Estates I'national P. Ltd. & Ors Vs. State of Assam & Ors.  INSC
1782 (3 December 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8026 OF
2009 [Arising out of SLP(C) No.14480 of 2006] Priyanka Estates International
Pvt. Ltd. & Ors. ....Appellants Versus State of Assam & Ors.
....Respondents WITH C.A.NO.8025 OF 2009 [Arising out of SLP(C) No.15546 of
2006] C.A.NO.8027 OF 2009 [Arising out of SLP(C) No.15547 of 2006] C.A.NO.8028
OF 2009 [Arising out of SLP(C) No.16898 of 2006] AND C.A.NOS.8029-8032 OF 2009
[Arising out of SLP(C) Nos.28291-28294 of 2009]
The principal question that emerges for consideration in these
appeals is whether to sustain the order of demolition as passed by the Gauhati
High Court vide impugned judgment and order or to put an imprimatur of this
Court to the unauthorised constructions raised by M/s. Priyanka Estates
International (P) Ltd. (Appellant No.1 herein) beyond 5= floors. Facts material
for deciding the said appeals are mentioned hereinbelow.
For the sake of convenience, the facts appearing in SLP (C) No.
14480 of 2006 titled as M/s Priyanka Estates International consideration.
Appellant No.1 is a company of which Appellant Nos.2 & 3 are Directors.
Appellant No.1 herein purchased an open piece of land
approximately admeasuring 4.62 Kathas from one Smt. Nandita Banerjee on
9.8.1999 by registered deed of sale. Prior to execution of sale, the vendor of
Appellant No.1 applied to Guwahati Metropolitan Development Authority
(hereinafter referred to as 'GMDA') for grant of `No Objection Certificate' for
sale of land. The said permission was accorded on 17.7.1999 mentioning therein
that permission is granted for "residential-cum-commercial use" of
the said plot and that proposed width of the road abutted by plot is
approximately 50 feet.
Pursuant to the said permission, Sale Deed was executed in favour
of Appellant No.1, whereafter it applied to Guwahati Municipal Corporation
(hereinafter referred to as 'GMC') on 16.11.1999 for according permission for
construction of basement, ground, mezzanine, first, second, third, fourth and
half of 5th floors. The permission was accorded to M/s. Priyanka Estates
International (P) Ltd. on 03.02.2000 by the GMC for construction of basement,
ground floor, mezzanine upto fourth floor and half on the 5th floor. For 1st
floor to fourth, the floor area permissible was 7283 sq. ft. but on 5th floor,
the permissible floor area was fixed at half of it, i.e., 3817 sq. ft only. It
was granted on certain conditions as mentioned in the sanction dated 3.2.2000.
Thereafter, on 08.02.2000, Appellant No.1 applied for grant of
permission for construction of remaining part of 5th , 6th, 7th and 8th floors.
This permission was refused by GMC on 27.3.2000 on the following grounds.
Maximum allowable height of building can be 76' and proposed height would be
margin on both sides and rear is less than required norms.
is exceeded than allowable 300.
structural certificate is not submitted."
proposal for 5th (part) 6th, 7th and 8th floor building, permission was
Feeling aggrieved by the said rejection by GMC, appellants
preferred an appeal under Section 438 of the Guwahati Municipal Corporation
Act, 1971 (hereinafter referred to as 'the Act') before the Standing Appellate
Committee (in short 'SAC').
This came to be disposed of on 5.5.2000 with the following
view of the above discussion as well as observation, in our considered opinion,
the appellant's case deserve consideration.
we hold that the appellant be accorded permission as sought for. We hereby set
aside the impugned order, as aforesaid, passed by the Commissioner, GMC, the
result, the appeal is allowed."
Since, despite the fact that SAC had allowed the appeal of
Appellants with regard to construction of 5th (part), 6th, 7th and 8th floors,
no formal permission was still accorded by Commissioner GMC to it, they moved
further application on 28.8.2001 before Administrator-cum- Minister, Guwahati
Development Department, as it appears by that time, GMC had been dissolved.
