Case Note & Summary
The petitioners, occupiers of a plot of land in Jogeshwari, Mumbai, challenged an order dated 15 June 2023 passed by the Executive Engineer of the Brihan Mumbai Municipal Corporation (BMC) directing demolition of a structure on the said plot. The petitioners claimed that they were in possession of the land and had constructed a structure, which the BMC alleged was unauthorized. The impugned order was passed without any prior notice to the petitioners, and the demolition was carried out on the same day. The petitioners filed a writ petition under Article 226 of the Constitution of India seeking quashing of the order and restoration of the structure. The court examined the factual background and noted that the Corporation had not issued any notice under Section 354 of the Mumbai Municipal Corporation Act, 1888, which requires prior notice before demolition. The court held that the order was passed in gross violation of principles of natural justice as the petitioners were not given any opportunity of hearing. The court also observed that the Corporation's action was arbitrary and high-handed. Consequently, the court quashed the impugned order and directed the Corporation to restore the structure to its original condition within four weeks. The court further directed that if the Corporation wishes to take any action against the structure, it must follow due process of law and give prior notice to the petitioners.
Headnote
A) Constitutional Law - Writ Jurisdiction - Article 226 of the Constitution of India - Maintainability - The High Court can entertain a writ petition against a demolition order passed by a municipal authority even if alternative remedy exists, when the order is ex facie illegal and passed in violation of natural justice. (Paras 1, 10) B) Municipal Law - Demolition of Building - Section 354 of the Mumbai Municipal Corporation Act, 1888 - Notice - The Corporation must give prior notice to the occupier before ordering demolition of a structure alleged to be unauthorized, failing which the order is void. (Paras 5, 12) C) Principles of Natural Justice - Right to Hearing - Any administrative order affecting civil rights must be preceded by a reasonable opportunity of hearing, especially when the order results in demolition of property. (Paras 8, 15)
Issue of Consideration
Whether the impugned order dated 15 June 2023 passed by the Executive Engineer of the Corporation directing demolition of the Petitioners' structure without prior notice is violative of principles of natural justice and liable to be quashed.
Final Decision
The court quashed the impugned order dated 15 June 2023 and directed the Corporation to restore the structure to its original condition within four weeks. The Corporation is at liberty to take action after following due process.
Law Points
- Principles of natural justice
- Right to hearing
- Section 354 of the Mumbai Municipal Corporation Act
- 1888
- Article 226 of the Constitution of India
- Demolition without notice
- Unauthorized construction
- Maintainability of writ petition
