REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7356 of 2012
(Arising out of SLP(C) No. 23780/2011)
Dipak Kumar Mukherjee …Appellant
versus
Kolkata Municipal Corporation and others
…Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. In last four decades, the menace of illegal and unauthorised
constructions of buildings and other structures in different parts of the
country has acquired monstrous proportion. This Court has repeatedly
emphasized the importance of planned development of the cities and either
approved the orders passed by the High Court or itself gave directions for
demolition of illegal constructions - (1) K. Ramadas Shenoy v. Chief
Officers, Town Municipal Council (1974) 2 SCC 506; (2) Virender Gaur v.
State of Haryana (1995) 2 SCC 577; (3) Pleasant Stay Hotel v. Palani Hills
Conservation Council (1995) 6 SCC 127; (4) Cantonment Board, Jabalpur v.
S.N. Awasthi 1995 Supp.(4) SCC 595; (5) Pratibha Coop. Housing Society Ltd.
v. State of Maharashtra (1991) 3 SCC 341; (6) G.N. Khajuria (Dr) v. Delhi
Development Authority (1995) 5 SCC 762; (7) Manju Bhatia v. New Delhi
Municipal Council (1997) 6 SCC 370; (8) M.I. Builders Pvt. Ltd. v. Radhey
Shyam Sahu (1999) 6 SCC 464; (9) Friends Colony Development Committee v.
State of Orissa (2004) 8 SCC 733; (10) Shanti Sports Club v. Union of India
(2009) 15 SCC 705 and (11) Priyanka Estates International Pvt. Ltd. v.
State of Assam (2010) 2 SCC 27.
3. In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council
(supra), the resolution passed by the Municipal Committee authorising
construction of a cinema theatre was challenged on the ground that the site
was earmarked for the construction of Kalyan Mantap-cum-Lecture Hall and
the same could not have been used for any other purpose. The High Court
held that the cinema theatre could not be constructed at the disputed site
but declined to quash the resolution of the Municipal Committee on the
ground that the theatre owner had spent huge amount. While setting aside
the High Court’s order, this Court observed:
“An illegal construction of a cinema building materially affects
the right to or enjoyment of the property by persons residing in
the residential area. The Municipal Authorities owe a duty and
obligation under the statute to see that the residential area is
not spoilt by unauthorised construction. The Scheme is for the
benefit of the residents of the locality. The Municipality acts
in aid of the Scheme. The rights of the residents in the area
are invaded by an illegal construction of a cinema building. It
has to be remembered that a scheme in a residential area means
planned orderliness in accordance with the requirements of the
residents. If the scheme is nullified by arbitrary acts in
excess and derogation of the powers of the Municipality the
courts will quash orders passed by Municipalities in such cases.
The Court enforces the performance of statutory duty by public
bodies as obligation to rate payers who have a legal right to
demand compliance by a local authority with its duty to observe
statutory rights alone. The Scheme here is for the benefit of
the public. There is special interest in the performance of the
duty. All the residents in the area have their personal interest
in the performance of the duty. The special and substantial
interest of the residents in the area is injured by the illegal
construction.”
4. In Pratibha Coop. Housing Society Ltd. v. State of Maharashtra
(supra), this Court approved the order passed by the Bombay Municipal
Corporation for demolition of the illegally constructed floors of the
building and observed:
“Before parting with the case we would like to observe that this
case should be a pointer to all the builders that making of
unauthorised constructions never pays and is against the
interest of the society at large. The rules, regulations and bye-
laws are made by the Corporations or development authorities
taking in view the larger public interest of the society and it
is the bounden duty of the citizens to obey and follow such
rules which are made for their own benefits.”
5. In Friends Colony Development Committee v. State of Orissa (supra),
this Court noted that large number of illegal and unauthorised
constructions were being raised in the city of Cuttack and made the
following significant observations:
“………Builders violate with impunity the sanctioned building plans
and indulge in deviations much to the prejudice of the planned
development of the city and at the peril of the occupants of the
premises constructed or of the inhabitants of the city at large.
Serious threat is posed to ecology and environment and, at the
same time, the infrastructure consisting of water supply,
sewerage and traffic movement facilities suffers unbearable
burden and is often thrown out of gear. Unwary purchasers in
search of roof over their heads and purchasing flats/apartments
from builders, find themselves having fallen prey and become
victims to the designs of unscrupulous builders. The builder
conveniently walks away having pocketed the money leaving behind
the unfortunate occupants to face the music in the event of
unauthorised constructions being detected or exposed and
threatened with demolition. Though the local authorities have
the staff consisting of engineers and inspectors whose duty is
to keep a watch on building activities and to promptly stop the
illegal constructions or deviations coming up, they often fail
in discharging their duty. Either they don't act or do not act
promptly or do connive at such activities apparently for
illegitimate considerations. If such activities are to stop some
stringent actions are required to be taken by ruthlessly
demolishing the illegal constructions and non-compoundable
deviations. The unwary purchasers who shall be the sufferers
must be adequately compensated by the builder. The arms of the
law must stretch to catch hold of such unscrupulous
builders………….
In all developed and developing countries there is emphasis on
planned development of cities which is sought to be achieved by
zoning, planning and regulating building construction activity.
