MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS.versusM/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD.

                          [2019] 16 S.C.R. 971                           971


 MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS.                          A
                        v.
  M/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD.
                   (Civil Appeal No.7627 of 2019)
                                                                         B
                        OCTOBER 24, 2019
      [DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
       Mumbai Municipal Corporation Act (Bom.III of 1988) –
ss.342 and 351 – The Municipal Corporation demolished the
structure in exercise of powers vested in it, but in violation of the    C
procedure prescribed – The High Court directed the ‘owner/
occupier’ of the building to reconstruct the demolished structure –
Held: The action of demolition without following the procedure
prescribed by law is illegal – If a structure is an illegal structure,
even though it has been demolished illegally, such a structure should    D
not be permitted to come up again – If the Municipal Corporation
violates the procedure while demolishing the building but the
structure is totally illegal, some compensation can be awarded and,
in all cases where such compensation is awarded the same should
invariably be recovered from the officers who have acted in violation
                                                                         E
of law – However, the illegal structure cannot be permitted to be re-
erected – If a structure is a legal structure, it would be prudent to
permit the structure to be built in accordance with the existing by-
laws – Directions can be issued to the authorities to issue requisite
permission for construction of a legal structure within a time bound
period of about 60 days – This may vary from case to case depending      F
upon the nature of the structure and the area where it is being built.
       The Mumbai Municipal Corporation Act (Bom.III of 1988) –
Advantage of advancement in technology – Geomapping and 3D
visual information – Since the old buildings do not have plans it is
difficult to find out whether the construction carried out is actually   G
tenantable repairs or the structures are being constructed /
reconstructed for which permission is required – Held: Till the State
frames any law in this regard, it is directed that before any
construction/reconstruction, or repair not being a tenantable repair
is carried out, the owner/occupier/builder/ contractor/architect, in     H
                                 971
972            SUPREME COURT REPORTS                      [2019] 16 S.C.R.


A     fact all of them should be required to furnish a plan of the structure
      as it exists – This map can be taken on record and, thereafter, the
      construction can be permitted – This information should also be in
      the form of 3D visual information, in the nature of photographs,
      videos etc – Further, Municipal Corporations directed to get
      geomapping done where the population is 50 lakhs or more and
B
      geo-photography of the areas under their jurisdiction – Once one
      has the whole city geomapped it would be easy to control illegal
      constructions.

            Disposing of the appeals, the Court
C
            HELD: 1. The main dispute is with regard to the 2 nd
      direction in Sopan Maruti Thopte and Another v. Pune Municipal
      Corporation and Another which provided that demolition of the
      building structure can be done only after giving 15 days’ notice
      to the affected person. [Para 10] [985-B]
D
             2. It was pointed out by the respondents that the second
      direction in Sopan’s case requiring 15 days’ notice to be given to
      the affected person before demolition of the structure, is still
      valid and, therefore, 2 notices are required to be given viz.,(i) a
E     show cause notice of 7 days in terms of Section 351 (1A) of the
      Mumbai Municipal Corporation Act [Bom. III of 1888] and; (ii)
      notice of 15 days in terms of Sopan’s case. It is also submitted
      that the judgment in Sopan’s case holds the field till date, and
      this Court agrees with the respondent that in terms of direction
      no.2 in Sopan’s case, 15 days’ notice has to be given before
F     demolishing the structure. This Court is not oblivious to the fact
      that Sub-section (2) of Section 351 does not lay down any timeline
      in this regard. It was in this context that when no timelines were
      laid down either for show cause notice or for demolition that the
      Bombay High Court in Sopan’s case, fixed two timelines of 15
G     days each for issuing show cause notice and, thereafter, to take
      action of demolition. The Legislature intervened and the first
      period has been curtailed from 15 days to 7 days but the second
      direction has not been interfered with by the Legislature.
      Therefore, that judgment continues to hold the field in this regard.
H     [Para 12] [985-D-G]
   MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                         973
          HIGH TECH DEVELOPERS PVT. LTD.

       3. This Court does not approve the action of the Municipal       A
Corporation or its officials in demolishing the structures without
following the procedure prescribed by law, but the relief which
has to be given must be in accordance with law and not violative
of the law. If a structure is an illegal structure, even though it
has been demolished illegally, such a structure should not be
permitted to come up again. If the Municipal Corporation violates       B
the procedure while demolishing the building but the structure
is totally illegal, some compensation can be awarded and, in all
cases where such compensation is awarded the same should
invariably be recovered from the officers who have acted in
violation of law. However, this Court again reiterates that the         C
illegal structure cannot be permitted to be re-erected.
[Para 16] [986-F-H]
      4. Assuming that the structure is not illegal then also the
Court will first have to come to a finding that the structure was
constructed legally. It must come to a clear-cut finding as to the      D
dimensions of the structure, what area it was covering and which
part of the plot it was covering. Therefore, it would be prudent to
permit the structure to be built in accordance with the existing
by-laws. Directions can be issued to the authorities to issue
requisite permission for construction of a legal structure within a
time-bound period of about 60 days. This may vary from case to          E
case depending upon the nature of the structure and the area
where it is being built. [Para 17] [987-A-D]
       5. The old buildings do not have plans it is difficult to find
out whether the construction carried out is actually tenantable
repairs or the structures are being constructed/reconstructed           F
for which permission is required. There is no difficulty to find a
solution to this problem if the State is inclined to do so. Till the
State frames any laws in this regard, this Court directs that before
any construction/reconstruction, or repair not being a tenantable
repair is carried out, the owner/occupier/builder/contractor/
architect, in fact all of them should be required to furnish a plan     G
of the structure as it exists. This map can be taken on record
and, thereafter, the construction can be permitted. In such an
eventuality even if the demolition is illegal it will be easy to know
what were the dimensions of the building. This information should
not only be in paper form in the nature of a plan, but should also      H
974           SUPREME COURT REPORTS                     [2019] 16 S.C.R.


