SUPREME COURT REAFFIRMS ITS STANCE ON ILLEGAL CONSTRUCTIONS

With rapid urbanization, illegal and unauthorized constructions have emerged as a pervasive issue, undermining urban planning and legal frame works.day and age, where construction is on the boom, illegal and unauthorized constructions have become a very common practice. Although there are several Laws and Bye-Laws that lay down stringent conditions for constructions yet there are people who flagrantly violate the Law for their own selfish reasons. Undoubtedly India requires very stringent enforcement steps to deter such illegal and unauthorized constructions. This would not only discourage the protagonist but also curb the authorities who misuse their powers and often take bribes. Superior Courts have time and again upheld the Rule of Law by directing that unauthorized constructions cannot be allowed by a few to the disadvantage of many. This article discusses the important cases that have been decided by the Supreme Court of India, where the Court has taken a hardliner view and denounced and criticized unauthorized constructions. The Apex Court has come down heavily on all authorities and bodies that have supported such illegal constructions and imposed hefty fines on the violators.

In 1974, the Supreme Court decided a case on whether the provisions of the Madras Town Planning Act, 1920 were violated. In the case of K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udupi & Ors.( (1974)2 SCC 506) the issue before the Court was whether the conversion of a Kalyan Mantap-cum-Lecture Hall into a cinema theatre violated the provisions of the Madras Town Planning Act, 1920 and whether unauthorized construction in a residential area can be validated by acquiescence or estoppel.

The Court addressed the issue concerning the conversion of a Kalyana Mantap-cum-Lecture Hall into a cinema theatre, which was situated in a residential area as invalid as it violated the Town Planning Scheme. The Court emphasized that the municipal authorities owe a duty to ensure that residential areas remain unaffected by unauthorized constructions that disrupt the rights and enjoyment of residents. The planned orderliness envisaged under the scheme must be upheld. It was observed that the excess exercise of statutory power could not be validated by acquiescence or the principle of estoppel. The Court further clarified that the illegal construction of a cinema theatre in a residential area materially affects the rights of the residents and cannot be allowed.

In Dr. G.N. Khajuria and others v. Delhi Development Authority and others (1995) 5 SCC 762 the Court considered whether the Delhi Development Authority (DDA) violated the provisions of the Delhi Development Act, 1957, by permitting a nursery school to be opened on land meant for a park in Sarita Vihar and by doing so misused its powers under the statutory provisions.

The Court analyzed Sections 7 and 8 of the Delhi Development Act, which mandate the preparation of a master plan and zonal development plan by DDA, specifying land uses for schools, parks, and other public spaces. The appellants argued that the land for the nursery school had been designated for a park and could not be reallocated without legal grounds. The DDA contended that nursery schools were akin to recreational spaces and not subject to the same regulations as primary or high schools.

The Court found that the zonal plan did not specifically allocate land for nursery schools.The Court ruled that the land allotted to the school was indeed part of a park and that it was improper for the DDA to repurpose it for the school. The Court held that the allotment to the nursery school was a misuse of power and ordered the cancellation of the allotment.

However, to avoid disrupting the students, the Court allowed the nursery school to continue operating at the site for six months, providing time to find an alternative location. The Court also called for an inquiry into the officers responsible for the unlawful allotment and unauthorized construction, ordering them to be held accountable under the law.

In another case decided in 1999 titled M.I. Builders (P) Ltd. v. Radhey Shyam Sahu  (1999) 6 SCC 464  the subject matter was whether the construction of the underground shopping complex at Jhandewala Park, Lucknow, violated public interest, environmental preservation, and the rights of citizens and whether the delegation of powers by the Lucknow Mahapalika to authorities or bodies not specified under the relevant Act was legally permissible.

The High Court had directed the dismantling of the whole project and restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dictum is now nearly akin to the rule of law.  Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. The Apex Court held unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles.

The Supreme Court upheld the High Court’s findings regarding the illegality of the construction, emphasizing that the park held historical and environmental significance. The Court ruled that the construction would worsen congestion in the already overcrowded Aminabad market and lacked a legitimate public purpose. The Mahapalika’s decision was seen as arbitrary and unconstitutional, as it failed to ensure the protection of public spaces. While granting temporary relief to the appellant, the Court made it clear that if the appeal failed, the construction would have to be removed at the appellant’s cost. The judgment reinforces the need for strict adherence to statutory frameworks governing urban development and the preservation of public spaces for public welfare.