Such planning, though highly complex, is a matter based on
scientific research, study and experience leading to
rationalisation of laws by way of legislative enactments and
rules and regulations framed thereunder. Zoning and planning do
result in hardship to individual property owners as their
freedom to use their property in the way they like, is subjected
to regulation and control. The private owners are to some extent
prevented from making the most profitable use of their property.
But for this reason alone the controlling regulations cannot be
termed as arbitrary or unreasonable. The private interest stands
subordinated to the public good. It can be stated in a way that
power to plan development of city and to regulate the building
activity therein flows from the police power of the State. The
exercise of such governmental power is justified on account of
it being reasonably necessary for the public health, safety,
morals or general welfare and ecological considerations; though
an unnecessary or unreasonable intermeddling with the private
ownership of the property may not be justified.
The municipal laws regulating the building construction activity
may provide for regulations as to floor area, the number of
floors, the extent of height rise and the nature of use to which
a built-up property may be subjected in any particular area. The
individuals as property owners have to pay some price for
securing peace, good order, dignity, protection and comfort and
safety of the community. Not only filth, stench and unhealthy
places have to be eliminated, but the layout helps in achieving
family values, youth values, seclusion and clean air to make the
locality a better place to live. Building regulations also help
in reduction or elimination of fire hazards, the avoidance of
traffic dangers and the lessening of prevention of traffic
congestion in the streets and roads. Zoning and building
regulations are also legitimised from the point of view of the
control of community development, the prevention of overcrowding
of land, the furnishing of recreational facilities like parks
and playgrounds and the availability of adequate water, sewerage
and other governmental or utility services.
Structural and lot area regulations authorise the municipal
authorities to regulate and restrict the height, number of
storeys and other structures; the percentage of a plot that may
be occupied; the size of yards, courts and open spaces; the
density of population; and the location and use of buildings and
structures. All these have in our view and do achieve the larger
purpose of the public health, safety or general welfare. So are
front setback provisions, average alignments and structural
alterations. Any violation of zoning and regulation laws takes
the toll in terms of public welfare and convenience being
sacrificed apart from the risk, inconvenience and hardship which
is posed to the occupants of the building.”
(emphasis supplied)
6. In Shanti Sports Club v. Union of India (supra), this Court approved
the order of the Delhi High Court which had declared the construction of
sports complex by the appellant on the land acquired for planned
development of Delhi to be illegal and observed:
“In the last four decades, almost all cities, big or small, have
seen unplanned growth. In the 21st century, the menace of
illegal and unauthorised constructions and encroachments has
acquired monstrous proportions and everyone has been paying
heavy price for the same. Economically affluent people and those
having support of the political and executive apparatus of the
State have constructed buildings, commercial complexes,
multiplexes, malls, etc. in blatant violation of the municipal
and town planning laws, master plans, zonal development plans
and even the sanctioned building plans. In most of the cases of
illegal or unauthorised constructions, the officers of the
municipal and other regulatory bodies turn blind eye either due
to the influence of higher functionaries of the State or other
extraneous reasons. Those who construct buildings in violation
of the relevant statutory provisions, master plan, etc. and
those who directly or indirectly abet such violations are
totally unmindful of the grave consequences of their actions
and/or omissions on the present as well as future generations of
the country which will be forced to live in unplanned cities and
urban areas. The people belonging to this class do not realise
that the constructions made in violation of the relevant laws,
master plan or zonal development plan or sanctioned building
plan or the building is used for a purpose other than the one
specified in the relevant statute or the master plan, etc., such
constructions put unbearable burden on the public
facilities/amenities like water, electricity, sewerage, etc.
apart from creating chaos on the roads. The pollution caused due
to traffic congestion affects the health of the road users. The
pedestrians and people belonging to weaker sections of the
society, who cannot afford the luxury of air-conditioned cars,
are the worst victims of pollution. They suffer from skin
diseases of different types, asthma, allergies and even more
dreaded diseases like cancer. It can only be a matter of
imagination how much the Government has to spend on the
treatment of such persons and also for controlling pollution and
adverse impact on the environment due to traffic congestion on
the roads and chaotic conditions created due to illegal and
unauthorised constructions. This Court has, from time to time,
taken cognizance of buildings constructed in violation of
municipal and other laws and emphasised that no compromise
should be made with the town planning scheme and no relief
should be given to the violator of the town planning scheme,
etc. on the ground that he has spent substantial amount on
construction of the buildings, etc.
Unfortunately, despite repeated judgments by this Court and the
High Courts, the builders and other affluent people engaged in
the construction activities, who have, over the years shown
scant respect for regulatory mechanism envisaged in the
municipal and other similar laws, as also the master plans,
zonal development plans, sanctioned plans, etc., have received
encouragement and support from the State apparatus. As and when
the Courts have passed orders or the officers of local and other
bodies have taken action for ensuring rigorous compliance with
laws relating to planned development of the cities and urban
areas and issued directions for demolition of the
illegal/unauthorised constructions, those in power have come
forward to protect the wrongdoers either by issuing
administrative orders or enacting laws for regularisation of
illegal and unauthorised constructions in the name of compassion
and hardship. Such actions have done irreparable harm to the
concept of planned development of the cities and urban areas. It
is high time that the executive and political apparatus of the
State take serious view of the menace of illegal and
unauthorised constructions and stop their support to the lobbies
of affluent class of builders and others, else even the rural
areas of the country will soon witness similar chaotic
conditions.”
