ORAL JUDGMENT :- By this petition, the petitioner prays for a direction that the action of the respondents i.e. Commissioner and Assistant Commissioner of Municipal Corporation of Gr. Mumbai in demolishing the two sheds on the petitioner property bearing CTS No. IIA was illegal, proper and void and for an order directing reconstruction of the said illegally demolished sheds. 2. The facts relating to this case are brief and are stated below: The petitioner is the owner of the property bearing Survey No.1, Hissa No. 3 (Part-I), admeasuring about 10,000 sq.yards or thereabouts and bearing CTS No. II-A, of village Aksa, Taluka Borivali situated within the limits of Bombay Municipal Corporation (hereinafter referred to as 'the said property'). The said property was purchased by the petitioner by a deed of conveyance dated 26th June, 1995. On 13th April, 1999 Dy. Controller of Encroachments and Unauthorised Structures Zone IV, issued a notice to the petitioner under section 351 of the Mumbai Municipal Corporation Act (for short 'the Act') alleging therein that the petitioner had unlawfully and unauthorizedly commenced and was unlawfully carrying out erection of a structure in the said property and calling upon it to show the documentary evidence that the structure in question was authorised. The notice further stated that if the petitioner failed to show cause the alleged unauthorised structure would be pulled down. The petitioner showed cause· against the said notice and produced the evidence to show that the structures were authorised. After hearing the petitioner by an order dated 15th April, 1999, Dy. Controller of Encroachments and Unauthorised Structures Zone IV, held that four structures were in existence prior to the year 1994 and were shown in the 7/12 records. He therefore dropped the action proposed in the notice. On 18th February, 2003, the respondents issued another notice bearing No. 3242 purportingly under section 354A of the Act. The notice stated that the respondents were satisfied that the petitioner had been unlawfully carrying on erection of a building/work viz. construction of a shed with brick masonary walls of the dimensions 41' 3" x 11' 2" with a.c. sheet roof thereon. The notice directed the petitioner to stop execution of the work forthwith or to produce the requisite building permission within 24 hours, failing which the work would be removed or pulled down at the petitioner's risk and cost. construction of a shed with brick masonary walls of the dimensions 41' 3" x 11' 2" with a.c. sheet roof thereon. The notice directed the petitioner to stop execution of the work forthwith or to produce the requisite building permission within 24 hours, failing which the work would be removed or pulled down at the petitioner's risk and cost. The said notice was received by the petitioner on 21st February, 2005 at about 2.00 p.m. 3. On the next day i.e. 22nd February, 2005, respondents issued another notice bearing No. 3243 purportedly under section 354A of the Act stating that the petitioner had unlawfully commenced/unlawfully carrying on unauthorised erection of a temporary structure near the Sitaladevi Mandir (situated in the said property). The notice further warned that in case the petitioner failed to stop the execution of the work forthwith or failed to produce the building permission within 24 hours the respondents would, without any further notice, cause the building or work to be removed or pulled down at the petitioner's risk and cost. 4. Petitioner replied both the notices by reply dated 23rd February, 2005 and also pleaded for a personal hearing. He stated that that the structures were authorised and pleaded for 7 days time to produce the documents to show that the structures were authorised. Despite the said reply, the respondents came to the site and on the very day i.e. 23rd February, 2005 and demolished the two structures. According to the respondents, photographs were taken before and after the demolition and some of the photographs were tendered in the Court at the time of hearing. The petitioner has also annexed to the petition some of the photographs taken by it at the time of demolition on 23rd February, 2005, which are at Exhibit-N1 and N-2 to the petition. 5. Mr. Abhyankar, learned counsel for the petitioner submitted that the action of the respondents of demolishing two of the structures in pursuance of the said two notices dated 18th February, 2005 and 22nd February, 2005 is illegal and contrary to the provisions of law. He firstly submitted that notice under section 354A of the Act can be issued only in relation to the structures wherein an unauthorised work of the nature described in section 342 of the Act was being done. He firstly submitted that notice under section 354A of the Act can be issued only in relation to the structures wherein an unauthorised work of the nature described in section 342 of the Act was being done. He submitted that action under section 354A could not be taken in respect of the structures which had been already been erected and construction was completed, whether they were authorised or unauthorised. He submitted that even assuming that the