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CASE NO.: Special Leave Petition (civil)  9049 of 2006

PETITIONER: Muni Suvrat-Swami Jain S.M.P. Sangh

RESPONDENT: Arun Nathuram Gaikwad & Ors.

DATE OF JUDGMENT: 11/10/2006

BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

Leave granted. This appeal is directed against the final judgment and  order dated 23.02.2006 passed by the High Court of  Judicature at Bombay in Writ Petition No. 2841 of 2005  whereby the High Court while allowing the writ petition  directed the Municipal Corporation to demolish the entire  illegal and unauthorized construction carried on by  respondent Nos. 3-17 on entire CTS No. 206, 206(1 to 9),  Kurla Part-IV, New Mill Road, Kurla (W), Mumbai.   The short facts leading to the filing of the above appeal  as stated in the S.L.P. are as under:- Shri Fernandes and others (hereinafter referred to as  Original owners) owned a plot of land bearing C.T.S. No.206  and 206/1 to 9 and CTS No.212 and 212/1 to 4, N.A. Survey  No.764 & 768, of Village/Taluka, Kurla, Mumbai, Suburban  District, consisting of two bungalows and one chawl of 8  tenements.  It is to be noted that there is only one entrance to  the property from A.H. Wadia Marg (New Mill Road) through a  strip of land about 12 feet wide (hereinafter referred to as  ’access road’). The tenants/occupants used the said access  road to access their respective premises, including the writ  petitioner before the High Court (Respondent No.1 herein),  who was a tenant of chawl no.523/7 of C.T.S no 1 to 9 in the  aforesaid property. Shri Fernandes entered into Development Agreement  with Shri Ghag of Sadhana Builders in order to develop the  property.  A proposal for approval of proposed temple complex  at CTS No.206, 206/1 to 9 was submitted before the BMC. The construction of temple was completed and the  installation of idol ceremony (Prathishta) took place.  It is to be  noted that the respondent no.1 participated in the celebration  and did not make any complaint regarding the construction of  the temple. The original owner sold the aforesaid property  (hereinafter referred to as the ’trust property’) to the appellant,  a public trust, by a deed of conveyance, where Mr. Ghag was a  confirmation party.  When the property was conveyed to the  appellant the aforesaid property consisted of four shops, eight  residential premises, Jain temple, Upashraya, Pravachan hall  and open space.  It is to be noted that the easementary rights  from A.H.Wadia Marg (New Mill Road) through the access road  of about 12 feet wide were also conveyed to the appellants. One Mr. Ismail Yakob Payak, the developer of the plot  adjacent to the Trust property i.e. plot of land bearing CTS No.

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205, N.A.No.765, 766, 767 started construction on the said  plot (hereinafter referred to as the ’developer’). The said developer constructed a building of ground plus  6 floors known as "Saiba Palace". After constructing the said  building the developer dug the land beneath the access road  and tried to instill a gate at the entrance of the access road.  The appellant Nos.1 to 11 filed a suit being suit No.1478  of 2005 in the City Civil Court at Bombay for declaration and  injunction.  The developer in an attempt to pressurize the appellants  into not prosecuting the said suit had setup respondent no.1  herein (a tenant of the Trust property) to initiate proceedings  against the appellants. According to the appellants, the fact  that the respondent no.1 was setup is clear from the following-  a) though the construction of the temple was completed in the  year 2001, the respondent no.1 who was a tenant of the  premises did not complain about the unauthorized  construction till the appellants herein filed a suit against the  developer; b) that the respondent no.1 had participated in the  celebration of idol installation; c) the advocates of the  developer as well as the Respondent no.1 were same; d) that  the respondent no.1 and the developer belong to the same  Nationalist Congress Party. Respondent No.1 through its advocate gave a  representation to Municipal Commissioner about the  unauthorized structure/temple. The respondent no.1 also  wrote several letters of complaints to Hon’ble Ministers,  Assistant Commissioner of Police, Deputy Chief Minister,  Commissioner of Police, Inspector General of police, Editors of  Newspaper etc. The appellant filed an interim application Notice of  Motion No.1201 of 2005 in Suit No. 1478 of 2005 for grant of  ad interim relief. After hearing the parties City Civil Court  passed the following order:- "The Defendants have constructed part of their compound  wall. The plaintiff’s agree that the defendants shall extend  that constructing leaving 6ft. from the otla on the rear of the  four shops in the Plaintiff’s property.

The defendants shall construct their compound wall as shown  in blue extending it from the wall already constructed leaving  6ft. space from the otla on the rear of the shops of the  plaintiffs as shown in blue in the sketch plan Ex-A to the  plaint.

The plaintiffs shall be entitled to have access through the  defendant’s property for only pedestrian traffic (including  Palkhis) pending the suit.

N/M is disposed off accordingly. NOC

W/s if filed." The aforesaid order was modified and it was added that  "By consent order dated 3.5.2005 is without prejudice to the  rights and contentions of both parties." During the pendency of the said suit, the developer  started constructing a compound wall on the southern side of  the tenement, whereby the developer encroached upon a part  of the land bearing CTS No.212 and reduced the width of the  access road from 12 feet to 6 feet.  He also wrongfully  constructed a gate at the entrance of the Servient Tenement,  touching the land bearing CTS No.212/1 to 4 and thereby  attempted to disturb the free use of the right of way acquired  by the trust. The appellant complained to the authorities about the

