The Division Bench comprising of Hon’ble Justice Shri J. B. Pardiwala and Hon’ble Justice Shri R. Mahadevan of the Apex Court in a recent ruling was pleased to issue directions vis-à-vis unauthorized constructions in addition to its ruling in Re. Directions in the matter of Demolition of Structures. The additional directions, which came to be passed, arise out of an Appeal filed by the Shop Owners assailing the Order passed by the Hon’ble Allahabad High Court in Writ Petition which was filed by U. P. Avas Evam Vikas Parishad seeking demolition of an unauthorized construction of commercial premises in a demarcated residential zone.
BRIEF FACTS:
The Writ Petition out of which the instant Appeal arises was filed by the U. P. Avas Evam Vikas Parishad against the Authorities seeking issuance of Writ of Mandamus for stoppage of illegal/unauthorized commercial construction on a residential plot.
The Residential plot came to be allotted to the Respondent Developer with a condition that it shall only be developed for residential purposes, however, in utter disregard to the same, the Respondent Developer started raising illegal commercial construction without sanctions/permissions from the Competent Authorities. Despite issuances of Show Cause Notices and passing of Demolition Order by the Competent Authority far back in the year 2011, the demolition could not be carried out due to lack of co-operation from local as well as the Police authorities.
U.P. Avas Evam Vikas Parishad was therefore constrained to approach the Hon’ble Allahabad High Court in 2013 by way of a Writ Petition which came to be allowed thereby directing the Local Authorities and the Police to remain present for the purposes of Demolition of the unauthorized construction and initiation of Criminal Proceedings against the officers who were in charge of the Authorities when the illegal construction had come up.
Aggrieved by the Order of the Hon’ble High Court, the shop owners assailed the Order passed by the Hon’ble Allahabad High Court by way of a Special Leave Petition seeking Leave to Appeal.
PRECEDENT ANALYSIS:
- Mpal uniciCorporation, Ludhiana v Inderjeet Singh,
In this case it was observed by this Court that “had a proper show cause notice been served upon the first respondent, he could have shown that the alleged violation of the provisions of the Act is of negligible character, which did not warrant an order of demolition.” - K. Ramadas Shenoy v. Chief Officers, Town Municipal Council
It was found that the granted Sanction plan for conversion of building into a Cinema. Under the Town Planning Act, it is a violation and has no legal foundation. The Apex Court held that the High Court was wrong for not quashing the resolution, it is assumed that the money might have been spent. - Dr. G.N. Khajuria v. Delhi Development authority
The Authority by misusing the power and allotting the land which was the part of the plot allotted for a park for a nursery school. The same fraudulent allotment by the authority was cancelled by the Apex Court - M.I. Builders (P) Ltd. v. Radhey Shyam Sahu
It is illegal under the provisions of the Development Act, Mahapalika could not be allowed to benefit from the illegality by giving the authority for the unauthorized construction of the underground shopping complex. - Seth Badri Prasad v. Seth Nagarmal
It was contended that the e the construction of the underground shopping complex was wholly illegal it had to be dismantled. - Esha Ekta Apartments Co-op Housing Society Ltd. v. Municipal Corporation of Mumbai
The Court held that: The Courts are expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions. - Supertech Limited v. Emerald Court Owner Resident Welfare Association
The Court held that the Illegal/Unauthorised constructions should be dealt with strict compliance with the rule of law. - Kerala State Coastal Zone Management Authority v. Maradu Municipality
The court held that illegal and unauthorised constructions put up with brazen immunity cannot be permitted to remain. - State of Haryana v. Satpal
The Court held that the High Court committed a very serious error in directing to legalise the unauthorized occupation and possession on payment of market price and hence to be quashed.
COURT ANALYSIS AND DIRECTIONS:
After the analysis of precedents, the court in addition issued the directions in the larger public interest in addition to the directives issues by this Court Re: Directions in the matter of demolition of structures:
- An undertaking to be provided by the builder stating that the possession will be handed over only after obtaining a completion / occupation certificate.
- The Developer should display the approved plan at the construction site with the periodic inspections recorded by authorities.
- Completion/ Occupation certificate shall be issued only after verifying compliance with approved plans, with deviations rectified before approval.
- Services such as Electricity, water and sewerage shall be granted only upon the submission of Completion/ Occupation Certificate.
- Any deviation or violation after obtaining Completion/ Occupation Certificate, it must be addressed and action should be taken against responsible officials for wrongful issuance.
- No business or trade license shall be granted for any unauthorized construction of residential or commercial building.
- Development must strictly be in conformity to the zonal plan, with modifications permitted through only legal procedures considering public and environmental impact.
- Government Department must co-operate in taking against unauthorized constructions, with delays or negligence leading to disciplinary action.
- Appeals and applicants regarding non-issuance of completion certificates or regularization must be resolved within 90 days.
- Strict compliance with these directives will reduce litigation with non-adhere resulting in departmental action.
- Banks and financial institutions shall approve loans only after verifying the completion/ occupation certificate.
- Any violation of these directives will attract contempt proceedings and legal prosecution.
CONCLUSION:
This Judgement is a strong precedent for ensuring the accountability of both builders and regulatory authorities. It serves a warning to developers, municipal authorities that unauthorised constructions will not be tolerated.
This Hon’ble court after passing the directions for the Developers and Authorities, granted the remedy to the Appellants by ordering to deposit the amount paid by the Appellants. The Appellants will receive the said amount with interest.
This article has been written by Ms. Diksha Shetty, Associate Partner, Mr. Parth Tukaria, Associate and Ms. Prachi Shah, Associate – Litigation Team, AAK Legal, Advocates & Solicitors.
Disclaimer – This article is meant for informational purposes only. The contents of this article are not to be construed as legal advice. The views expressed in the article are those of the authors and do not necessarily reflect the views of the firm. The copyright to the article rests solely with the authors and the firm.