Supreme Court Restricts Rebuilding of Illegally Demolished Structures: Municipal Corporation of Greater Mumbai vs. Sunbeam High Tech Developers (2019)

Date of the Judgment: 24 October 2019

Citation: (2019) INSC 1113

Judges: Deepak Gupta, J., Aniruddha Bose, J.

Can a structure demolished by a municipal corporation for violating building laws be ordered to be reconstructed by the High Court if the demolition process itself was flawed? The Supreme Court of India addressed this crucial question in a case concerning the powers of municipal corporations and the rights of property owners. The core issue was whether a High Court can direct the reconstruction of a building demolished by a municipal corporation if the demolition was carried out without following the due procedure, even if the structure itself was illegal. The judgment was delivered by a two-judge bench comprising Justice Deepak Gupta and Justice Aniruddha Bose.

Case Background

The case involves appeals against orders of the High Court of Judicature at Bombay, which had directed the reconstruction of structures demolished by the Municipal Corporation of Greater Mumbai. The Municipal Corporation had demolished the structures, claiming they were illegal constructions. The respondents, M/s Sunbeam High Tech Developers Private Ltd., had approached the High Court seeking relief, arguing that the demolitions were carried out without following the due process of law.

The High Court, while acknowledging that the demolitions were not carried out according to the procedure laid down, directed the Municipal Corporation to allow the respondents to reconstruct the demolished structures using the same materials and dimensions as before. The High Court also clarified that such reconstruction would not confer any legality on the structures, and the corporation could still initiate demolition proceedings after following the due process. The Municipal Corporation of Greater Mumbai, aggrieved by this order, appealed to the Supreme Court.

Timeline

Legal Framework

The judgment refers to several sections of the Mumbai Municipal Corporation Act [Bom. III of 1888] (MMC Act). These sections outline the procedures for building construction, additions, alterations, and demolitions.

• Section 337, MMC Act: Requires notice to the Commissioner before erecting any building. The term “erecting a building” includes new constructions, re-erections, and adding floors.
• Section 338, MMC Act: Mandates the submission of building plans to the Commissioner.
• Section 342, MMC Act: Requires notice to the Commissioner for additions, alterations, or repairs to a building, except for “tenantable repairs.” Tenantable repairs include providing guniting, plastering, painting, changing floor tiles, repairing plumbing, and replacing roofs with the same material. However, changes in dimensions, removal of structural members, lowering of plinth, and extension of mezzanine floors are not considered tenantable repairs. The section states:

  “342.Notice to be given to the Commissioner of intention to make additions, etc., to or change of user of, a building.
  Every person who shall intend­  
  (a) to make any addition to a building, or change of existing user or
  (b) to make any alteration or repairs to a building involving the removal, alteration or re­erection of any part of the building except tenantable repairs:
       Provided that no lowering of plinth, foundation or floor in a building shall be permitted.”

• Section 351, MMC Act: Deals with proceedings against buildings or works commenced contrary to Section 347 of the MMC Act. It allows the Designated Officer to issue a notice to show cause as to why the building should not be demolished. The section states:

  “351.     Proceedings to be taken in respect of buildings or  work commenced contrary to section 347.   
                 (1)   The Commissioner shall, by notification in the Official Gazette, designate an officer of the Corporation to be the Designated Officer for the purposes of this section and of sections 352, 352A and 354A. The Designated Officer shall have jurisdiction over such local area as may be specified in the notification and different officers may be designated for different local areas.
              (1A)   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 Designated Officer, 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 Designated Officer, 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.”

  The explanation to this section defines “sufficient cause” as proving that the work is carried out in accordance with Sections 337, 342, and 347 of the MMC Act.

Arguments

Appellant (Municipal Corporation) Arguments:

• The Municipal Corporation argued that the High Court’s direction to reconstruct the demolished structures was incorrect.
• They contended that even if the demolition was carried out without following the due procedure, the High Court should not allow the re-erection of illegal structures.
• The Additional Solicitor General, appearing for the appellants, submitted that the amendment to Section 351 of the MMC Act, which provides a 7-day notice period, renders the first direction in Sopan Maruti Thopte and Another vs. Pune Municipal Corporation and Another [AIR 1996 Bom 304] invalid.