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illegal construction and unauthorized conduct of the  respondents. In reply, the Municipal Corporation informed the  petitioner that as per order of Asst. Joint Municipal  Commissioner dated 6.8.2005, the occupation certificate to  the building constructed by the developer and named Saiba  Palace shall be issued after the proceedings in court are finally  disposed off and the provisions of access to the subject temple  will also be taken into account. Respondent no.1 filed a writ petition before the High  Court at Bombay alleging that appellants were in the process  of constructing a temple in the extremely crowded area  without obtaining permission from Municipal Corporation and  that on account of this construction the atmosphere in the  locality has been disturbed and disputes have arisen.  In view  of this he sought the following reliefs: i)      direct municipal authorities to demolish the  entire unauthorized and illegal construction on  CTS no. 206, 206 (1 to 9) called on by the  petitioners herein; ii)     pending disposal of the writ, injunct the  petitioners from carrying on any further  construction; iii)    appointment of court commissioner to visit the  property and give its report. It is the case of the appellant that the construction of  temple was not in progress at that time.  Temple was already  constructed in the year 2001. It is also the case of the appellant that respondent no.1  being a tenant of Chawl 523/7 on the trust property claimed  that he recently came to know about the illegal and  unauthorized construction in the Trust property, despite his  further claim in the writ petition that the property was under  his supervision continuously for 12 years and Mr. Ghag had  also executed Power of Attorney on 18.11.1998 in his favour. Bombay Municipal Corporation (in short BMC) issued  notice to stop the work under section 354A of BMC Act for  construction of four RCC columns on the rear side of the  temple. Appellant submitted an application before BMC for  regularization of the temple building.    One of the trustees and the appellant herein Shri Arvind  Kothari filed counter affidavit to the petition and stated in  detail about the proxy- litigation initiated by the builder and  also the malafides against the respondent no.1. It was also  pointed out that there had been no infringement of bye-laws  relating to FSI. That lacs of devotees visit the temple.  The respondent no.1 filed a rejoinder before the High  Court in which most of the averments have remained  uncontroverted due to either bald denial or no denial. It would  be pertinent to mention that nexus between the developer and  the respondent no.1 largely remained uncontroverted. The BMC also filed a counter affidavit, wherein it was  categorically stated that after service of a stop-work notice  under section 354-A of the MMC Act, no work was carried out. The High Court passed an order directing the Municipal  Authorities to demolish entire illegal and unauthorized  construction carried on by respondent no.3 to 17 on entire  CTS No. 206, 206(1 to 9) Kurla part IV, new mill road Kurla  (W) Mumbai-400070 despite noting that the issue of  regularization was a matter between the respondent and the  BMC. The High Court stayed the operation of the order by 4  weeks, which was extended for another 4 weeks by order dated  5.4.2006. Hence the present appeal by way of SLP has been  filed.

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We heard Mr. F.S. Nariman, learned senior counsel  appearing for the appellants and Mr. Mukul Rohatgi and Mr.  Ranjit Kumar, learned senior counsel for the respondent No. 1,  Mr. Pallav Shishodia, learned counsel for respondent Nos. 2  and 3 and Mr. U. U. Lalit, learned senior counsel for the  Intervenors.  When the matter came up for admission on 04.07.2006,  this Court observed as under:-   "Issue notice limited to the question as to whether in the city  of Bombay governed by the provisions of Section 351 of the  Mumbai Municipal Corporation Act, 1888 where it has been  left to the Commissioner’s discretion to demolish or not to  demolish, the High Court could direct a mandamus for  demolition.

Mr. Lakshmi Raman Singh, advocate, takes notice for  respondent no.1. Issue notice limited to above question to all  other respondents returnable within four weeks. Dasti, in  addition is permitted. Learned counsel for the petitioner is  also permitted to serve notice privately by registered  A.D.Post. Two weeks time is granted to file counter affidavit.  Rejoinder, if any be filed within two weeks thereafter. List the  matter for final hearing, by consent of parties, on 10th  August, 2006.

In the meanwhile, there shall be interim stay of  demolition. It is also made clear that the petitioner shall not  make any further construction until further orders."

The following submissions were made by Mr. Nariman,  learned senior counsel appearing for the appellants: 1)      The High Court proceeded on the erroneous footing  that "The petition is filed pointing out that respondent  no.3 to 17 are in the process of constructing a temple  in an extremely crowded area." It was submitted  that the temple was constructed in the year 2001  and the temple was not it the process of  construction.   2)      The High Court while replying to the submission of  the appellant that application for regularization was  pending on the one hand held "that is a matter  between the Respondent and the Municipal  Corporation" and in the same paragraph also held "it  is very clear that the construction is illegal, without  any authority of law and without any permission of  the Municipal Corporation." Thus it was submitted  that the High Court assumed the powers granted to  the Municipal Commissioner, under the Bombay  Municipal Corporation Act, 1988 (herein after  referred to as "the Act") to decide whether the  structure is legal/illegal without affording an  opportunity of hearing to the appellants.  It is  submitted that issuance of a notice under Section  351 of the BMC Act and giving opportunity of  hearing to the owner of the building are conditions  precedent for issuing an order for demolition of the  building and unless, upon hearing, the Municipal  Commissioner holds that the construction on the  disputed property is unauthorized and illegal,  question of its demolition does not arise. 3)      The High Court failed to appreciate that the  provisions of Section 351(2) of the Mumbai  Municipal Corporation Act, 1888 (M.M.C Act) confer  very wide discretionary powers upon the Municipal  Corporation to remove, alter or pull down or not the

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building constructed without complying with the  provisions of Section 342 or 347 of the said Act. It  was submitted that the Court cannot substitute  such discretion of the Commissioner nor can the  writ Court direct the Commissioner to exercise the  discretion in a particular manner.  4)      The High Court erred in passing a drastic direction  for demolition of a structure/temple without  affording an opportunity of hearing to the appellant  especially when the Municipal Commissioner has  the power to regularize a building constructed and  the application for regularization was pending  before the Municipal Commissioner. It was  submitted that there was enough material to show  that the structure of the temple can be regularized.  The total area of the plot on which the temple is  situated is 1290.30 sq.mtrs. the area of the existing  structures including the temple is 574.91sq.mtrs  and hence within the F.S.I limit of 1, which is  44.55% of the permissible F.S.I. This Court in the  decision of Corporation of Calcutta Vs. Mulchand  Aggarwal AIR 1956 SC 110 has held that if the  structure is not otherwise violative of the Building  Bye-laws, it need not be demolished. However, the  said application has now been dismissed by the  Municipal Commissioner by order dated 9.3.2006 in  view of the impugned order. An appeal against the  same is pending before the authorities. 5)      The High Court erroneously held in para-4 of the  impugned order "ultimately a stop work notice was  issued. In the utter disregard of such notice, the  construction work had proceeded." It was submitted  that the Corporation itself had filed the affidavit  stating "respondent Corporation had visited the site  and issued notice under section 354 of MMC Act at  present there is no further construction work found in  progress." 6)      The High Court erred in issuing a direction for  demolition under its writ jurisdiction where  mandamus could only be issued directing the  administrative authorities to act in accordance with  law. 7)      The High Court erred in granting prayer of the  appellant which seeks direction to demolish entire  illegal and unauthorized structure standing on CTS  No.206, 206 (1 to 9) in as much as there are many  structures on the said plot which were constructed  prior to the year 1962 and were considered to be  heritage. 8)      The High Court failed to appreciate the following  evidence which clearly showed that the writ petition  was filed by a person who was set up by the  developer: (a) though the construction of the temple  was completed in the year 2001, the writ petitioner  who was a tenant of the premises did not complain  about the unauthorized construction till the  petitioners herein filed a suit against the developer;  (b) that the writ petitioner participated in the  celebration of idol installation; (c) the advocates of  the developer as well as the writ petitioner are  same; (d) that the writ petitioner and the developer  belong to the same Nationalist Congress Party.  Admittedly, the petitioner was a friend of the  developer for 18 years and the complaint against  the present petitioner was made only after civil case

