Supreme Court of India

KANTA PRASAD D. PATELversusMUNICIPAL CORPORATION OF GREATER BOMBAY AND ORS.

Citation: 1996 INSC 522
Decided: 15 April 1996
Disposal: Dismissed
Bench: K RAMASWAMY

Holding

The appeal is dismissed as there is no evidence that the structure existed before April 1, 1962 and the municipal authority acted within its powers.

Summary

Kanta Prasad D. Patel purchased a site in 1965 and erected sheds, claiming the structures existed before April 1, 1962 based on a lease from the previous owner. The Municipal Corporation of Greater Bombay issued a demolition notice; the Deputy Municipal Commissioner initially allowed retention of a 30'x30' shed in 1983 but later ordered its demolition after five years. The Bombay High Court held that there was no evidence the shed was constructed before the cut‑off date and set aside the earlier permission. On appeal, the Supreme Court examined whether the Additional Commissioner had authority to review the subordinate order and whether the appellant had proved title and pre‑1962 construction. Finding the lease deed silent on any pre‑1962 structure and accepting the High Court’s finding, the Court dismissed the appeal, upholding the demolition order.

Issues considered

Whether the appellant proved that the shed was constructed prior to April 1, 1962.
Whether the Additional Commissioner had jurisdiction to review the order of the subordinate officer dated January 27, 1983.
Whether the demolition notice issued by the municipal corporation was lawful.

Subjects

unauthorised structuredemolition ordermunicipal corporationlease deedreview of administrative orderevidence of construction datestatutory authority

Judgment

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
j




             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-
                                                                                   B
    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    c
    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   D·
    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.                                                                       E
           The appeal is accordingly dismissed. No costs.

    G.N.                                                     Appeal dismissed.

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