The said appeal was considered by Administrator-cum- Minister and
the appeal verdict was reviewed on 29.5.2002 with certain conditions as
mentioned here in below :
obtain NOC from State Fire Department;
Submit affidavit regarding the Structural Certificate;
Compulsory covered parking and private service system like drainage, sewage,
storm drain, water supply etc.;
further FAR beyond 487.00;
submit completion certificate and obtain Occupancy Certificate from GMC;
pay a penal charge to the Corporation amounting to Rs.10,00,000.00 (ten lacs);
building is liable for instant demolition at your own risk and cost in case of non-compliance
of the above."
However, it appears that without compliance of the aforesaid
conditions fully and without getting actual sanction for construction of
building beyond 5= floors from the Commissioner of G.M.C. Appellants continued
with the construction activities and tried to complete the same.
Guwahati Metropolitan Development Authority (As already referred
to as 'GMDA') now came into picture and issued notice to Appellant No.2 on
02.02.2001 to show cause and to give explanation as to without grant of proper
sanction under GMDA Act, how the construction work is progressing.
Another notice by GMDA was issued to the Appellant No.2 on
5.9.2001 asking to remove/demolish the building/construction/ development or
the portion erected by them which is in violation of the provisions of Guwahati
Metropolitan Development Authority Act (for short 'the Development Act'). No
replies to the aforesaid two notices were sent by the Appellants herein on the
ground that the same were not received.
Last and final notice in this regard was issued by GMDA on
18.2.2002 mentioning therein with regard to earlier two notices sent on
2.2.2001 and 5.9.2001 and finally asking the Appellants to remove the
construction within three days from the receipt of this last notice failing
which, necessary action as per provision of the Development Act will be
initiated without giving further intimation.
Appellants replied to the said last notice on 18.2.2002 mentioning
therein that they had not received the earlier two letters but mentioned that
permission has been granted by GMC on 3.2.2000, and is still operative, which
clarified the position of construction of the building beyond 5= floors also
but did not actually present any sanctioned or approved plans/maps beyond 5=
Not being satisfied with the reply to the show cause notice,
submitted by the Appellants, the Respondents proceeded to issue another notice
to the Appellant No.2 on 3.5.2002, with a categorical statement that
construction over and above 6th and 7th floor was wholly illegal, without due
sanction and therefore, the same be removed/demolished.
It appears that, thereafter, some correspondence between the
parties continued. Finally on 31.7.2002 by two orders, the Commissioner, GMC
informed the Appellant No.1 that plans submitted by them are insufficient for
the following reasons and requested it to furnish the required materials as
under and to forthwith stop the construction :
Affidavit for structural design as per format at the building bye laws.
from State Fire Department.
Declaration in affidavit to maintain the FAR within 487."
The Appellants, therefore, were constrained to move the High Court
challenging the said order dated 31.7.2002 by filing W.P.(C) No.5018 of 2002
purportedly under Articles 226 and 227 of Constitution of India.
Further order of demolition came to be issued to the Appellant
No.2 by GMDA on 30.5.2006, clearly mentioning therein that no sanction was
obtained by the Appellants under Section 24 & 25 of the Development Act and
had actually violated the provisions of Building Bye-laws of Guwahati Municipal
Corporation (for short, 'building bye-laws'), in the following manner :
FAR of the building is 490 which exceeds allowable FAR 300.
Maximum floor height 93' exceeds allowable height 76' in this road.
the building is mixed used with residential at top floors, setback required is
15' side to 20' rear, which is not maintained.
Balcony projection is allowed, maximum of the building length in any side,
which is not maintained.
staircases and lift on opposite direction is required which is not available in
the building as per building plan.
Construction of building is going on despite our order to stop construction."
The said order further directed demolition of the building beyond
the sanctioned plan dated 3.2.2000. The Appellants, therefore, challenged the
said order dated 30.5.2006 issued by Chief Executive Officer GMDA by filing
another W.P.(C)No.2747 of 2006. In W.P.(C) No.5018 of 2002, (earlier W.P. filed
in the Gauhati High Court) an order of status quo came to be passed on
12.8.2002 and it further directed that Municipal Authority shall take no steps
to pull down the building and the operation of the letter dated 31.7.2002 was
It appears that pursuant to the said order, Appellants continued
with the construction activities presumably on the ground that order of status
quo is against the Respondents of the Writ Petition and not against the Appellants.
Thus, Sanatan Dharam Sabha, Guwahati filed an application seeking permission to
be impleaded in the said petition and also bringing to its notice that despite
the order of maintenance of status quo, Appellants are continuing with the
another order clarifying the earlier order came to be passed by the High Court
on 20.9.2002 whereby a categorical direction was issued that no further
construction over the said land shall be made and all construction activities
should come to a standstill immediately. It appears that only after passing the
said order, Appellants stopped the construction work.
