City Civil Court at Bombay for declaration and injunction.
The
developer in an attempt to pressurize the appellants into not prosecuting the
said suit had setup respondent no.1 herein (a tenant of the Trust property) to
initiate proceedings against the appellants. According to the appellants, the
fact that the respondent no.1 was setup is clear from the following-
a) though
the construction of the temple was completed in the year 2001, the respondent
no.1 who was a tenant of the premises did not complain about the unauthorized
construction till the appellants herein filed a suit against the developer;
b) that
the respondent no.1 had participated in the celebration of idol installation;
c) the
advocates of the developer as well as the Respondent no.1 were same;
d) that
the respondent no.1 and the developer belong to the same Nationalist Congress
Party.
Respondent
No.1 through its advocate gave a representation to Municipal Commissioner about
the unauthorized structure/temple. The respondent no.1 also wrote several
letters of complaints to Hon'ble Ministers, Assistant Commissioner of Police,
Deputy Chief Minister, Commissioner of Police, Inspector General of police,
Editors of Newspaper etc.
The
appellant filed an interim application Notice of Motion No.1201 of 2005 in Suit
No. 1478 of 2005 for grant of ad interim relief. After hearing the parties City Civil Court passed the following order:-
"The Defendants have constructed part of their compound wall. The
plaintiff's agree that the defendants shall extend that constructing leaving
6ft. from the otla on the rear of the four shops in the Plaintiff's property.
The
defendants shall construct their compound wall as shown in blue extending it
from the wall already constructed leaving 6ft. space from the otla on the rear
of the shops of the plaintiffs as shown in blue in the sketch plan Ex-A to the
plaint.
The
plaintiffs shall be entitled to have access through the defendant's property
for only pedestrian traffic (including Palkhis) pending the suit.
N/M is
disposed off accordingly. NOC W/s if filed." The aforesaid order was
modified and it was added that "By consent order dated 3.5.2005 is without
prejudice to the rights and contentions of both parties." During the pendency
of the said suit, the developer started constructing a compound wall on the
southern side of the tenement, whereby the developer encroached upon a part of
the land bearing CTS No.212 and reduced the width of the access road from 12
feet to 6 feet. He also wrongfully constructed a gate at the entrance of the Servient
Tenement, touching the land bearing CTS No.212/1 to 4 and thereby attempted to
disturb the free use of the right of way acquired by the trust.
The
appellant complained to the authorities about the illegal construction and
unauthorized conduct of the respondents.
In
reply, the Municipal Corporation informed the petitioner that as per order of
Asst. Joint Municipal Commissioner dated 6.8.2005, the occupation certificate
to the building constructed by the developer and named Saiba Palace shall be issued after the proceedings in court are finally
disposed off and the provisions of access to the subject temple will also be
taken into account.
Respondent
no.1 filed a writ petition before the High Court at Bombay alleging that appellants were in
the process of constructing a temple in the extremely crowded area without
obtaining permission from Municipal Corporation and that on account of this
construction the atmosphere in the locality has been disturbed and disputes
have arisen. In view of this he sought the following reliefs:
i) direct
municipal authorities to demolish the entire unauthorized and illegal
construction on CTS no. 206, 206 (1 to 9) called on by the petitioners herein;
ii) pending
disposal of the writ, injunct the petitioners from carrying on any further
construction;
iii) appointment
of court commissioner to visit the property and give its report.
It is
the case of the appellant that the construction of temple was not in progress
at that time. Temple was already constructed in the year
2001.
It is
also the case of the appellant that respondent no.1 being a tenant of Chawl
523/7 on the trust property claimed that he recently came to know about the
illegal and unauthorized construction in the Trust property, despite his
further claim in the writ petition that the property was under his supervision
continuously for 12 years and Mr. Ghag had also executed Power of Attorney on
18.11.1998 in his favour.
Bombay
Municipal Corporation (in short BMC) issued notice to stop the work under
section 354A of BMC Act for construction of four RCC columns on the rear side
of the temple.
Appellant
submitted an application before BMC for regularization of the temple building.
One of
the trustees and the appellant herein Shri Arvind Kothari filed counter
affidavit to the petition and stated in detail about the proxy- litigation
initiated by the builder and also the malafides against the respondent no.1. It
was also pointed out that there had been no infringement of bye-laws relating
to FSI. That lacs of devotees visit the temple.
The
respondent no.1 filed a rejoinder before the High Court in which most of the
averments have remained uncontroverted due to either bald denial or no denial.
It would be pertinent to mention that nexus between the developer and the
respondent no.1 largely remained uncontroverted.
The
BMC also filed a counter affidavit, wherein it was categorically stated that
after service of a stop-work notice under section 354-A of the MMC Act, no work
was carried out.
The
High Court passed an order directing the Municipal Authorities to demolish
entire illegal and unauthorized construction carried on by respondent no.3 to
17 on entire CTS No. 206, 206(1 to 9) Kurla part IV, new mill road Kurla (W)
Mumbai-400070 despite noting that the issue of regularization was a matter
between the respondent and the BMC. The High Court stayed the operation of the
order by 4 weeks, which was extended for another 4 weeks by order dated
5.4.2006. Hence the present appeal by way of SLP has been filed.
We
heard Mr. F.S. Nariman, learned senior counsel appearing for the appellants and
Mr. Mukul Rohatgi and Mr. Ranjit Kumar, learned senior counsel for the
respondent No. 1, Mr. Pallav Shishodia, learned counsel for respondent Nos. 2
and 3 and Mr. U. U. Lalit, learned senior counsel for the Intervenors.