7. In Priyanka Estates International Pvt. Ltd. v. State of Assam
(supra), this Court refused to order regularisation of the illegal
construction raised by the appellant and observed:
“It is a matter of common knowledge that illegal and
unauthorised constructions beyond the sanctioned plans are on
rise, may be due to paucity of land in big cities. Such
activities are required to be dealt with by firm hands otherwise
builders/colonisers would continue to build or construct beyond
the sanctioned and approved plans and would still go scot-free.
Ultimately, it is the flat owners who fall prey to such
activities as the ultimate desire of a common man is to have a
shelter of his own. Such unlawful constructions are definitely
against the public interest and hazardous to the safety of
occupiers and residents of multistoreyed buildings. To some
extent both parties can be said to be equally responsible for
this. Still the greater loss would be of those flat owners whose
flats are to be demolished as compared to the builder.”
8. What needs to be emphasised is that illegal and unauthorised
constructions of buildings and other structure not only violate the
municipal laws and the concept of planned development of the particular
area but also affect various fundamental and constitutional rights of other
persons. The common man feels cheated when he finds that those making
illegal and unauthorised constructions are supported by the people
entrusted with the duty of preparing and executing master plan/development
plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris
belonging to poor and disadvantaged section of the society frequently
appear in the print media but one seldom gets to read about demolition of
illegally/unauthorisedly constructed multi-storied structure raised by
economically affluent people. The failure of the State apparatus to take
prompt action to demolish such illegal constructions has convinced the
citizens that planning laws are enforced only against poor and all
compromises are made by the State machinery when it is required to deal
with those who have money power or unholy nexus with the power corridors.
9. We have prefaced disposal of this appeal by taking cognizance of the
precedents in which this Court held that there should be no judicial
tolerance of illegal and unauthorized constructions by those who treat the
law to be their sub-servient, but are happy to note that the functionaries
and officers of Kolkata Municipal Corporation (for short, ‘the
Corporation’) have been extremely vigilant and taken steps for enforcing
the provisions of the Kolkata Municipal Corporation Act, 1980 (for short,
‘the 1980 Act’) and the rules framed thereunder for demolition of illegal
construction raised by respondent No.7. This has given a ray of hope to
the residents of Kolkata that there will be zero tolerance against illegal
and unauthorised constructions and those indulging in such activities will
not be spared.
10. The appellant is an enlightened resident of Kolkata. He succeeded in
convincing the learned Single Judge of the Calcutta High Court to order
demolition of unauthorised construction of multi-storied building by
respondent No.7 – M/s. Unique Construction on the plot owned by respondent
No.8 – Sarjun Prasad Shaw but could not persuade the Division Bench to
affirm the order of the learned Single Judge and this is the reason why he
has approached this Court.
11. Mohammad Shahid, (the sole proprietor cum attorney of respondent
No.7) entered into an agreement with respondent No.8 for development of
plot bearing No.8/1F, Gopal Doctor Road, Kolkata. The building plan
submitted by respondent No.7 for construction of two storied building was
sanctioned by the Corporation on 11.4.1990 and five years time was given
for completing the construction. When the site was inspected by the
officers of the Corporation in October, 2009, they found that respondent
No.8 had raised unauthorised construction by erecting RCC column upto 3rd
floor along with staircase in deviation of the sanctioned plan. Thereupon,
stop work notice was issued by the Executive Engineer (Civil), Building
under Section 401 of the 1980 Act. However, instead of stopping the
construction, respondent No.7 added one more floor. This brazen defiance
of law by respondent No.7 led to the issuance of notices dated 15.10.2009
and 10.11.2009 under Sections 400(1) and 401(A) respectively.
Simultaneously, a report was submitted by Deputy Chief Engineer (Building)
to the Director General (Building) – II, for demolition of the unauthorised
construction on the ground that structural stability of the illegal
construction was doubtful and existence of the same was dangerous to the
lives of the people. The issue was then considered by the Mayor-in-
Council on 14.1.2010 and it was decided to demolish the unauthorised
construction. Accordingly, about 600 sq. ft. out of the total constructed
area measuring 1500 sq. ft. was demolished on 4.2.2010.
12. In the meanwhile, the appellant filed WP No. 23741/2009 in the High
Court for issue of a direction to the Corporation to demolish the illegal
construction by respondent No.7. The same was disposed of by the learned
Single Judge on 3.3.2010 with the direction that the objection raised by
the appellant against the unauthorised construction be decided by the
competent authority after hearing the affected parties. Simultaneously, it
was ordained that no illegal construction be carried out in the premises in
question.
13. Notwithstanding the decision of the Mayor-in-Council and the order of
the High Court, respondent No.7 continued with the construction of
building, albeit in violation of the sanctioned plan. Therefore, the
appellant filed fresh writ petition which came to be registered as WP
No.13815/2010 for demolition of the unauthorised construction and for issue
of a direction to the Corporation not to issue completion certificate in
favour of respondent Nos.7 and 8. The second writ petition was disposed of
by the learned Single Judge vide order dated 28.7.2010, the relevant
portions of which are extracted below:
“It appears from the submissions that the construction has been
raised up to ground plus fourth floor which is beyond the
sanctioned plan. It is evident from the photo copies of the
records that it was resolved on 14th January, 2010 in the M.I.C.
meeting of the Corporation that as the person responsible
continued with the unauthorised construction which might lead to
an accident, appropriate action towards demolition of the
unauthorised construction should be taken forthwith under
section 400(8) of the Kolkata Municipal Corporation Act with the
help of the local administration.
