09 June 2025 Civil Appeals >> Civil & Consumer Law  

A recent judgment from the High Court of Judicature at Bombay, in the case of Mohd. Siddik Shaikh & Another v/s Municipal Corporation of Greater Mumbai, Mumbai & Another, sheds light on the intricacies of Section 354A of the Mumbai Municipal Corporation Act, 1888. This provision grants powers to the Designated Officer to halt unlawful building construction or work. The appeal critically examines the application of this section, particularly concerning the necessity of proper notice and adherence to the principles of natural justice.

Background of the Appeal:

The appeal was filed by Mohd. Siddik Shaikh and another against a judgment dated August 23, 2024, which dismissed their application for a temporary injunction. The plaintiffs sought to restrain the Municipal Corporation from acting on a demolition notice issued under Section 354A of the Act on October 21, 2020. They contended that their structures on the 6th and 7th floors of the building had existed since before 1958, and only permissible repairs were carried out, not unauthorized construction. The interim relief was denied by the lower court on the premise that demolition work above the 5th floor had already commenced.

Appellants' Key Submissions:

The appellants presented several arguments:

• Improper Service of Notice: They claimed the suit notice was never properly served upon them. They emphasized that Section 354A is a drastic provision, requiring proper service on the affected person, including the owner or occupier, as defined by the Act.
• Lack of Specificity in Notice: The notice vaguely alleged unlawful reconstruction without providing a precise description of the alleged unauthorized work. This lack of detail, coupled with a speaking order from the corporation acknowledging the building was authorized up to the 5th floor based on a MHADA repair plan, indicated non-application of mind by the Designated Officer.
• Purpose of Section 354A: They argued that Section 354A is intended for ongoing work, not completed construction. If immediate action isn't taken, Section 351 of the Act (dealing with show cause notices for demolition) should apply.
• Violation of Natural Justice: Citing various precedents, including Municipal Corporation of Greater Mumbai and Ors Vs. Sunbeam High Tech Developers Private Limited

and State Bank of India and Others Vs Rajesh Agrawal and Others, the appellants stressed that personal service and an opportunity to be heard are mandatory, even for administrative actions that carry civil consequences.

• Existence of Original Structure and Repair Work: They presented evidence that their structures existed since before 1958 and that only repair work, as per a MHADA plan, was undertaken. The corporation's notice and the lower court's reasoning allegedly ignored these facts.

Corporation's Counter-Submissions:

The Municipal Corporation asserted the legality of their actions:

• Power under Section 354A: They maintained that Section 354A(2) empowers them to demolish offending structures within 24 hours without further notice if no permission for ongoing work is produced.
• Immediate Action for Unlawful Construction: The purpose of Section 354A is to take immediate action against unlawfully commenced construction. Demolition work was initiated as per this provision, and the structures above the 5th floor were unauthorized.
• Reconstruction After Demolition: They argued that any reconstruction after the initial demolition was illegal, and the corporation is entitled to demolish such re-erected structures without further notice, even lodging an FIR.
• Satisfaction Not Always in Writing: The corporation contended that the Designated Officer's satisfaction for issuing a notice under Section 354A(1) does not necessarily need to be recorded in writing; the issuance of the notice itself implies satisfaction.

Legal Position and Court's Analysis:

The Court meticulously examined Section 354A, noting that sub-section (1) requires the Designated Officer's "satisfaction" that the work is unlawfully commenced before issuing a stop-work notice. This satisfaction necessitates an inquiry, including site visits and verification of permissions. While the power to demolish under sub-section (2) is drastic, the court emphasized that principles of natural justice must be followed, especially if a person can't produce permission within 24 hours or wasn't properly served.

The judgment underscored that the notice must contain a proper description of the alleged unlawful work, as its absence suggests a lack of due diligence. It reiterated that proper service of the stop-work notice is crucial, applying the procedure under Section 485 of the Act, which outlines how service is to be effected on owners or occupiers.

The court also delved into the interpretation of "person" under the Act, concluding that it must be read harmoniously with "owner" and "occupier" to ensure anyone affected by the drastic action of Section 354A is duly served.

Key Precedents Highlighted:

• Olga Tellis and J.R. Patel: These cases affirmed the necessity of providing an opportunity to be heard, even when action is taken under provisions like Section 314, which, similar to 354A, can lead to eviction.
• Sopan Maruti Thopte: This case and subsequent decisions (like Sub Vijay International Pvt. Ltd.) established guidelines for natural justice in municipal actions, emphasizing fair play and binding the corporation to these procedures.
• Kangana Ranaut: Referenced for its guidelines on the procedure for taking action under Section 354A, particularly regarding inspection reports and panchanamas.
• Sunbeam High Tech Developers Private Limited: This Supreme Court decision provided crucial directions on collecting evidence of illegal construction and serving notices, mandating personal service and a 7-day notice period before demolition if the reply is unsatisfactory.

Conclusion:

The High Court's judgment reinforces that while Section 354A grants significant powers to the Municipal Corporation to address unlawful constructions, these powers must be exercised with strict adherence to due process and the principles of natural justice. Proper service of a specific and detailed notice, coupled with a genuine opportunity for the affected party to present their case, remains paramount before drastic demolition actions are undertaken. The ruling serves as a vital reminder for both authorities and citizens about the rights and responsibilities in matters of urban development and regulatory compliance.

Section 314, Mumbai Municipal Corporation Act - 1888  

Section 354 - A, Mumbai Municipal Corporation Act - 1888  

Mumbai Municipal Corporation Act, 1888