A     be in the form of 3D visual information, in the nature of
      photographs, videos etc. All over the country this Court finds
      that when people raise illegal constructions it is claimed that the
      said construction has been existing for long. The answer is to
      get Geomapping done. The relevant technology is Geographic
      Information System (GIS). If on Google Maps one can get a road
B
      view, there is no reason as to why this technology cannot be used
      by the municipal corporations. [Paras 20, 21 and 22] [988-A-G]
            6. Further directions regarding the manner in which the
      evidence of illegal construction/reconstruction etc., is collected
C     and notices are issued and served. Therefore, the following
      directions were issued:-
             (1) It will be obligatory for all Municipal Corporations in
      the State of Maharashtra where the population is 50 lakhs or
      more to get geomapping and geo-photography of the areas under
D     their jurisdiction done within a period of one year. Geomapping
      will also be done of an area of 10 Kms. from the boundary of such
      areas. The records should be maintained and updated by the
      Municipal Corporations within such time period as the Municipal
      Corporation deems fit, keeping in mind the specific circumstances
      of the area under its jurisdiction.
E
            (2) Whenever any new area, which is not already
      geomapped, is brought under the jurisdiction of a particular
      municipality, it will be the duty of the concerned Municipal
      Corporation to ensure that geomapping of the area is conducted
F     and the geomapping records of such area are created at the
      earliest.
            (3) In cases where buildings are already existing and it is
      alleged by the Municipal Corporation that the building has been
      constructed in violation of applicable laws:-
G
            3.1. The Commissioner/Competent Authority on coming
      to know that an illegal building has been constructed, shall issue
      a show cause notice giving 7 days in terms of Section 351 to the
      owner/occupier/builder/contractor etc. Along with this notice the
      Commissioner/Competent Authority shall also send photographs
H     and visual images taken on the site clearly depicting the illegal
  MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                        975
         HIGH TECH DEVELOPERS PVT. LTD.

structure. Photographs and images should digitally display the        A
time and date of taking the photographs;
     3.2. In case the notice is not replied to within the time
prescribed, i.e., 7 days, then the building shall be immediately
demolished by the Municipal Corporation;
      3.3 In case the owner files a reply to the notice, the          B
Commissioner/Competent Authority of the Municipal
Corporation shall consider the reply and pass a reasoned order
thereon. In case the reply is not found satisfactory then the order
shall be communicated in the manner laid down hereinafter to
the owner/occupier/builder/contractor etc. giving him further 15      C
days’ notice before demolition of the property. During this period
the owner/occupier/builder/contractor etc. can approach the
appellate/revisional authority or the High Court.
      (4) In those cases where according to the municipal
corporation there is ongoing construction which is being carried
                                                                      D
on in violation of the applicable laws:-
      4.1. The Commissioner/Competent Authority on coming
to know that there is ongoing construction in violation of the
applicable laws shall issue a show cause notice giving 24 hours in
terms of Section 351 to the owner/occupier/builder/contractor/
architect etc. Along with this notice the Commissioner/               E
Competent Authority shall also send photographs and visual
images taken on the site clearly depicting the illegal structure.
Photographs and images should digitally display the time and date
of taking the photographs;
      4.2. The Commissioner/Competent Authority can also issue        F
an interim ‘stop-construction’ order along with the notice or any
time after issuing the notice. Such order shall also include the
relevant pictures of the alleged violation(s). Photographs and
images should digitally display the time and date of taking the
photographs;                                                          G
      4.3. In case the notice is not replied to within the time
prescribed, i.e., 24 hours, then the building shall be immediately
demolished by the Municipal Corporation;
       4.4. In case the owner/occupier/builder/contractor/architect
etc. files a reply to the notice, the Commissioner/Competent          H
976            SUPREME COURT REPORTS                     [2019] 16 S.C.R.


