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

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

The High Court was not justified in issuing a mandamus for demolition without the Municipal Commissioner exercising statutory discretion under Section 351; demolition is within the exclusive domain of the Municipal Commissioner upon issuance of notice and determination after hearing concerned parties.

Parties
Appellant: Muni Suvrat-Swami Jain S.M.P. Sangh; Respondent No. 1: Arun Nathuram Gaikwad; Respondents: Respondent 2 & 3; Intervenor: Intervenor
Jurisdiction
India
Judgment Date
11 October 2006
Procedural Posture
Civil Appeal / Supreme Court Appellate Decision Following Final Judgment and Order of High Court in Writ Petition No. 2841 of 2005
Outcome
Appeal allowed
Legal Topics
Unauthorized Construction, Demolition Powers, Discretion of Municipal Authorities, Judicial Review, Mandamus, Regularization of Construction
Municipal Law Administrative Law Property Law Unauthorized Construction Demolition Powers Discretion of Municipal Authorities Judicial Review Mandamus +1 more

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Parties

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

Appellant

Arun Nathuram Gaikwad

Respondent No. 1

Respondent 2 & 3

Respondents

Intervenor

Intervenor

Procedural Posture

Civil Appeal / Supreme Court Appellate Decision Following Final Judgment and Order of High Court in Writ Petition No. 2841 of 2005

Legal Issues

  1. 1 Whether the High Court can issue a mandatory order of demolition of unauthorized construction before the Municipal Commissioner exercises discretion under Section 351 of the Mumbai Municipal Corporation Act, 1888.
  2. 2 Whether a stop work notice under Section 354A suffices prior to demolition.

Ratio Decidendi

The High Court was not justified in issuing a mandamus for demolition without the Municipal Commissioner exercising statutory discretion under Section 351; demolition is within the exclusive domain of the Municipal Commissioner upon issuance of notice and determination after hearing concerned parties.

Court Disposition

Appeal allowed

Orders

  • Commissioner directed to decide the question whether demolition should be ordered or not after giving opportunity to appellant and respondent No. 1, within three months from date of judgment.
  • No demolition to be made during three month period pending such decision.