Sanatan Dharam Sabha alongwith three residents of Panbazar
locality of Guwahati city filed W.P.(C) No.5146 of 2002 in the Gauhati High
Court against the action of GMC and GMDA granting permission to the appellant,
M/s. Priyanka Estates for multi-storeyed building in question and prayed for
Thus, all the three petitions, i.e. W.P.(C) No.5018/2002, W.P.(C)
No.2747/2006 and W.P.(C) No.5146/2002 were consolidated for the purpose of
analogous hearing and have been disposed of by Division Bench of Gauhati High
Court vide impugned judgment and order dated 28.7.2006. Vide impugned judgment,
the Writ Petitions preferred by Appellants herein numbered as 5018/02 and
2747/06 having been found devoid of merit and substance were dismissed but
W.P.(C) No. 5146/2002 filed by Sanatan Dharam Sabha has been allowed to the
extent indicated in the impugned order.
Feeling aggrieved and dissatisfied with the aforesaid judgment and
order, civil appeal arising out of S.L.P.(C)No.14480/06 titled, 'M/s. Priyanka
Estates International (P) Ltd. & Ors. vs. State of Assam & Ors.' has
been filed by Builder and its Directors; civil appeals arising out of S.L.P.(C)
No.15546/06 titled, 'Vishal Saraf v. State of Assam & Ors.' and civil
appeal arising out of S.L.P.(C)No.15547/06 titled, 'Suresh Kumar Harlalka v.
State of Assam & Ors.' have been filed by owners of flats on 7th floor and
civil appeal arising out of S.L.P.(C) No. 16898/06 titled, 'Sarla Devi Lahoty
vs. State of Assam & Ors.' has been filed by owner of one flat on 6th
floor. Insofar as civil appeals arising out of S.L.P.(C) Nos.28291-28294/2009
titled, 'Shyam Sunder Agarwala vs. State of Assam & Ors.' are concerned,
the same have been filed by owner of one flat on 5th floor only.
matters were common and identical challenging primarily the order passed by
Division Bench of the High Court and pertained to the same building claiming
identical reliefs, these Appeals have been heard together. Perused the records.
Mr. Shekhar Naphade, leaned Senior Counsel, Mr. Mukul Rohtagi,
learned Senior Counsel with Mr. Shankar Divate, Mr. Dhruv Mehta, Mr. Yashraj
Singh Deora, Advocates, Mr. Vijay Hansaria, learned Senior Counsel with Mr.
P.I. Jose and Mr. Kamal Mohan Gupta, Advocates appeared for the Appellants in
the aforesaid appeals. Mr. L. Nageshwar Rao, learned Senior Counsel with Ms.
Millie Hazarika and Mr. Manish Goswami appeared for the Respondents.
Respondents have contended that for construction of any building,
permission from GMC is a condition precedent and unless such permission is
granted no construction can be raised.
It has further been submitted that such construction has to be as
per the sanctioned plan approved by GMC and no deviation from such approved
plan can be made.
According to them, Appellant No.1 was admittedly granted permission
for construction of 5= storeyed building, apart from basement, ground and
mezzanine floor vide order dated 03.02.2000, thereafter, no further permission
has been granted for raising any construction on remaining part of 5th floor
and upwards. The order of the SAC dated 05.05.2000 setting aside the order of
Commissioner, GMC dated 27.3.2000 rejecting the permission to raise
construction on part of the 5th floor up to 8th floor was itself illegal,
beyond the jurisdiction and competence of SAC as it violated the building
In view of the admitted position that the width of the road is
only 38 feet and under the building bye-laws, maximum allowable height can be
double the width of the road, i.e., 76 feet but in the instant case the SAC has
allowed construction upto 93 feet, which contravenes the building bye-laws,
therefore, such an order of SAC has no legal force and cannot be basis for
construction beyond 76 feet, allowable under building bye-laws.
It has been submitted by them that the order of the SAC dated
05.05.2000 lost its force and sanctity after the communication dated 29.05.2002
was issued by GMC by which the Appellants were asked to comply with certain
conditions before granting any permission for construction of a building for
remaining part of 5th floor and above.
