Municipal Corporation of Greater Mumbai & Ors. Vs. M/s. Sunbeam High Tech Developers Pvt. Ltd. - (Supreme Court) (24 Oct 2019)

Illegal structures cannot be permitted to be re-erected merely because there was procedural violation while demolishing it

MANU/SC/1467/2019

Civil

The municipal corporations in the State of Maharashtra like in any other part of the country are vested with the power to demolish structures which violate the laws and have been built without any building plans or in violation of the laws. Issue is relating to the directions issued by writ Court that, since the building has been demolished without following the procedure prescribed by law, the Petitioners before the High Court (Respondents before present Court) be permitted to reconstruct the structure. The question raised in present appeals is 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.

Present Court 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. 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 cannot be permitted to be re-erected.

Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure, but while doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the doors and windows face; how many number of storeys are permitted etc. It would be prudent to permit the structure to be built in accordance with the existing bylaws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built.

Blanket orders permitting re-erection will lead to unplanned and haphazard construction. This will cause problems to the general public. Even if the rights of private individuals have been violated in as much as sufficient notice for demolition was not given, in such cases structures erected in violation of the laws cannot be permitted to be re-erected. In all these cases, the High Court has not found that the structures were legal. It has passed the orders only on the ground that, the demolition was carried out without due notice. Compensation for demolished structure or even the cost of the new structure to be raised, if any, can be imposed upon the municipal authorities which should be recovered from the erring officials, but in no eventuality should an unplanned structure be permitted to be raised.

All concerned viz., the State, the Municipal authorities and the High Court need to take note and advantage of advancement in technology. It is directed that before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists. This map can be taken on record and, thereafter, the construction can be permitted. 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 paper form in the nature of a plan, but should also be in the form of 3D visual information, in the nature of photographs, videos etc.

When people raise illegal constructions, it is claimed that the said construction has been existing for long. The answer is to get Geo-mapping done. The relevant technology is Geographic Information System (GIS). If on Google Maps one can get a road view, there is no reason as to 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 by satellite, drones or vehicles. Once one has the whole city geomapped it would be easy to control illegal constructions. Further directions regarding the manner in which the evidence of illegal construction/reconstruction etc., is collected and notices are issued and served are issued by Supreme Court.

Tags : DEMOLISHED STRUCTURE RECONSTRUCTION DIRECTION