A     Authority of the Municipal Corporation shall consider the reply
      and pass a reasoned order thereon. In case the reply is not found
      satisfactory then the order shall be communicated in the manner
      laid down hereinafter to the owner/occupier/builder/contractor/
      architect etc. giving him further 7 days’ notice before demolition
      of the property. During this period the owner/occupier/builder/
B
      contractor/architect etc. can approach the appellate/revisional
      authority or the High Court.
             (5) In regard to service of notice this Court directs
      as follows :-
C           5.1. Wherever possible notice shall be served personally
      on the person who is raising or has raised the illegal structure
      including the owner/occupier/builder/contractor/architect etc.;
            5.2. Notice, in addition to the traditional mode, can also be
      sent through electronic means, both by e-mail and by sending a
D     message on the mobile phones. Even a message to a foreman or
      person-in-charge of the construction at the site will be deemed
      to be sufficient notice;
            5.3. In the notice, the municipal authorities shall also give
      an e-mail ID and phone number where the noticee can send his
E     reply through e-mail or messaging services. This will hopefully
      do away with all disputes with regard to alleged non-service of
      notice.
            6. Till the State frames any laws in this regard, this Court
      directs that before any construction/reconstruction, or repair not
F     being a tenantable repair is carried out, the owner/occupier/
      builder/contractor/architect, in fact all of them should be required
      to furnish a plan of the structure as it exists. They will also
      provide an e-mail ID and mobile phone number on which
      notice(s), if any, can be sent. This map can be taken on record
      and, thereafter, the construction can be permitted. In such an
G     eventuality even if the demolition is illegal it will be easy to know
      what were the dimensions of the building. This information should
      not only be in paper form in the nature of a plan, but should also
      be in the form of 3D visual information, in the nature of
      photographs, videos etc. [Para 23] [989-B-H; 990-A-H; 991-A-
H     D]
   MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                                977
          HIGH TECH DEVELOPERS PVT. LTD.

      Sopan Maruti Thopte and Another v. Pune Municipal                        A
      Corporation and Another AIR 1996 Bom 304
      – approved.
                          Case Law Reference
      AIR 1996 Bom 304               approved                Para 3
                                                                               B
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.7627
of 2019
      From the Judgment and Order dated 26.03.2018 of the High Court
of Judicature at Bombay in Writ Petition No. 2613 of 2017
      With                                                                     C

      Civil Appeal No.7626 of 2019.
      Atmaram N.S. Nadkarni, ASG, Ashish Wad, Ms. Priti Purandare,
Mrs. Jayashree Wad, Sidharth Mahajan, Ms. Sukriti Jaggi, Ajeyo Sharma,
M/s J S Wad And Co., Advs. for the Appellants.                                 D
     Chirag M. Shroff, Bharat Zaveri, Ms. Mahima C. Shroff,
Ms.Yashika Verma, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      DEEPAK GUPTA, J.
                                                                               E
       1. The issue involved in these appeals is whether if a municipal
corporation demolishes a structure in exercise of powers vested in it but
in violation of the procedure prescribed, can the High Court direct the
‘owner/occupier’ of the building to reconstruct the demolished structure?
        2. The municipal corporations in the State of Maharashtra like in      F
any other part of the country are vested with the power to demolish
structures which violate the laws and have been built without any building
plans or in violation of the laws. The exercise of the power of demolition
which affects the property of the citizens of this country must be exercised
in an absolutely fair and transparent manner. Rules in this regard must
be followed. At the same time, the Court has to balance the private            G
interest with the larger public interest. Cities and towns must be well
planned and illegal structures must be demolished. Rule of law comprises
not only of the principles of natural justice but also provides that the
procedure prescribed by law must be followed. Rule of law also envisages
that illegal constructions which are constructed in violation of law must      H
978               SUPREME COURT REPORTS                         [2019] 16 S.C.R.


A     be demolished and there can be no sympathy towards those who violate
      law.
             3. Before we refer to the statutory provisions, we may make
      reference to a judgment of the Bombay High Court which appears to be
      the locus classics on this subject, as far as the Bombay High Court is
B     concerned. In Sopan Maruti Thopte and Another vs. Pune Municipal
      Corporation and Another1, the Bombay High Court referred to various
      provisions of law, and thereafter issued the following directions :-
               “19. Hence, on the basis of the law as discussed above, it is
               directed that after 1st May, 1996 the Bombay Municipal Corporation
C              or the Municipal Corporations constituted under the B.P.M.C. Act
               would follow the following procedure before taking action under
               Section 351 of the B.M.C. Actor under S. 260 of the B.P.M.C.
               Act.
                     (i) In every case where a notice under Section 351 of the
D                        B.M.C. Act/under Sec. 260 of B.P.M.C. Act is issued
                         to a party 15days’time shall be given for submitting the
                         reply. In case the party to whom notice is issued sends
                         the reply with the documents, and shows cause, the
                         Municipal Commissioner or Deputy Municipal
                         Commissioner shall consider the reply and if no
E                        sufficient cause is shown, give short reasons for not
                         accepting the contention of the affected party.
                    (ii) It would be open to the Commissioner to demolish the
                         offending structure 15 days after the order of the
                         Commissioner/Deputy Municipal Commissioner is
F                        communicated to the affected person.
                    (iii) In case the staff of the Corporation detects the building
                          which is in the process of being constructed and/or
                          reconstructed and/or extended without valid permission
                          from the Corporation, it would be open to the
G                         Commissioner to demolish the same by giving a short
                          notice of 24 hours after drawing a panchanama at the
                          site and also by taking photographs of such structure
                          and/or extension. The photographs should indicate the
                          date when the same were taken.
      1
H         AIR 1996 Bom 304
  MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                                979
 HIGH TECH DEVELOPERS PVT. LTD. [DEEPAK GUPTA, J.]

