TMI Blog2006 (10) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant 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. 6. During the pendency of the said suit, the developer started constructing a compound wall on the southern side of the tenement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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. 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. 11. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 15. The above judgment was followed in Abdul Rehman Siddique and Ors. v. Ahmed Mia Gulam Mohuddin Ahmedji and Anr. (1996)98BOMLR133 wherein a learned Single Judge of the Bombay High Court held thus: 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 Ors., petitioners v. Municipal Corporation for Greater Bombay and 3 Ors., responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 17. In U.P. State Road Transport Corporation and Anr. v. Mohd. Ismail and Ors. (1991)IILLJ332SC , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 inacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 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.) v. I.K. Nangia and Anr. 1980CriLJ834 . 20. 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 v. 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. 21. In Maxwell on In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder? 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 concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 28. 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 32. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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