Case Note & Summary
The dispute arose from a demolition notice issued by the Municipal Corporation of Greater Bombay against a shed constructed on a disputed site. The appellant claimed to have purchased the site from one A.M. Patil in 1965 and constructed sheds, alleging a lease and existence of structure prior to April 1, 1962. The Deputy Municipal Commissioner initially by order dated January 27, 1983 directed retention of a shed admeasuring 30' x 30' but ordered demolition of other structures. After five years, a notice was issued to demolish that shed. The appellant filed Writ Petition No.1375 of 1988 before the Bombay High Court. A learned single Judge held that the power of review should be exercised bona fide within a reasonable time and after considerable lapse of time, review could not be exercised. On appeal by the Municipal Corporation, the Division Bench in Appeal No.565 of 1992 set aside the single Judge's order, holding that there was no evidence on record to show that the appellant had constructed the structure prior to April 1, 1962, and therefore the appellant could not be permitted to retain the illegally constructed structure. The appellant challenged that order before the Supreme Court by special leave. Before the Supreme Court, the appellant contended that the Additional Commissioner had no power to review the order passed by a subordinate officer on January 27, 1983, and the impugned order was a nullity. He also relied on an order passed by the civil court and an affidavit of the lessor filed in 1966 to show existence of the shed. The respondent Municipal Corporation maintained that the construction was unauthorized and the review was justified because the structure was not in existence before the cut-off date. The Supreme Court rejected the appellant's contention on review power, holding that it must be established as a fact that the appellant had title to the property and that construction was made bona fide in compliance of lawful permission or prior to April 1, 1962. The Court noted that the lease deed did not contain any recital about existence of any structure, and the material relied upon, including the civil court order and lessor's affidavit, did not prove pre-1962 construction. The High Court's finding that the shed was constructed after April 1, 1962 was accepted, making the structure illegal. Consequently, the authority was rightly justified in exercising review power and issuing demolition. The Supreme Court found no illegality in the order warranting interference and dismissed the appeal with no order as to costs, thereby affirming the High Court's decision and upholding the demolition of the unauthorized shed.
Headnote
A) Municipal Law - Demolition of Unauthorised Construction - Power of Review - No specific statute cited - The Additional Commissioner reviewed an order of the Deputy Municipal Commissioner after lapse of time, and the appellant contended lack of review power. The Supreme Court rejected this contention, holding that the authority was justified in exercising review power where the shed was constructed after April 1, 1962, as found by the High Court. Held that there was no illegality in the order compelling demolition. (Paras 1-2) B) Municipal Law - Demolition of Unauthorised Construction - Burden of Proof of Lawful Construction Prior to April 1, 1962 - No specific statute cited - The appellant claimed title and existence of shed prior to April 1, 1962, but the lease deed did not recite any structure, and civil court order and lessor's affidavit did not establish pre-1962 construction. The High Court finding that construction was after April 1, 1962 was upheld, rendering the structure illegal. Held that the appellant could not retain illegally constructed structure. (Paras 1-2)
Issue of Consideration
Whether Additional Commissioner had power to review the Deputy Municipal Commissioner's order and whether appellant proved lawful construction prior to April 1, 1962 to retain shed
Final Decision
Appeal dismissed. Supreme Court found no error in High Court's order; Additional Commissioner's review power upheld; appellant failed to prove pre-1962 construction; demolition order maintained. No costs.
Law Points
- Review power of superior municipal authority can be exercised to correct illegal retention orders
- burden on party claiming retention to prove lawful construction prior to April 1
- 1962
- lease deed lacking recital of structure cannot support claim
- delay in review not fatal when underlying construction illegal
- demolition order upheld.