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was filed against the builder. 9)      The High Court erred in relying on stop work notice  to order demolition of the entire structure as the  aforesaid stop work notice was issued only for  stopping the construction of four pillars on the rear  side of the temple.  Mr. Nariman also invited our attention to certain  averments made in paras 5 and 7 of the writ petition filed by  the first respondent herein being Writ Petition No. 2841 of  2005. Our attention was drawn to para 7 of the affidavit  wherein the respondent as the writ petitioner stated that  respondent No.2 informed respondent No.1 by letter dated  05.10.2005 that they were taking legal action against Jain  Temple/Dervasar as per Section 354A of the Bombay  Municipal Corporation Act.  Learned senior counsel also drew  our attention to the counter affidavit filed by respondent No.14  to the writ petition and, in particular, paragraph 17.  The  relevant portion reads thus: "The construction of temple had commenced in or around  the year 1999 and the "Pratishtha" (installation of idol  ceremony) took place in the year 2001.  The petitioner infact  joined the Trust in the celebration relating to Pratistha  Mahotsav.  The petitioner never made any complaint during  the period of construction or even when the said Pratistha  Mahotsav took place or around the year 2001.  Pertinently  the petitioner started writing letters to authorities only after  the disputes and differences between the Trust and the said  Payak started on account of unauthorized construction and  attempted encroachment on the part of the said Payak."  

Our attention was also drawn to the prayer made in the  writ petition No. 2841 of 2005 which reads as follows:- "a)     The High Court may be pleased to issued writ of  Mandamus; any other writ, order or direction in the  nature of mandamus directing the respondent No. 1 &  2 to demolish the entire unauthorized and illegal  construction carried on by the respondent Nos. 3 to 17  on entire CTS No. 206, 206(1 to 9), Kurla Part IV, New  Mill Road, Kurla (West), Mumbai 400070.

b)      Pending hearing and final disposal of the petition; the  respondent nos.3 to 17 may be restrained by an order  of injunction of this court from carrying on any further  construction on CTS No.206, 206 (1 to 9), Kurla Part  IV, New Mill Road, Kurla (West), Mumbai 400070."

Mr. Nariman, in support of his contention, that the High  Court cannot assume the power granted to the Municipal  Commissioner under the Bombay Municipal Corporation Act,  1988 (in short "the Act") to declare whether the structure is  legal or illegal, submitted that issuance of a notice under  Section 351 of the Act and giving opportunity to the owner of  the building are conditions precedent for issuing the order for  demolition of the building and unless upon hearing the  Municipal Commissioner holds that the construction on the  disputed property is unauthorized and illegal, question of its  demolition does not arise.  He would further submit that  provisions of Section 351(2) of the Act confer very wide  discretionary powers on the Municipal Commissioner to  remove alter or pull down or not the building constructed  without complying with the provisions of Section 342 or 347 of  the said Act.  Therefore, he submitted that the High Court  cannot substitute such discretion of the Commissioner nor  can the High Court direct the Commissioner to exercise the  discretion in a particular manner.  In support of the above

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contention, learned senior counsel first invited our attention to  Section 351 of the Act which reads thus: "351.  Proceedings to be taken in respect of buildings or  work commenced contrary to section 347 -   (1) If the  erection of any building or the execution of any such work as  is described in section 342, is commenced contrary to the  provisions of section 342 or 347, the Commissioner, unless  he deems it necessary to take proceedings in respect of such  building or work under section 354, shall

(a)     by written notice, require the person who is erecting  such building or executing such work, or has erected  such building or executed such work, or who is the  owner for the time being of such building or work,  within seven days from the date of service of such  notice, by a statement in writing subscribed by him or  by an agent duly authorized by him in that behalf and  addressed to the Commissioner, to show sufficient  cause why such building or work shall not be removed,  altered or pulled down; or  

(b)     shall require the said person on such day and at such  time and place as shall be specified in such notice to  attend personally, or by an agent duly authorized by  him in that behalf, and show sufficient cause why such  building or work shall not be removed, altered or pulled  down.

Explanation \026 "To show sufficient cause" in this sub-section  shall mean to prove that the work mentioned in the said  notice is carried out in accordance with the provisions of  section 337 or 342 and section 347 of the Act.

(2)     If such person shall fail to show sufficient cause,  to the satisfaction of the Commissioner, why such  building or work shall not be removed, altered or  pulled down, the Commissioner may remove, alter  or pull down the building or work and the  expenses thereof shall be paid by the said person.   In case of removal or pulling down of the building  or the work by the Commissioner, the debris of  such building or work together with one building  material, if any, at the sight of the construction,  belonging to such person, shall be seized and  disposed off in the prescribed manner and after  deducting from the receipts of such sale or  disposal, the expenditure incurred for removal and  sale of such debris and material, the surplus of  the receipt shall be returned by the  Commissioner, to the person concerned.