Since admittedly, unauthorized construction has been raised,
that is, construction has been carried out beyond the sanctioned
plan, I direct the Director General (Buildings-II) Kolkata
Municipal Corporation and the Executive Engineer (Civil),
Building Department, Borough-IX, the respondent nos. 3 and 4
respectively, to demolish the unauthorized structure, as
resolved, within eight weeks from the date of communication of
this order. During such demolition, if need be the respondent
nos. 3 and 4 are at liberty to seek assistance of the Officer-in-
Charge, Watgunge Police Station, Kolkata, the respondent no.6
shall render all assistance in implementing the order of this
Court.”
14. Immediately thereafter, Mohammad Shahid submitted an application
dated 13.8.2010 for regularisation of unauthorised portion of the building
under Section 400(1) of the 1980 Act. That application reads as under:
Date: 13.08.2010
“To:
The Executive Engineer (Civil)
Building Department Br.-IX,
The Kolkata Municipal Corporation,
11, Belvedere Road, Kolkata-700027.
Sub: Regularisation of additional floor over
Sanctioned Building.
Re: Pre: No. 8/ 1 F, Gopal Doctor Road,
Ward No.76, Br.-IX.
Dear Sir,
I Md. Shahid, attorney of the above mentioned premises, am
submitting herewith one copy of ammonia print of five storied
building plan. The said building was sanctioned of two storied,
and additional three more storied has been constructed for
accommodation of existing tenants and our family members.
Now I do request and pray to your goodself to regularize
the unauthorized portion of the said building under section
400(1). For that I am ready to pay the penalty and charges for
the same.
Hope your honour would extend your co-operation in this
respect and oblige me.
Thanking you.
Yours faithfully,
Sd/-
Md. Shahid.”
15. Simultaneously, respondent No.7 challenged the order of the learned
Single Judge by filing an appeal. During the pendency of the appeal,
Mohammad Shahid filed an additional affidavit dated 16.9.2010, paragraphs 5
to 10 whereof are reproduced below:
“5. I state that a plan dated 11.04.2009 vide building permit
no.2009090004 was sanctioned for premises no. 8/1F, Gopal Doctor
Road, Kidderpore, Kolkata-700023, by the Kolkata Municipal
Corporation, for erection of a two storied building, covering a
sanctioned area measuring about 145.82 square meter. The
proposed F.A.R for the said plan was 0.99 over land measuring
about 145.927 square meter. But the building has been
constructed upto five storied. Presently, the total constructed
cover area for the five storied building is measuring about
559.57 square meter and the present F.A.R is 3.83.
6. I say that according to Clause (b) Sub-Rule 2 of Rule 25
of the Kolkata Municipal Corporation Building Rules 1990, "if
during the erection or execution of work any external deviation
beyond the sanctioned covered space is intended to be made and
which does not violate the provisions of the Act or the said
Rules, the person erecting such construction, prior to carrying
out such erection or execution of works, submit, in accordance
with the provisions of the said rules, a revised plan
incorporating the deviation intended to be carried out, for
obtaining necessary sanction thereof.”
7. I further say that Clause (b) Sub-Rule 2 of Rule 25 of the
Kolkata Municipal Corporation Building Rules, 1990, empowers the
Municipal authorities to allow a person to construct beyond the
sanctioned covered area, which means construction exceeding the
Floor Area Ratio can be allowed to be carried on.
8. I say that there is no express provision in the Kolkata
Municipal Corporation Act 1980 and also in Kolkata Municipal
Corporation Building Rules, 1990, stopping a person
from constructing beyond the Floor Area Ratio. I further say
that though none of the provisions of the Kolkata Municipal
Corporation Act, 1980 and Kolkata Municipal Corporation Building
Rules, 1990, empowers the Kolkata Municipal Corporation to
regularize the construction made in excess of the sanctioned
plan, but the Kolkata Municipal Corporation gets the said power
of regularization by virtue of the Full Bench Judgment of this
Hon'ble Court delivered in the case of Ramesh Prasad Agarwal
(Supra) reported in All India Reporter 1972 Calcutta 459. In the
said case this Hon'ble Court was pleased to decide that 'even in
respect of matters which involve violation of an unrelaxable
building rules the Commissioner has discretion not to order
demolition if the violation is not of a serious nature.’
9. I say that I, on 13th August, 2010, have already applied
before the Kolkata Municipal Corporation for regularization of
the construction erected beyond the sanctioned plan and have
submitted a revised plan for sanction before the concerned
authority. Copy of the letter dated 13th August, 2010 and the
revised plan is collectively annexed hereto and marked with the
letter "R-l".
10. I say that the construction erected by me in the present
case is not of a serious nature and there is no immediate threat
that the building may fall down and the said fact shall be
proved from the structural stability certificate issued by Sri
Prabir Kumar Mitra, Civil Engineer, after due inspection of the
premises in question.
A copy of the structural stability certificate is annexed
hereto and marked with the letter "R-2".