It has also been contended that even though the order passed in
Appellants' Writ Petition was to maintain status quo but taking advantage
thereof, they continued with the construction and only on subsequent order
being passed on 20.09.2002, the construction activities were stopped but by
that time Appellants had already raised construction upto 8th floor, in
flagrant violation of building bye-laws.
They have also contended that GMDA passed an order under Section
88 of the Development Act for demolition of construction for remaining part of
the 5th floor and above and that too after issuance of notices to Appellants
and giving reasonable opportunity to them to show cause. Appellants were aware
that construction beyond 5= floor was without due sanction and approval, thus,
obviously illegal, yet they continued with the same.
They further submitted that there was no violation of principles
of natural justice. It was contended that Appendix III of the building bye-laws
provides for compoundable and non- compoundable items. It is evident therefrom
that construction of extra floor falls in the category of non-compoundable
items meaning thereby if extra floor is constructed without due
sanction/approval, then, it would be beyond the purview of compoundable items.
As regards violation of principles of natural justice, they have contended that
before passing the order of demolition, notices were issued to the Appellants
to show cause, as required under Section 88 of Development Act but they did not
take any action thereon.
Whenever Respondents asked for sanctioned/approved plans for
construction beyond 5= floors, Appellants only showed them the plans which were
sanctioned and/or approved for construction of, only upto 5= floors. It was
also contended by them that even upto that stage Appellants had failed to show
any approved sanctioned plans and maps allowing them to construct beyond the
permissible limit of 5= floors. Thus, they have contended that the building
constructed beyond 5= floors is absolutely illegal, unauthorized and without
any sanction plans, thus liable to be demolished.
In order to understand the various provisions of the Act, it is
necessary to know the import of the relevant sections of the Act material for
deciding the appeals.
Section 327 of the Act prohibits any person from erecting or
re-erecting any building without written permission from the Corporation.
Section 328 provides for submission of an application by a person interested to
erect or re-erect a building to the Corporation for approval of the site
together with site plan with land title document, elevation and sections of the
building, specification of the work and also containing such particulars as may
be required by bye-laws in that behalf.
329 empowers the Commissioner of the GMC to refuse such permission and to
disapprove the site on the grounds formulated in Section 330. Section 331
provides for the grounds on which permission to erect or re-erect the building
can be refused by GMC. Section 332 empowers the Commissioner to direct
modification of the sanctioned plan. Section 333 stipulates the period within
which erection or re-election is to be completed.
337 empowers the Commissioner to require the removal or alteration of the work
which may not be in conformity with bye- laws etc. Section 416 of the Act
empowers the GMC to formulate different bye-laws including the bye-laws
relating to the building. Section 438 of the Act provides for appeal from the
order passed by the Commissioner including the order refusing to grant
permission to construct or re-construct a building to the SAC. Sub-section (3)
of Section 438 of the Act empowers the State Govt. to call for the records of
any matter from the Corporation and to pass such orders as may be deemed
necessary after examination of such records.
It is necessary to refer to Section 88 of the Development Act
which reads as under :
Power of demolition of building.-(1) Where any development has been commenced
or is being carried on or has been completed in contravention of the Master
Plan or development scheme or without the permission, approval or sanction
referred to in Section 25 and Section 30 of the Act or in contravention of any
conditions subject to which such permission, approval or sanction has been
granted, the authority may in addition to any prosecution that may be
instituted under the Act, make an order directing that such development shall
be removed by demolition, filling or otherwise by the owner, occupier, manager
or by any person at whose instance the development has been commenced or is
being carried out or has been completed within such period not being less than
five days and more than thirty days from the date on which a copy of the order
of removal with brief statement of the reasons thereof has been delivered to
the owner, occupier and manager or the person at whose instance the development
has been commenced or is being carried out or has been completed as may be
specified in the order and on his failure to comply with the order, the
authority may remove or cause to be removed the development and the expenses of
such removal shall be recovered from the owner, occupier, manager or any person
at whose instance the development was commenced or was being carried out or was
completed as arrears of land revenue; provided that no such order shall be made
unless the owner, occupier, manager or the person concerned has been given a
reasonable opportunity to show cause why the order shall not be made.
provisions of this section shall be in addition to and not in derogation of any
other provision relating to demolition of buildings contained in any other law
for the time being in force.
compensation shall be claimed by any person for any damage which he may sustain
in consequence of the removal of any development under this section or the
discontinuance of the development under Section 87 of this Act."