When the
matter came up for admission on 04.07.2006, this Court observed as under:-
"Issue notice limited to the question as to whether in the city of Bombay
governed by the provisions of Section 351 of the Mumbai Municipal Corporation
Act, 1888 where it has been left to the Commissioner's discretion to demolish
or not to demolish, the High Court could direct a mandamus for demolition.
Mr. Lakshmi
Raman Singh, advocate, takes notice for respondent no.1. Issue notice limited
to above question to all other respondents returnable within four weeks. Dasti,
in addition is permitted. Learned counsel for the petitioner is also permitted
to serve notice privately by registered A.D.Post. Two weeks time is granted to
file counter affidavit.
Rejoinder,
if any be filed within two weeks thereafter. List the matter for final hearing,
by consent of parties, on 10th August, 2006.
In the
meanwhile, there shall be interim stay of demolition. It is also made clear
that the petitioner shall not make any further construction until further
orders." The following submissions were made by Mr. Nariman, learned
senior counsel appearing for the appellants:
1) The
High Court proceeded on the erroneous footing that "The petition is filed
pointing out that respondent no.3 to 17 are in the process of constructing a
temple in an extremely crowded area." It was submitted that the temple was
constructed in the year 2001 and the temple was not it the process of
construction.
2) The
High Court while replying to the submission of the appellant that application
for regularization was pending on the one hand held "that is a matter
between the Respondent and the Municipal Corporation" and in the same
paragraph also held "it is very clear that the construction is illegal,
without any authority of law and without any permission of the Municipal
Corporation." Thus it was submitted that the High Court assumed the powers
granted to the Municipal Commissioner, under the Bombay Municipal Corporation
Act, 1988 (herein after referred to as "the Act") to decide whether
the structure is legal/illegal without affording an opportunity of hearing to
the appellants. It is submitted that issuance of a notice under Section 351 of
the BMC Act and giving opportunity of hearing to the owner of the building are
conditions precedent for issuing an order for demolition of the building and
unless, upon hearing, the Municipal Commissioner holds that the construction on
the disputed property is unauthorized and illegal, question of its demolition
does not arise.
3) The
High Court failed to appreciate that the provisions of Section 351(2) of the
Mumbai Municipal Corporation Act, 1888 (M.M.C Act) confer very wide
discretionary powers upon the Municipal Corporation to remove, alter or pull
down or not the building constructed without complying with the provisions of
Section 342 or 347 of the said Act. It was submitted that the Court cannot
substitute such discretion of the Commissioner nor can the writ Court direct
the Commissioner to exercise the discretion in a particular manner.
4) The
High Court erred in passing a drastic direction for demolition of a
structure/temple without affording an opportunity of hearing to the appellant
especially when the Municipal Commissioner has the power to regularize a
building constructed and the application for regularization was pending before
the Municipal Commissioner. It was submitted that there was enough material to
show that the structure of the temple can be regularized.
The
total area of the plot on which the temple is situated is 1290.30 sq.mtrs. the
area of the existing structures including the temple is 574.91sq.mtrs and hence
within the F.S.I limit of 1, which is 44.55% of the permissible F.S.I. This
Court in the Aggarwal AIR 1956 SC 110 has held that if the structure is not
otherwise violative of the Building Bye-laws, it need not be demolished.
However, the said application has now been dismissed by the Municipal
Commissioner by order dated 9.3.2006 in view of the impugned order. An appeal
against the same is pending before the authorities.
5) The
High Court erroneously held in para-4 of the impugned order "ultimately a
stop work notice was issued. In the utter disregard of such notice, the
construction work had proceeded." It was submitted that the Corporation
itself had filed the affidavit stating "respondent Corporation had visited
the site and issued notice under section 354 of MMC Act at present there is no
further construction work found in progress."
6) The
High Court erred in issuing a direction for demolition under its writ jurisdiction
where mandamus could only be issued directing the administrative authorities to
act in accordance with law.
7) The
High Court erred in granting prayer of the appellant which seeks direction to
demolish entire illegal and unauthorized structure standing on CTS No.206, 206
(1 to 9) in as much as there are many structures on the said plot which were
constructed prior to the year 1962 and were considered to be heritage.
8) The
High Court failed to appreciate the following evidence which clearly showed
that the writ petition was filed by a person who was set up by the developer:
(a) though
the construction of the temple was completed in the year 2001, the writ
petitioner who was a tenant of the premises did not complain about the
unauthorized construction till the petitioners herein filed a suit against the
developer;
(b) that
the writ petitioner participated in the celebration of idol installation;
(c) the
advocates of the developer as well as the writ petitioner are same;
(d) that
the writ petitioner and the developer belong to the same Nationalist Congress
Party.
Admittedly,
the petitioner was a friend of the developer for 18 years and the complaint
against the present petitioner was made only after civil case was filed against
the builder.
9) The
High Court erred in relying on stop work notice to order demolition of the
entire structure as the aforesaid stop work notice was issued only for stopping
the construction of four pillars on the rear side of the temple.
Mr. Nariman
also invited our attention to certain averments made in paras 5 and 7 of the
writ petition filed by the first respondent herein being Writ Petition No. 2841
of 2005. Our attention was drawn to para 7 of the affidavit wherein the
respondent as the writ petitioner stated that respondent No.2 informed
respondent No.1 by letter dated 05.10.2005 that they were taking legal action
against Jain Temple/Dervasar as per Section 354A of the Bombay Municipal
Corporation Act. Learned senior counsel also drew our attention to the counter
affidavit filed by respondent No.14 to the writ petition and, in particular,
paragraph 17. The relevant portion reads thus:
"The
construction of temple had commenced in or around the year 1999 and the "Pratishtha"
(installation of idol ceremony) took place in the year 2001. The petitioner infact
joined the Trust in the celebration relating to Pratistha Mahotsav. The
petitioner never made any complaint during the period of construction or even
when the said Pratistha Mahotsav took place or around the year 2001.