16. The appellant filed detailed counter affidavit dated 17.1.2011
reiterating his plea that the construction made by respondent No.7 was
illegal. Thereafter, respondent No.8 filed affidavit dated 22.2.2010 and
questioned the locus standi of the appellant to file the writ petition.
Shri Tapas Chandra and Smt. Asha Devi Shaw, to whom the unauthorised
portions of the building are said to have been sold, got themselves
impleaded as parties to the appeal filed by respondent No.7. On 1.3.2011,
the Division Bench of the High Court suo-motu directed issue of notice
under Order 1 Rule 8 of the Code of Civil Procedure and publication thereof
in two daily newspapers, one in Bengali and another in English so as to
enable other purchasers of the unauthorised portions of the building to
present their cause before the Court. The relevant portion of that order
reads as under:
“01.03.2011
Mr. Bhaskar Ghosh, learned Advocate, has filed a report
of the Officer-in-Charge of the Watgunge Police Station.
Let 1st and 2nd pages of the said report be endorsed by
the learned Advocate, Mr. Ghosh
Let the said report be kept on record.
From the said report it appears that in an unauthorized
construction without sanction plan above 2nd floor, in terms of
the complaint filed by the Kolkata Municipal Corporation, Case
No. 320 dated 14.10.2010 under Section 401(A) KMC Act was
started and Developer/appellant and the respondent/Owner are
accused in the said proceeding.
It is submitted by the learned Advocate, Mr. Chatterjee,
appearing for the Developer and Mr. Bhattacharya, learned
Advocate appearing for the owner that their clients already have
been granted bail in that criminal proceeding and trial is
continuing.
It is further submitted by the learned Advocate appearing
for the Developer/appellant and the learned Advocate appearing
for the respondent/Owner that the concerned premises, as has
been constructed, though on breach of the sanction plan of the
Kolkata Municipal Corporation but many persons have been
provided with occupation in different flats by selling the
concerned flats of said property or providing their occupation
on considering their earlier tenancy right.
Let affidavits be filed by them disclosing the total number
of flats of the concerned premises, the names of the occupants
therein, if any, detailing the particulars, namely their right
and the instruments executed by the appellant and/or the
respondent/ Owner concerned, so that the Court may pass
appropriate order was to whether those persons should be heard
to not before passing any decision in this appeal.
Let such affidavits be filed within 10 days from date.
The matter is posted for hearing on 15th March, 2011 at
10.30 A.M. as fixed matter.
Since it is the submission of the appellant that there are
many occupants above the 2nd floor of the concerned premises
upto 5th floor which have been constructed without any sanction
plan, for effective adjudication, let notice under Order 1 Rule
8 of the Code of Civil Procedure be published by the appellant
within a week in the two daily Newspapers having State-wide
publication; one in Bengali and another in English and will
submit a Supplementary Affidavit disclosing his action to that
effect.”
17. On 15.3.2011, the High Court, after taking note of the fact that none
of the occupants had come forward to espouse their cause, directed that a
fresh notice be published under Order 1 Rule 8 C.P.C. The second
opportunity given by the High Court was also not availed by the occupants
of the illegally constructed portion of the building. The appeal filed by
respondent No.7 was finally disposed of by the Division Bench of the High
Court on 2.5.2011 and the competent authority of the Corporation was
directed to take appropriate decision in accordance with law after
complying with the principles of natural justice. This is evinced from the
following extracts of the impugned order:
“Having heard the learned Counsel appearing for the parties
and considering the facts and circumstances of the case,
We are of the view that the competent authority of the
Kolkata Municipal Corporation should take appropriate decision
under the provisions of the Kolkata Municipal Corporation Act
and Building Rules framed thereunder while dealing with the
allegations of unauthorized construction in respect of any
building. In the present case, specific allegation has been made
to the effect, that two floors of the building in question were
constructed even in absence of sanctioned building plan.
In the aforesaid circumstances, the competent authority of the
Kolkata Municipal Corporation must take appropriate decision in
respect of the building in question upon complying with the
provisions of the Kolkata Municipal Corporation Act and the
Building Rules framed thereunder.
The Court cannot usurp the authority of the Kolkata Municipal
Corporation in this regard. The validity and/or legality of the
decision of the Kolkata Municipal Corporation authorities
regarding demolition and/or retention of any unauthorized
structure can be challenged before this Court but this Court
under normal circumstances should not dictate the Kolkata
Municipal Corporation authorities to take any specific decision
regarding demolition or retention of any structure without
allowing the competent authority to take appropriate decision in
this regard.
The Kolkata Municipal Corporation authorities should take
appropriate decision in respect of the fate of an illegal
structure at the first instance and the Court will thereafter
adjudicate the correctness of such decision. The Court under
normal circumstances should not either direct retention of any
illegal structure or demolition of the same before allowing the
competent authority of the concerned Kolkata Municipal
Corporation to take appropriate decision in accordance with law.
For the aforementioned reasons, we direct the competent
authority of Kolkata Municipal Corporation to consider the
nature and magnitude of the unauthorised construction at the
premises in question and take specific decision regarding
retention or demolition of the same or any part thereof.
Needless to mention that the competent authority of the Kolkata
Municipal Corporation will take appropriate decision strictly in
accordance with law and upon observing the principles of natural
justice without any further delay but positively within a period
of two months from date.”
