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Namdev Pandurang Panchal vs Mumbai Municipal Corporation Of ... on 16 September, 2005
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that was in existence in 1972. Counsel for the BMC also contended that the suit was rightly dismissed for all these reasons and also for non serving the notice under Section 527 of the BMC Act upon the BMC. 12. Counsel for the respondent No.2 Builder contended that the appellant miserably failed to prove his ownership of the property. There is no registered conveyance with the appellant in respect of the property admittedly because Lallu Bhika was not the owner of the property. Secondly, he contended that so-called agreement dated 26.4.1972 being an unregistered document was completely inadmissible in evidence for any purpose whatsoever. According to him the appellant was an encroacher, even structure was not prior to the datum line and he was not entitled for protection. He urged that the plea that action taken by the BMC was barred by the law of limitation, was not applicable to the administrative actions, viz. the action taken by the BMC under Section 351 and merely because the structure is allegedly standing since 1977, it does not get and cannot get any protection as it is outright trespass, encroachment and illegal construction, being without the permission

27. Regarding the excessive exercise of jurisdiction by the Commissioner, submissions have already been noted by me, earlier. He contended that under section 351 sub section 2, the Commissioner is given discretionary power to order removal or pulling down of the structure. From the use of the words "Commissioner may", Mr. Diwan contended that it has not compelled the Commissioner to take the drastic action of demolition and if discretion is given to the Commissioner, then it has to be judicial discretion , therefore, the order of demolition in this case being not proper exercise of jurisdiction is totally illegal and void. Mr. Diwan relied upon a jdugment of Gauhati High Court reported in 1996 AIHC 2126 (Gauhati High Court) Jadav Chandra Das vs. Gauhati Municipal Corporation and others . The question was with reference to Section 337 of the Gauhati Municipal Corporation Act, 1971 regarding the scope and power of the Corporation to issue notice under that section, and the next question was that whether such a notice can be issued after completion of the building and it being assessed by the Authority

sweet will keeping the sword of democles handing over the head of the person who completes the construction of the building, gets it assessed under Section 150 of the said Act and the assessment list is prepared and amended from time to time. 28. Thereafter Section 337 of the said Act was reproduced in the judgment. 29. Facts of the case were that the petitioner have constructed three houses in 1945 in Ward no.13 on Holding No. 61, year of construction 1945, Holding No.61A, semi R.C.C., year of construction 1948, Holding No. 62(A), year of construction 1977, Holding No.62 construction of three storied in 1960. All the houses were assessed, taxed and the notice came to be given on 14.1.1994. Thereafter on 2.4.1994 notice under Section 337(1) (1) and (2) were given for pulling down the illegal structure. 30. While considering the provisions of Section 337, the Gauhati High Court noted in paragraph 8 that no time has been prescribed regarding exercise of power under Section 337 and therefore according to Gauhati High Court as no time was prescribed, it must be held that reasonable time will apply regarding exercise of such power

building under Section 363 what has to be decided is whether the breaches are of a formal or trival character, in which case the imposition of fine might meet the requirements of the case, or whether they are serious and likely to affect adversely the interests of the public, in which case it would be proper to pass an order of demolition. Then Section 363(2) from Gauhati Municipal Act is quoted, which cam to be considered by the Supreme Court in 1956 SC 110, Corporation of Calcutta vs. M. Agarwalla. The Gauhati High Court noted in paragraph 10 that in the case before the Supreme Court under the Calcutta Municipality Act, 1923, the time was fixed for particular action of demolition but in Gauhati Municipal Act there was no limitation, but, at the same time, because the building was assessed, taxes was being realised, the Authorities cannot have as held by the Gauhati High Court, any right to exercise the power of demolition, otherwise it will amount to giving a long handle to the authority and it will be fraud. Then in paragraph 12 the Gauhati High Court held that "The power under Section 337 of the Act cannot