Pertinently the petitioner started writing letters to authorities only after
the disputes and differences between the Trust and the said Payak started on
account of unauthorized construction and attempted encroachment on the part of
the said Payak." Our attention was also drawn to the prayer made in the
writ petition No. 2841 of 2005 which reads as follows:-
"a)
The High Court may be pleased to issued writ of Mandamus; any other writ, order
or direction in the nature of mandamus directing the respondent No. 1 & 2
to demolish the entire unauthorized and illegal construction carried on by the
respondent Nos. 3 to 17 on entire CTS No. 206, 206(1 to 9), Kurla Part IV, New
Mill Road, Kurla (West), Mumbai 400070.
b)
Pending hearing and final disposal of the petition; the respondent nos.3 to 17
may be restrained by an order of injunction of this court from carrying on any
further construction on CTS No.206, 206 (1 to 9), Kurla Part IV, New Mill Road,
Kurla (West), Mumbai 400070."
Mr. Nariman,
in support of his contention, that the High Court cannot assume the power
granted to the Municipal Commissioner under the Bombay Municipal Corporation
Act, 1988 (in short "the Act") to declare whether the structure is
legal or illegal, submitted that issuance of a notice under Section 351 of the
Act and giving opportunity to the owner of the building are conditions
precedent for issuing the order for demolition of the building and unless upon
hearing the Municipal Commissioner holds that the construction on the disputed property
is unauthorized and illegal, question of its demolition does not arise. He
would further submit that provisions of Section 351(2) of the Act confer very
wide discretionary powers on the Municipal Commissioner to remove alter or pull
down or not the building constructed without complying with the provisions of
Section 342 or 347 of the said Act. Therefore, he submitted that the High Court
cannot substitute such discretion of the Commissioner nor can the High Court
direct the Commissioner to exercise the discretion in a particular manner. In
support of the above contention, learned senior counsel first invited our
attention to Section 351 of the Act which reads thus:
"351.
Proceedings to be taken in respect of buildings or work commenced contrary to section
347 - (1) If the erection of any building or the execution of any such work as
is described in section 342, is commenced contrary to the provisions of section
342 or 347, the Commissioner, unless he deems it necessary to take proceedings
in respect of such building or work under section 354, shall
(a) by
written notice, require the person who is erecting such building or executing
such work, or has erected such building or executed such work, or who is the
owner for the time being of such building or work, within seven days from the
date of service of such notice, by a statement in writing subscribed by him or
by an agent duly authorized by him in that behalf and addressed to the
Commissioner, to show sufficient cause why such building or work shall not be
removed, altered or pulled down; or
(b) shall
require the said person on such day and at such time and place as shall be
specified in such notice to attend personally, or by an agent duly authorized
by him in that behalf, and show sufficient cause why such building or work
shall not be removed, altered or pulled down.
Explanation
"To show
sufficient cause" in this sub-section shall mean to prove that the work
mentioned in the said notice is carried out in accordance with the provisions
of section 337 or 342 and section 347 of the Act.
(2) If
such person shall fail to show sufficient cause, to the satisfaction of the
Commissioner, why such building or work shall not be removed, altered or pulled
down, the Commissioner may remove, alter or pull down the building or work and
the expenses thereof shall be paid by the said person.
In
case of removal or pulling down of the building or the work by the
Commissioner, the debris of such building or work together with one building
material, if any, at the sight of the construction, belonging to such person,
shall be seized and disposed off in the prescribed manner and after deducting
from the receipts of such sale or disposal, the expenditure incurred for
removal and sale of such debris and material, the surplus of the receipt shall
be returned by the Commissioner, to the person concerned.
(3) No
Court, shall stay the proceeding of any public notice including notice for
eviction, demolition or removal from any land or property belonging to the
State Government or the Corporation or any other local authority or any land
which is required for any public project or civil amenities, without first
giving the Commissioner a reasonable opportunity of representing in the
matter." In support of the above legal submission, learned senior counsel
first relied on the judgment of the Bharucha, J. dated 10.08.1983 in Writ
Petition No. 1286 of 1990 of the Bombay High Court wherein the learned Judge
held:
"Section
351 obliges the Municipal Commissioner, if the construction of any building or
the execution of any work is commenced contrary to the provisions of the Act,
to give notice requiring the person constructing or doing the work to show cause
why it should not be pulled down. The word used in this context of
"shall". If sufficient cause is not shown, the Commissioner
"may" remove, alter or pull down the building or work. It is left to
the Commissioner's discretion whether or not to demolish the unauthorized
construction if sufficient cause is not shown. The court cannot impede the
exercise of that discretion by the issuance of a mandatory order".
The
above judgment was followed in Abdul Rehman Siddique and Others vs. Ahmed Mia Gulam
Mohuddin Ahmedji and another, 1996 (2) Mh. L.J. 1042 at 1047 wherein a learned
Single Judge of the Bombay High Court held thus:
"9.Such
discretion of the Commissioner or such authority cannot be substituted by the
court nor can court direct the commissioner or such authority to exercise
discretion in a particular manner. If the discretion by the commissioner or
such authority appears to have not been exercised in accordance with law then
court can only call upon the Commissioner or such authority to consider the
matter afresh in accordance with law.
10. I
am fortified in my view by the judgment of this court in Writ Petition No. 1286
of 1980, Bilkishbhai Moizbhai Vasi and others, petitioners v. Municipal
Corporation for Greater Bombay and 3 others, respondents decided on 10.08.1983.
