DEEPAK GUPTA,J. - (1.) The issue involved in these appeals is whether if a municipal corporation demolishes a structure in exercise of powers vested in it but in violation of the procedure prescribed, can the High Court direct the 'owner/occupier' of the building to reconstruct the demolished structure?
(2.) The municipal corporations in the State of Maharashtra like in any other part of the country are vested with the power to demolish structures which violate the laws and have been built without any building plans or in violation of the laws. The exercise of the power of demolition which affects the property of the citizens of this country must be exercised in an absolutely fair and transparent manner. Rules in this regard must be followed. At the same time, the Court has to balance the private interest with the larger public interest. Cities and towns must be well planned and illegal structures must be demolished. Rule of law comprises not only of the principles of natural justice but also provides that the procedure prescribed by law must be followed. Rule of law also envisages that illegal constructions which are constructed in violation of law must be demolished and there can be no sympathy towards those who violate law.
(3.) Before we refer to the statutory provisions, we may make reference to a judgment of the Bombay High Court which appears to be the locus classicus on this subject, as far as the Bombay High Court is concerned. In Sopan Maruti Thopte and Another vs. Pune Municipal Corporation and Another, AIR 1996 Bom 304, the Bombay High Court referred to various provisions of law, and thereafter issued the following directions : "19. Hence, on the basis of the law as discussed above, it is directed that after 1st May, 1996 the Bombay Municipal Corporation or the Municipal Corporations constituted under the B.P.M.C. Act would follow the following procedure before taking action under Section 351 of the B.M.C. Act or under S. 260 of the B.P.M.C. Act. (i) In every case where a notice under Section 351 of the B.M.C. Act/under Sec. 260 of B.P.M.C. Act is issued to a party 15 days' time shall be given for submitting the reply. In case the party to whom notice is issued sends the reply with the documents, and shows cause, the Municipal Commissioner or Deputy Municipal Commissioner shall consider the reply and if no sufficient cause is shown, give short reasons for not accepting the contention of the affected party. (ii) It would be open to the Commissioner to demolish the offending structure 15 days after the order of the Commissioner/Deputy Municipal Commissioner is communicated to the affected person. (iii) In case the staff of the Corporation detects the building which is in the process of being constructed and/or reconstructed and/or extended without valid permission from the Corporation, it would be open to the Commissioner to demolish the same by giving a short notice of 24 hours after drawing a panchanama at the site and also by taking photographs of such structure and/or extension. The photographs should indicate the date when the same were taken. (iv) In case where the Municipal Corporation has followed due process of law and demolished the unauthorised structure and/or extension, if the same is reconstructed without valid permission within a period of one year, it would also be open to the Corporation to demolish the same by giving a short notice of 24 hours. (v) If the offending structure and/or extension which is assessed by the Corporation for two years, notice shall provide for 15 days' time to show cause. If the Deputy Municipal Commissioner comes to the conclusion that he requires assistance of the party, he may give an oral hearing if he deems fit and proper before passing the order. It is made clear that oral hearing is not at all compulsory but it is at the discretion of the authority. (vi) In any other case the Corporation is directed to issue a show cause notice in case of any structure and/or extension other than those mentioned in clauses (i) to (iv) above. The Corporation shall provide for 7 days' time to show cause in such a case. 20. In case the notice is issued under Sec. 478 of the B.P.M.C. Act, 1949 and if the person has not complied with the requisitions of the Commissioner, then it would be open to the Commissioner to demolish the unauthorised structure after expiry of 30 days of the period specified in the notice for removal of such construction. 21. The Municipal Corporations in the State of Maharashtra would follow the above directions so as to avoid unnecessary litigation." After issuing these directions the Court also issued a word of caution to courts not to grant interim injunctions protecting illegal constructions from demolition. We may refer to the following observations: "24. In our view, passing interim orders indiscriminately and without apparent and due application of mind, which has the effect of allowing the plaintiff to continue to enjoy the fruits of his illegal actions including unauthorised construction tends to lower the Court's prestige and clearly undermines the Rule of Law. xxxx xxxx xxxx 28. Considering the aforesaid decisions it should be borne in mind before issuance of an injunction that it is a discretionary and an equitable relief. It is not mandatory that for mere asking such relief should be given. It is not a charity at the cost of public. However, we make it clear that the procedure established by law has to be followed by the public authorities, whether it be the State or a local body, including the Municipal Corporations. At the same time, the procedural lapses, unintentional or intentional, which do not seriously affect the substantive rights of a person, ought not to result in ad interim orders which protect illegality having already been committed by the plaintiff and to give licence of continuing fruits of such illegality for years. Violators of law should not liberally be allowed to take protection of Court of law by obtaining ad interim injunctions which have the effect of continuing such violation." Statutory Provisions ;