18. Shri Bhaskar P. Gupta, learned senior counsel appearing for the
appellant argued that the direction given by the Division Bench is legally
unsustainable because while deciding the appeal preferred by respondent
No.7, the Division Bench of the High Court overlooked the fact that the
Mayor-in-Council had, after giving notice and opportunity of hearing to the
representative of respondent No.7, already passed order on 14.1.2010 for
demolition of the unauthorised construction. Learned senior counsel
emphasised that respondent No.7 had defied the ‘stop work notice’, decision
taken by Mayor-in-Council and continued with the construction of building
even after demolition of unauthorised portion thereof and argued that the
Division Bench of the High Court committed serious error by ordaining
compliance of the rule of audi alteram partem ignoring that respondent No.7
had never contested the factum of unauthorised construction. Shri Bhaskar
P. Gupta relied upon the judgments of this Court in Friends Colony
Development Committee v. State of Orissa (supra) and Priyanka Estates
International (P) Ltd. v. State of Assam (supra) and argued that the
Division Bench of the High Court committed serious error by interfering
with the direction given by the learned Single Judge for demolition of the
construction which was raised by respondent No.7 in violation of the
sanctioned plan and by showing total contempt for the notices issued by the
Corporation under Sections 400 and 401 of the 1980 Act.
19. Shri Kalyan Bandopadhyay, learned counsel for the Corporation
extensively referred to the pleadings of the parties to show that the
representative of respondent No.7 had admitted construction of building in
violation of the sanctioned plan and argued that such construction cannot
be regularised under Rule 25 (2) of the Kolkata Municipal Corporation
Building Rules, 1990 (for short, ‘the Rules’).
20. Learned counsel for respondent No.7 fairly conceded that the
construction raised by his client is contrary to the sanctioned plan but
argued that the Corporation is duty bound to pass appropriate order on the
application filed for regularisation of such construction. Learned counsel
submitted that even though Rule 25(2) of the Rules may not be strictly
applicable to the case of his client, the Corporation possesses inherent
power to regularise the illegal construction and there is no justification
to demolish the unauthorised portion of the building without deciding the
application submitted on 13.8.2010.
21. We have considered the respective arguments and carefully perused the
record. Since, respondent No.7 has not disputed that the building was
constructed in violation of the sanctioned plan and the Mayor-in-Council
passed order dated 14.1.2010 for demolition of the disputed construction,
the direction given by the Division Bench of the High Court to the
competent authority of the Corporation to pass appropriate order after
giving opportunity of hearing to respondent No.7 cannot be sustained. It
appears that attention of the Division Bench was not drawn to the notices
issued by the competent authority of the Corporation under Sections 400,
401 and 401A of the 1980 Act and order dated 14.1.2010 passed by the Mayor-
in-Council, else it would not have decided the appeal by assuming that the
competent authority had not passed an order for demolition of the illegal
construction. The factum of illegal construction having been raised by
respondent No.7 is also evinced from the counter affidavits filed on behalf
of respondent Nos.1 to 5 and respondent No.7 respectively. In paragraphs 4
(a) to (c), (e) to (h), (j) and (k), Shri Amitava Roy Chaudhary, Executive
Engineer (Civil), Building Department, Kolkata Municipal Corporation has
explained the Corporation’s stand in the following words:
“ 4. I crave leave of this Hon'ble Court to set out the
following facts in connection with the present S.L.P. :-
a) A Building plan being Building Sanction Plan No. 200909004
was sanctioned on 11.04.2009 by the concerned authority of the
Corporation in favour of one Md. Sahid for construction of two
storied residential building in respect of the premises No.8/1F,
Gopal Doctor Road, Kolkata-700023 (hereinafter referred to as
the said premises) and the same to be completed within five
years from the date of sanction i.e. 10.04.2014 as per the said
sanction.
b) On or about October, 2009 the concerned officers of the
Corporation inspected the said premises after receiving a
complaint over telephone about the unauthorized construction
being made in the said premises. Upon the said complaint the
concerned officials inspected the said premises and found that
R.C.C. columns were erected upto 3rd floor level with
projections of some columns above 3rd floor level and casting of
R.C.C. slab were made upto 3rd floor level along with staircase
in deviation from the said sanction plan for which a notice
under section 401 of the K.M.C. Act, 1980 was served on
08.10.2009 to Md. Shahid, the person responsible, to stop
forthwith further progress of construction work and the same was
received by the person responsible. Moreover, an intimation was
sent to the Officer-in-charge, Watgunge Police Station, Kolkata,
requesting him for follow up action in the prevention of
unauthorized construction at the said premises which was in
deviation and beyond sanction plan.
A true copy of Notice u/s. 401 of the K.M.C. Act and a
copy of the intimation given to Officer in-charge Watgunge
Police Station, Kolkata, are annexed as Annexures P-l & P-2 at
pages 23-27 of the SLP Paper Book.
c) It appeared from the records of the K.M.C. that inspite of
service of notice u/s. 401 of the K.M.C. Act, 1980 to stop
construction forthwith, the person responsible continued with
the construction works defying the said stop-work notice for
which first time Municipal guard watch was posted from
12.10.2009 in respect of the said premises and an intimation of
the said posting of guard watch was given to the person
responsible for prevention of the continuance of unauthorized
construction thereon.
e) On or about November, 2009 the concerned officers of the
Building Department of the Corporation further inspected the
said premises and found that the construction works were
going on up to 4th floor level in spite of posting of guard
watch. Accordingly, considering the gravity of the situation
and safety of the adjoining structure as well as the safety
of the public in general the concerned authority suggested
that action under section 401-A of the K.M.C. Act, 1980 may
be taken against the said person responsible and a proposal
was made by the concerned officials of the Corporation,
besides to it the same was sent to Watgunge Police Station
for taking action against the person responsible or any other
person who has conspired to make the said unauthorized
construction. A true copy of the said proposal dated
10.11.2009 is annexed as Annexure P-4 at pg. 30 of the S.L.P.
