2006 (10) TMI 473 - SC - Indian Laws

Summary

Issues Involved:
1. Legality of the High Court's order directing demolition without issuing a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888.
2. Discretionary powers of the Municipal Commissioner under Section 351 of the Act.
3. Allegations of proxy litigation initiated by the developer.
4. Consideration of regularization of the temple construction.

Issue-Wise Detailed Analysis:

1. Legality of the High Court's Order Directing Demolition:
The High Court directed the Municipal Corporation to demolish the entire illegal and unauthorized construction on CTS No. 206, 206(1 to 9) without issuing a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888. The Supreme Court noted that the Municipal Commissioner had not issued a notice under Section 351, which is a prerequisite for ordering demolition. The Court emphasized that the High Court cannot assume the powers granted to the Municipal Commissioner under the Act to decide whether a structure is legal or illegal without affording an opportunity of hearing to the appellants.

2. Discretionary Powers of the Municipal Commissioner:
The Supreme Court highlighted that Section 351 of the Act confers wide discretionary powers upon the Municipal Commissioner to remove, alter, or pull down unauthorized buildings. The Court stated that the High Court cannot substitute the discretion of the Commissioner nor can it direct the Commissioner to exercise the discretion in a particular manner. The issuance of a notice under Section 351 and giving an opportunity of hearing to the owner of the building are conditions precedent for issuing an order for demolition.

3. Allegations of Proxy Litigation:
The appellants argued that the respondent No. 1 was set up by the developer to initiate proceedings against them. The Supreme Court noted that the respondent No. 1 did not complain about the unauthorized construction until the appellants filed a suit against the developer. The Court observed that the respondent No. 1 and the developer shared the same legal representation and political affiliation, which indicated a possible nexus between them.

4. Consideration of Regularization of the Temple Construction:
The appellants submitted an application for regularization of the temple building, which was pending before the Municipal Commissioner. The Supreme Court noted that the High Court failed to appreciate that the provisions of Section 351(2) confer discretionary powers on the Municipal Commissioner to regularize unauthorized constructions. The Court emphasized that the High Court erred in passing a direction for demolition without considering the possibility of regularization.

Conclusion:
The Supreme Court allowed the appeal and directed the Municipal Commissioner to decide the matter on merits after affording an opportunity of hearing to the appellants. The Court clarified that no demolition shall be made during this period, and the appellants shall not carry out any further construction. The civil appeal was allowed with these directions, and no costs were imposed.