(3)     No Court, shall stay the proceeding of any public  notice including notice for eviction, demolition or  removal from any land or property belonging to  the State Government or the Corporation or any  other local authority or any land which is required  for any public project or civil amenities, without  first giving the Commissioner a reasonable  opportunity of representing in the matter." In support of the above legal submission, learned senior  counsel first relied on the judgment of the Bharucha, J. dated  10.08.1983 in Writ Petition No. 1286 of 1990 of the Bombay  High Court wherein the learned Judge held: "Section 351 obliges the Municipal Commissioner, if the  construction of any building or the execution of any work is

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commenced contrary to the provisions of the Act, to give  notice requiring the person constructing or doing the work to  show cause why it should not be pulled down.  The word  used in this context of "shall".  If sufficient cause is not  shown, the Commissioner "may" remove, alter or pull down  the building or work.  It is left to the Commissioner’s  discretion whether or not to demolish the unauthorized  construction if sufficient cause is not shown.  The court  cannot impede the exercise of that discretion by the issuance  of a mandatory order".   The above judgment was followed in Abdul Rehman  Siddique and Others vs. Ahmed Mia Gulam Mohuddin  Ahmedji and another, 1996 (2) Mh. L.J. 1042 at 1047  wherein a learned Single Judge of the Bombay High Court  held thus: "9\005.Such discretion of the Commissioner or such authority  cannot be substituted by the court nor can court direct the  commissioner or such authority to exercise discretion in a  particular manner. If the discretion by the commissioner or  such authority appears to have not been exercised in  accordance with law then court can only call upon the  Commissioner or such authority to consider the matter  afresh in accordance with law.

10.     I am fortified in my view by the judgment of this court  in Writ Petition No. 1286 of 1980, Bilkishbhai Moizbhai Vasi  and others, petitioners v. Municipal Corporation for Greater  Bombay and 3 others, respondents decided on 10.08.1983. In  the said judgment Hon’ble Justice S.P.Barucha (as he then  was) has considered the provisions of section 351 of the  BMC Act vis-a-via the obligation of the commissioner or the  authority delegated such power to demolish the  unauthorized construction. Barucha, J. held thus:-

"Section 351 obliges the Municipal Commissioner, if the  construction of any building or the execution of any work is  commenced contrary to the provisions of the Act, to give  notice requiring the person constructing or doing the work to  show cause why it should not be pulled down.  The word  used in this context of "shall".  If sufficient cause is not  shown, the Commissioner "may" remove, alter or pull down  the building or work.  It is left to the Commissioner’s  discretion whether or not to demolish the unauthorized  construction if sufficient cause is not shown.  The court  cannot impede the exercise of that discretion by the issuance  of a mandatory order".

10-A. Apparently, therefore, the direction given and the order  passed by the City Civil Court and impugned in the present  appeal making the notice of motion absolute in terms of  prayers (b) and (d) impedes the exercise of discretion of the  commissioner or the authority delegated such power. The  mandate issued to defendant no.1 in issuing notice in  respect of the structures to defendant Nos. 2 to 31 is clearly  impediment in the exercise of the discretionary power of the  commissioner or for that matter the authority delegated such  power. Such mandatory order and that too pending trail of  the suit where it is yet to be tried whether the alleged  construction is unauthorized or not cannot be said to be  justified."            In Syed Muzaffar Ali and Others vs. Municipal  Corporation of Delhi, 1995 Supp (4) SCC 426, This Court in  paras 4 & 5 held as under:

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"However, it is to be pointed out that the mere departure  from the authorised plan or putting up a construction  without sanction does not ipso fact and without more  necessarily and inevitably justify demolition of the structure.   There are cases and cases of such unauthorized  constructions.  Some are amenable to compounding and  some may not be.  There may be cases of grave and serious  breaches of the licensing provisions or building regulations  that may call for the extreme step of demolition.  These are matters for the authorities to consider at the  appropriate time having regard to nature of the  transgressions.  It is open to the petitioners to move the  authorities for such relief as may be available to them at law.   The petitioners may, if so advised, file a plan indicating the  nature and extent of the unauthorized constructions carried  out and seek regularization, if such regularization is  permissible.  The dismissal of the petitions will not stand in  the way of the authorities examining and granting such relief  as the petitioners may be entitled to under law.  The  petitioners may move the authorities in this behalf within  one week for such compounding or regularization and also  for stay of demolition pending consideration of their prayer.   During the period of one week from today, however, no  demolition shall be made."  

In U.P. State Road Transport Corporation and  Another vs. Mohd. Ismail and Others, (1991) 3 SCC 239,  this Court in paras 11 & 12 at page 244 observed as under:- 11.     The view taken by the High Court appears to be  fallacious. The discretion conferred by Regulation 17(3)  confers no vested right on the retrenched workmen to get an  alternative job in the Corporation. Like all other statutory  discretion in the administrative law, Regulation 17(3) creates  no legal right in favour of a person in respect of whom the  discretion is required to be exercised -- other than a right to  have his case honestly considered, for an alternative job by  the Corporation. 12.     The High Court was equally in error in directing the  Corporation to offer alternative job to drivers who are found  to be medically unfit before dispensing with their services.  The Court cannot dictate the decision of the statutory  authority that ought to be made in the exercise of discretion  in a given case. The Court cannot direct the statutory  authority to exercise the discretion in a particular manner  not expressly required by law. The Court could only  command the statutory authority by a writ of mandamus to  perform its duty by exercising the discretion according to  law. Whether alternative job is to be offered or not is a  matter left to the discretion of the competent authority of the  Corporation and the Corporation has to exercise the  discretion in individual cases. The Court cannot command  the Corporation to exercise discretion in a particular manner  and in favour of a particular person. That would be beyond  the jurisdiction of the Court. Mr. Mukul Rohatgi made elaborate submissions which  were later supported by Mr. Ranjit Kumar, senior counsel.  He  invited our attention to the counter affidavit on behalf of  respondent No.1.  Mr. Rohatgi submitted that Section 354A is  categoric in spelling out the powers of Commissioner in  respect of works unlawfully carried on and in the instant case  there is an unlawful and deliberate mis-representation on the  part of the appellants and, therefore, the civil appeal is ought  to be dismissed on this very ground.  He further submitted  that the appellant continued the construction during the  pendency of the petition in the High Court and is continuing to

