The Supreme Court has said that mere departure from the authorised plan or erecting a structure without sanction does not necessarily justify demolition of the structure.
The observation came from a Bench of Justice AR Lakshmanan and Justice Tarun Chatterjee, which allowed an appeal against an order of the Bombay High Court directing the civic authorities to demolish an allegedly unauthorised Jain temple in Kurla Part-IV area of the metropolis in 2001.
Noting that some cases of unauthorised construction could be amenable to compounding while others may not be, the Bench said, "in our view, these are matters for the Municipal Commissioner to consider at the appropriate time".
Allowing the appeal filed by Muni Suvrat-Swami Jain SMP Sangh against the demolition order, the apex court directed the municipal commissioner to decide within three months as to whether he should pass an order of demolition or not. It said that during this period no demolition shall be made and the appellant Sangh shall not put up any further structure.
The Bench said, Section 351 of the MMC Act obliged the Municipal Commissioner, if the construction of any building is commenced contrary to the provisions of the Act, to issue show cause to the person engaged in such construction why it should not be pulled down.
"If sufficient cause is not shown, it is left to the Commissioner's discretion whether or not to demolish the unauthorised construction and, therefore, the High Court, in our opinion, cannot impede the exercise of that discretion by the issuance of a mandatory order," the Bench said.
"Authorities are entitled to examine and grant such relief as the appellants may be entitled to under the law," it added.
The court took note of the fact that the municipal commissioner had not issued any notice to the appellant Sangh under Section 351 of the Act asking him to show cause why the alleged unauthorised structure should not be demolished.