Supreme Court: While considering the instant appeal filed by 3rd parties to the proceedings who were aggrieved with the order issued by Allahabad High Court directing demolition of the unauthorised constructions on the subject property situated in Meerut; the Division Bench of J.B. Pardiwala and R. Mahadevan*, JJ., strictly opined that constructions put up in violation of or deviation from the building plan approved by the local authority and the constructions which are audaciously put up without any building planning approval, cannot be encouraged. “Every construction must be made scrupulously following and strictly adhering to the Rules. In the event of any violation being brought to the notice of the Courts, it has to be curtailed with iron hands and any lenience afforded to them would amount to showing misplaced sympathy”. Delay in directing rectification of illegalities, administrative failure, regulatory inefficiency, cost of construction and investment, negligence and laxity on the part of the authorities concerned in performing their statutory obligations, cannot be used as a shield to defend action taken against the illegal/unauthorized constructions.
Keeping in mind larger public interest, the Court also issued certain directions in addition to the directives issued in Directions in the matter of demolition of structures, In re, .
The Court observed that unless the administration is streamlined and the persons entrusted with the implementation of the act are held accountable for their failure in performing statutory obligations, violations of this nature would go unchecked and become more rampant. “If the officials are let scot-free, they will be emboldened and would continue to turn a nelson’s eye to all the illegalities resulting in derailment of all planned projects and pollution, disorderly traffic, security risks, etc.”.
Background:
Respondent 5 was allotted the subject property in 1986, and its possession was handed to him in 1989. Thereafter, UP Awas and Vikas Parishad (Respondent 1) executed a sale deed cum free hold deed in favour of the Respondent 5 in respect of the subject property in 2004. It was alleged by the Respondent 1 that the said deed was executed based on the fabricated construction completion certificate produced by the Respondent 5 and he with the assistance of the Respondent 6, started to construct commercial shops, without obtaining sanctioned map / plan / approval from the competent authority. Clause 6-B of the 2004 deed specifically stated that the property shall be used only for residential purposes.
Though show cause notices were issued to Respondent 5, but he neither responded nor took any steps against the illegal construction, which compelled the competent authority to pass the order of demolition of the illegal/ unauthorized construction on the subject property May 2011. However, Respondent 1 was unable to execute the said order, due to lack of co-operation from the local as well as police authorities.
A writ petition was preferred before the High Court, wherein demolition of the unauthorised structures was ordered.
The appellants herein who are the owners of the commercial shops, which were stated to have been illegally / unauthorizedly constructed on the subject property by the Respondents 5 and 6, challenged the afore-stated order in the instant appeal contending that they are the most affected persons by the order passed by the High Court and will be deprived of their livelihood if the same is implemented.
It was the principal contention of the appellants that the shops have been in existence for the past 24 years and the appellants are the owners of the same by virtue of the registered sale deed and the Respondent No.1 was fully aware of the construction made on the subject property from its inception. However, without issuing any notice to the appellants and occupants of the shops, the order of demolition came to be passed and hence, it is arbitrary, illegal and in violation of the principles of natural justice.
Court’s Assessment:
Perusing the matter, the Court found that Respondents 5 and 6 clearly constructed unauthorized shops on the subject property, for commercial purposes and sold to the appellants and others for valuable consideration, without obtaining sanctioned plan / approval from the competent authority. Examining the documentary evidence, the Court further noted that Respondent 1 was aware of the constructions which prompted them to issue show cause notices. Despite sufficient opportunities being granted to Respondents 5 and 6 did not utilize the same and continued illegality. The Court opined that there cannot be any estoppel against law. The lapses on the part of the authorities will not vest any person with a right to put up construction without planning approval and in violation of the conditions regarding usage.
It was further pointed out that the fact that the notices issued by the authorities between 1990 to 2013 did not culminate into demolition, would speak volumes about the lackadaisical attitude of the authorities and that also smacks of collusion with the violators. Therefore, the fact that the building has stood over 24 years will not clothe the appellants with any right in law and hence the Court did not find any force in the contentions of the counsel for the appellants alleging delay and latches.
Vis-a-vis the appellants’ rights, the Court stated that the doctrine of Caveat Emptor would require the buyer to perform all acts within his capacity to ascertain the title of the seller and the defects in the property. Furthermore, Section of makes it clear when the buyer with ordinary care is not able to ascertain the material defect in the property or in the seller’s title, it becomes the duty of the seller to disclose the same though it is the primary responsibility is on the buyer to ascertain the defects in the property and the title.