In the said judgment Hon'ble Justice S.P.Barucha (as he then was) has
considered the provisions of section 351 of the BMC Act vis-a-via the
obligation of the commissioner or the authority delegated such power to
demolish the unauthorized construction. Barucha, J. held thus:-
"Section
351 obliges the Municipal Commissioner, if the construction of any building or
the execution of any work is commenced contrary to the provisions of the Act,
to give notice requiring the person constructing or doing the work to show cause
why it should not be pulled down. The word used in this context of
"shall". If sufficient cause is not shown, the Commissioner
"may" remove, alter or pull down the building or work. It is left to
the Commissioner's discretion whether or not to demolish the unauthorized
construction if sufficient cause is not shown. The court cannot impede the
exercise of that discretion by the issuance of a mandatory order".
10-A.
Apparently, therefore, the direction given and the order passed by the City
Civil Court and impugned in the present appeal making the notice of motion
absolute in terms of prayers (b) and (d) impedes the exercise of discretion of
the commissioner or the authority delegated such power. The mandate issued to
defendant no.1 in issuing notice in respect of the structures to defendant Nos.
2 to 31 is clearly impediment in the exercise of the discretionary power of the
commissioner or for that matter the authority delegated such power. Such
mandatory order and that too pending trail of the suit where it is yet to be
tried whether the alleged construction is unauthorized or not cannot be said to
be justified." In Syed Muzaffar Ali and Others vs. Municipal Corporation
of Delhi, 1995 Supp (4) SCC 426, This Court
in paras 4 & 5 held as under:
"However,
it is to be pointed out that the mere departure from the authorised plan or
putting up a construction without sanction does not ipso fact and without more
necessarily and inevitably justify demolition of the structure.
There
are cases and cases of such unauthorized constructions. Some are amenable to
compounding and some may not be. There may be cases of grave and serious
breaches of the licensing provisions or building regulations that may call for
the extreme step of demolition.
These
are matters for the authorities to consider at the appropriate time having
regard to nature of the transgressions. It is open to the petitioners to move
the authorities for such relief as may be available to them at law.
The
petitioners may, if so advised, file a plan indicating the nature and extent of
the unauthorized constructions carried out and seek regularization, if such
regularization is permissible. The dismissal of the petitions will not stand in
the way of the authorities examining and granting such relief as the
petitioners may be entitled to under law. The petitioners may move the
authorities in this behalf within one week for such compounding or
regularization and also for stay of demolition pending consideration of their
prayer.
During
the period of one week from today, however, no demolition shall be made." In
U.P. State Road Transport Corporation and Another vs. Mohd. Ismail and Others,
(1991) 3 SCC 239, this Court in paras 11 & 12 at page 244 observed as
under:-
11.
The view taken by the High Court appears to be fallacious. The discretion
conferred by Regulation 17(3) confers no vested right on the retrenched workmen
to get an alternative job in the Corporation. Like all other statutory
discretion in the administrative law, Regulation 17(3) creates no legal right
in favour of a person in respect of whom the discretion is required to be
exercised -- other than a right to have his case honestly considered, for an
alternative job by the Corporation.
12.
The High Court was equally in error in directing the Corporation to offer
alternative job to drivers who are found to be medically unfit before
dispensing with their services.
The
Court cannot dictate the decision of the statutory authority that ought to be
made in the exercise of discretion in a given case. The Court cannot direct the
statutory authority to exercise the discretion in a particular manner not
expressly required by law. The Court could only command the statutory authority
by a writ of mandamus to perform its duty by exercising the discretion
according to law. Whether alternative job is to be offered or not is a matter
left to the discretion of the competent authority of the Corporation and the
Corporation has to exercise the discretion in individual cases. The Court
cannot command the Corporation to exercise discretion in a particular manner
and in favour of a particular person. That would be beyond the jurisdiction of
the Court.
Mr. Mukul
Rohatgi made elaborate submissions which were later supported by Mr. Ranjit
Kumar, senior counsel. He invited our attention to the counter affidavit on
behalf of respondent No.1. Mr. Rohatgi submitted that Section 354A is categoric
in spelling out the powers of Commissioner in respect of works unlawfully
carried on and in the instant case there is an unlawful and deliberate mis-representation
on the part of the appellants and, therefore, the civil appeal is ought to be
dismissed on this very ground. He further submitted that the appellant
continued the construction during the pendency of the petition in the High
Court and is continuing to construct despite the orders of this Court and has
covered the site with a cover to prevent access.
Mr. Rohatgi
submitted that despite the several complaints made by the first respondent -
Municipal Corporation of Greater Bombay did nothing to demolish the illegal
structure and that the Municipal Commissioner did not exercise the power vested
in him under the Act to demolish the illegal structure. It is further submitted
that the Municipal Commissioner was under a duty and obligation to order or
direct illegal structure to be removed as the same was per se illegal and that
the Commissioner ought to have ordered demolition as Municipal Corporation had
issued a notice under Section 354A of the Act and in spite of the same, the
respondent had continued with the illegal construction.
Learned
senior counsel further submitted that owing to the inaction on the part of the
Municipal Corporation in demolishing the illegal structure, the respondent had
no other option but to move the Bombay High Court by filing the writ petition
No. 2841 of 2005. He also drew our attention to the order passed by the High
Court which clearly stated that the order of the High Court dated 21.12.2005
will not prevent the Corporation from taking any action in accordance with the
law if the construction is found to be unauthorized. After the order of the
High Court, the counsel for the first respondent sent several letters calling
upon the BMC to take action against the unauthorized construction and despite
these letters the BMC failed to take any action in the matter and ultimately
the High Court vide impugned order directed the Municipal Corporation to
demolish the said illegal structure.
It was
submitted that the writ petition was filed for inaction of the Municipal
Corporation and the writ petition was directed to ensure that the authority
performed the duty cast upon it under the Statute and that the High Court on
considering that the Commissioner had not taken any action in respect of the
said illegal structure directed the demolition of the same.