          (iv) In case where the Municipal Corporation has followed           A
               due process of law and demolished the unauthorised
               structure and/or extension, if the same is reconstructed
               without valid permission within a period of one year, it
               would also be open to the Corporation to demolish the
               same by giving a short notice of 24 hours.
                                                                              B
           (v) If the offending structure and/or extension which is
               assessed by the Corporation for two years, notice shall
               provide for 15 days’ time to show cause. If the Deputy
               Municipal Commissioner comes to the conclusion that
               he requires assistance of the party, he may give an oral
               hearing if he deems fit and proper before passing the          C
               order. It is made clear that oral hearing is not at all
               compulsory but it is at the discretion of the authority.
          (vi) In any other case the Corporation is directed to issue a
               show cause notice in case of any structure and/or
               extension other than those mentioned in clauses (i) to         D
               (iv) above. The Corporation shall provide for 7 days’
               time to show cause in such a case.
      20. In case the notice is issued under Sec. 478 of the B.P.M.C.
      Act, 1949 and if the person has not complied with the requisitions
      of the Commissioner, then it would be open to the Commissioner          E
      to demolish the unauthorised structure after expiry of 30 days of
      the period specified in the notice for removal of such
      construction.
      21. The Municipal Corporations in the State of Maharashtra would
      follow the above directions so as to avoid unnecessary litigation.”     F
      After issuing these directions the Court also issued a word of
caution to courts not to grant interim injunctions protecting illegal
constructions from demolition. We may refer to the following
observations:-
      “24. In our view, passing interim orders indiscriminately and with-     G
      out apparent and due application of mind, which has the effect of
      allowing the plaintiff to continue to enjoy the fruits of his illegal
      actions including unauthorised construction tends to lower the
      Court’s prestige and clearly undermines the Rule of Law.
      xxxx                         xxxx                       xxxx            H
980            SUPREME COURT REPORTS                         [2019] 16 S.C.R.


A           28. Considering the aforesaid decisions it should be borne in mind
            before issuance of an injunction that it is a discretionary and an
            equitable relief. It is not mandatory that for mere asking such
            relief should be given. It is not a charity at the cost of public.
            However, we make it clear that the procedure established by law
B           has to be followed by the public authorities, whether it be the
            State or a local body, including the Municipal Corporations. At
            the same time, the procedural lapses, unintentional or intentional,
            which do not seriously affect the substantive rights of a person,
            ought not to result in ad interim orders which protect illegality
            having already been committed by the plaintiff and to give licence
C           of continuing fruits of such illegality for years. Violators of law
            should not liberally be allowed to take protection of Court of law
            by obtaining ad interim injunctions which have the effect of con-
            tinuing such violation.”
            Statutory Provisions
D
              4. The relevant provisions to deal with the issue in hand are cov-
      ered under Chapter 12 of The Mumbai Municipal Corporation Act [Bom.
      III of 1888] (hereinafter referred to as ‘the MMC Act’). Section 337 of
      the MMC Act provides that before erecting any building, notice in this
      behalf has to be given to the Commissioner of the Municipal Corpora-
E     tion. The phrase ‘to erect a building’ not only means erecting a new
      building but also includes within its ambit re-erection of any building by
      demolishing the existing building entirely or erecting any building by re-
      moving the roof of the existing ground floor structures and adding one or
      more upper floors and to complete a dwelling house, originally meant to
F     be used as one dwelling house into more than one dwelling houses.
      Building plans have to be furnished to the Commissioner, in terms of
      Section 338.
             5. Even with regard to execution of works not amounting to erec-
      tion of building notice under Section 342 of the MMC Act has to be
G     given to the Commissioner. The relevant portion of the Section reads as
      follows:-
            “342. Notice to be given to the Commissioner of
            intention to make additions, etc., to or change of user of, a
            building.
H           Every person who shall intend-
 MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                               981
HIGH TECH DEVELOPERS PVT. LTD. [DEEPAK GUPTA, J.]

        (a) to make any addition to a building, or change of existing       A
            user or
        (b) to make any alteration or repairs to a building involving
            the removal, alteration or re-erection of any part of the
            building except tenantable repairs:
   Provided that no lowering of plinth, foundation or floor in a building   B
   shall be permitted.
   Explanation.- “Tenantable repairs” in this section shall mean,
   only,-
        (i) providing guniting to the structural members or walls;
                                                                            C
        (ii) plastering, painting, pointing;
       (iii) changing floor tiles;
       (iv) repairing W. C., bath or washing places;
        (v) repairing or replacing drainage pipes, taps, manholes and       D
            other fittings;
       (vi) repairing or replacing sanitary water plumbing, or
            electrical fittings; and
       (vii) replacement of roof with the same material, but shall
             not include,-                                                  E
            (a) change in horizontal and vertical existing dimensions
                of the structure;
            (b) replacement or removal of any structural members
                of load bearing walls;
                                                                            F
            (c) lowering of plinth, foundations or floors;
            (d) addition or extension of mezzanine floor or loft; and
            (e) flattening of roof or repairing roof with different
                material;
                                                                            G
        (c) [* * *]
           (cc) to make any alteration in a building involving-
             (i) the sub-division of any room in such building so as
                 to convert the same into two or more separate
                 rooms,                                                     H
982             SUPREME COURT REPORTS                           [2019] 16 S.C.R.