Again in 2013, in the matter of Esha Ekta Apartments Coop Housing Society Limited v. Municipal Corporation of Mumbai (2013) 5 Supreme Court Cases, (2013) 3 Supreme Court Cases (Civil) 89 the Court considered whether unauthorized construction exceeding the approved Floor Space Index (FSI) and height limits can be regularized despite violations of sanctioned plans and municipal regulations and whether builders and developers can avoid accountability for unauthorized construction, despite the issuance of stop-work notices and failure to comply with municipal regulations.

The Supreme Court ruled against the regularization of the unauthorized construction, emphasizing the violations of municipal laws and building codes cannot be overlooked or rewarded. The Court noted that the appellants’ constructions exceeded the approved FSI and height limits, which were in violation of the original building plans and town planning regulations. Such violations could not be condoned or regularized, unless they were minor or accidental, which was not the case here.

The Court emphasized the importance of strict adherence to building regulations, urban planning, and development control rules. It highlighted that regularization of unauthorized constructions should only be permitted in exceptional cases, and only when the violations are minimal or unintentional. The Court criticized the Municipal Corporation for failing to act against the illegal constructions and noted that the builders’ actions, including the disregard of the stop-work notice issued in 1984, were deliberate and gross violations of the law.

In conclusion, the Supreme Court rejected the proposal for the regularization of the unauthorized construction and ruled that the violations could not be excused or permitted to continue. It reinforced the need for strict enforcement of municipal laws and regulations to protect public safety and urban development standards. The Court’s decision emphasized that such violations of municipal and town planning laws could not be tolerated and must be dealt with firmly to prevent future unauthorized developments.

In a very recent judgment that received a lot of publicity because the project was in the NCR Delhi the Supreme Court came down heavily on the violators and enforced heavy fines and ordered demolition. The case is titled as Supertech Limited v. Emerald Court Owner Resident Welfare Association and others (2021) 10 SCC 1. On August 31, 2021, the Supreme Court of India ruled to demolish the Supertech Twin Towers in Noida due to their illegal construction.

The Court found that the builder and the New Okhla Industrial Development Authority (NOIDA) colluded to build the towers without the consent of the flat owners. The towers were built on green space that was promised to the homebuyers of Emerald Court. The court ordered the demolition of the towers, and Supertech Limited ordered the builder to pay Rs 2 crore to the Emerald Court resident association.

The issue before the Court was whether the sanction for the construction of T-16 and T-17 by NOIDA violates the distance requirement under the statutory regulations? The Court answered this in affirmative.

The Supreme Court further observed that there has been an increase in unauthorized constructions primarily in urban areas due to the soaring price of real estate. Various builders are conspiring with the officers of developing authorities and are violating the regulations. In light of such nefarious complicity, it has become imperative to take strict action against such illegal constructions to deter such crimes in the future. The Court reiterated what it held in K. Ramadas Shenoy V. Chief Officer (Supra), that unregulated construction affects the right of enjoyment of property of the residents of an area. Thus, it is the duty of the competent authority to ensure that the area is not adversely affected by such illegal constructions.

In 2023 the Supreme Court was again seized of another matter regarding unauthorized possession of land belonging to the Gram Panchayat, which were intended for school and playground purposes. The Case was titled as State of Haryana and ors v. Satpal and ors. (2023)6 SCC 643

Additionally, the Court examined whether the respondents were in unauthorized possession and whether the High Court’s directions to legalize unauthorized occupation and possession by the original writ petitioners (encroachers) by payment of market price were justifiable?

The Court held that the respondents were found to be in unauthorized possession of the Gram Panchayat land, including land earmarked for a school and playground, as evidenced by the demarcation report. The High Court had initially directed Gram Panchayat to consider the claim of the encroachers and permitted the option to legalize the occupation by paying the market value or providing land in exchange. However, the Supreme Court found this direction problematic and impractical due to the inability to segregate vacant areas from the encroached lands. The Supreme Court ruled that the unauthorized occupation and possession of land could not be legalized, as it conflicted with the land’s intended use for school and playground. The directions given by the High Court were considered not feasible due to the nature of the encroachment, which included areas not suitable for segregation and use for the intended purpose. The Supreme Court concluded that the High Court’s decision to legalize the encroachment was erroneous, emphasizing the need for clear land usage for public purposes, such as educational facilities and playgrounds.

