Case Note & Summary
The petitioners, M/s Asian Rubber Works and another, filed a writ petition under Article 226 of the Constitution of India challenging the illegal demolition of their bungalow admeasuring 5,500 sq. ft. located in Mumbai. The petitioners were tenants of the second respondent Trust, which had obtained a decree for possession from the Small Causes Court on grounds of bonafide requirement, nuisance, and acquisition of alternate accommodation. The petitioners appealed, and the appellate bench confirmed the decree only on the ground of subletting. The petitioners then filed Writ Petition No. 8532/2004, which was admitted by a single judge of the High Court, and stay was granted on execution of the decree. On 24 October 2014, while the second petitioner was away, the bungalow was allegedly demolished by persons acting at the instance of the first respondent, the Assistant Commissioner of the Municipal Corporation of Greater Mumbai. The petitioners alleged that no notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 was served prior to the demolition. The court examined the provisions of Section 354, which empowers the Commissioner to order demolition of structures erected without permission or in violation of building regulations. The court held that the power under Section 354 can only be exercised after issuing a notice to the person in occupation and giving them an opportunity of being heard. Since no such notice was given, the demolition was illegal and violative of principles of natural justice. The court also noted that the petitioners were in lawful possession of the bungalow under a stayed decree, and the Municipal Corporation could not take the law into its own hands. The court allowed the petition, quashed the demolition, and directed the Municipal Corporation to restore the bungalow to its original condition within a specified period. The court further directed that the respondents shall not interfere with the petitioners' possession except by due process of law.
Headnote
A) Municipal Law - Demolition of Structure - Section 354 of Mumbai Municipal Corporation Act, 1888 - Requirement of Notice - The court considered whether the Assistant Commissioner could demolish a bungalow without issuing a notice under Section 354 of the Act. Held that the power under Section 354 can be exercised only after issuing a notice and giving an opportunity of hearing to the person in occupation. The demolition without notice was illegal and in violation of principles of natural justice. (Paras 4-10) B) Property Law - Possession and Ownership - Decree for Possession - The petitioners were in possession of the bungalow under a decree of the Small Causes Court which was stayed by the High Court. The Municipal Corporation could not demolish the structure without following due process of law, especially when the petitioners were in lawful possession. (Paras 2-3) C) Constitutional Law - Article 226 - Writ Jurisdiction - The High Court exercised its writ jurisdiction to quash the demolition and direct restoration of the bungalow as the action of the Municipal Corporation was arbitrary and without authority of law. (Paras 11-15)
Issue of Consideration
Whether the demolition of the subject bungalow by the Municipal Corporation without issuing a prior notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 and without affording an opportunity of hearing to the petitioners was illegal and violative of principles of natural justice.
Final Decision
The court allowed the writ petition, quashed the demolition, and directed the Municipal Corporation to restore the bungalow to its original condition within a specified period. The respondents were directed not to interfere with the petitioners' possession except by due process of law.
Law Points
- Principles of natural justice
- Section 354 of Mumbai Municipal Corporation Act
- 1888
- requirement of prior notice before demolition
- opportunity of hearing
- statutory interpretation