A                     (ii) the conversion of any passage or space in such
                           building into a room or rooms, or
                  (d) to remove or reconstruct any portion of a building
                      abutting on a street which stands within the regular line
                      of such street,
B
            shall give to the Commissioner, in a form obtained for this purpose
            under section 344, notice of his said intention, specifying the position
            of the building in which such work is to be executed, the nature
            and extent of the intended work, the particular part or parts, if
            any, of such work which is or are intended to be used for human
C           habitation and the name of the person whom he intends to employ
            to supervise its execution.”
             6. An analysis of this Section clearly indicates that if any addition
      is to be made to the building or existing use of the building is to be
      changed then notice is required to be given to the Commissioner before
D     such addition or change is made. Even for making any alteration or
      repair to a building which involves the removal, or alteration of any part
      of the building, permission is required except for tenantable repairs which
      have been specifically defined in the explanation of this Section. The
      proviso lays down that no lowering of plinth, foundation or floors in the
E     building shall be permitted. Tenantable repairs have been defined and
      we need not dwell on what are tenantable repairs for the purpose of
      deciding these cases. We would, however, like to emphasise that even
      in case of repairs not falling within the category of tenantable repairs,
      notice will have to be given to the Commissioner and permission is to be
      taken and then only work can be commenced in terms of Section 347.
F
            7. We are mainly concerned with Section 351 which reads as
      follows :-
            “351. Proceedings to be taken in respect of buildings or
            work commenced contrary to section 347.
G
            (1) The Commissioner shall, by notification in the Official Gazette,
            designate an officer of the Corporation to be the Designated
            Officer for the purposes of this section and of sections 352, 352A
            and 354A. The Designated Officer shall have jurisdiction over
            such local area as may be specified in the notification and different
H           officers may be designated for different local areas.
 MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                                983
HIGH TECH DEVELOPERS PVT. LTD. [DEEPAK GUPTA, J.]

   (1A) If the erection of any building or the execution of any such         A
   work as is described in section 342, is commenced contrary to
   the provisions of section 342 or 347, the Designated Officer,
   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            B
            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           C
            the Designated Officer, 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           D
            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. - “To show sufficient cause” in this sub-section             E
   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 Designated Officer, why such building or work         F
   shall not be removed, altered or pulled down, the Designated
   Officer 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
   Designated Officer, the debris of such building or work together          G
   with other building material, if any, at the sight of the construction,
   belonging to such person, shall be seized and disposed of 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 receipts shall be
   returned by the Designated Officer, to the person concerned.              H
984             SUPREME COURT REPORTS                         [2019] 16 S.C.R.


A           (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
B           Commissioner a reasonable opportunity of representing in the
            matter.”
              Sub-section (1A) was the original sub-section (1). It appears that
      if the erection of any building or the execution of any work is commenced
      contrary to the provisions of Section 342 or 347 then the designated
C     officer shall issue written notice calling upon the builder, occupier, owner
      to submit his reply within 7 days from the service of notice to show
      cause as to why such a building should not be demolished. The designated
      officer can also require the person to appear before him personally on a
      time and date fixed by him. The Explanation is important. It lays down
D     that ‘sufficient cause’ would mean that the work is being carried out in
      accordance with the provisions of Sections 337 or 342 and 347 of the
      MMC Act. This means that required permission before the construction
      has to be obtained and if the person, within 7 days, is not able to produce
      such permission, then the designated officer can take steps to remove
      the building. Sub-section (2) provides that if the noticee does not show
E     cause or the designated officer is not satisfied with the reply filed, then
      the building can be removed or pulled out. Sub-section(3) debars the
      jurisdiction of civil courts to stay proceeding of any such public notice.
             8. Dealing with the issues relating to building under construction
F     and/or reconstruction and/or extension without valid permission the
      Bombay High Court in Sopan’s case (supra) had directed that a short
      notice of 24 hours be issued after drawing a panchnama at the site and
      also by taking photographs of such structure and/or extension. It was
      also ordered that the photographs should indicate the date when the
      same were taken.Direction 4 provided that if after demolition the un-
G     authorised structure is re-erected without valid permission within a period
      of 1 year then also notice of only 24 hours would be required. We are
      not directly concerned with directions 5 and 6.In Sopan’s case (supra),no
      direction was given that if the offending structure is demolished illegally
      the same should be permitted to be reconstructed. The reconstruction
H     jurisprudence seems to have developed at a later stage.
  MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                                985
 HIGH TECH DEVELOPERS PVT. LTD. [DEEPAK GUPTA, J.]