Mr. Shekhar Naphade, learned Senior Counsel for Appellants firstly
strenuously contended before us that NOC dated 17.7.1999 granted by GMDA
clearly stipulated that the plot purchased by Appellants would fall in the
category of "residential-cum-commercial use" and width of the road
abutted by the plot is proposed to be 50 feet. Thus, according to him, the
height of the building can be 100 feet, being the double of the width of the
road. Since the height of the building of the Appellants even after
construction upto 8th floors is only 93 feet, the part of the building beyond 5=
floors is not liable to be demolished.
It was also contended by him that initial permission was granted
by GMC whereas notices of demolition have been issued by GMDA which appears to
be absolutely contrary and against the provisions of law. It was also contended
that Respondents have failed to prove that any notices were sent to them on
02.02.2001 or 05.09.2001 by GMDA as it has been categorically mentioned by the
Appellants pursuant to third notice received by them and replied to.
It was also argued that in the light of specific order passed by
SAC, conscious decision has been taken by the Government and denial of hearing
itself would amount to prejudice, consequently, violation of principles of
If Commissioner was dissatisfied with the modification of his
order by the SAC then as provided under sub-section (2) of Section 438 of the
Act, he was required to make a reference to the Corporation within 60 days
thereof which he failed to do. He was, therefore, bound by the Appellate Order
of SAC and could not have super-imposed his own views or conditions.
Mr. Mukul Rohtagi, learned Senior Counsel appearing for Shyam
Sunder Agarwala submitted that he is owner of part of the 5th floor which has
not been sanctioned.
According to Mr. Mukul Rohtagi half of the 5th floor has already
been sanctioned and even if the width of the road abutted to the building is
taken as 38 feet, the height allowed would be 76 feet. Thus, it will have no
height problem. At the most, the only objection can be with regard to FAR which
objection can be waived as the same falls within compoundable items.
Shri Shyam Sunder Agarwala had purchased the said flat on
18.04.2005 for a total amount of Rs.9,43,850. It has also been contended that
after purchase of the said flat his name has been mutated in the Corporation
records. He is paying property tax, water tax etc., which Corporation is
this reason also it is not liable to be demolished.
He further contended that two parallel bodies, that is, GMC and
GMDA cannot take action for demolition of the building as the permission was
accorded by GMC whereas notices of demolition have been issued by GMDA. Thus,
according to him, whole procedure is illegal and void, thus liable to be
In the light of this, it has been contended that Section 88 of the
Development Act could not be put into service against the Appellants as the
same amounts to violation of principles of natural justice as no notice has
been served on the said Appellant.
Mr. Vijay Hansaria, learned Senior Counsel appearing for other
Appellants submitted that they are owners of flat No.7A/7C and 7D having
purchased on 14.06.2004 and 03.01.2005 for a sum of Rs.17,72,460 and 9,43,850
respectively. He has reiterated that Section 88 of the Development Act has not
been complied with inasmuch as no opportunity to show cause has been given to
these Appellants, thus violation of principles of natural justice is writ large
from the record. Commissioner had no other alternative but to abide by the
Appellate Order of SAC and in any case it should have been treated as deemed
Shri Kamal Mohan Gupta, learned counsel appearing for Sarla Devi
Lahoty, owner of a flat on 6th floor has also reiterated the aforesaid
arguments already advanced by M/s. Shekhar Naphade, Vijay Hansaria and Mukul
he has submitted that Sarla Devi Lahoty purchased a flat on 27.12.2004 for Rs.
8,63,010, after making due inquiries with regard to sanction of building plans
etc. Thus, she would be a bonafide purchaser for value and for any acts of
omission or commission said to have been committed by builder M/s. Priyanka
Estates International Pvt. Ltd. this Appellant cannot be put to any loss.
After having gone through the record carefully, the crux of the
matter is whether M/s. Priyanka Estates International Pvt. Ltd. is in
possession of any approved or sanctioned plan beyond 5= floors, i.e., for the
remaining 3= floors or not. If not, then what is the effect thereof?
It is clear from the record that the only plan approved was on
03.02.2000 for 5= floors by GMC. Order dated 05.05.2000 passed by SAC also does
not give them blanket permission to construct upto 8th floor.