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construct despite the orders of this Court and has covered the  site with a cover to prevent access.  Mr. Rohatgi submitted that despite the several  complaints made by the first respondent - Municipal  Corporation of Greater Bombay did nothing to demolish the  illegal structure and that the Municipal Commissioner did not  exercise the power vested in him under the Act to demolish the  illegal structure.  It is further submitted that the Municipal  Commissioner was under a duty and obligation to order or  direct illegal structure to be removed as the same was per se  illegal and that the Commissioner ought to have ordered  demolition as Municipal Corporation had issued a notice  under Section 354A of the Act and in spite of the same, the  respondent had continued with the illegal construction.   Learned senior counsel further submitted that owing to the  inaction on the part of the Municipal Corporation in  demolishing the illegal structure, the respondent had no other  option but to move the Bombay High Court by filing the writ  petition No. 2841 of 2005.  He also drew our attention to the  order passed by the High Court which clearly stated that the  order of the High Court dated 21.12.2005 will not prevent the  Corporation from taking any action in accordance with the law  if the construction is found to be unauthorized.  After the  order of the High Court, the counsel for the first respondent  sent several letters calling upon the BMC to take action  against the unauthorized construction and despite these  letters the BMC failed to take any action in the matter and  ultimately the High Court vide impugned order directed the  Municipal Corporation to demolish the said illegal structure.   It was submitted that the writ petition was filed for inaction of  the Municipal Corporation and the writ petition was directed  to ensure that the authority performed the duty cast upon it  under the Statute and that the High Court on considering that  the Commissioner had not taken any action in respect of the  said illegal structure directed the demolition of the same.   Thus, it was submitted that the order passed by the High  Court was a corrective order aimed at enforcing the law and if  the Commissioner declined to use his powers or enforce the  law, the High Court was fully competent to enforce the same  and that the writ of the High Court runs superior to the  statutory powers of the Corporation.  Concluding his  argument, learned senior counsel submitted that considering  the material on record and provisions of the BMC Act, this  Court would hold that the High Court was right in ordering  the Municipal Commissioner to demolish the structure and  that when the executive failed to perform their duties or erred  in performing their duties, the High Court acting under the  extraordinary powers vested under Articles 226 and 227 of the  Constitution of India has the necessary power to direct the  executive to enforce the law as laid down in the statutes and  power to order demolition of illegal structures as the  Commissioner has failed to do so.  Mr. Rohatgi also invited our attention to the notice issued  by the Municipal Corporation of the appellants under Section  68 of the MMC Act directing the appellant to stop the  execution of the work forthwith and failing to produce  permission, the Commissioner shall under Section 354A and  in exercise of powers and functions conferred upon him as  aforesaid without any further notice cause the said building or  work to be removed or pull down at the risk and cost.  This  notice was issued on 08.06.2005.  Our attention was also  drawn to the proceedings issued by the Deputy Chief Engineer  dated 04.03.2006 regarding regularization of temple on a plot  bearing No. CTS No. 206, 206/1-9 of Village Kurla.  The  appellant was informed that the plan submitted by them are

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not in consonance with the development, control and  regulation, 1991 and they have not submitted the NOC from  the Commissioner of Police being a place of public worship,  their proposal of regularization of temple was refused.  Similar  to this effect is the two letters issued by Brihanmumbai   Mahanagarpalika dated 13.10.2005 and 12.07.2006 refusing  the proposal of the appellant relating to the construction of  temple on the plot in question.   In support of his contention, learned senior counsel  relied on para 15 of the decision of this court in State (Delhi  Admn.) vs. I.K. Nangia and Another, (1980) 1 SCC 258.  The above decision was cited for the proposition that the  word may normally imply what is optional but for the reason  stated it should in the context in which it appears here should  mean must and that there is an element of compulsion and  that its power coupled with a duty.  It deals with the  performance of public duty and that it comes within the  dictum of Lord Cairns in Julius vs. Lord Bishop of Oxford  (1874-80) 5 AC 214.  The dictum reads thus:- "There may be something in the nature of the thing  empowered to be done, something in the object for which it  is to be done, something in the conditions under which it is  to be done, something in the title of the person or persons for  whose benefit the power is to be exercised, which may couple  the power with a duty, and make it the duty of the person in  whom the power is reposed to exercise that power when  called upon to do so."

In Maxwell on Interpretation of Statutes, 11th Edn. at  page 231, the principle is stated thus: "Statutes which authorize persons to do acts for the  benefit of others or, as it is sometimes said, for the public good  or the advancement of justice, have often given rise to  controversy when conferring the authority in terms simply  enabling and not mandatory.  In enacting that they "may" or  "shall, if they think fit", or, "shall have power", or that "it  shall be lawful" for them to do such acts, a statute appears  to use the language of mere permission, but it has been so  often decided as to have become an axiom that in such cases  such expressions may have \026 to say the least \026 a compulsory  force, and so would seem to be modified by judicial  exposition."       

Learned senior counsel next cited M.C. Mehta vs. Union  of India & Ors, 2006 (2) Scale 364. "Now, we revert to the task of implementation. Despite  its difficulty, this Court cannot remain a mute spectator  when the violations also affect the environment and healthy  living of law-abiders. The enormity of the problem which, to  a great extent, is the doing of the authorities themselves,  does not mean that a beginning should not be made to set  things right. If the entire misuser cannot be stopped at one  point of time because of its extensive nature, then it has to  be stopped in a phased manner, beginning with major  violators. There has to be a will to do it. We have  hereinbefore noted in brief, the orders made in the last so  many years but it seems, the same has had no effect on the  authorities. The things cannot be permitted to go on in this  manner forever. On one hand, various laws are enacted,  master plans are prepared by expert planners, provision is  made in the plans also to tackle the problem of existing  unauthorised constructions and misusers and, on the other  hand, such illegal activities go on unabated openly under the  gaze of everyone, without having any respect and regard for  law and other citizens. We have noticed above the

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complaints of some of the residents in respect of such  illegalities. For last number of years even the High Court has  been expressing similar anguish in the orders made in large  number of cases. We may briefly notice some of those orders