petitioner had erected the structures unauthorisedly and without obtaining the necessary permission under section 337 of the Act, the only remedy available to the respondents was to take action under section 351 of the Act and the respondents could not have resorted to section 354A of the Act. He further submitted that assuming that an action under section 354A of the Act could be taken, the respondents ought to have followed the directions given by the Division Bench of this Court in Sopan Maruti Thopte vs. Pune Municipal Corporation, reported in 1996(1) Mh.LJ. 963 = AIR 1996 Born. 304. Therein this Court has given a specific direction that even in respect of the unauthorised construction or reconstruction/extension without valid permission, the Commissioner could demolish the structure only after giving a short notice of 24 hours and after drawing a panchnama at site and by taking photographs of such structure and/or extension. It was therefore necessary to draw a panchnama of the structure before demolition. As no panchnama was drawn, the directions given by this Court in Sopan Maruti Thopte's case were violated. Counsel further drew my attention to two subsequent Division Bench decisions of this Court in Badari Samaj Sangh vs. Brihan Mumbai Municipal Corporation, Writ Petition 1289/00 decided on 31st July, 2001 and in Harishchandra B. Kahar vs. Municipal Corporation of Greater Bombay, Writ Petition No. 604 of 1998 decided on 20th April, 1998. In both these cases, this Court followed its earlier decision in Sopan Maruti Thopte (supra) and held that if the procedure laid down by this Court in Sopan Thopte' s case was not followed, the action would be illegal. Therein this Court ordered reconstruction of the building which was illegally demolished. In both these cases, this Court followed its earlier decision in Sopan Maruti Thopte (supra) and held that if the procedure laid down by this Court in Sopan Thopte' s case was not followed, the action would be illegal. Therein this Court ordered reconstruction of the building which was illegally demolished. Counsel further submitted that since the panchnama had not been drawn the procedure laid down by the Division Bench of this in Sopan Thopte's had not been followed, and hence the demolition was illegal and void and the Court should order reconstruction. 6. Per Contra, Counsel for the respondent submitted that the decision in the case of Sopan Maruti Thopte had no application because the Mumbai Municipal Corporation Act was amended after the decision of the Division Bench in Sopan Maruti Thopte' s case. Counsel submitted that after the decision of the Court in Sopan Maruti Thopte (supra) sub-section (2) of section 354A was substituted and new sub-sections (3) and (4) were added by Maharashtra Act No. 10 of 1998 with effect from 19th April, 1998. The interpretation of section 354A made by Division Bench in Sopan Thopte's case was therefore no longer applicable in view of the legislative amendment. It was therefore not necessary to draw a panchnama and/or take photographs, though photographs were taken by way of an abundant caution. Counsel submitted that there was no requirement under the old section 354A to draw a panchnama before taking an action of demolition. The Court therefore could not have given the direction to draw a panchnama before taking of an action. In order to overcome this, the section was amended. Substituted sub-section (2) of section 354A of the Act specifically gives power to the Commissioner to remove or pull down the building. Substituted sub-section (2) does not provide for drawing of a panchnama and/or taking the photographs. Therefore, by a legislative amendment, the requirement introduced by this Court of drawing of a panchnama and taking photographs has been done away and the power is given to the Commissioner to demolish the unauthorised structures and also the procedure has been prescribed therefor. Substituted sub-section (2) does not provide for drawing of a panchnama and/or taking the photographs. Therefore, by a legislative amendment, the requirement introduced by this Court of drawing of a panchnama and taking photographs has been done away and the power is given to the Commissioner to demolish the unauthorised structures and also the procedure has been prescribed therefor. If the statute does not provide for drawing of the panchnama and taking of the photographs but prescribes the different procedure by means of an amendment, the Court cannot read into section 354A of the Act the requirement of drawing of a panchnama and/or taking of photographs before demolishing the structure. 