It is also to be seen that respondents have come to the conclusion
and have fairly conceded before us that plan or sanction approved by either of
the two authorities, that is, GMC or GMDA will hold good and permission from
both the authorities simultaneously would not be required for the same, if it
has already been accorded by any one of the authorities.
On the strength of this, we can safely proceed that if no
permission under Section 24 and 25 of the Development Act was obtained by M/s.
Priyanka Estates International Pvt. Ltd. then it would not be detrimental to
the interest of the Appellants, provided there is sanction and approval of
plans by the Corporation for remaining 3= floors i.e. beyond 5= floors.
Here, it is pertinent to point out that Respondents had also issued
a public notice on 02.07.2002, published in local newspaper in vernacular
giving general warning and information to all proposed purchasers of flats that
unless builder is able to show Completion Certificate and Occupancy Certificate
duly issued by authorities, no one should enter into agreement to purchase
flat/flats from the builder. It is, therefore, to be construed that public
notice will hold good even with regard to adherence to the requirement of
Section 88 of the Development Act, if individual person had not been noticed by
Clause (a) of building bye-law 37 stipulates that for the purpose
of calculation of building height, existing width of the road shall be taken
into account and not the proposed width. Even if the proposed width is 40 feet
or 50 feet, it will not make any difference because it clearly contemplates
that what is to be taken into consideration is the existing width of the road.
There is nothing on record to show that the existing width of the road is more
than 38 feet. Thus, at the most, the construction could have been only upto the
height of 76 feet, provided there was sanction granted by either of the two
Appendix III of building bye-laws deals with penalties to be
levied for violation of provisions of Master Plans, Zoning Plans Regulations
and Bye-laws. Certain items are compoundable items but certain items fall in
the category of non-compoundable items. However, addition of extra floor falls
in the category of non-compoundable items. Thus, in any case anything that has
been constructed beyond 5th floor would be non-compoundable and same cannot be
compounded at all. In other words, minor deviations from the sanctioned plan
should be confined only to the FAR permissible but should not extend to the
For better appreciation of the aforesaid provision the same is
reproduced hereinbelow :- "Appendix III PENALTIES TO BE LEVIED FOR
VIOLATIONS OF PROVISION OF MASTER PLAN/ZONING PLAN REGULATIONS AND BYE LAWS.
provisions of Bye-laws except items given below shall not be
compounded/regularized and shall have to be rectified by alteration/demolition
at the risk and cost of owner.
Coverage - maximum of 15% (2) F.A.R. - maximum of 10% (3) Set Back - Upto 2'-
Space - Maximum 10% reduction (5) Total Height of - 1.5% Building Non
of building (2)Addition of extra floor (3)Parking Norms (4)Parking Norms (5) Projection
/encroachment of public land."
and analytical perusal of the same would show that addition of extra floor
falls within the ambit of non- compoundable items.
The order of SAC cannot be construed as an order of sanction as it
is not a semblance of permission. It was not end of the matter because necessary
sanction or permission could have been granted only by the Municipal
Commissioner and not by the Appellate Authority. Admittedly, even after passing
of the order by SAC in appeal, there was no further sanction by the Municipal
Commissioner or by Chief Executive Officer of the Development Authority
granting permission to raise the height of the building upto 8th floor.
Thus, looking to the matter from all angles, we are of the opinion
that construction of the building beyond 5= floors was not only illegal,
unauthorized and without any sanction or approval of plans but was also against
the spirit of Appellate Order of SAC. Thus, except for directing the
Respondent- authorities to demolish 6th, 7th and 8th floor, we are left with no
As regards construction of two flats on remaining half of 5th
floor, Mr. L. Nageshwar Rao, learned Senior Counsel for Respondent-authorities
fairly conceded that on suitable representations being made by the occupants,
their cases can be considered afresh to find out if the same would fall within
the category of compoundable items or not. If the same are found within the
category of compoundable items then necessary order by respondents in this
regard would be passed otherwise order of demolition would follow for them
also. Thus, on the promise of Sr. Advocate Mr. L. Nageshwar Rao, we hope and
trust, suitable orders would be passed by the Authorities as regards two flats
on 5th floor are concerned within two months from the date of submission of the
Even though various authorities had been placed before us by the
learned counsel appearing for parties, it is not required to deal with them in
extenso. However, a cursory reference to the same would meet the ends of
Mr. Shekhar Naphade has placed reliance on Corporation of Calcutta
v. Mulchand Agarwala AIR 1956 SC 110 to contend that it should be a last resort
to direct demolition of a building and if it falls within the compoundable
limit then it should not be directed to be demolished. To advance contentions
further in this regard, reliance has been placed on para 4 of an order of this
Court in the case of Syed Muzaffar Ali & Others v. Municipal Corporation of
Delhi 1995 Supp. (4) SCC 426 which is reproduced hereunder :
However, it is to be pointed out that mere departure from the authorized plan
or putting up a construction without sanction does not ipso facto and without
more necessarily and inevitably justify demolition of the structure. There are
cases and cases of such unauthorized constructions. Some are amenable to
compounding and some may not be. There may be cases of grave and serious
breaches of the licensing provisions or building regulations that may call for
extreme stage of demolition.