\005Rule of law is the essence of Democracy. It has to be  preserved. Laws have to be enforced. In the case in hand, the  implementation and enforcement of law to stop blatant  misuse cannot be delayed further so as to await the so called  proposed survey by MCD. The suggestions would only result  in further postponement of action against illegalities. It may  be noted that the MCD has filed zonewise/wardwise abstract  of violations in terms of commercialisation as in November,  2005. According to MCD, the major violation has been  determined in respect of those roads where  commercialisation of the buildings is more than 50%.  According to it, the major violations in 12 zones are spread  on 229 roads. Roads on which there are major violations are,  thus, known. In respect of these, there is no need for any  survey or individual notice. Beginning must be made to stop  misuser on main roads of width of 80 ft. or more. The names  of these roads can be published in newspapers and adequate  publicity given, granting violators some time to bring the  user of the property in conformity with the permissible user,  namely, for residential use if the plans have been sanctioned  for construction of a residential house. In case owner/user  fails to do so, how, in which manner and from which date,  MCD will commence sealing operation shall be placed on  record in the form of an affidavit of its Commissioner to be  filed within two weeks. On consideration of this affidavit, we  will issue further directions including constitution of a  Monitoring Committee, if necessary. The issue of  accountability of officers and also the exact manner of  applicability of Polluter Pay Principle to owners and officers  would be further taken up after misuser is stopped at least  on main roads. Civil Appeal Nos. 608/2003 above referred  relates to Ring Road, Lajpat Nagar-II. The other cases relate  to areas like Green Park Extn., Green Park Main, Greater  Kailash, New Friends Colony, Defence Colony, West Patel  Nagar, etc. These areas are illustrative. The activities include  Big Furnishing Stores, Galleries, Sale of Diamond and Gold  Jewellary, sale of Car Parts etc."

Learned senior counsel next cited M.I.Builders Pvt. Ltd.  vs. Radhe Shyam Sahu and Others, (1999) 6 SCC 464 para  73 which reads thus:                               "The High Court has directed dismantling of the whole  project and for restoration of the park to its original  condition. This Court in numerous decisions has held that  no consideration should be shown to the builder or any  other person where construction is unauthorised. This dicta  is now almost bordering rule of law. Stress was laid by the  appellant and the prospective allottees of the shops to  exercise judicial discretion in moulding the relief. Such  discretion cannot be exercised which encourages illegality or  perpetuates an illegality. Unauthorised construction, if it is  illegal and cannot be compounded, has to be demolished.  There is no way out. Judicial discretion cannot be guided by  expediency. Courts are not free from statutory fetters.  Justice is to be rendered in accordance with law. Judges are  not entitled to exercise discretion wearing robes of judicial  discretion and pass orders based solely on their personal  predilections and peculiar dispositions. Judicial discretion  wherever it is required to be exercised has to be in  accordance with law and set legal principles. As will be seen

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in moulding the relief in the present case and allowing one of  the blocks meant for parking to stand we have been guided  by the obligatory duties of the Mahapalika to construct and  maintain parking lots."

Mr. Pallav Sisodia, learned counsel for the Corporation  invited our attention to the counter affidavit filed in the writ  petition and submitted that the appellant has raised several  disputed questions of fact which cannot and ought not to be  gone into by this Court and on that ground alone, the SLP  deserves to be dismissed.  Without prejudice to the aforesaid  contention, he submitted that the owners through their  architect submitted their proposal for the approval of the  proposed temple complex along with notice under Section  44/99 of MTP Act and notice under Section 337 of the MMC  Act.  Respondent Nos. 2 and 3 vide application dated  08.04.1999 and in reply to the same the A.E. vide his letter  had said that the said proposal will be processed further in  compliance with certain documents mentioned in the said  letter.  It is submitted that one of the conditions required  documents to be submitted regarding access roads of  adequate width to the property.  It is further submitted that  the Trust has now made an application vide letter dated  09.12.2005 through a new architect to the Executive Engineer  (BP) ES for regularizing the construction of the temple along  with several documents such as copy of Deed of Trust, copy of  the order and consent terms filed in suit No. 1478 of 2005.  It  is further submitted that the said application made to EE (PP)  is pending and the same shall be considered as per the  provisions of DC Regulation and other provisions of law.  In  the meanwhile on receipt of complaint respondent Nos. 2 and  3 visited the premises at Jain temple and detected that  construction was in progress at site without permission from  the respondents and hence stop work notice under Section  354A of the MMC Act dated 08.06.2005 was issued to the  Trustees.  By the said notice, the addressee was called upon to  stop the erection of the building/execution of the said work  that is construction of RCC columns on rear side without  permission from the respondents.  The party was also called  upon to produce permission/approval, if any by the competent  authority in respect of the said work within 24 hours from the  receipt of the said notice.  Thereafter on 05.12.2005 the site  was again inspected by the officers of the respondents when it  was noticed that a temple was constructed with marble  located in front of the existing plot and a shed on the rear side  admeasuring 14.5 metre X 3.10 metre was also constructed as  composite structure by using MSI Section with angle section  and AC sheet roofing within the premises of the shed one  cabin admeasuring 6.5 metre X 2.85 metre having the off 2.0  metre is seen and that there is no activity at present  conducted in the cabin.  Besides the aforesaid structure there  are 4 numbers of RCC columns existing on the site within the  temple premises.  It was further submitted that on receipt of complaint, the  respondents had visited the site and issued notice under  Section 354A of the MMC Act and at present there is no  further construction work.  It was further submitted that the  said structure being a shrine and as there being no further  work carried out at site and there being pending proposal in  respect of the said structure no further action was initiated by  the authorities pending the said proposal.  It is also submitted  that the application submitted by the applicant, namely,  respondent No.4 shall be considered by the authorities strictly  on merits and in accordance with the provisions of law.   Learned counsel for the Municipal Corporation cited G.J.