7. The case of Sopan Maruti Thopte vs. Pune Municipal Corporation (supra) came before a Division Bench on two references made by two learned Single Judges. After exhaustively considering the provisions of the Mumbai Municipal Corporation Act (which was then known as Bombay Municipal Corporation Act) as also considering similar provisions in Bombay Provincial Municipal Corporations Act, the Division Bench in para 19 of its judgment as follows :- (19) Hence, on the basis of the law as discussed above, it is directed that after 1st May, 1996 the Bombay Municipal Corporation or the Municipal Corporations constituted under the B.P.M.C. Act would follow the following procedure before taking action under section 351 of the B.M.C Act or under S.260 of the B.P.M.C. Act. (i) In every case where a notice under section 351 of the B.M.C. Act/under section 260 of B.P.M.C Act is issued to a party 15 days' time shall be given for submitting the reply. In case the party to whom notice is issued sends the reply with the documents, and shows cause, the Municipal Commissioner or Deputy Municipal Commissioner shall consider the reply and if no sufficient cause is shown, give short reasons for not accepting the contention of the affected party. (ii) It would be open to the Commissioner to demolish the offending structure 15 days after the order of the Commissioner/Deputy Municipal Commissioner is communicated to the affected person. (ii) It would be open to the Commissioner to demolish the offending structure 15 days after the order of the Commissioner/Deputy Municipal Commissioner is communicated to the affected person. (iii) In case the staff of the Corporation detects the building which is in the process of being constructed and/or reconstructed and/or extended without valid permission from the Corporation, it would be open to the Commissioner to demolish the same by giving a short notice of 24 hours after drawing a panchanama at the site and also by taking photographs of such structure and/or extension. The photographs should indicate the date when the same were taken. (iv) In case where the Municipal Corporation has followed due process of law and demolished the unauthorised structure and or extension, if the same is reconstructed without valid permission within a period of one year, it would also be open to· the Corporation to demolish the same by giving a short notice of 24 hours. (v) If the offending structure and/or extension which is assessed by the Corporation for two years, notice shall provide for 15 days' time to show cause. If the Deputy Municipal Commissioner comes to the conclusion that he requires assistance of the party, he may give an oral hearing if he deems fit and proper before passing the order. It is made clear that oral hearing is not at all compulsory but it is at the discretion of the authority. (vi) In any other case the Corporation is directed to issue a show cause notice in case of any structure and/or extension other than those mentioned in clauses (i) to (iv) above, the Corporation shall provide for 7 days' time to show cause in such a case. In clause (iii) of para 19, the Division Bench has in unequivocal terms held that in case of a Corporation detects a building in the process of construction or reconstruction or extension without valid permission from the Corporation, it would be open to the Commissioner to demolish the same by giving a short notice of 24 hours after drawing a panchnama at site and also by taking photographs of such structures and/or extension. The photographs should also indicate the date when the same were taken. The photographs should also indicate the date when the same were taken. It may be noted that in section 351 or 354A as it then stood, or as it stands after the amendment, there is no requirement of drawing of a panchnama or taking of the photographs of the structures to be demolished. Yet, taking into consideration the scheme of the Act, the Division Bench read into the Act the requirement of drawing of a panchnama at site as also taking of the photographs of the structure or unauthorised extension to be demolished. Counsel for the respondents strenuously urged that the Division Bench erred into reading into the Act the requirement of drawing of a panchnama and taking of the photographs of the structures or unauthorised extensions to be demolished before the demolition. Counsel submitted that neither section 351 nor 354A nor any other provision of the Act stipulates any such restriction and therefore, the decision of the Division Bench is erroneous and requires reconsideration. Counsel urged that the matter may be referred to a larger bench for reconsideration and in any event, reconsideration is required in view of the amendments made by the legislature to section 354A of the Act. I am unable to accede to the request of the learned counsel. After careful consideration of all the relevant provisions of the Mumbai Municipal Corporation Act as well as similar provisions of the Bombay Provincial Municipal Corporation Act in Sopan Thopate' s case the Division Bench has unequivocally stated its conclusions. Another Division Bench of this Court in Harishchandra B. Kahar (supra) has approved and followed the decision in Sopan Maruti Thopte vs. Pune Municipal Corporation and in paragraph 7 of the decision has reiterated the directions given by earlier Division Bench in paragraph No. 19 of its decision. In Badari Samaj Sangh (supra), the third Division Bench of this Court has referred to the two earlier decisions of the two Division Benches in Sopan Maruti Thopte (supra) and Harishchandra B. Kahar (supra) and followed them. In view of the weight of the three decisions of the Division Benches of this Court taking the same view, it is not possible to accede to the request of the learned counsel for the respondent for a reference to a larger bench. 