Thus,
it was submitted that the order passed by the High Court was a corrective order
aimed at enforcing the law and if the Commissioner declined to use his powers
or enforce the law, the High Court was fully competent to enforce the same and
that the writ of the High Court runs superior to the statutory powers of the
Corporation. Concluding his argument, learned senior counsel submitted that
considering the material on record and provisions of the BMC Act, this Court
would hold that the High Court was right in ordering the Municipal Commissioner
to demolish the structure and that when the executive failed to perform their
duties or erred in performing their duties, the High Court acting under the
extraordinary powers vested under Articles 226 and 227 of the Constitution of
India has the necessary power to direct the executive to enforce the law as
laid down in the statutes and power to order demolition of illegal structures
as the Commissioner has failed to do so.
Mr. Rohatgi
also invited our attention to the notice issued by the Municipal Corporation of
the appellants under Section 68 of the MMC Act directing the appellant to stop
the execution of the work forthwith and failing to produce permission, the
Commissioner shall under Section 354A and in exercise of powers and functions
conferred upon him as aforesaid without any further notice cause the said
building or work to be removed or pull down at the risk and cost. This notice
was issued on 08.06.2005. Our attention was also drawn to the proceedings
issued by the Deputy Chief Engineer dated 04.03.2006 regarding regularization
of temple on a plot bearing No. CTS No. 206, 206/1-9 of Village Kurla. The
appellant was informed that the plan submitted by them are not in consonance
with the development, control and regulation, 1991 and they have not submitted
the NOC from the Commissioner of Police being a place of public worship, their
proposal of regularization of temple was refused. Similar to this effect is the
two letters issued by Brihanmumbai Mahanagarpalika dated 13.10.2005 and
12.07.2006 refusing the proposal of the appellant relating to the construction
of temple on the plot in question.
In
support of his contention, learned senior counsel relied on para 15 of the
decision of this court in State (Delhi Admn.) vs. I.K. Nangia and Another,
(1980) 1 SCC 258.
The
above decision was cited for the proposition that the word may normally imply
what is optional but for the reason stated it should in the context in which it
appears here should mean must and that there is an element of compulsion and
that its power coupled with a duty. It deals with the performance of public
duty and that it comes within the dictum of Lord Cairns in Julius vs. Lord
Bishop of Oxford (1874-80) 5 AC 214. The dictum reads thus:- "There may be
something in the nature of the thing empowered to be done, something in the
object for which it is to be done, something in the conditions under which it
is to be done, something in the title of the person or persons for whose
benefit the power is to be exercised, which may couple the power with a duty,
and make it the duty of the person in whom the power is reposed to exercise
that power when called upon to do so." In Maxwell on Interpretation of
Statutes, 11th Edn. at page 231, the principle is stated thus:
"Statutes
which authorize persons to do acts for the benefit of others or, as it is
sometimes said, for the public good or the advancement of justice, have often
given rise to controversy when conferring the authority in terms simply
enabling and not mandatory. In enacting that they "may" or
"shall, if they think fit", or, "shall have power", or that
"it shall be lawful" for them to do such acts, a statute appears to
use the language of mere permission, but it has been so often decided as to
have become an axiom that in such cases such expressions may have to say the
least a compulsory force, and so would seem to be modified by judicial
exposition." Learned senior counsel next cited M.C. Mehta vs. Union of
India & Ors, 2006 (2) Scale 364.
"Now,
we revert to the task of implementation. Despite its difficulty, this Court
cannot remain a mute spectator when the violations also affect the environment
and healthy living of law-abiders. The enormity of the problem which, to a
great extent, is the doing of the authorities themselves, does not mean that a
beginning should not be made to set things right. If the entire misuser cannot
be stopped at one point of time because of its extensive nature, then it has to
be stopped in a phased manner, beginning with major violators. There has to be
a will to do it. We have hereinbefore noted in brief, the orders made in the
last so many years but it seems, the same has had no effect on the authorities.
The things cannot be permitted to go on in this manner forever. On one hand,
various laws are enacted, master plans are prepared by expert planners,
provision is made in the plans also to tackle the problem of existing unauthorised
constructions and misusers and, on the other hand, such illegal activities go
on unabated openly under the gaze of everyone, without having any respect and
regard for law and other citizens. We have noticed above the complaints of some
of the residents in respect of such illegalities. For last number of years even
the High Court has been expressing similar anguish in the orders made in large
number of cases. We may briefly notice some of those orders Rule of law is the
essence of Democracy. It has to be preserved. Laws have to be enforced. In the
case in hand, the implementation and enforcement of law to stop blatant misuse
cannot be delayed further so as to await the so called proposed survey by MCD.
The suggestions would only result in further postponement of action against
illegalities. It may be noted that the MCD has filed zonewise/wardwise abstract
of violations in terms of commercialisation as in November, 2005. According to
MCD, the major violation has been determined in respect of those roads where commercialisation
of the buildings is more than 50%.