The Court found that neither the appellants as buyers nor Respondent 5 as seller had performed their obligations under the law. Thus, the contention of the appellants that they were not put on notice and that the orders are in violation of the principles of natural justice, is a fig leaf of a defence that can hardly have any basis in law.
The Court found the impugned order of the High Court as well reasoned and requiring no need of interference. The Court also relied on several precedents wherein it had been held that illegality of unauthorized construction cannot be perpetuated. If the construction is made in contravention of the Acts / Rules, it would be construed as illegal and unauthorized construction, which has to be necessarily demolished. It cannot be legitimized or protected solely under the ruse of the passage of time or citing inaction of the authorities or by taking recourse to the excuse that substantial money has been spent on the said construction.
Observing that State Governments often seek to enrich themselves through the process of regularisation by condoning/ratifying the violations and illegalities. Hence, regularization schemes must be brought out only in exceptional circumstances and as a onetime measure for residential houses after a detailed survey and considering the nature of land, fertility, usage, impact on the environment, availability and distribution of resources, proximity to water bodies/rivers and larger public interest. Unauthorised constructions, apart from posing a threat to the life of the occupants and the citizens living nearby, also have an effect on resources like electricity, ground water and access to roads, which are primarily designed to be made available in orderly development and authorized activities.
“Master plan or the zonal development cannot be just individual centric but also must be devised keeping in mind the larger interest of the public and the environment”.
Directions:
(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, who is 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) If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal / Courts relating to house / building constructions would come down drastically. Hence, necessary instructions should be issued by all the State/UT Governments in the form of Circular to all concerned with a warning that all directions must be scrupulously followed and failure to do so will be viewed seriously, with departmental action being initiated against the erring officials as per law.
(xi) 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.
(xii) The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.
Decision:
The Court directed the appellants to vacate and handover the vacant premises to the respondent authorities. On such surrender, the respondent authorities shall take steps to demolish the unauthorised construction made on the subject property, within a period of two weeks therefrom. Appropriate criminal as well as departmental action shall be taken against the erring officials / persons concerned in line with the order of the High Court and a report shall be filed before the Supreme Court.
the Court also directed the Registrar to circulate a copy of this Judgment to the Registrar General of all the High Courts, so as to enable the High Courts to refer it, while considering the disputes relating to unauthorised construction, deviation / violation of building permission, plan, etc. The Registrar was also directed to circulate the copy of this judgment to the Chief Secretaries of all the States / Union Territories. All the State / UT Governments shall issue circulars to all the local authorities / Corporations, intimating them about the directions for strict compliance.
CASE DETAILS
| Citation: Civil Appeal No. 14604 of 2024 Appellants : Rajendra Kumar Barjatya Respondents : UP Awas Evam Vikas Parishad | Advocates who appeared in this case For Petitioner(s): Mr. Jitendra Mohan Sharma, Sr. Adv. Mr. Ajit Sharma, AOR Mr. Akshat Sharma, Adv. Mr. Amrit Pradhan, Adv. Mr. Sandeep Singh, Adv. Mr. Surender Sinha, Adv. Mr. Sanchit Graga, Adv. Mr. Jitendra Mohan Sharma, Sr. Adv. Mr. Pahlad Singh Sharma, AOR Mr. Ajit Sharma, Adv. Mr. Sushil Kumar Sharma, Adv. Mr. Amrit Pradhan, Adv. Mr. Sanchit Garg, Adv. Mr. Sandip Singh, Adv. Mr. Durgesh Kumar, Adv. For Respondent(s): Mr. Vishwajit Singh, Sr. Adv. Mr. Abhishek Kumar Singh, AOR Mr. Pankaj Singh, Adv. Mr. Suryansh Singh Chauhan, Adv. Ms. Anamika Yadav, Adv. Mr. S. R. Singh, Sr. Adv. Mr. Rajeev Kumar Dubey, Adv. Mr. Ashiwan Mishra, Adv. Mr. Kamlendra Mishra, AOR Mr. Jitendra Mohan Sharma, Sr. Adv. Mr. Pahlad Singh Sharma, AOR Mr. Ajit Sharma, Adv. Mr. Sushil Kumar Sharma, Adv. Mr. Amrit Pradhan, Adv. Mr. Durgesh Kumar, Adv. Mr. Sandip Singh, Adv. Mr. Sanchit Garg, Adv. |
CORAM :
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