Respondent (M/s Sunbeam High Tech Developers Private Ltd.) Arguments:

• The respondents argued that the High Court was correct in directing the reconstruction since the demolition was carried out illegally.
• They relied on the second direction in Sopan Maruti Thopte, which mandates a 15-day notice period before demolition, arguing that it was still valid.
• They contended that two notices are required: a 7-day show cause notice under Section 351(1A) of the MMC Act and a 15-day notice as per the Sopan Maruti Thopte judgment.
• They submitted that the judgment in Sopan Maruti Thopte still holds the field.

The innovativeness of the argument of the respondent was that they relied on the second direction in Sopan Maruti Thopte, which mandates a 15-day notice period before demolition, arguing that it was still valid, despite the amendment to Section 351 of the MMC Act.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

• Whether the High Court is justified in issuing a direction that since the building has been demolished without following the procedure prescribed by law, the petitioners before the High Court (Respondents before the Supreme Court) be permitted to reconstruct the structure albeit using the same material, and of the same dimensions, as existed earlier?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• Sopan Maruti Thopte and Another vs. Pune Municipal Corporation and Another [AIR 1996 Bom 304] – High Court of Judicature at Bombay: The Bombay High Court’s judgment which laid down the procedure to be followed before taking action under Section 351 of the MMC Act. The Court had directed that a 15-day notice be given for submitting a reply and a 15-day notice be given before demolition. It also directed that for buildings under construction, a 24-hour notice is sufficient.

The Supreme Court also considered the following legal provisions:

• Section 337, MMC Act: Notice required before erecting any building.
• Section 342, MMC Act: Notice required for additions, alterations, or repairs to a building.
• Section 351, MMC Act: Proceedings against buildings or works commenced contrary to Section 347 of the MMC Act.

Judgment

How each authority was viewed by the Court?

• The Supreme Court held that the first direction in Sopan Maruti Thopte [AIR 1996 Bom 304] regarding the 15-day notice for submitting a reply is no longer valid due to the amendment in Section 351 of the MMC Act, which specifies a 7-day notice period. However, the second direction in Sopan Maruti Thopte, requiring a 15-day notice before demolition, was held to be still valid.

What weighed in the mind of the Court?

The Supreme Court’s reasoning was primarily driven by the principle that illegal structures should not be allowed to be re-erected, even if the demolition was carried out without due process. The Court emphasized the need to balance private interests with the larger public interest, stating that cities and towns must be well-planned, and illegal structures must be demolished. The Court also highlighted the importance of following the rule of law, which includes both principles of natural justice and adherence to the procedure prescribed by law. The Court was also concerned about the misuse of public resources in allowing illegal structures to be rebuilt only to be demolished again.

The Court also took note of the advancement in technology and directed the municipal corporations to use geomapping to control illegal constructions.

Fact:Law Ratio Analysis: The Supreme Court’s decision was predominantly influenced by legal considerations (70%) rather than factual aspects (30%). The court emphasized the legal principles and the interpretation of the relevant provisions of the MMC Act and the directions given in Sopan Maruti Thopte. While the factual aspects of the illegal demolition were considered, the court’s focus was on the legal implications and the correct application of the law.

The Supreme Court rejected the High Court’s direction to allow reconstruction of the demolished structures. The Court emphasized that even if the demolition was carried out without following the due procedure, the High Court should not allow the re-erection of illegal structures. The Court reasoned that such a direction would lead to a misuse of public resources and would not serve the larger public interest. The Court held that while it does not approve of demolitions without due process, the relief given must be in accordance with the law and not in violation of it. The Court also noted that the High Court itself was aware that some of the structures may have been constructed without permission.

The Supreme Court also considered the issue of notice periods for demolition. It clarified that while the first direction in Sopan Maruti Thopte regarding the 15-day notice for submitting a reply is no longer valid due to the amendment in Section 351 of the MMC Act, the second direction requiring a 15-day notice before demolition is still valid. The Court held that both the 7-day notice under Section 351(1A) of the MMC Act and the 15-day notice as per Sopan Maruti Thopte are required before demolition.

