Illegal/Unauthorized constructions – U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 – s.83 – High Court allowed the writ petition filed by Respondent No.1-authority and directed demolition of the commercial shops of the appellants built on the subject property which was residential in nature; criminal and departmental action also directed against the erring officials – Challenge to:
Held: Order passed by the High Court is well-reasoned – From 1990 onwards, though the Respondent No.1 periodically issued notices for removal of unauthorized constructions, however, it did not lead to actual removal/demolition – Despite sufficient opportunities being granted to Respondent Nos.5 and 6 they continued the illegality and thus, cannot plead estoppel – Further, the fact that the notices issued by the authorities between 1990 to 2013 did not culminate into demolition also speaks volumes about the lackadaisical attitude of the authorities which smacks of collusion with the violators – Thus, the fact that the building has stood for over 24 years will not give the appellants any right in law alleging delay and latches – There was no violation of the principles of natural justice – Respondent No.1 after sending notices to the original allottee i.e., Respondent No.5 took steps to remove the unauthorized construction made on the subject property – Thus, the action impugned is not de novo action, but only continuation of the earlier line of events – A situation was created, where the Authority itself was forced to approach the High Court for a writ of mandamus to the district police to provide help in demolition of the unauthorized constructions – Order of the High Court confirmed – Unauthorised construction made on the subject property to be demolished – Appropriate criminal as well as departmental action be taken against the erring officials/persons concerned as directed by the High Court and a report be filed before this Court – Appeals dismissed. [Paras 15, 16.1, 18, 22]
Illegal/unauthorized constructions – Directions by Supreme Court – Comprehensive directions issued in larger public interest, in addition to the directives issued in Re: Directions in the matter of demolition of structures – Directions to be scrupulously followed, violation to result in departmental action, contempt proceedings in addition to prosecution under the respective laws:
Held: (i) While issuing the building planning permission, an undertaking be obtained from the builder/applicant, as the case may be, to the effect that possession of the building will be entrusted and/or handed over to the owners/beneficiaries only after obtaining completion/occupation certificate from the authorities concerned
(ii) The builder/developer/owner shall cause to be displayed at the construction site, a copy of the approved plan during the entire period of construction and the authorities concerned shall inspect the premises periodically and maintain a record of such inspection in their official records (iii) Upon conducting personal inspection and being satisfied that the building is constructed in accordance with the building planning permission given and there is no deviation in such construction in any manner, the completion/occupation certificate in respect of residential/commercial building, be issued by the authority concerned to the parties concerned, without causing undue delay – If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified
(iv) All the necessary service connections, such as, Electricity, water supply, sewerage connection, etc., shall be given by the service provider/ Board to the buildings only after the production of the completion/occupation certificate (v) Even after issuance of completion certificate, deviation/violation if any contrary to the planning permission brought to the notice of the authority immediate steps be taken by the said authority concerned, in accordance with law, against the builder/owner/occupant; and the official responsible for issuance of wrongful completion/occupation certificate shall be proceeded departmentally forthwith (vi) No permission/licence to conduct any business/trade must be given by any authorities including local bodies of States/Union Territories in any unauthorized building irrespective of it being residential or commercial building
(vii) The development must be in conformity with the zonal plan and usage – Any modification to such zonal plan and usage must be taken by strictly following the rules in place and in consideration of the larger public interest and the impact on the environment
(viii) Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co-operation and any delay or dereliction would be viewed seriously – The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge (ix) In the event of any application/appeal/revision being filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the same shall be disposed of by the authority concerned, including the pending appeals/revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided (x) Banks/financial institutions shall sanction loan against any building as a security only after verifying the completion/occupation certificate issued to a building on production of the same by the parties concerned. [Para 21] Doctrine – Doctrine of Caveat Emptor – Discussed – Transfer of Property Act, 1882 – s.55(1)(a).
Illegal/unauthorized constructions – Without any approved building plan or in violation of/deviation therefrom to be curtailed with iron hands without any leniency: Held: Illegality of unauthorized construction cannot be perpetuated – If the construction is made in contravention of the Acts/Rules, it is illegal and unauthorized construction which has to be demolished – It cannot be legitimized or protected – Administrative failures, regulatory inefficiency, cost of construction and investment, negligence and laxity on the part of the authorities concerned in performing their obligation(s) under the Act, cannot be used to defend action taken against the illegal/unauthorized constructions – Regularization only in exceptional circumstances and as a onetime measure for residential houses – Threats of unauthorized constructions, discussed. [Paras 19, 20]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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