Paper Book.
(f) After considering the said statement and the demolition
sketch the Deputy Chief Engineer (Building) submitted a report
to the Director General (Building)-II, K.M.C. In the said report
the Deputy Chief Engineer (Building) mentioned that since the
nature of the unauthorized construction works are massive and
there was defiant attitude of the person responsible and since
the premises is situated in congested area, the construction had
been done in a haphazard manner without following the norms and
practice of Civil Engineering. It was felt that the structural
stability of the impugned construction is doubtful which would
create several hazards like traffic congestion, fire hazards,
environmental hazards etc. Accordingly, it was recommended that
action under section 400(8) of the K.M.C. Act, 1980 may be taken
against the said unauthorized construction in the said premises
to cause such building or work to be demolished forthwith, and
the same was placed before the Member, Mayor-in-Council for
approval.
(g) The Member, Mayor-in-Council approved the said
recommendation. On 14.01.2010, upon such approval the Mayor-in-
Council resolved that unauthorized construction/ structures at
the said premises be demolished forthwith under section 400 (8)
of the K.M.C. Act, 1980 with the help of the local
administration. A true copy of the said proposal of the said
premises and the resolution of the Mayor-in-Council dated
14.10.2010 is annexed as Annexure P-5 (Colly) at pages 31-32 of
the S.L.P. Paper Book.
(h) In accordance with the said resolution of the Mayor-in-
Council the demolition squad of the Corporation went to the said
premises on 04.02.2010 and was able to demolish a portion of the
unauthorized construction about 600 sq. ft. approx. out of
approx. 1500 sq. ft. of the said unauthorized construction in
the said premises. The demolition squad also submitted a report
of the said structure in the said premises. In the said report
the reason for not being able to demolish the entire un-
authorized structure was also stated. A true copy of the
demolition report and the demolition sketch is annexed as
Annexure P-6 at page 33 of the S.L.P. Paper Book.
j) Pursuant to the directions of the Calcutta High Court,
the concerned Executive Engineer gave a hearing on 08.04.2010 to
the petitioner and the respondent, M/s. Unique Constructions
represented by its Proprietor - Md. Shahid, the person
responsible for making unauthorized constructions and on
16.04.2010 the concerned Executive Engineer passed an order and
communicated the same to the respective parties. A true copy of
the said Order dated 16.04.2010 is annexed as Annexure P-8 (at
pages 36-37) of the S.L.P. Paper Book.
k) Thereafter, on the basis of the said order of the Executive
Engineer, on 20.07.2010 the concerned Assistant Engineer along
with the Sub-Assistant Engineer inspected the said premises and
found that the demolished portion of the said building has been
repaired by the said person responsible and also found that the
said building is full of occupancy.”
22. In paragraphs 4, 5 and 6 of his affidavit, Mohammad Shahid has
averred as under:
“4. That since the Premises No. 8/1F, Gopal Doctor Road, Police
Station Watgunge, Kolkata having an area of about 2 Cottahs 11
Chittacks 33 Square feet was covered with temporary structures
and some of which were tiles and asbestos etc. The said
structures were occupied by various tenants and partly by the
landlord. Therefore the owner/landlord decided to enter into an
agreement with the answering respondent for undertaking
necessary construction works since the property became
uninhabitable. Thus necessary agreements were executed by and
between the answering respondent and owner/landlord for the
construction work in the premises in question.
Accordingly, thereafter a Plan dated 11.04.2009 vide Building
Permit No. 2009090004 was sanctioned for premises No. 8/1F,
Gopal Doctor Road, Kidderpore, Kolkata- 700 023, by the Kolkata
Municipal Corporation for erection of a two storied building,
covering a sanctioned area measuring about 145.82 Square Meter.
The proposed F.A.R. for the said plan was 0.99 over land
measuring about 145.927 Square Meter. But the building has been
constructed upto five storied. Presently the total constructed
cover area for the five storied building is measuring about
55.57 square meter and the present F.A.R. is 3.83.
5. That subsequent thereto as per the requirement of the
owner and tenants in the said premises construction upto the
floor more than sanctioned was constructed. Upon construction
the answering respondent filed an application with the Kolkata
Municipal Corporation under Rule 25(2)(b) of the Building Rules
on 13.08.2010 for regularization of the construction erected
beyond sanctioned plan and a revised plan was submitted for
sanction before the competent authority.