7 A. Let me now refer to the amendments made in section 354A of the Act. In view of the weight of the three decisions of the Division Benches of this Court taking the same view, it is not possible to accede to the request of the learned counsel for the respondent for a reference to a larger bench. 7 A. Let me now refer to the amendments made in section 354A of the Act. By the amending Act No. 10 of 1998, sub-section (2) of section 354A was substituted and sub-sections (3) and (4) were added. The added sub-sections (3) and (4) of section 354A are not relevant for the point at issue. They relate to the removal of materials, equipment, devices or articles used in the process of erection of the building and recovery of expenses incurred by Commissioner in demolition. Sub-section (2) was substituted only because the old sub-section (2) of section 354A only provided for removal of the person directing or carrying out erection of the work if he failed to stop the erection or execution of the work, after the notice. It did not specifically give the power to the Commissioner to remove the structure or work which was being carried out. Substituted subsection (2) retained the power of removing the person directing or carrying out the unauthorised erection and gave further added a further power to the Commissioner to also pull down and remove the unauthorised building or the work. Perusal of clause (iii) of paragraph No. 19 of the decision of the Division Bench in Sopan Maruti Thopte's case would show that even without there being express power of removal of the unauthorised building or the work the Court interpreted that the Commissioner had the power to demolish the same by giving a short notice of 24 hours. Therefore, the substitution of sub-section (2) also does not in any way alter the weight of the decision and the directions given in clause (iii) of paragraph No. 19 of the judgment of the Division Bench in Sopan Thopte's case. Furthermore, it may be noticed that Badari Samaj Sangh vs. Brihan Municipal Corporation was decided by the Division Bench of this Court on 31st July, 2001 i.e. long after the amendment of section 354A by Maharashtra Act No. 10 of 1998. In that case, the structure was demolished on 14th June, 2000 i.e. also long after coming into force of the amendment of section 354A of the Act. In that case, the structure was demolished on 14th June, 2000 i.e. also long after coming into force of the amendment of section 354A of the Act. Despite this, the Division Bench in Badari Samaj Sangh (supra) followed the decisions of the two earlier Division Benches rendered in Sopan Maruti Thopte (supra) and Harishchandra B. Kahar (supra). Thus, even after the amendment of section 354A, the Division Bench of this Court has taken the same view as was taken by the earlier. Division Bench in Sopan Maruti Thopte's case. 8. In my view therefore, even after the amendment of section 354A of the Act, the directions given by the Division Bench in paragraph No. 19 of its decision in Sopan Maruti Thopte are binding on the Municipal Corporation and must be followed. 9. The directions given in paragraph No. 19 and in particular clause (iii) thereof in Sopan Maruti Thopte's case are based on fair play by the local authorities. It cannot be doubted that the panchayats, municipalities and corporations are the organs of the government dealing with local self government. They must remember that like democracy, they are the institutions of the people, by the people and for the people - the citizens living in their local limits. They cannot act high handedly but must act fairly. Of course, if a citizen infringes the law and erects or is in the process of erecting an unauthorised structure they can, subject to provisions of the relevant law, not only stop the unauthorised erection of a structure which is being carried out but also demolish it. However in doing so they must act fairly and in accordance with the law. They must give a fair opportunity to the citizen to show that the structure is authorised or is being carried out authorizedly after obtaining valid permission of the competent authority. It is for these reasons that section 354A provides for a notice, though a short notice of 24 hours, to be given to the citizen to stop work or to show the valid permission. The purpose of the notice is to enable a citizen to satisfy the Commissioner that the work is a pre-existing work carried out after obtaining the necessary permission or if it is in the process of being erected then it is being erected after obtaining the due permission of the competent authority. The purpose of the notice is to enable a citizen to satisfy the Commissioner that the work is a pre-existing work carried out after obtaining the necessary permission or if it is in the process of being erected then it is being erected after obtaining the due permission of the competent authority. The requirement of drawing of a panchnama and taking of the photographs read into the provisions of the Act by the Division Bench in Sopan Maruti