In the latest judgment passed by the Supreme Court of India, on December 17, 2024, the Apex Court has reaffirmed its stance against unauthorized constructions. In the Case of Rajendra Kumar Barjatya and Another v. U.P. Avas Evam Vikas Parishad & Ors. (CIVIL APPEAL NO. 14604 OF 2024) and Rajeev Gupta and Others v. U.P. Avas Evam Vikas Parishad & Ors. (CIVIL APPEAL NO. 14605 OF 2024) that was delivered by a Division Bench of the Supreme Court of India, comprising Hon’ble Justice J.B. Pardiwala and Justice R. Mahadevan. In these cases, the Supreme Court upheld the Allahabad’s High Court’s demolition order, emphasizing that unauthorized constructions are not subject to regularization and that purchasers aware of such illegality cannot challenge enforcement actions.

Facts of the Case:

The Appellants, Rajendra Kumar Barjatya and Rajeev Gupta, are third parties challenging the High Court’s judgment. The High Court’s judgment, dated December 05, 2014, allowed the writ petition filed by the U.P. Avas Evam Vikas Parishad (Respondent No.1), which directed the demolition of unauthorized commercial construction on a residential plot in Meerut. The plot, allotted to Veer Singh (Respondent No.5) by U.P. Avas Evam Vikas Parishad, was designated for residential use. However, Respondent No.5, with assistance from Vinod Arora (Respondent No.6), constructed unauthorized commercial shops. Despite multiple notices, construction continued, leading to a demolition order in 2011. However, enforcement was delayed due to lack of cooperation from local and police authorities, which led to the filing of the writ petition.

The High Court of Allahabad allowed the writ petition filed by U.P. Avas Evam Vikas Parishad, directing the demolition of the unauthorized commercial constructions. The Court ordered that the demolition should take place by December 31, 2014 and directed criminal proceedings against responsible persons, including officers of U.P. Avas Evam Vikas Parishad. The Court also ordered departmental proceedings against the officers responsible for allowing the construction and directed that all similar unauthorized constructions be treated equally.

The issues before the Supreme Court were;

1. whether the Appellants, who purchased the commercial shops built on the subject property, have the right to contest the demolition order
2. Whether the demolition order passed by the High Court is arbitrary, illegal, and violates the principles of natural justice?
3. Whether the action of Respondent No.1 is barred by delay and laches?
4. Whether the Appellants’ rights over the property were affected by the unauthorized construction?

The Appellants argued that they have occupied the shops for over 24 years and purchased them for valuable consideration. They claimed that the U.P. Avas Evam Vikas Parishad was aware of the construction and converted the plot to freehold in 2004. They also contend that the demolition order was passed without issuing proper notices under Section 82 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, and without considering the possibility of regularizing the construction. They further argued that the action is barred by delay and laches since Respondent No.1 did not act promptly to prevent the unauthorized construction. Additionally, they claimed that the demolition order was arbitrary and discriminatory, as similar constructions continued to exist in the area.

The Respondent No.1, U.P. Avas Evam Vikas Parishad argued that the plot was allotted for residential purposes and that the construction by Respondent No.5 was unauthorized. Despite multiple notices, Respondent No.5 continued the construction without sanction, prompting the demolition order. Respondent No.1 denied any failure in its duty and stated that it followed all legal procedures. They argued that the Appellants purchase of the shops cannot legitimize the unauthorized construction. Respondent No.1 insisted that the violation was deliberate and should not be regularized and asserted that the Appellants’ rights are not infringed upon as they were aware of the illegal nature of the construction at the time of purchase.

 Judgment by the Supreme Court:

The Supreme Court reviewed the legal and factual aspects of the case and agreed with the High Court’s findings. The Court affirmed the demolition order, ruling that the Appellants were aware of the illegal nature of the construction at the time of their purchase. The Court held that the action for demolition was not barred by delay or laches and that the violations were deliberate, thus not subject to regularization. The Court emphasized that unauthorized constructions must be demolished, even if significant time has passed, and that the Appellants should have verified the property’s status before purchasing it. The Court found no violation of natural justice, as the authorities had issued multiple notices to Respondent No.5, and the Appellants had a duty to ensure the property’s legality.

Conclusion:

Unauthorized constructions have become a very common practice in India with several episodes of people violating the Law with impunity and thereafter justifying that their unauthorized constructions should not be removed. Many times such unauthorized constructions are protected by authorities who overlook such incidents. However, the long arm of the Law ultimately gets to all those people who flaunt the Law. It is time that Courts along with the enforcement wings demolish such unauthorized constructions in quick succession so that people fear breaching the Law. An unauthorized construction eats into the infrastructure that is created to support the constructions and as such must be immediately stopped in public interest. This judgment is very welcome and the need of the hour.

 

Sushila Ram Varma

Advocate and Chief Consultant

The Indian Lawyer & Allied Services

Assisted by

Parichaya Reddy

Associate