CAUSE TITLE:
Municipal Corporation of Greater Mumbai & Ors. Vs. M/s. Sunbeam High Tech Developers Pvt. Ltd.
DATE OF ORDER:
October 24, 2019
JUDGE(S):
Hon’ble Justice Deepak Gupta & Hon’ble Justice Aniruddha Bose
PARTIES:
Petitioner: Municipal Corporation of Greater Mumbai
Respondent: M/s. Sunbeam High Tech Developers Pvt. Ltd.
IMPORTANT PROVISIONS:
Chapter 12 of The Mumbai Municipal Corporation Act [Bom. III of 1888]
Section 337: Before erecting any building, notice in this behalf has to be given to the Commissioner of the Municipal Corporation.
Section 342: Notice to be given to the Commissioner of intention to make additions, etc., to or change of user of, a building.
QUESTIONS RAISED:
- Whether if a municipal corporation demolishes a structure in exercise of powers vested in it but in violation of the procedure prescribed?
- Can the High Court direct the ‘owner/occupier’ of the building to reconstruct the demolished structure?
ANALYSIS BY THE COURT:
In the same manner as any other place in the country, the municipal corporations of the State of Maharashtra include the authority to demolish structures which have been constructed in defiance of the laws and without construction permission plan as well as in a defiance of the laws. Issue is concerning the directions which writ Court has passed that since the building has been demolished without compliance of the procedure provided under law the Petitioners before High Court (Respondents before this Court) be allowed to reconstruct the structure. The question that arises in the present appeals is whether when a municipal corporation demolishes a structure in exercise of powers that has been delegated to it and in breach of the procedure prescribed, the High Court can direct the ‘owner/occupier’ of the building to rebuild the structure.
Present Court does not support the act of the Municipal Corporation and its officials in pulling down of the structures without observing the conditions of the law but the redress that has to be accorded must not be against the provisions of the law. If there is a structure that is an illegal structure then even if it has been demolished by illegality, that structure should not be allowed to be reconstructed. But if the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal then some compensation can be awarded and in all the cases where some compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law. It is quite clear that the illegal structure cannot be allowed to be re-erected.
Even if the structure is not considered to be an illegal structure, then also the Court will have to arrive at a conclusion that the structure was erected in a legal manner. There must be a definite conclusion on the extent of the structure, the area that it was covering and which part of the plot it was occupying. In those cases if the High Court feels that the structure which has been demolished was not an ‘illegal’ structure then the Court may be justified to allow reconstruction of the structure but while doing so the Court must make it clear as to what structure it has allowed to be constructed, the length, the breadth, the height, at which side the door and windows are to be provided, how many number of storeys are permitted etc it would be wiser Which can be served to the authorities to grant necessary permission for construction of a legal structure under a period of approximately 60 days. This may however differ from one case to the other depending on the type of structure that is to be constructed as well as the region it is to be developed in.
Orders that allow re-erection wherever there is a collapse will cause structure construction in a very disorganized way. This will lead to tension in the society hence causing inconveniences to the general public. As far as individual rights of private persons have been violated to the extent that insufficient notice for demolition has not been provided, such cases structures constructed in adversary with laws cannot be allowed to be reconstructed.
It is high time that the State, the Municipal authorities and the High Court look and leverage upon the advancement of technology. Before any construction/reconstruction or repair other than tenantable repair is commenced, the owner/occupier/builder/contractor/ architect, in fact, all of them should be called upon to produce a plan of the structure as it currently stands. Thus, it can be possible to take this map on record and later on, the construction can be allowed. In such an eventuality even if the demolition is illegal, it will be easy to know what were the dimensions of the building. This information should not only be in a written form that comes in the nature of a plan but also in the form of 3D visual information that comes in the nature of photographs, videos etc.
In instances where people erect an unauthorized structure it is always found that the structure has been in existence for some time. The only solution to this problem is to carry out Geo-mapping. The relevant technology is known as Geographic Information System (GIS). Thus, if with Google Maps a road view is possible there is no reason why this technology cannot be used by the municipal corporations. At the first stage we direct that all the cities in Maharashtra where the population is 50 lakhs or more the municipal authorities will get Geo-mapping done not only of the municipal areas but also of areas 10 Kms. from the outer boundary. This can be done either through satellite, drones or even vehicles. Once one has the entire city mapped the prevention and dealing with illegal structures would only be an easy task to implement. Additional guidelines as to how the proof of illegality in construction/reconstruction, etc., and how notices are to be issued and served are laid down by Supreme Court.
Here are some of the other important directions issued by Court in case of any unauthorised construction:
- Particularly, the Commissioner/Competent Authority has to serve a show cause notice within 7 days in terms of Section 351 of Mumbai Municipal Corporation Act to the owner/occupier/builder/contractor etc., In the event the respondent has failed to reply to the said show cause notice, within the time prescribed, i. e., 7 days, the building can be demolished forthwith by the Municipal Corporation.
- The Commissioner/Competent Authority on coming to know that there is ongoing construction in violation of the applicable laws shall issue a show cause notice giving 24 hours in terms of Section 351 to the owner/occupier/builder/contractor/architect etc, an interim ‘stop – construction’ order can also be issued along with the notice or any time after issuing the notice. If in response to the notice no reply is received within the prescribed time, that is within 24 hours, the building is to be demolished instantly by the Municipal Corporation.
- This is the state of the premises prior to any construction/reconstruction whether the repair is tenantable or not is conducted, the owner/occupier/builder/contractor/architect, in fact, all are should provide a plan of the structure as it is. They will also enter their email ID and mobile phone number for communication to be made to them through notice(s), if any.
CONCLUSION
Emphasising about Geomapping as remedy for the issue of the illegitimate constructions, the constitution bench of Deepak Gupta and Aniruddha Bose, JJ has made it mandatory for all the Municipal Corporations in the State of Maharashtra where population crosses 50 lakhs to get geomapping and geophotography of the areas under them done within a span of one year. An area of 10 Kms will also be geomapped. with the boundary of such areas. The Court said, “If on Google Maps one can get a road view, we see no reason as to why this technology cannot be used by the municipal corporations.” The Court stated that geomapping can be done by satellite, drones or vehicles. If one has geomapped the whole city it will be easy to curb the process of illegal constructions. It, therefore, in terns directed the State of Maharashtra to ensure that adequate funds are made available to the concerned municipal corporations and that this task has to be accomplished within a period of one year from the date of this order.