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Kanga, Adm. Of Municipal Corpn., Greater Bombay and  Another vs. S.S. Basha, 1992 (2) Mh.L.J. 1573 para 35 which  reads thus: "35.  Whether an order of demolition under section 351 is an  administrative order or a quasi-judicial order?  It cannot be  disputed that demolition results in serious civil  consequences.  It leads to loss and destruction of property  entailing loss of money.  It renders the occupiers homeless.   It would, therefore, be futile to term the order an  administrative order and the process leading to the order a  quasi-judicial function.  If I were to say, "you be hanged",  can it be said that this is an administrative order and the  trial leading to the order is a judicial or quasi-judicial  process.  Just as there is discretion in the matter of passing  judicial orders similarly there is discretion in the matter of  passing orders under section 351.  A decision under section  351 requires a decision whether the offending structure is  authorized or unauthorized.  Whether the whole of it or only  a part of it is unauthorized, if unauthorized why it is  unauthorized, whether it can be tolerated or whether it can  be regularized.  In my view, there lies a large area of  discretion in the matter of passing orders under section 351.   An order under section 351 leads to civil consequences,  there is a large area of discretion in the matter of passing  orders under section 351, it is on this ground that the  concerned Municipal authorities are required to follow the  principles of natural justice.  An order passed under section  351, therefore, is a quasi-judicial order and it cannot be  termed an administrative order.  Hence, such an order is  neither revisable nor open to review.  Had the Legislature  intended to make these orders subject to appeal, revision or  review, it would have so provided in specific terms.   Provisions of appeal, revision or review cannot be inferred by  implication.  They have to be provided for in specific terms.   The power of review as is understood in common parlance is  the exercise of a power by the very officer who passed the  order and not by his superior officer.  An order can only be  made appealable or revisable by a superior officer.   Hence,  in the absence of a specific provision in that behalf, I hold  that the order under section 351 is neither revisable nor  reviewable."       

He also cited Mansukhlal Vithaldas Chauhan vs.  State of Gujarat, (1997) 7 SCC 622 in respect of the question  as to whether the High Court could issue a Mandamus of this  nature and whether the order of sanction in these  circumstances is valid.  "22.  Mandamus which is a discretionary remedy  under Article 226 of the Constitution is requested to be  issued, inter alia, to compel performance of public duties  which may be administrative, ministerial or statutory in  nature.  Statutory duty may be either directory or  mandatory.  Statutory duties, if they are intended to be  mandatory in character, are indicated by the use of the  words "shall" or "must".  But this is not conclusive as "shall"  and "must" have, sometimes, been interpreted as "may".   What is determinative of the nature of duty, whether it is  obligatory, mandatory or directory, is the scheme of the  statute in which the "duty" has been set out.  Even if the  "duty" is not set out clearly and specifically in the statute, it  may be implied as correlative to a "right".

23.  In the performance of this duty, if the authority in  whom the discretion is vested under the statute, does not act  independently and passes an order under the instructions

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and orders of another authority, the Court would intervene  in the matter, quash the order and issue a mandamus to  that authority to exercise its own discretion."

Mr. U.U Lalit, learned senior counsel appearing for the  intervenors(Developers), Ismail Yakub Payak, submitted that  the intervenor seeks neither to support nor challenge the  impugned order dated 23.03.2006 passed by the High Court  against the appellants but the intention of the intervenor was  only to protect his property CTS 205, 205/1-34, New Mill  Road, Kurla West from the claims of the appellant’s trust.  It  was further submitted that the intervenor has a direct interest  in the matter as he would be affected by order of this Court.  Respondent No.1 has also filed I.A. No. 5 of 2006 for  permission to place additional documents on record such as  the indenture or conveyance entered into and executed on  16.08.2002 between Benjamin Sebastian Fernandes, Thomas  maxim Fernandes and Sadhna Builders etc.   We have given our anxious and careful consideration to  the rival claims made by the respective counsel appearing for  the parties.   Before proceeding further to consider the rival  contentions, it is very useful and pertinent to reproduce the  proceedings of the Executive Engineer (Building Proposal)  Eastern Suburbs dated 16.09.2005 of Brihanmumbai  Mahanagarpalika which reads thus:  "In connection with the above subject, it is noted that  the Joint Commissioner Municipal Corporation has via Order  dated 6th August, 2004 ordered that while issuing  Occupation Certificate regarding the building Saiba Palace,  the arrangement for access Road to Jain Temple will be  considered in accordance with the final order of the Court."  

The above order was issued on 16.09.205 whereas the  first respondent filed the writ petition in October, 2005 in the  Bombay High Court. On 20.01.2006, Brihanmumbai  Mahanagarpalika refused the proposal for regularization of  temple.  Stop work notice was issued on 08.06.2005.  In the  counter affidavit filed by the Corporation in the writ petition  NO. 2841 of 2005, the Corporation has stated that since the  construction work was in progress at site without permission  from the Corporation Authorities stop work notice under  Section 354A of the MMC Act dated 08.06.2005 was issued to  the trustees of the temple and by the said notice the  addressees were called upon to stop the erection of the  building/execution of the said work in the construction of RCC  columns on the rear side in the above address without  permission from the authorities.  According to the appellant  the work commenced in the year 2001 whereas the writ  petition was filed after 5 years.  When the special leave petition was heard on 04.07.2006,  this Court issued notice limited to the question as to whether  the provisions of Section 351 of the MMC Act where it has  been left to the discretion of the Commissioner to demolish or  not to demolish, the High Court could direct a mandamus for  demolition.  Respondent No.1 filed a counter affidavit dealing  not only with the limited question but also to deal with various  other matters which have no bearing on the said question.   Respondent No.1 in the counter affidavit mentioned various  disputed facts.  It is seen that no notice under the provisions of Section  351 has been issued by the Municipal Commissioner in this  matter against the appellant.  In the special leave petition, it is  clearly mentioned by the appellant that the Corporation had  issued a notice to stop the work under Section 354A of the

