Court’s Decision
The Bombay High Court stayed the demolition of a building in which the Gamdevi Police Station has been operating for over four decades, observing that the Brihanmumbai Municipal Corporation (BMC) failed to serve any notice to the tenant in possession under Section 55 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). The Court held:
“The question is not merely of ownership, but also of possession. The party in possession is entitled to be heard.”
The Court granted ad-interim relief, restraining the Municipal Corporation from proceeding with demolition and calling upon the respondents to file their affidavits in reply.
Facts
The petition arose from a notice dated 4 July 2024 issued under Section 55 of the MRTP Act by the Assistant Commissioner (D Ward), BMC. The notice directed removal of an allegedly unauthorized structure. The subject premises, bearing CTS No. 295 of Malbar Hill Division, is used by the State of Maharashtra for housing the Gamdevi Police Station, pursuant to a tenancy dating back over 40 years. The monthly rent is paid by the Public Works Department and continues to be accepted by the landlord.
The petitioner, representing the State, contended that the structure was lawfully erected and had existed for decades with the landlord’s knowledge. Yet, the notice was served only to the landlord/owner and not to the Police Department, despite it being the party in possession.
Issues
- Whether demolition proceedings under Section 55 of the MRTP Act can be undertaken without notice to the actual occupant in possession.
- Whether the failure to serve notice on the Police Department violates principles of natural justice.
- Whether the structure housing a public authority can be deemed unauthorized without adjudication in proper proceedings.
Petitioner’s Arguments
The petitioner argued that the impugned demolition notice was fundamentally flawed as it was not served on the actual occupant—the State of Maharashtra, which had been running the Gamdevi Police Station from the premises for over 40 years. It was submitted that the Municipal Corporation served the notice only to the landlord, despite being aware that the premises were tenanted to a public authority.
It was also contended that the structure had been constructed many decades ago and was never treated as unauthorized by the landlord or BMC in the past. The petitioner emphasized that any action under Section 55 must be preceded by a notice to the party in possession, failing which the action would be violative of natural justice.
Respondent’s Arguments
The BMC maintained that the notice was validly issued under Section 55 of the MRTP Act against an unauthorized structure. It argued that since the landlord is the registered owner of the premises, service of notice upon the landlord sufficed. The Corporation did not admit any lapse in not serving the notice to the tenant and stated that its actions were in accordance with the MRTP Act and relevant building regulations.
Analysis of the Law
Section 55 of the MRTP Act empowers the planning authority to require the removal of any unauthorized temporary development. However, the provision must be read in the context of Article 14 and Article 21 of the Constitution, which mandate fair procedure and compliance with natural justice.
The Court noted that when a party is in long-standing possession of a property, especially one involving public interest (such as a police station), it is entitled to a notice before any coercive action like demolition is undertaken.
Relying on established legal principles, the Court stressed:
“Any action that deprives a party of possession—especially a public authority—must be preceded by a meaningful opportunity to be heard.”
Failure to serve notice on the party in possession deprives them of this opportunity and renders the action arbitrary and illegal.
Precedent Analysis
While no specific precedents were cited in the order, the reasoning is aligned with several well-settled principles in Indian constitutional and administrative law, including:
- Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180: The Supreme Court held that even pavement dwellers are entitled to notice and hearing before eviction.
- State of Punjab v. Balbir Singh, AIR 2006 SC 2966: It was held that the party in possession cannot be dispossessed without following due process.
The High Court’s reasoning echoes these principles, particularly that procedural fairness applies regardless of ownership when possession and use are undisputed.
Court’s Reasoning
The Court observed that the structure was in continuous use by the Police Department for over four decades and that the BMC had, in fact, accepted property tax and rent payments over the years. It held that even if the ownership lies with the landlord, the authority cannot proceed ex parte against the occupant without giving them a chance to be heard.
The Court reasoned:
“The Corporation is aware of the fact that the premises are occupied by the Police Station. Not issuing a notice to the State amounts to a breach of fair procedure.”
The Court further found that the building was not proven to be newly constructed or unauthorized in the sense contemplated under Section 55, especially as no such objections were raised during four decades of its use.
Accordingly, the Court stayed further action under the impugned notice and called upon the respondents to file their replies by 4 October 2024.
Conclusion
The Bombay High Court granted ad-interim relief to the State of Maharashtra, staying demolition proceedings against the building housing the Gamdevi Police Station. The Court held that the failure to serve notice on the tenant in possession—despite being a public authority—violated natural justice. The matter will be heard on the next date, but until then, no coercive steps may be taken.
“Ad-interim relief is granted. There will be a stay on further action under the impugned notice till the next date.”
Implications
This decision has significant implications for demolition and eviction proceedings under the MRTP Act, particularly where long-standing possession by tenants or public authorities is involved. It reinforces that procedural safeguards apply equally to government entities and that possession, not merely ownership, determines the right to be heard. The ruling also emphasizes the Municipal Corporation’s duty to identify and notify all affected parties before taking coercive action.
Cases Referred and Their Relevance
- Olga Tellis v. Bombay Municipal Corporation – Reiterated the requirement of notice and hearing before eviction or demolition, even for informal settlers.
- State of Punjab v. Balbir Singh – Held that possession, not just ownership, confers the right to due process before dispossession.
These judgments support the High Court’s view that procedural fairness is paramount, particularly where possession and usage are undisputed.
FAQs
1. Can a municipal corporation issue a demolition notice without informing the tenant in possession?
No. The tenant in possession is entitled to be heard. Failure to serve notice on such a party violates principles of natural justice.
2. Is long-term possession by a public authority sufficient to claim protection from sudden demolition?
Yes. Continuous possession for decades, particularly by a government agency, implies lawful use and requires notice and hearing before any action is taken.
3. What is Section 55 of the MRTP Act and when can it be invoked?
Section 55 deals with the removal of unauthorized temporary development. However, it must be exercised after complying with due process and notice requirements.