       9. At this juncture it would be necessary to point out that when       A
Sopan’s case (supra) was decided there was no provision fixing a time
line for filing a reply to the notice. Now,7 days have been fixed to file
the reply in terms of Section 351 sub-section (1A), and, therefore, the
first direction in Sopan’s case (supra) is no longer operative. The
Legislature has enacted a provision and this direction cannot be said to
                                                                              B
be valid any more.
       10. The main dispute is with regard to the 2nd direction in Sopan’s
case (supra) which provided that demolition of the building structure can
be done only after giving 15 days’ notice to the affected person.
       11. Shri Atmaram N. Nadkarni, learned Additional Solicitor General,    C
appearing for the appellants submits that by making an amendment to
Section 351, providing a period of 7 days for notice to be given, the first
direction in Sopan’s case (supra) is no longer valid.
       12. However, as pointed out by Mr. Bharat Zaveri, learned counsel
appearing on behalf of the respondents that the second direction in           D
Sopan’s case (supra) requiring 15days’notice to be given to the affected
person before demolition of the structure, is still valid and, therefore, 2
notices are required to be given viz.,(i) a show cause notice of 7 days in
terms of Section 351 (1A) and; (ii) notice of 15 days in terms of Sopan’s
case (supra). The learned counsel also submits that the judgment in
Sopan’s case (supra) holds the field till date, and we agree with the         E
counsel that in terms of direction no.2 in Sopan’s case (supra), 15 days’
notice has to be given before demolishing the structure. We are not
oblivious to the fact that Sub-section (2) of Section 351 does not lay
down any timeline in this regard. It was in this context that when no
timelines were laid down either for show cause notice or for demolition       F
that the Bombay High Court in Sopan’s case (supra), fixed two timelines
of 15 days each for issuing show cause notice and, thereafter, to take
action of demolition. The Legislature intervened and the first period has
been curtailed from 15 days to 7 days but the second direction has not
been interfered with by the Legislature. Therefore, that judgment
continues to hold the field in this regard.                                   G
       13. Admittedly, in both the cases the second notice does not comply
with the direction given in Sopan’s case (supra). Therefore, there is no
manner of doubt that the requirement with regard to the second notice
has not been complied with in either of the cases. As such, the action of
demolition without following the procedure prescribed by law is illegal.      H
986             SUPREME COURT REPORTS                            [2019] 16 S.C.R.


A             14. That brings us to the main issue before us. Is the writ court
      justified in issuing a direction that since the building has been demolished
      without following the procedure prescribed by law, the petitioners before
      the High Court (Respondents before us) be permitted to reconstruct the
      structure albeit using the same material, and of the same dimensions, as
      existed earlier? The second direction given is that before commencing
B
      of work of reconstruction, the petitioner shall serve a notice to the
      designated officer. It has further been observed by the High Court that
      the reconstruction of the structure on the basis of its order will confer no
      authenticity on the structure. The third important direction of the High
      Court provides that if the original structures were constructed without
C     obtaining development permission, the structures reconstructed pursuant
      to the orders of the Court will also be construed to be constructed without
      proper development permission. Hence the Corporation can initiate action
      of demolition of the structures, after following the law laid down in
      Sopan’s case (supra). We have been told that this is the regular practice
      followed in the Bombay High Court, throughout the State of Maharashtra.
D
             15. We are constrained to observe that we cannot approve of
      such directions. The High Court itself is aware that some of these
      structures may have been constructed without permission. If that be so,
      even if the demolition was carried out without giving the second notice,
      why should the party who has violated the law by raising the construction
E     without obtaining permission be permitted to raise another illegal structure
      which only has to be razed to the ground, after following the procedure
      prescribed by law? Why should the Nation’s wealth be misutilised and
      misused for raising an illegal construction which eventually has to be
      demolished?
F            16. We make it clear that we do not approve the action of the
      Municipal Corporation or its officials in demolishing the structures without
      following the procedure prescribed by law, but the relief which has to be
      given must be in accordance with law and not violative of the law. If a
      structure is an illegal structure, even though it has been demolished illegally,
      such a structure should not be permitted to come up again. If the Municipal
G
      Corporation violates the procedure while demolishing the building but
      the structure is totally illegal, some compensation can be awarded and,
      in all cases where such compensation is awarded the same should
      invariably be recovered from the officers who have acted in violation of
      law. However, we again reiterate that the illegal structure cannot be
H     permitted to be re-erected.
  MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                                    987
 HIGH TECH DEVELOPERS PVT. LTD. [DEEPAK GUPTA, J.]