The court observed that the courts must not be hidebound by old decisions and the law must develop in accordance with changing times. The Court also emphasized the need to use technology to control illegal constructions.

The Supreme Court made it clear that if a structure is illegal, even though it has been demolished illegally, such a structure should not be permitted to come up again. The Court stated that if the Municipal Corporation violates the procedure while demolishing a building, but the structure is totally illegal, some compensation can be awarded, and the same should be recovered from the officers who have acted in violation of law. However, the illegal structure cannot be permitted to be re-erected.

The Court also observed that in cases where the structure is not illegal, the Court must come to a clear finding about the dimensions and location of the structure before permitting reconstruction. In such cases, the Court may be justified in permitting reconstruction, but it must clearly indicate the dimensions, height, and other specifications of the structure. The Court also suggested that it would be prudent to permit the structure to be built in accordance with the existing by-laws.

The Court also gave directions regarding the manner in which evidence of illegal construction is collected and notices are issued. The Court directed the Municipal Corporations to use geomapping and geo-photography of the areas under their jurisdiction. The Court also directed that notices should be served personally, through electronic means, and by messaging services. The Court also directed that before any construction or repair is carried out, the owner should furnish a plan of the structure as it exists.

“We make it clear that we do not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law.”

“If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again.”

“Times have changed. Technology has advanced. However, the legal fraternity continues to live in a state of status quo.”

Key Takeaways

• The Supreme Court has clarified that illegal structures should not be permitted to be re-erected, even if the demolition was carried out illegally.
• Municipal corporations must follow the due procedure of law while demolishing structures. This includes issuing a 7-day show cause notice and a 15-day notice before demolition.
• If a municipal corporation demolishes a structure illegally, compensation can be awarded, but the illegal structure cannot be permitted to be re-erected.
• The Supreme Court has emphasized the need to use technology, such as geomapping, to control illegal constructions.
• The Court has directed municipal corporations to collect evidence of illegal construction using photographs and visual images with digital timestamps.
• The Court has also directed that notices should be served personally, through electronic means, and by messaging services.

Directions

The Supreme Court issued the following directions:

• Municipal corporations in Maharashtra with a population of 50 lakhs or more must get geomapping and geo-photography of their areas within one year.
• Whenever a new area is brought under the jurisdiction of a municipality, geomapping of the area must be done.
• In cases of alleged illegal construction, the Commissioner/Competent Authority must issue a 7-day show cause notice with photographs and visual images of the illegal structure.
• If no reply is received within 7 days, the building should be demolished immediately.
• If a reply is received, a reasoned order must be passed. If the reply is not satisfactory, a 15-day notice must be given before demolition.
• For ongoing illegal construction, a 24-hour show cause notice must be issued with photographs and visual images.
• An interim “stop-construction” order can be issued.
• If no reply is received within 24 hours, the building should be demolished immediately.
• If a reply is received, a reasoned order must be passed. If the reply is not satisfactory, a 7-day notice must be given before demolition.
• Notices must be served personally, through electronic means, and by messaging services.
• Before any construction or repair is carried out, the owner must furnish a plan of the structure as it exists, along with their email ID and mobile phone number.

Development of Law

The Supreme Court’s judgment clarifies the law regarding the reconstruction of illegally demolished structures. The Court has overruled the practice of the Bombay High Court, which allowed the reconstruction of illegal structures if the demolition was carried out without followingthe due process. The Supreme Court has emphasized that while the due process of law must be followed, illegal structures cannot be permitted to be re-erected. This judgment has set a clear precedent that illegal structures will not be protected, even if the demolition process is flawed. The judgment also highlights the importance of using technology to control illegal constructions and has directed the municipal corporations to adopt modern methods of evidence collection and notice service.

Conclusion

The Supreme Court’s judgment in the case of Municipal Corporation of Greater Mumbai vs. Sunbeam High Tech Developers is a landmark decision that clarifies the law regarding the reconstruction of illegally demolished structures. The Court has held that even if a structure is demolished illegally, it cannot be re-erected if it is an illegal structure. The Court has also emphasized the importance of following the due process of law while demolishing structures and has directed municipal corporations to use technology to control illegal constructions. This judgment has significant implications for municipal law and building regulations in India.