Case Note & Summary
The petitioner, a lessee of a structure in Dharavi, Mumbai, filed a writ petition under Article 226 of the Constitution of India challenging a show-cause notice and demolition order issued under Sections 351 and 347 of the Bombay Municipal Corporation Act, 1888. The structure, originally a godown, was leased from M/s. Standard Grinding Mills and was alleged by the Municipal Corporation to have unauthorized constructions. A notice under Section 354 had earlier been issued to a previous proposed lessee for dilapidated portions. The petitioner undertook repairs but was served with a show-cause notice alleging unauthorized conversion into 12 galas, mezzanine floor, and AC sheet roofing. The petitioner submitted a reply denying unauthorized work and stating that repairs were carried out, but the Deputy Municipal Commissioner passed a demolition order on 14.07.1995 without considering the reply. The structure was demolished the same day. The petitioner sought quashing of the notice and order and a direction to rebuild. On 28.08.1995, the High Court admitted the petition and granted liberty to the petitioner to reconstruct the structure, restoring status quo ante as on 20.07.1994, with certain conditions. The petitioner reconstructed the structure. Over the years, the matter remained pending. At final hearing, the court observed that the petitioner had already reconstructed, so his grievance against demolition did not survive. The only remaining issue was whether the reconstructed structure could be regularized. The court disposed of the writ petition by directing the Municipal Corporation to consider the petitioner's request for regularization in accordance with law and existing policy, within three months of submission of a representation. The court did not quash the original demolition orders.
Headnote
A) Municipal Law - Unauthorized Construction - Demolition without hearing - Bombay Municipal Corporation Act, 1888, Sections 351, 347 - Petitioner challenged a show-cause notice and demolition order alleging that his reply was not considered and demolition was carried out without a hearing. However, after the court's interim order allowed reconstruction, the petitioner rebuilt the structure. Held, the original grievance became moot; the court instead directed the Municipal Corporation to examine regularization of the reconstructed structure (Paras 4, 13-17, 19, 28-29).
B) Constitutional Law - Writ Jurisdiction - Moulding of relief - Constitution of India, Article 226 - In exercise of writ jurisdiction, the High Court can take note of subsequent events and mould relief accordingly. Here, since the demolished structure was reconstructed under court order, the challenge to demolition did not survive, and the court directed consideration of regularization (Paras 2, 19, 27-29).
Issue of Consideration
Whether the show-cause notice dated 06.07.1995 and demolition order dated 14.07.1995 were illegal and violative of principles of natural justice? Whether the petitioner is entitled to regularization of the reconstructed structure?
Final Decision
Writ petition disposed of as infructuous; petitioner's grievance against demolition did not survive after reconstruction of the structure as per court's interim order. The Municipal Corporation was directed to examine the petitioner's request for regularization of the reconstructed structure in accordance with law and existing policy within three months of submission of a representation.
Law Points
- Legal points not extracted
- demolition of unauthorized construction
- principles of natural justice
- writ jurisdiction under Article 226
- regularization of construction
- Bombay Municipal Corporation Act 1888 section 351
- show-cause notice
- interim order for reconstruction
Case Details
2020 LawText (BOM) (06) 17
Writ Petition No.1447 of 1995
Mr. Sanjiv Sawant, Mr. H. S. Kadam, Mr. Bipin Joshi (for petitioner); Ms. Kiran Bagalia, Mr. Musharaf Sheikh, Mr. R. Y. Sirsikar (for respondent No.1)
Shri Vadilal Maganlal Trevadia
Bombay Municipal Corporation and others
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Nature of Litigation
Challenge to demolition notice and order under Bombay Municipal Corporation Act, 1888.
Remedy Sought
Quashing of show-cause notice dated 06.07.1995 and demolition order dated 14.07.1995, and direction to reconstruct or allow reconstruction.
Filing Reason
Demolition carried out without considering petitioner's reply, violating principles of natural justice.
Previous Decisions
City Civil Court granted liberty to move after notice; writ petition admitted and interim order for reconstruction passed on 28.08.1995.
Issues
Whether the show-cause notice dated 06.07.1995 and demolition order dated 14.07.1995 were illegal and violative of principles of natural justice?
Whether the petitioner is entitled to regularization of the reconstructed structure?
Submissions/Arguments
Petitioner contended that the demolition was arbitrary and illegal, that his show-cause reply was ignored, and that no personal hearing was afforded.
Petitioner argued that reconstruction should be allowed and that he suffered loss due to the demolition.
Respondent Corporation defended the notice and order under Sections 347 and 351, asserting that the construction was unauthorized.
Ratio Decidendi
Where a structure demolished under municipal law is later reconstructed by court order, the original challenge to the demolition becomes academic, and the appropriate remedy is to seek regularization rather than quashing of the demolition order.
Judgment Excerpts
This old pending writ petition of the year 1995 has traversed much beyond the initial pleadings and reliefs sought for.
Basic grievance of the petitioner pertained to demolition of the scheduled property which it was contended was arbitrary, illegal and extremely high-handed being in violation of the principles of natural justice and fair-play as well as the material facts on record.
On 28.08.1995 this Court admitted the writ petition and passed the following order: “P.C.: Rule. ... Liberty is granted to the petitioner to reconstruct the demolished structure by restoring status quo ante as it existed on 20th July, 1994.”
From the above what is clear is that the petitioner has already reconstructed the demolished structure. Therefore, his grievance against the demolition now does not survive. The only question that would now remain is as to whether the reconstructed structure can be regularised and if so on what terms.
Accordingly, this writ petition is disposed of by directing the Municipal Corporation to examine the request of the petitioner for regularisation of the reconstructed structure... and take a decision in accordance with law and in terms of the existing policy within a period of three months from the date of receipt of a copy of this order along with a representation.
Procedural History
Petitioner filed Suit (Stamp) No.4080 of 1995 in City Civil Court but closed it with liberty. Then Deputy Municipal Commissioner issued show-cause notice on 06.07.1995 under Section 351. Petitioner replied on 09.07.1995. On 14.07.1995, demolition order passed and structure demolished. Writ petition filed. On 28.08.1995, High Court admitted writ petition and granted interim order for reconstruction. Petitioner reconstructed structure. Matter pending for years; heard on 16.01.2020 and judgment pronounced on 09.06.2020.
Acts & Sections
- Bombay Municipal Corporation Act, 1888: 347, 351, 354
- Constitution of India: Article 226