6. That according to Clause (b) Sub-Rule 2 of Rule 25 of the
Kolkata Municipal Corporation Building rules 1990 it is provided
that if during the erection or execution of work any external
deviation beyond the sanctioned covered space is intended to be
made and which does not violate the provisions of the Act or the
said Rules, the person erecting such construction, prior to
carrying out such erection or execution of works, submit, in
accordance with provisions of the said rules, a revised plan
incorporating the deviation intended to be carried out, for
obtaining necessary sanction thereof. Further the Clause (b)
Sub-Rule 2 of Rule 25 of the Kolkata Municipal Corporation
Building Rules, 1990, empowers the Municipal authorities to
allow a person to construct the sanctioned covered area, which
means construction exceeding the floor area ratio can be allowed
to be carried on.”
23. In view of the pleadings filed before the High Court and the
affidavits filed before this Court, there is no escape from the conclusion
that respondent No.7 had raised construction in violation of the plan
sanctioned under Section 396 of the 1980 Act and continued with that
activity despite the order of the Mayor-in-Council. In the prevailing
scenario, the representative of respondent No.7 might have thought that he
will be able to pull strings in the power corridors and get an order for
regularisation of the illegal construction but he did not know that there
are many mortals in the system who are prepared to take the bull by horn
and crush it with iron hand.
24. Rule 25 of the Rules, on which reliance was placed by respondent No.7
for seeking regularisation of the illegal construction, reads as under:
“25. Deviation during execution of works.—(1) No deviation from
the sanctioned plan shall be made during erection or execution
of any work.
(2) Notwithstanding anything contained in sub-rule (1), if
during erection or execution of work any internal alterations or
external additions which do not violate the provisions of the
Act or these rules is made, the Municipal Commissioner may
without prejudice to any action that may be taken against the
person at whose instance such alteration or additions have been
made, allow the person referred to in sub-rule (1) of rule 4 to
submit, in accordance with the provisions of these rules, a
revised plan showing the deviation and may sanction such plan.
(3) Any departure made during the execution of any work or at
any time thereafter without sanction shall be deemed to be in
contravention of the provisions of the Act and these rules and
shall be dealt with accordingly.”
25. A reading of the plain language of Rule 25(1) makes it clear that a
person, who erects any structure or executes any work is not entitled to
deviate from the sanctioned plan. Rule 25(2) which contains a non-obstante
clause and provides for sanction of revised plan to be submitted by the
person engaged in erection of building or execution of work lays down that
if during erection or execution of work, any internal alterations or
external additions which do not violate the provisions of the Act or the
Rules is made, the Municipal Commissioner can, at an application made in
that behalf sanction the revise plan showing the deviation. Rule 25(3) is
declaratory in nature. It lays down that any departure made during the
execution of any work or at any time thereafter without sanction shall be
deemed to be in contravention of the Act and the Rules shall be dealt with
accordingly.
26. In our view, respondent No.7 cannot take benefit of Rule 25 because
the disputed construction was in clear violation of the sanctioned plan and
the notices issued by the competent authority of the Corporation and also
because the application was made after completion of the construction.
27. Before parting with the case, we consider it necessary to observe
that respondent No.7 is guilty not only of violating the sanctioned plan
and the relevant provisions of the 1980 Act and the Rules framed thereunder
but also of cheating those who purchased portions of unauthorized
construction under a bona fide belief that respondent No.7 had constructed
the building as per the sanctioned plan. With the demolition of
unauthorized construction some of such persons will become shelterless. It
is, therefore, necessary that respondent No.7 is directed to compensate
them by refunding the cost of the flat, etc., with interest. Respondent
No.7 must also pay for raising construction in violation of the sanctioned
plan. It must be remembered that while preparing master plans/zonal plans,
the Planning Authority takes into consideration the prospectus of future
development and accordingly provides for basic amenities like water and
electricity lines, drainage, sewerage, etc. Unauthorized construction of
buildings not only destroys the concept of planned development which is
beneficial to the public but also places unbearable burden on the basic
amenities and facilities provided by the public authorities. At times,
construction of such buildings becomes hazardous for the public and creates
traffic congestion. Therefore, it is imperative for the concerned public
authorities not only to demolish such construction but also impose adequate
penalty on the wrongdoer.
28. In the result, the appeal is allowed and the impugned judgment is set
aside. With a view to ensure that the illegal construction raised by
respondent No.7 is pulled down without delay, we issue the following
directions:
1. Within three months from today, respondent No.7 shall pay the price
of the flats etc. to the purchasers with interest @ 18% per annum from
the date of payment.
2. The occupiers of illegal/unauthorized construction shall vacate such
portions of the building within next one month.
3. Within next one month, the Corporation shall demolish
unauthorized construction after taking adequate precautionary
measures.
4. Respondent No.7 shall pay cost of Rs.25,00,000/- for brazen violation
of the sanctioned plan and continuance of illegal construction despite
‘stop work notice’. The amount of cost shall be deposited with the
Kolkata State Legal Service Authority within three months and the same
be utilized for providing legal aid in deserving cases.
29. Reports showing compliance of the aforesaid directions be filed by
the Corporation and respondent No.7 in the Registry of the Kolkata High
Court within six months. Thereafter, the matter be placed before the
learned Single Judge who had passed order dated 28.7.2010. If the learned
Single Judge finds that any of the aforesaid directions has not been
implemented then he shall initiate proceedings against the defaulting
officers and/or respondent No.7 under the Contempt of Courts Act, 1971 and
pass appropriate order.
…..……….....……..….………………….…J.
[G.S. SINGHVI]
…………..………..….………………….…J.
[SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
October 8, 2012.