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BMC Act.  No reference is made to any notice under Section  351A of the Act.  It is specifically  mentioned that the affidavit  which was filed on behalf of the Corporation had categorically  stated that after the service of stop work notice under Section  354A no work was carried out.  Respondent No.1 is fully aware  that the provisions of Section 354A of the Act deals with stop  work notice whereas the provisions of Section 351 of the Act  deals with show cause notice for demolition of unauthorized  structure.  The grievance of the appellant herein has been that  without issuing a notice under Section 351 of the Act and  without giving an opportunity to the appellant of being heard  the structure of the temple could not be ordered to be  demolished by the High Court.  The power under Section 351  of the Act, in our opinion, has to be exercised only by the  Municipal Commissioner and it is left to the Municipal  Commissioner under the provisions of Section 351(2) either to  order or not to order the demolition of the alleged  unauthorized temple.  In fact, respondent No.1 by himself  through his advocate’s letter dated 16.04.2005 (annexed to his  counter affidavit) requested the Municipal Authorities to take  action under Section 351 of the Act.  At the time of admission  of this special leave petition, the provision of Section 351 of  the Act was pointed out by the learned senior counsel to show  that the Municipal Commissioner had only been conferred the  power under the said provisions to demolish or not to  demolish unauthorized structure and, therefore, the High  Court ought not to have issued a mandamus for demolition of  the temple before any order was passed by the Commissioner  on the question of demolition.  The provisions of Section 354A  have nothing to do with the question of demolition.  It is  specifically averred and contended at the time of hearing that  respondent No.1 is an agent set up by the developer who is  developing the adjoining land and who is interested in dividing  the right of way claimed by the appellant through the said  adjoining plot bearing CTS No. 206.  It is also denied that plot No. 206 on which the temple is  situated is a land locked plot.  Both the plots now bearing CTS  No. 206 and the adjoining plot bearing CTS No. 205 developed  by the builder (the intervenor) originally belonged to one A.H.  Wadia.  Before the said plot now bearing CTS No.205 was  leased out, the land now bearing CTS No. 206 was sold by  A.H.Wadia to one Fernandes who had constructed thereon a  number of structures including a bungalow as shown in the  city Survey Plan relied upon by the respondent no.1 in the  annexure "A" to his writ petition before the High Court. The  said plan shows that the temple is now located at the same  site where originally the bungalow of Fernandes family was  constructed. The said bungalow had become old and hence it  was renovated in such a manner so as to convert it into a  temple.     Thus the Fernandes family had a right of way of necessity  through the land now bearing CTS No. 205 adjoining the land  bearing CTS No. 206 as shown on the said plan. The said  access was 12 wide and consisted of land bearing CTS No.212  and part of CTS No. 205. However, while developing the  adjoining land bearing CTS No.205, the developer forcibly  reduced the said access by digging about 7’ wide stretch of  land earlier used for the said access and encroach upon the  part of CTS No. 212 which belongs to the appellant. This right  of way has been claimed by the appellants in the suit which  they have filed in the Bombay City Civil court at Bombay being  Suit No. 5755 of 2005 which is now pending before the City  Civil Court. The said 12’ wide access was the only access  available to the said Fernandes family and the appellant Trust  from the main road which is now named as A.H.Walia Marg for

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approaching the property bearing CTS No.206. The said  position is clear from the plans bearing Annexure No. "PP-1"  and "P-2" annexed to the Special Leave Petition. Though the respondent no.1 claims that he has been  residing in a room in the chawl located on the temple plot  since his birth, he has not referred to the existence of the said  bungalow on the temple plot owned by the Fernandes family in  his writ petition filed before the High Court. According to the appellants, the Municipal Commissioner  and his subordinate officers have been made aware that the  construction of the temple has not violated in any manner the  FSI Rule.  However, the proposal submitted for regularizing  the construction of the temple was not granted on account of  the mandatory order issued by the High Court as also on the  ground that 12 feet access is not available for the temple plot  from A.H.Wadia Marg.  It is also submitted that in the event of  appellant succeeding the suit filed before the Bombay City  Civil Court, they would get the 12" vide access to the temple  plot in which event it would not be impossible for the  appellant to get their proposals approved.  In our opinion,  Section 351 obliges the Municipal Commissioner in the  construction of any building or the execution of any work is  commenced contrary to the provisions of the Act to give notice  requiring the person doing the work to show cause why it  should not be pulled down.  The word used in this context is  shall.  If sufficient cause is not shown it is left to the  Commissioner’s discretion whether or not to demolish the  unauthorized construction and, therefore, the High Court, in  our opinion, cannot impede the exercise of that discretion by  the issuance of a mandatory order.  We, therefore, direct the  Commissioner to decide the question as to whether he should  pass an order for demolition or not. This Court in Corporation of Calcutta vs. Mulchand  Agarwalla, [1955] 2 SCR 995 was considering an identical  question under Section 363 of the Calcutta Municipal Act,  1923.  This Court held that the word may in Section 363 of the  Act does not mean shall and the Magistrate had under that  Section discretion whether he should pass an order for  demolition or not.  This Court held that the orders of the  Courts below were passed on mistakes and mis-directions  and, therefore, could not be supported.  But this Court did not  think that to be a fit case for an order for the demolition of the  building in view of certain special circumstances, namely,  though Section 363(2) which directs that no application for  demolition shall be instituted after the lapse of 5 years from  the date of the work did not in terms apply as the proceedings  had been started in time, it was nearly 5 years since the  building had been completed and the interest of the public did  not call for its demolition.  As pointed out by this Court in Syed Muzaffar Ali and  Others vs. Municipal Corporation of Delhi (supra) that the  mere departure from the authorized plan or putting up of a  construction without sanction does not ipso fact and without  more necessarily and inevitably justify demolition of the  structure.  There are cases and cases of such unauthorized  construction and some are amenable to compounding and  some may not be.  According to learned counsel for the first  respondent, the appellants have constructed the temple  without obtaining any sanction whatsoever.  There is serious  breach of the licensing provisions or building regulations  which may call for extreme step of demolition.  In our view,  these are matters for the Municipal Commissioner to consider  at the appropriate time.   Taking into consideration of all the relevant facts and  circumstances and while deciding the matter, we make it clear

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that we are not expressing any opinion on merits of the rival  claims.  The Authorities are entitled to examine and grant  such relief as the appellants may be entitled to under the law.     The respondent-Commissioner is directed to decide the matter  absolutely on merits after affording opportunity to the first  respondent herein within 3 months from the date of this  judgment.  During this period however, no demolition shall be  made.   We also make it clear that the appellant shall not put up  any further construction or alter the construction already  made.   The civil appeal therefore stands allowed with the above  direction. No costs.