Case Note & Summary
The petitioner, M/s Sub Vijay International Pvt Ltd, owned property bearing CTS No. 11A in Aksa, Borivali, Mumbai. On 13th April 1999, the Deputy Controller of Encroachments and Unauthorised Structures issued a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, alleging that the petitioner had unlawfully commenced and was carrying out erection of a structure on the property. The notice called upon the petitioner to show documentary evidence that the structure was authorized, failing which it would be pulled down. The petitioner did not produce any such evidence. Subsequently, the Municipal Corporation demolished two sheds on the property. The petitioner filed a writ petition seeking a declaration that the demolition was illegal and an order for reconstruction. The court held that since the petitioner failed to show any authorization, the demolition was not illegal. The petition was dismissed.
Headnote
A) Municipal Law - Unauthorized Construction - Section 351 of Mumbai Municipal Corporation Act, 1888 - Notice and Demolition - The petitioner was issued a notice under Section 351 alleging unauthorized construction of sheds. The petitioner failed to produce any documentary evidence to show that the structure was authorized. The Municipal Corporation thereafter demolished the sheds. The court held that the demolition was not illegal as the petitioner did not comply with the notice and failed to establish authorization. (Paras 1-3)
Issue of Consideration
Whether the demolition of the petitioner's sheds by the Municipal Corporation was illegal and whether the petitioner is entitled to reconstruction.
Final Decision
The petition is dismissed. The demolition of the sheds by the Municipal Corporation is upheld as legal.
Law Points
- Section 351 of Mumbai Municipal Corporation Act
- 1888
- Notice under Section 351
- Demolition of unauthorized structure
- Burden of proof on owner to show authorization
- No prior notice required before demolition if structure is unauthorized and notice under Section 351 is complied with.
Case Details
2006 LawText (BOM) (06) 67
Writ Petition No. 1323 of 2005
Mr. A.K. Abhyankar, Sr. Counsel with Anirudha Joshi, Lalit S. Jain with Jogesh Thaker, Vivek Phadke i/b Meghraj & Associates for the petitioner; Mrs. Archana Joshi for the BMC
M/s Sub Vijay International Pvt Ltd
The Commissioner, Municipal Corporation of Gr. Mumbai and Kshirsagar (Asstt. Commissioner)
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Nature of Litigation
Writ petition challenging demolition of sheds by Municipal Corporation.
Remedy Sought
Declaration that demolition was illegal and direction for reconstruction.
Filing Reason
Petitioner's sheds were demolished by the Municipal Corporation after a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888.
Issues
Whether the demolition of the sheds was illegal.
Whether the petitioner is entitled to reconstruction.
Submissions/Arguments
Petitioner argued that the demolition was illegal and sought reconstruction.
Respondent argued that the structure was unauthorized and notice under Section 351 was issued.
Ratio Decidendi
Under Section 351 of the Mumbai Municipal Corporation Act, 1888, if a notice is issued alleging unauthorized construction and the owner fails to produce evidence of authorization, the Municipal Corporation is entitled to demolish the structure. The burden of proof lies on the owner to show that the structure is authorized.
Judgment Excerpts
By this petition, the petitioner prays for a direction that the action of the respondents i.e. Commissioner and Assistant Commissioner of Municipal Corporation of Gr.Mumbai in demolishing the two sheds on the petitioner property bearing CTS no.11A was illegal, proper and void and for an order directing reconstruction of the said illegally demolished sheds.
The facts relating to this case are brief and are stated below: The petitioner is the owner of the property bearing Survey No.1, Hissa No.3 (Part-I), admeasuring about 10,000 sq.yards or thereabouts and bearing CTS No.11-A, of village Aksa, Taluka Borivali situated within the limits of Bombay Municipal Corporation (hereinafter referred to as ’the said property’).
On 13th April 1999 Dy. Controller of Encroachments and Unauthorised Structures Zone IV, issued a notice to the petitioner under section 351 of the Mumbai Municipal Corporation Act (for short ’the Act’) alleging therein that the petitioner had unlawfully and unauthorizedly commenced and was unlawfully carrying out erection of a structure in the said property and calling upon it to show the documentary evidence that the structure in question was authorised.
Procedural History
On 13th April 1999, a notice under Section 351 of the Mumbai Municipal Corporation Act was issued to the petitioner. The petitioner failed to produce evidence of authorization. The Municipal Corporation demolished the sheds. The petitioner filed Writ Petition No. 1323 of 2005 in the Bombay High Court challenging the demolition. The petition was dismissed on 28th June 2006.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: 351