According
to it, the major violations in 12 zones are spread on 229 roads. Roads on which
there are major violations are, thus, known. In respect of these, there is no
need for any survey or individual notice. Beginning must be made to stop misuser
on main roads of width of 80 ft. or more. The names of these roads can be
published in newspapers and adequate publicity given, granting violators some
time to bring the user of the property in conformity with the permissible user,
namely, for residential use if the plans have been sanctioned for construction
of a residential house. In case owner/user fails to do so, how, in which manner
and from which date, MCD will commence sealing operation shall be placed on
record in the form of an affidavit of its Commissioner to be filed within two
weeks. On consideration of this affidavit, we will issue further directions
including constitution of a Monitoring Committee, if necessary. The issue of
accountability of officers and also the exact manner of applicability of
Polluter Pay Principle to owners and officers would be further taken up after misuser
is stopped at least on main roads. Civil Appeal Nos. 608/2003 above referred
relates to Ring Road, Lajpat Nagar-II. The other cases relate to areas like
Green Park Extn., Green Park Main, Greater Kailash, New Friends Colony, Defence
Colony, West Patel Nagar, etc. These areas are illustrative. The activities
include Big Furnishing Stores, Galleries, Sale of Diamond and Gold Jewellary,
sale of Car Parts etc." Learned senior counsel next cited M.I.Builders
Pvt. Ltd. vs. Radhe Shyam Sahu and Others, (1999) 6 SCC 464 para 73 which reads
thus:
"The
High Court has directed dismantling of the whole project and for restoration of
the park to its original condition. This Court in numerous decisions has held
that no consideration should be shown to the builder or any other person where
construction is unauthorised. This dicta is now almost bordering rule of law.
Stress was laid by the appellant and the prospective allottees of the shops to
exercise judicial discretion in moulding the relief. Such discretion cannot be
exercised which encourages illegality or perpetuates an illegality. Unauthorised
construction, if it is illegal and cannot be compounded, has to be demolished.
There
is no way out. Judicial discretion cannot be guided by expediency. Courts are
not free from statutory fetters.
Justice
is to be rendered in accordance with law. Judges are not entitled to exercise
discretion wearing robes of judicial discretion and pass orders based solely on
their personal predilections and peculiar dispositions. Judicial discretion
wherever it is required to be exercised has to be in accordance with law and
set legal principles. As will be seen in moulding the relief in the present
case and allowing one of the blocks meant for parking to stand we have been
guided by the obligatory duties of the Mahapalika to construct and maintain
parking lots." Mr. Pallav Sisodia, learned counsel for the Corporation
invited our attention to the counter affidavit filed in the writ petition and
submitted that the appellant has raised several disputed questions of fact
which cannot and ought not to be gone into by this Court and on that ground
alone, the SLP deserves to be dismissed. Without prejudice to the aforesaid
contention, he submitted that the owners through their architect submitted
their proposal for the approval of the proposed temple complex along with
notice under Section 44/99 of MTP Act and notice under Section 337 of the MMC
Act. Respondent Nos. 2 and 3 vide application dated 08.04.1999 and in reply to
the same the A.E. vide his letter had said that the said proposal will be
processed further in compliance with certain documents mentioned in the said
letter. It is submitted that one of the conditions required documents to be
submitted regarding access roads of adequate width to the property. It is
further submitted that the Trust has now made an application vide letter dated
09.12.2005 through a new architect to the Executive Engineer (BP) ES for
regularizing the construction of the temple along with several documents such
as copy of Deed of Trust, copy of the order and consent terms filed in suit No.
1478 of 2005. It is further submitted that the said application made to EE (PP)
is pending and the same shall be considered as per the provisions of DC
Regulation and other provisions of law. In the meanwhile on receipt of
complaint respondent Nos. 2 and 3 visited the premises at Jain temple and
detected that construction was in progress at site without permission from the
respondents and hence stop work notice under Section 354A of the MMC Act dated
08.06.2005 was issued to the Trustees. By the said notice, the addressee was
called upon to stop the erection of the building/execution of the said work
that is construction of RCC columns on rear side without permission from the
respondents. The party was also called upon to produce permission/approval, if
any by the competent authority in respect of the said work within 24 hours from
the receipt of the said notice. Thereafter on 05.12.2005 the site was again
inspected by the officers of the respondents when it was noticed that a temple
was constructed with marble located in front of the existing plot and a shed on
the rear side admeasuring 14.5 metre X 3.10 metre was also constructed as
composite structure by using MSI Section with angle section and AC sheet
roofing within the premises of the shed one cabin admeasuring 6.5 metre X 2.85 metre
having the off 2.0 metre is seen and that there is no activity at present
conducted in the cabin. Besides the aforesaid structure there are 4 numbers of
RCC columns existing on the site within the temple premises.
It was
further submitted that on receipt of complaint, the respondents had visited the
site and issued notice under Section 354A of the MMC Act and at present there
is no further construction work. It was further submitted that the said
structure being a shrine and as there being no further work carried out at site
and there being pending proposal in respect of the said structure no further
action was initiated by the authorities pending the said proposal. It is also
submitted that the application submitted by the applicant, namely, respondent
No.4 shall be considered by the authorities strictly on merits and in
accordance with the provisions of law.
Learned
counsel for the Municipal Corporation cited G.J. Kanga, Adm. Of Municipal Corpn.,
Greater Bombay and Another vs. S.S. Basha, 1992 (2) Mh.L.J. 1573 para 35 which
reads thus:
"35.
Whether an order of demolition under section 351 is an administrative order or
a quasi-judicial order? It cannot be disputed that demolition results in
serious civil consequences. It leads to loss and destruction of property
entailing loss of money. It renders the occupiers homeless.
It
would, therefore, be futile to term the order an administrative order and the
process leading to the order a quasi-judicial function. If I were to say,
"you be hanged", can it be said that this is an administrative order
and the trial leading to the order is a judicial or quasi-judicial process.
Just as there is discretion in the matter of passing judicial orders similarly
there is discretion in the matter of passing orders under section 351. A
decision under section 351 requires a decision whether the offending structure
is authorized or unauthorized. Whether the whole of it or only a part of it is
unauthorized, if unauthorized why it is unauthorized, whether it can be
tolerated or whether it can be regularized. In my view, there lies a large area
of discretion in the matter of passing orders under section 351.