       17. Assuming that the structure is not illegal then also the Court         A
will first have to come to a finding that the structure was constructed
legally. It must come to a clear-cut finding as to the dimensions of the
structure, what area it was covering and which part of the plot it was
covering. In those cases the High Court, once it comes to the conclusion
that the structure which has been demolished was not an illegal structure,
                                                                                  B
may be justified in permitting reconstruction of the structure, but while
doing so the Court must clearly indicate the structure it has permitted to
be constructed; what will be the length of the structure; what will be its
width; what will be its height; which side will the doors and windows
face; how many number of storeys are permitted etc. We feel that in
most cases the writ court may be unable to answer all these questions.            C
Therefore, it would be prudent to permit the structure to be built in
accordance with the existing by-laws. Directions can be issued to the
authorities to issue requisite permission for construction of a legal structure
within a time bound period of about 60 days. This may vary from case
to case depending upon the nature of the structure and the area where it
                                                                                  D
is being built.
       18. Blanket orders permitting re-erection will lead to un-planned
and haphazard construction. This will cause problems to the general
public. Even if the rights of private individuals have been violated in as
much as sufficient notice for demolition was not given, in such cases
                                                                                  E
structures erected in violation of the laws cannot be permitted to be
re-erected. We must also remember that in all these cases, the High
Court has not found that the structures were legal. It has passed the
orders only on the ground that the demolition was carried out without
due notice. As already indicated above, compensation for demolished
structure or even the cost of the new structure to be raised, if any, can         F
be imposed upon the municipal authorities which should be recovered
from the erring officials, but in no eventuality should an unplanned structure
be permitted to be raised.
       19. Times have changed. Technology has advanced. However,
the legal fraternity continues to live in a state of status quo. Sopan’s          G
case (supra) was decided on 09.02.1996. More than two decades have
elapsed. The Courts must not be hidebound by old decisions and the law
must develop in accordance with changing times.
     20. All concerned viz., the State, the Municipal authorities and the
High Court need to take note and advantage of advancement in                      H
988            SUPREME COURT REPORTS                          [2019] 16 S.C.R.


A     technology. We have been informed that disputes with regard to the
      dimensions and nature of the structure arise especially in those cases
      where rural or suburban areas are included at a later stage in the
      municipalities. Some of these structures have no sanctioned plans. The
      Development Control and Promotion Regulations for Greater Mumbai,
      2034, provide that no permission shall be required to carry out tenantable
B
      repairs to the existing buildings which were constructed with the approval
      of the competent authority, or are in existence since 17.04.1964 in respect
      of residential structures, and 01.04.1962 in respect of non-residential
      structures, as required under Section 342 of the MMC Act. We have
      already noted what is meant by tenantable repairs. This is explained in
C     Section 342 of the MMC Act. Only repairs envisaged in the explanation
      are permitted to be carried out without permission and all other repairs
      have to be carried out with permission. Since these old buildings do not
      have plans it is difficult to find out whether the construction carried out
      is actually tenantable repairs or the structures are being constructed/
      reconstructed for which permission is required.
D
             21. There is no difficulty to find a solution to this problem if the
      State is inclined to do so. Till the State frames any laws in this regard,
      we direct that before any construction/reconstruction, or repair not being
      a tenantable repair is carried out, the owner/occupier/builder/contractor/
      architect, in fact all of them should be required to furnish a plan of the
E     structure as it exists. This map can be taken on record and, thereafter,
      the construction can be permitted. In such an eventuality even if the
      demolition is illegal it will be easy to know what were the dimensions of
      the building. This information should not only be in paper form in the
      nature of a plan, but should also be in the form of 3D visual information,
F     in the nature of photographs, videos etc.
             22. All over the country we find that when people raise illegal
      constructions it is claimed that the said construction has been existing
      for long. The answer is to get Geomapping done. The relevant technology
      is Geographic Information System (GIS). If on Google Maps one can
      get a road view, we see no reason as to why this technology cannot be
G
      used by the municipal corporations. At the first stage we direct that all
      the cities in Maharashtra where the population is 50 lakhs or more the
      municipal authorities will get Geomapping done not only of the municipal
      areas but also of areas 10 Kms. from the outer boundary. This can be
      done by satellite, drones or vehicles. Once one has the whole city
H     geomapped it would be easy to control illegal constructions. We further
  MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                                  989
 HIGH TECH DEVELOPERS PVT. LTD. [DEEPAK GUPTA, J.]

direct the State of Maharashtra to ensure that sufficient funds are made        A
available to the municipal corporations concerned and this exercise should
be completed within a period of one year from the date of this order.
       23. We also would like to give further directions regarding the
manner in which the evidence of illegal construction/reconstruction etc.,
is collected and notices are issued and served. We, therefore, issue the        B
following directions:-
       (1) It will be obligatory for all Municipal Corporations in the State
of Maharashtra where the population is 50 lakhs or more to get
geomapping and geo-photography of the areas under their jurisdiction
done within a period of one year. Geomapping will also be done of an            C
area of 10 Kms. from the boundary of such areas. The records should
be maintained and updated by the Municipal Corporations within such
time period as the Municipal Corporation deems fit, keeping in mind the
specific circumstances of the area under its jurisdiction.
       (2) Whenever any new area, which is not already geomapped, is
                                                                                D
brought under the jurisdiction of a particular municipality, it will be the
duty of the concerned Municipal Corporation to ensure that geomapping
of the area is conducted and the geomapping records of such area are
created at the earliest.
       (3) In cases where buildings are already existing and it is alleged
by the Municipal Corporation that the building has been constructed in          E
violation of applicable laws:-
       3.1. The Commissioner/Competent Authority on coming to know
that an illegal building has been constructed, shall issue a show cause
notice giving 7 days in terms of Section 351 to the owner/occupier/
builder/contractor etc. Along with this notice the Commissioner/                F
Competent Authority shall also send photographs and visual images
taken on the site clearly depicting the illegal structure. Photographs and
images should digitally display the time and date of taking the
photographs;
        3.2. In case the notice is not replied to within the time prescribed,   G
i.e., 7 days, then the building shall be immediately demolished by the
Municipal Corporation;
      3.3 In case the owner files a reply to the notice, the
Commissioner/Competent Authority of the Municipal Corporation shall
consider the reply and pass a reasoned order thereon. In case the reply         H
990             SUPREME COURT REPORTS                          [2019] 16 S.C.R.


