Case Note & Summary
The appellants, M/s Rasraj Restaurant (a partnership firm) and its partners, filed an appeal against the order of the trial court refusing to grant an injunction restraining the Municipal Corporation of Greater Mumbai from demolishing a temporary structure constructed by them for their restaurant business. The appellants had constructed a temporary structure on the terrace of their premises without obtaining a sanctioned plan from the Corporation. The Corporation issued a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, directing removal of the structure, and threatened demolition. The appellants filed a suit seeking injunction, which was dismissed by the trial court. The High Court considered the legal issue of whether construction of a temporary structure for a restaurant business requires prior approval under Section 347 of the Act. The court held that Section 347 applies only to construction of a building or part thereof, and a temporary structure for business does not fall within its ambit. The court further held that Section 351 allows removal without notice only in cases of emergency or immediate danger, and in the absence of such urgency, the Corporation must follow principles of natural justice by issuing a show-cause notice and affording an opportunity of hearing. The court found that the Corporation had not demonstrated any emergency or immediate danger, and thus the demolition was illegal. The court allowed the appeal, set aside the trial court's order, and granted an injunction restraining the Corporation from demolishing the structure without following due process.
Headnote
A) Municipal Law - Temporary Structure - Section 347, 351 Mumbai Municipal Corporation Act, 1888 - Requirement of Sanctioned Plan - The court considered whether construction of a temporary structure for a restaurant business requires prior approval under Section 347 of the Act. Held that Section 347 applies only to construction of a building or part thereof, and a temporary structure for business does not fall within its ambit. The Corporation cannot insist on a sanctioned plan for such temporary construction. (Paras 4-10) B) Municipal Law - Demolition - Principles of Natural Justice - Section 351 Mumbai Municipal Corporation Act, 1888 - The court examined whether the Corporation can demolish a temporary structure without notice. Held that Section 351 allows removal without notice only in cases of emergency or immediate danger. In the absence of such urgency, the Corporation must issue a show-cause notice and afford an opportunity of hearing before demolition. (Paras 11-15) C) Municipal Law - Injunction - Balance of Convenience - The court assessed whether the appellants were entitled to an injunction against demolition. Held that since the construction was temporary and the Corporation failed to follow natural justice, the balance of convenience was in favor of the appellants. The appeal was allowed and the impugned order of the trial court refusing injunction was set aside. (Paras 16-20)
Issue of Consideration
Whether the construction of a temporary structure for a restaurant business requires prior approval under Section 347 of the Mumbai Municipal Corporation Act, 1888, and whether the Municipal Corporation can demolish such structure without following principles of natural justice.
Final Decision
Appeal allowed. Impugned order of the trial court set aside. The Municipal Corporation is restrained from demolishing the temporary structure without following due process of law, including issuance of show-cause notice and affording opportunity of hearing.
Law Points
- Construction of temporary structure for restaurant business does not require prior approval under Section 347 of the Mumbai Municipal Corporation Act
- 1888
- Corporation must follow principles of natural justice before demolition
- Section 351 of the Act provides for removal of temporary structures without notice only in cases of emergency or immediate danger