Thopte's case, is to obviate any disputes in future as to which structure was demolished, what was the extent of the structure demolished and whether that structure was authorised or not. Even de hors the decision of the Division Bench in Sopan Maruti Thopte's case, principle of fairness requires the municipalities and corporation to give a reasonable notice to the person concerned before taking the action of demolition of a structure. If in addition the statute provides for a notice and prescribed the period of notice, the statutory provision must be followed. But even in the absence of a specific provision for a notice, a reasonable notice must be given by the municipal authorities before taking the drastic step of demolition, to ensure fairness towards its citizens. 10. Counsel for the respondent fairly concedes that the panchnama at site was not made before the demolition though the photographs were taken. Therefore, the directions given by the Division Bench in clause (iii) in paragraph No. 19 of Sopan Maruti Thopte were clearly breached. The only question that is now required to be considered is what relief the petitioner is entitled to· in the facts and circumstances of the case. Counsel for the petitioner submitted that in Harishchandra B. Kahar and in Badari Samaj Sangh, two Division Benches have ordered reconstruction and therefore in this case also reconstruction should be ordered. In the case of Badri Samaj Sangh, the admitted position was that the structure was demolished on 14th June, 2000 with the help of 50 labourers, 2 bulldozers and police without any notice. Thus, the action was clearly high handed and was carried out even without issuing statutory notice. That was a case of breach of a statutory requirement and not merely infraction of a direction given in clause (iii) of paragraph No. 19 by the Division Bench in Sopan Maruti Thopte's case. Thus, the action was clearly high handed and was carried out even without issuing statutory notice. That was a case of breach of a statutory requirement and not merely infraction of a direction given in clause (iii) of paragraph No. 19 by the Division Bench in Sopan Maruti Thopte's case. In the case of Harishchandra B. Kahar, the advocate for the corporation had admitted (see para 6 of the decision) that the procedure laid down under section 351 of the Act was not followed. Thus, both in the case of Badari Samaj Sangh and Harishchandra Kahar, there was a breach of the statutory provision and not merely infraction of the procedural requirement read into the Act by the Division Bench in Sopan Maruti Thopte's case. The facts of those ·cases are, therefore, distinguishable from the facts of the present case. It may also be noted that in the present case, two notices under section 354A were admittedly issued to the petitioner before taking an action. The petitioner had not only received these notices but had sent only an interim reply praying for seven days for the reply. Statute requires notice of only 24 hours which was given. The petitioner did not send any satisfactory reply within the statutory period but pleaded for more time. The petitioner did not adduce even a prima facie material to indicate that he had some defence to the two notices. In view of the facts and circumstances of the case I am not inclined to grant relief of ordering reconstruction and then permitting an enquiry as to the legality of the erection of the structure. The only relief that can be granted to the petitioner is to give a direction to the respondents to give a hearing to the petitioner and decide, after hearing the petitioner and consider the evidence that may be adduced by him, whether the structures demolished were authorised. 11. Since the respondents were under a bona fide impression that in view of the amendment to section 354A of the Act, the directions given by the Division Bench in paragraph No. 19 were no longer applicable, it would be inappropriate to take any action or impose any penalty for infraction thereof. 11. Since the respondents were under a bona fide impression that in view of the amendment to section 354A of the Act, the directions given by the Division Bench in paragraph No. 19 were no longer applicable, it would be inappropriate to take any action or impose any penalty for infraction thereof. The respondents must however bear in mind that the directions given in paragraph No. 19 of the judgment in Sopan Thopte's case are still applicable and any infraction thereof hereafter may lead to imposition of penalty or other action in accordance with law. 12. For these reasons, the petition is partly allowed. Respondents are directed to give hearing to the petitioner and decide whether the structures demolished were authorised and not illegal. The respondents would thereafter take an action in accordance with law and permit re-erection thereof if they were authorised. In view of the fact that the structures have already been demolished the respondents shall decide the matter expeditiously and in any event, within a period of eight weeks. Learned counsel for the respondents undertake to inform this order to the concerned authorities. Petition partly allowed.