A     is not found satisfactory then the order shall be communicated in the
      manner laid down hereinafter to the owner/occupier/builder/contractor
      etc. giving him further 15 days’ notice before demolition of the property.
      During this period the owner/occupier/builder/contractor etc. can
      approach the appellate/revisional authority or the High Court.
B            (4) In those cases where according to the municipal corporation
      there is ongoing construction which is being carried on in violation of the
      applicable laws:-
              4.1. The Commissioner/Competent Authority on coming to know
      that there is ongoing construction in violation of the applicable laws shall
C     issue a show cause notice giving 24 hours in terms of Section 351 to
      the owner/occupier/builder/contractor/architect etc. Along with this
      notice the Commissioner/Competent Authority shall also send
      photographs and visual images taken on the site clearly depicting the
      illegal structure. Photographs and images should digitally display the time
      and date of taking the photographs;
D
             4.2. The Commissioner/Competent Authority can also issue an
      interim ‘stop-construction’ order along with the notice or any time after
      issuing the notice. Such order shall also include the relevant pictures
      of the alleged violation(s).Photographs and images should digitally
      display the time and date of taking the photographs;
E
              4.3. In case the notice is not replied to within the time prescribed,
      i.e., 24 hours, then the building shall be immediately demolished by the
      Municipal Corporation;
             4.4. In case the owner/occupier/builder/contractor/architect etc.
      files a reply to the notice, the Commissioner/Competent Authority of
F     the Municipal Corporation shall consider the reply and pass a reasoned
      order thereon. In case the reply is not found satisfactory then the order
      shall be communicated in the manner laid down hereinafter to the owner/
      occupier/builder/contractor/architect etc. giving him further 7 days’
      notice before demolition of the property. During this period the owner/
G     occupier/builder/contractor/architect etc. can approach the appellate/
      revisional authority or the High Court.
            (5) In regard to service of notice we direct as follows :-
            5.1. Wherever possible notice shall be served personally on the
      person who is raising or has raised the illegal structure including the
H     owner/occupier/builder/contractor/architect etc.;
  MUNICIPAL CORP. OF GREATER MUMBAI v. SUNBEAM                                 991
 HIGH TECH DEVELOPERS PVT. LTD. [DEEPAK GUPTA, J.]

       5.2. Notice, in addition to the traditional mode, can also be sent      A
through electronic means, both by e-mail and by sending a message on
the mobile phones. Even a message to a foreman or person in-charge
of the construction at the site will be deemed to be sufficient notice;
       5.3 In the notice, the municipal authorities shall also give an
e-mail ID and phone number where the noticee can send his reply through        B
e-mail or messaging services. This will hopefully do away with all disputes
with regard to alleged non-service of notice.
       (6) Till the State frames any laws in this regard, we direct that
before any construction/reconstruction, or repair not being a tenantable
repair is carried out, the owner/occupier/builder/contractor/architect, in     C
fact all of them should be required to furnish a plan of the structure as it
exists. They will also provide an e-mail ID and mobile phone number on
which notice(s), if any, can be sent. This map can be taken on record
and, thereafter, the construction can be permitted. In such an eventuality
even if the demolition is illegal it will be easy to know what were the
                                                                               D
dimensions of the building. This information should not only be in paper
form in the nature of a plan, but should also be in the form of 3D visual
information, in the nature of photographs, videos etc.
       24. As far as Civil Appeal No. 7627 of 2019 @ SLP(C) No.15909
of 2018 is concerned the structure has been rebuilt. That obviously
                                                                               E
cannot be un-done now. We, however, direct the municipal corporation
to ensure that fresh notice is issued to the respondent and thereafter
action is taken strictly in accordance with law. The whole process should
be completed within a period of three months. In case an order adverse
to the respondent is passed by the municipal corporation, then the
respondent will be at liberty to approach the High Court and raise all         F
grounds available to it.
       25. As far as Civil Appeal No.7626 of 2019 @ SLP(C)No.16489
of 2018 is concerned, reconstruction has not been done and, therefore,
we partly allow the appeal and set aside the order of the High Court to
the extent it allows reconstruction. We remit the matter to the High           G
Court which is requested to proceed in accordance with law laid down
in this case.
      26. Both the appeals are disposed of in the above terms. The
Registrar General of the Bombay High Court shall cause copies of this
judgment to be served upon the Chief Secretary, State of Maharashtra           H
992                SUPREME COURT REPORTS                     [2019] 16 S.C.R.


A     as well as Principal Secretary, Urban Development Department, Mumbai,
      Maharashtra, who will ensure that copy of this judgment is served upon
      all the municipal corporations in the entire State of Maharashtra. Pending
      application(s), if any, also stand(s) disposed of.

B     Ankit Gyan                                               Appeals disposed of.




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H