Reliance has also been placed on yet another judgment of this
Court in the case of Muni Suvrat-Swamy Jain S.M.P. Sangh v. Arun Nathuram
Gaikwad & Others (2006) 8 SCC 590, which dealt with Section 351 of the
Bombay Municipal Corporation Act to hold that if execution of work has
commenced contrary to provisions of the Act, then to give notice to the person
carrying on the construction work to show cause why it should not be pulled
down, is a must. The use of the word "shall" would signify that it is
mandatory to issue notice and then to pass any order. Lastly, a recent judgment
of this Court in the case of Municipal Corporation, Ludhiana v. Inderjit Singh
& Anr. (2008) 13 SCC 506 has been pressed into service. This also deals
primarily with the requirement of issuance of show cause notice to the person
who had raised construction, so as to enable the said party to show cause, if
the construction has been made in total violation of the sanctioned map or it
falls within the category of compoundable items.
Mr. Vijay Hansaria has placed reliance on the famous off-quoted
judgment of this Court in the case of Olga Tellis and Others etc. v. Bombay
Municipal Corporation & Others etc. (1985) 3 SCC 545 which dealt with
plight of the pavement dwellers, who were in unauthorised possession and were
sought to be evicted. He sought to contend that the fundamental rule of
principles of natural justice should have been followed before passing the
order of demolition.
Further with regard to opportunity of hearing he has placed
reliance on a judgment of this Court in the case of S.L. Kapoor v. Jagmohan and
Others (1980) 4 SCC 379.
On the other hand, Mr. L. Nageshwar Rao has placed reliance on
various judgments of this Court, viz., M.I. Builders Pvt. Ltd. v. Radhey Shyam
Sahu and Others (1999) 6 SCC 464; Friends Colony Development Committee v. State
of Orissa State of Haryana and Others (2006) 7 SCC 597; and Mahendra Buburao
Mahadik and Others v. Subhash Krishna Kanitkar and Others (2005) 4 SCC 99 to
contend that where constructions have been made in absolute and flagrant
violation of the sanctioned plan then the only alternative is to direct
demolition of the same.
It is not necessary to deal with the aforesaid judgments of this
Court in greater detail as the consistent ratio decidendi of this Court is that
if the constructions are in absolute violation of sanctioned or approved plans
and are not likely to fall in the category of compoundable items, then the
necessary consequence is to order its demolition and seal of approval for such
illegal activities is not required to be given by this Court.
It is pertinent to mention here that hearing of the appeals had
commenced on 22.10.2009 and had almost concluded on 28.10.2009. But on the said
date, Mr. Anoop George Chaudhary and Ms. June Chaudhary, learned Senior
Counsel, appeared with Mr. Kamal Mohan Gupta for Sarla Devi Lahoty and
submitted that they would be replying to the arguments advanced by learned
counsel for Respondents. Though not approved as a healthy practice, yet we
granted them permission.
It was submitted by them that if cases of two flat owners on the
5th floor are to be considered so as to find out whether the constructions
raised by the builder in their cases would fall within the compoundable items
or not, then the case of Sarla Devi Lahoty should also be directed to be
considered on a suitable representation being made by her, as her flat is
situated on the 6th floor. It was contended that even after taking the height
of 6th floor, it would not cross the maximum height of 76 feet looking to the
width of the existing road.