An
order under section 351 leads to civil consequences, there is a large area of
discretion in the matter of passing orders under section 351, it is on this
ground that the concerned Municipal authorities are required to follow the
principles of natural justice. An order passed under section 351, therefore, is
a quasi-judicial order and it cannot be termed an administrative order. Hence,
such an order is neither revisable nor open to review. Had the Legislature
intended to make these orders subject to appeal, revision or review, it would
have so provided in specific terms.
Provisions
of appeal, revision or review cannot be inferred by implication. They have to
be provided for in specific terms.
The
power of review as is understood in common parlance is the exercise of a power
by the very officer who passed the order and not by his superior officer. An
order can only be made appealable or revisable by a superior officer. Hence, in
the absence of a specific provision in that behalf, I hold that the order under
section 351 is neither revisable nor reviewable." He also cited Mansukhlal
Vithaldas Chauhan vs. State of Gujarat, (1997) 7 SCC 622 in respect of the
question as to whether the High Court could issue a Mandamus of this nature and
whether the order of sanction in these circumstances is valid.
"22.
Mandamus which is a discretionary remedy under Article 226 of the Constitution
is requested to be issued, inter alia, to compel performance of public duties
which may be administrative, ministerial or statutory in nature. Statutory duty
may be either directory or mandatory. Statutory duties, if they are intended to
be mandatory in character, are indicated by the use of the words
"shall" or "must". But this is not conclusive as "shall"
and "must" have, sometimes, been interpreted as "may".
What
is determinative of the nature of duty, whether it is obligatory, mandatory or directory,
is the scheme of the statute in which the "duty" has been set out. Even
if the "duty" is not set out clearly and specifically in the statute,
it may be implied as correlative to a "right".
23. In
the performance of this duty, if the authority in whom the discretion is vested
under the statute, does not act independently and passes an order under the
instructions and orders of another authority, the Court would intervene in the
matter, quash the order and issue a mandamus to that authority to exercise its
own discretion." Mr. U.U Lalit, learned senior counsel appearing for the intervenors(Developers),
Ismail Yakub Payak, submitted that the intervenor seeks neither to support nor
challenge the impugned order dated 23.03.2006 passed by the High Court against
the appellants but the intention of the intervenor was only to protect his
property CTS 205, 205/1-34, New Mill Road, Kurla West from the claims of the
appellant's trust. It was further submitted that the intervenor has a direct
interest in the matter as he would be affected by order of this Court.
Respondent
No.1 has also filed I.A. No. 5 of 2006 for permission to place additional
documents on record such as the indenture or conveyance entered into and
executed on 16.08.2002 between Benjamin Sebastian Fernandes, Thomas maxim Fernandes
and Sadhna Builders etc.
We
have given our anxious and careful consideration to the rival claims made by
the respective counsel appearing for the parties.
Before
proceeding further to consider the rival contentions, it is very useful and
pertinent to reproduce the proceedings of the Executive Engineer (Building
Proposal) Eastern Suburbs dated 16.09.2005 of Brihanmumbai Mahanagarpalika
which reads thus:
"In
connection with the above subject, it is noted that the Joint Commissioner
Municipal Corporation has via Order dated 6th August, 2004 ordered that while issuing
Occupation Certificate regarding the building Saiba Palace, the arrangement for access Road to
Jain Temple will be considered in accordance with the final order of
the Court." The above order was issued on 16.09.205 whereas the first
respondent filed the writ petition in October, 2005 in the Bombay High Court.
On 20.01.2006, Brihanmumbai Mahanagarpalika refused the proposal for
regularization of temple. Stop work notice was issued on 08.06.2005. In the
counter affidavit filed by the Corporation in the writ petition NO. 2841 of
2005, the Corporation has stated that since the construction work was in
progress at site without permission from the Corporation Authorities stop work
notice under Section 354A of the MMC Act dated 08.06.2005 was issued to the
trustees of the temple and by the said notice the addressees were called upon
to stop the erection of the building/execution of the said work in the
construction of RCC columns on the rear side in the above address without
permission from the authorities. According to the appellant the work commenced
in the year 2001 whereas the writ petition was filed after 5 years.
When
the special leave petition was heard on 04.07.2006, this Court issued notice
limited to the question as to whether the provisions of Section 351 of the MMC
Act where it has been left to the discretion of the Commissioner to demolish or
not to demolish, the High Court could direct a mandamus for demolition.
Respondent No.1 filed a counter affidavit dealing not only with the limited
question but also to deal with various other matters which have no bearing on
the said question.
Respondent
No.1 in the counter affidavit mentioned various disputed facts.
It is
seen that no notice under the provisions of Section 351 has been issued by the
Municipal Commissioner in this matter against the appellant. In the special
leave petition, it is clearly mentioned by the appellant that the Corporation
had issued a notice to stop the work under Section 354A of the BMC Act. No
reference is made to any notice under Section 351A of the Act. It is specifically
mentioned that the affidavit which was filed on behalf of the Corporation had
categorically stated that after the service of stop work notice under Section
354A no work was carried out. Respondent No.1 is fully aware that the
provisions of Section 354A of the Act deals with stop work notice whereas the
provisions of Section 351 of the Act deals with show cause notice for
demolition of unauthorized structure. The grievance of the appellant herein has
been that without issuing a notice under Section 351 of the Act and without
giving an opportunity to the appellant of being heard the structure of the
temple could not be ordered to be demolished by the High Court. The power under
Section 351 of the Act, in our opinion, has to be exercised only by the Municipal
Commissioner and it is left to the Municipal Commissioner under the provisions
of Section 351(2) either to order or not to order the demolition of the alleged
unauthorized temple. In fact, respondent No.1 by himself through his advocate's
letter dated 16.04.2005 (annexed to his counter affidavit) requested the
Municipal Authorities to take action under Section 351 of the Act. At the time
of admission of this special leave petition, the provision of Section 351 of
the Act was pointed out by the learned senior counsel to show that the
Municipal Commissioner had only been conferred the power under the said
provisions to demolish or not to demolish unauthorized structure and,
therefore, the High Court ought not to have issued a mandamus for demolition of
the temple before any order was passed by the Commissioner on the question of
demolition. The provisions of Section 354A have nothing to do with the question
of demolition. It is specifically averred and contended at the time of hearing
that respondent No.1 is an agent set up by the developer who is developing the
adjoining land and who is interested in dividing the right of way claimed by
the appellant through the said adjoining plot bearing CTS No. 206.
