A
KANTA PRASAD D. PATEL
v.
MUNICIPAL CORPORATION OF GREATER BOMBAY AND ORS.
APRIL 15, 1996
B
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]
Unauthmised stntcture-lnitially allowed to be retained-After five years
notice issued for demolition-High Court holding that there was no evidence
on record ·to sluJJv that the said stntcture was constmcted p1ior to April 1,
C
1962 and hence cannot be pennitted to be retained-Held there is no illegality
in the order wan·anting inteiference.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7498 of
1996.
D
From the Judgment and Order dated 3.3.95 of the Bombay High
Court in A. No. 565/92 in W.P. No. 1375 of 1988.
Sanjay Parikh for the Appellants.
B.N. Naik and D.N. Mishra for the Respondents.
E
The following Order of the Court was delivered :
Leave granted.
We have heard learned counsel on both sides.
F
This appeal by special leave arises from the order of the Division
Bench of the High Court of Bombay in Appeal No. 565/92 made on March
3, 1995. The admitted facts arc that the appellant clain1ed to have pur-
chased the disputed site from one AM. Patil in 1965 and constructed sheds
thereon. He also alleged to have had a lease from him. On that basis, he
G claimed that the structure was eXisting prior to April 1, 1962. The respon-
dents issued notice to the appellant for demolition. The Deputy Municipal
Commissioner initially by order dated January 27, 1983 directed him to
retain a shed admcasuring 30'' x 30" but other structures were directed to
be demolished. After 5 years, notice was issued to the appellant to
H demolish that shed. Calling the same in question, the appellant filed the
322
K.P.D.PATEL v. MUN.CORPN.OFGREATER BOMBAY
323
writ petition. In writ Petition No. 1375/88, the learned single Judge had A
held that the exercise of the power of review should be made· bona fide
within a reasonable time. After considerable lapse of time, power of review
cannot be exercised. The Division Bench has set aside the order holding
that there is no evidence on record to show that the appellant had con-
structed the above structure prior to April 1, 1962. Under those cir-
cumstances, the appellant could not be permitted to retain the structure
which was illegally constructed.
It is sought to be contended for the appellant that the Additional
Commissioner has no power to review the order passed by a subordinate
officer on January 27, 1983 in the impugned order and, therefore, it is one
of nullity. We find no force in the contention. It must be established as a
fact that the appellant has title to the property and construction was made
bona fide in compliance of lawful permission or pri,or to April 1, 1962. It
is an admitted fact that even the lease deed does not contain any recital as
regards the existence of any structure. Learned counsel sought to reply
upon an order passed by the civil court and also the affidavit of the lessor
filed in 1966 to show the existence of the shed. It would be obvious that
the shed was constructed after April 1, 1962 as found by the High Court.
Under those circumstances, the authority was rightly justified in exercising
that power. We do not find any illegality in the order warranting inter-
ference.
The appeal is accordingly dismissed. No costs.
G.N.
Appeal dismissed.
B
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