However, the said contention cannot be accepted as construction of
an extra floor does not fall within the category of compoundable items which is
manifest from Appendix III of the building bye-laws of the Corporation
However, with regard to two flats on 5th floor, a direction can be
given to the Respondents to consider their cases if they submit their
representations within a period of 30 days hereof. Respondents would examine
whether their cases fall within the compoundable items/limit or not. In case,
Respondents come to the conclusion that these two flats constructed on 5th
floor fall within the compoundable limit, then necessary orders be passed in
this regard, after charging compounding fees as may be applicable to the facts
of the case, in accordance with law, otherwise, they would also face the wrath
Even a conjoint reading of the order dated 05.05.2000 passed by
SAC and the order dated 29.05.2002 of the Administrator-cum-Minister makes it
clear as noon day that it does not clothe the Appellants to continue with the
construction work beyond 5= floors as these orders were passed subject to
fulfilling certain conditions contained therein.
It is obvious that what would ultimately constitute a sanctioned
and duly approved map would be the one approved by the Commissioner as he alone
has authority to do so. The Appellants have failed to produce any such duly
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 multi-storeyed buildings.
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.
Even though on earlier occasions also, under similar
circumstances, there have been judgments of this Court which should have been a
pointer to all the builders that raising unauthorised construction never pays
and is against the interest of society at large, but, no heed to it has been
given by the builders. Rules, regulations and bye-laws are made by Corporation
or by Development Authorities, taking in view the larger public interest of the
society and it is a bounden duty of the citizens to obey and follow such rules
which are made for their benefit. If unauthorised constructions are allowed to
stand or given a seal of approval by court then it is bound to affect the
public at large. An individual has a right, including a fundamental right,
within a reasonable limit, it inroads the public rights leading to public
inconvenience, therefore, it is to be curtailed to that extent.
The jurisdiction and power of courts to indemnify a citizen for
injuries suffered due to such unauthorised or illegal construction having been
erected by builder/coloniser is required to be compensated by them. An ordinary
citizen or a common man is hardly equipped to match the might and power of the
In the case in hand, it is noted that number of occupiers were put
in possession of the respective flats by the builder/developer constructed
unauthorisedly in violation of the laws. Thus, looking to the matter from all
angles it cannot be disputed that ultimately the flat owners are going to be
the greater sufferers rather than builder who has already pocketed the price of
It is a sound policy to punish the wrong-doer and it is in that
spirit that the courts have moulded the reliefs of granting compensation to the
victims in exercise of the powers conferred on it. In doing so, the courts are
required to take into account not only the interest of the petitioners and the
respondents but also the interest of public as a whole with a view that public
bodies or officials or builders do not act unlawfully and do perform their
In the case in hand, admittedly, at no point of time Appellant
No.1- M/s. Priyanka Estates International Pvt. Ltd. was able to show to its
prospective purchasers the Occupancy Certificate or Completion Certificate
issued by the authorities concerned. The same could not even be shown to us and
without it, Appellant No.1 could not have embarked into sale of flats as it was
The instant case is not a case of breach of contract.
It is a
clear case of breach of the obligation undertaken to erect the building in
accordance with building regulations and failure to truthfully inform the
warranty of title and other allied circumstances.
Even though at the first instance, we thought of invoking this
Court's jurisdiction conferred under Article 142 of the Constitution of India
so as to do complete justice between the parties and to direct awarding of
reasonable/suitable compensation/interest to the flat owners, whose flats are
ultimately going to be demolished, but, with a very heart, we have restrained
ourselves from doing so, for variety of reasons and on account of various
disputed questions that may be posed in the matter. However, we grant liberty
to those, whose flats are ultimately going to be demolished, to exhaust the
remedy that may be available to them in accordance with law.
We also feel it necessary and expedient to direct the
Respondent-authorities that if ultimately flat owners, whose flats are going to
be demolished shall be given at least three months' time to vacate the same.
This would enable them to mitigate the losses that may be incurred by them. We
accordingly direct so.
In the light of the foregoing discussions, these appeals are
dismissed with the directions contained hereinabove. Respondent-authorities
shall be at liberty to proceed with demolition of half of the 5th floor, if not
ultimately compounded; 6th, 7th and 8th floors as mentioned hereinabove.
Counsel's fee Rs. 10,000/- each.
......................J. [V.S. SIRPURKAR]
......................J. [DEEPAK VERMA]
December 03, 2009.