MUNI SUVRAT-SWAMI JAIN S.M.P. SANGH versus ARUN NATHURAM GAIKWAD AND ORS.

Citation: [2006] SUPP. 7 S.C.R. 118 · Decided: 11-10-2006 · Supreme Court of India · Bench: AR. LAKSHMANAN · Disposal: Case Allowed

Judgment (excerpt)

A 
B 
MUNI SUVRAT-SWAMI JAIN S.M.P. SANGH 
l'. 
ARUN NATHURAM GAIKWAD AND ORS. 
OCTOBER 11. 2006 
[DR. AR. LAKSHMANAN AND TARUN CHATTERJEE. JJ.] 
Mumbai Municipal Corporation Act, 1888-SeCTions 351 and 354A-
Writ Petition alleging unauthori:::ed construction-Notice by Municipal 
C Corporation only for stopping the work and not for showing cause as to 
demolition-High Court directing demolition of the building-In appeal, held: 
D 
The determination of the question of demolition of unauthorised structure lies 
within discretion of Municipal Authority-High Court cannot impede that 
discretion by issuing mandatory order-Municipal Authority directed to 
determine the question of demolition-Jurisdiction-Jurisdiction of High Court. 
The property in question consisting of two bungalows and I chaw! 
was developed as temple complex by the original owner. Respondent No. 
I was one of the tenants of the chaw!. The access to the property was 
through a 12 feet wide strip of land. The original owner sold the property 
to the appellant, a public trust. The easementary rights for the access road 
E were also conveyed to the appellants. The developer of the plot adjacent 
to the property in question, while developing the land forcibly reduced 
the said access by digging about 7 feet wide stretch. Appellants filed a suit 
for declaration and injunction. Thereafter, respondent No. I gave several 
letters of complaints regarding unauthorized construction of the temple 
F to different authorities including Municipal Commissioner. Trial Court 
by an interim order permitted access to the property through the access 
road. During pendency of the suit, the developer attempted to disturb the 
free use of the right of way acquired by the Trust. On complaint, the 
Municipal Corporation informed that the occupation certificate to ihe 
building constructed by the developer shall be issued after the proceedings 
G in court were finally disposed of and provisions of access to the temple 
would also be taken into account. 
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Respondent No. I filed a Writ Petition alleging that the appellants 
were in the process of constructing the temple without obtaining 
118 
MUNI Sll\.R . .\T-S\\'..\1'111 JAIN S.~1 P. SANGH r. ARUNN·\THUR..\1\'IGAIKW..\D 
J 19 
permission from Municipal Corporation and sought for demolition of the A 
same. Appellants contended that the property was already constructed five 
years ago. 
Municipal Corporation issued notice under Section 354 A of Mumbai 
Municipal Corporation Act, 1888 to stop the work of the temple. Appellant 
submitted an application for regularization of the temple building. 
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High Court by its order directed Municipal Authorities to demolish 
entire illegal and unauthorized construction of the temple. Hence the 
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present appeal. 
Allowing the appeal, the Court 
HELD: I.I. The provisions of Section 354A of Mumbai Municipal 
Corporation Act, 1888 deals with stop work notice whereas the provisions 
of Section 351 of the Act deals with show cause notice for demolition of 
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unauthorized structure. The power under Section 351 of the Act, has to 
be exercised only by the Municipal Commissioner and it is left to the D 
Municipal Commissioner under the provisions of Section 351(2) either to 
order or not to order the demolition of the alleged unauthorized temple. 
No notice under the provisions of Section 351 of the Act has been issued 
by the Municipal Commissioner in this matter against the appellant. The 
Corporation had issued a notice to stop the work under Section 354A of E 
the Act. 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. In fact, respondent No. I by himself had 
requested the Municipal Authorities to take action under Section 351 of 
the Act. (141-E-Hj 
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1.2. 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 G 
the Commissioner's discretion whether or not to demolish the 
unauthorized construction and, therefore, the High Court cannot impede 
the exercise of that discretion by the issuance of a mandatory order. 
Therefore, the Commissioner is directed to decide the question

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