Supreme Court today set aside a Bombay High Court order which authorized reconstruction of an illegal structure on grounds of non-compliance of serving mandatory second notice, stating, “there can be no sympathy towards those who violate law.”
The issue in Municipal Corporation Of Greater Mumbai & Ors. v M/S Sunbeam High Tech Developers Private Ltd before the bench of Justice Deepak Gupta and Justice Aniruddha Bose was – 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?
Court observed, “the exercise of the power of demolition which affects the property of the citizens of this country must be exercised in an absolutely fair and transparent manner. At the same time, the Court has to balance the private interest with the larger public interest. Cities and towns must be well planned and illegal structures must be demolished. Rule of law comprises not only of the principles of natural justice but also provides that the procedure prescribed by law must be followed.”
Holding manifest non-compliance regarding notice of demolition, the court said, “the action of demolition without following the procedure prescribed by law is illegal.”
However, disapproving the consistent practice of Bombay High Court since a 1996 judgement regarding ordering reconstruction of any building if the same was demolished without proper notice, court observed,
“Why should the party who has violated the law by raising the construction without obtaining permission be permitted to raise another illegal structure which only has to be razed to the ground, after following the procedure prescribed by law? Why should the Nation’s wealth be misutilised and misused for raising an illegal construction which eventually has to be demolished?”
The bench said, “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. If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law.”
The illegal structure in question has thus been directed to be razed again, albeit after fresh issuance of notice. The bench further directed the Corporation to complete the exercise of Geomapping of Mumbai through Geographic Information System within 1 year to curb instances of illegal construction in the future. The outskirts of the city could be mapped by use of satellite, drones or vehicles. The state of Maharashtra has been directed to release appropriate funds to complete this exercise.
Court also empowered the Commissioner/competent authority to issue interim “stop construction” order as and when violations are discovered. All violating structures must be served 7 days notice before attempting demolition.