It is
also denied that plot No. 206 on which the temple is situated is a land locked
plot. Both the plots now bearing CTS No. 206 and the adjoining plot bearing CTS
No. 205 developed by the builder (the intervenor) originally belonged to one
A.H.
Wadia.
Before the said plot now bearing CTS No.205 was leased out, the land now
bearing CTS No. 206 was sold by A.H.Wadia to one Fernandes who had constructed
thereon a number of structures including a bungalow as shown in the city Survey
Plan relied upon by the respondent no.1 in the annexure "A" to his
writ petition before the High Court. The said plan shows that the temple is now
located at the same site where originally the bungalow of Fernandes family was
constructed. The said bungalow had become old and hence it was renovated in
such a manner so as to convert it into a temple.
Thus
the Fernandes family had a right of way of necessity through the land now
bearing CTS No. 205 adjoining the land bearing CTS No. 206 as shown on the said
plan. The said access was 12 wide and consisted of land bearing CTS No.212 and
part of CTS No. 205. However, while developing the adjoining land bearing CTS
No.205, the developer forcibly reduced the said access by digging about 7' wide
stretch of land earlier used for the said access and encroach upon the part of
CTS No. 212 which belongs to the appellant. This right of way has been claimed
by the appellants in the suit which they have filed in the Bombay City Civil
court at Bombay being Suit No. 5755 of 2005 which
is now pending before the City Civil Court.
The said 12' wide access was the only access available to the said Fernandes
family and the appellant Trust from the main road which is now named as A.H.Walia
Marg for approaching the property bearing CTS No.206. The said position is
clear from the plans bearing Annexure No. "PP-1" and "P-2"
annexed to the Special Leave Petition.
Though
the respondent no.1 claims that he has been residing in a room in the chawl
located on the temple plot since his birth, he has not referred to the
existence of the said bungalow on the temple plot owned by the Fernandes family
in his writ petition filed before the High Court.
According
to the appellants, the Municipal Commissioner and his subordinate officers have
been made aware that the construction of the temple has not violated in any
manner the FSI Rule. However, the proposal submitted for regularizing the
construction of the temple was not granted on account of the mandatory order
issued by the High Court as also on the ground that 12 feet access is not
available for the temple plot from A.H.Wadia Marg. It is also submitted that in
the event of appellant succeeding the suit filed before the Bombay City Civil
Court, they would get the 12" vide access to the temple plot in which
event it would not be impossible for the appellant to get their proposals
approved. In our opinion, Section 351 obliges the Municipal Commissioner in the
construction of any building or the execution of any work is commenced contrary
to the provisions of the Act to give notice requiring the person doing the work
to show cause why it should not be pulled down. The word used in this context
is shall. If sufficient cause is not shown it is left to the Commissioner's
discretion whether or not to demolish the unauthorized construction and,
therefore, the High Court, in our opinion, cannot impede the exercise of that
discretion by the issuance of a mandatory order. We, therefore, direct the
Commissioner to decide the question as to whether he should pass an order for
demolition or not.
This
Court in Corporation of Calcutta vs. Mulchand Agarwalla, [1955] 2 SCR 995 was
considering an identical question under Section 363 of the Calcutta Municipal
Act, 1923. This Court held that the word may in Section 363 of the Act does not
mean shall and the Magistrate had under that Section discretion whether he
should pass an order for demolition or not. This Court held that the orders of
the Courts below were passed on mistakes and mis-directions and, therefore,
could not be supported. But this Court did not think that to be a fit case for
an order for the demolition of the building in view of certain special
circumstances, namely, though Section 363(2) which directs that no application
for demolition shall be instituted after the lapse of 5 years from the date of
the work did not in terms apply as the proceedings had been started in time, it
was nearly 5 years since the building had been completed and the interest of
the public did not call for its demolition.
As
pointed out by this Court in Syed Muzaffar Ali and Others vs. Municipal Corporation
of Delhi (supra) that the mere departure from the authorized plan or putting up
of a construction without sanction does not ipso fact and without more
necessarily and inevitably justify demolition of the structure. There are cases
and cases of such unauthorized construction and some are amenable to
compounding and some may not be. According to learned counsel for the first
respondent, the appellants have constructed the temple without obtaining any
sanction whatsoever. There is serious breach of the licensing provisions or
building regulations which may call for extreme step of demolition. In our
view, these are matters for the Municipal Commissioner to consider at the
appropriate time.
Taking
into consideration of all the relevant facts and circumstances and while
deciding the matter, we make it clear that we are not expressing any opinion on
merits of the rival claims. The Authorities are entitled to examine and grant
such relief as the appellants may be entitled to under the law.
The
respondent-Commissioner is directed to decide the matter absolutely on merits
after affording opportunity to the first respondent herein within 3 months from
the date of this judgment. During this period however, no demolition shall be
made.
We
also make it clear that the appellant shall not put up any further construction
or alter the construction already made.
The
civil appeal therefore stands allowed with the above direction. No costs.
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