Supreme Court of India
DIPAK KUMAR MUKHERJEEversusKOLKATA MUNICIPAL CORPORATION AND OTHERS
- Citation
- 2012 INSC 458
- Decided
- 8 October 2012
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
The Supreme Court held that the Division Bench order is not sustainable; the builder cannot rely on Rule 25 for regularisation of the completed illegal construction, and must comply with the demolition order, compensate purchasers, and pay the prescribed penalty.
Summary
The appellant, Dipak Kumar Mukherjee, challenged the illegal construction of a multi‑storeyed building by respondent No.7 (a construction company) that exceeded the two‑storey plan sanctioned under the Kolkata Municipal Corporation Act, 1980. Despite a stop‑work notice and a demolition order passed by the Mayor‑in‑Council, the builder continued construction and later applied for regularisation under Rule 25 of the Kolkata Municipal Corporation Building Rules, 1990. The Division Bench of the Calcutta High Court directed the municipal authority to consider the regularisation application after a hearing, which the Supreme Court held to be untenable. The Court ruled that the builder could not invoke Rule 25 because the construction was completed in violation of the sanctioned plan and existing notices, and that the demolition order must be enforced. The builder was also held liable to compensate purchasers of the illegal flats with interest and to pay a penalty of Rs.25,00,000. The appeal was allowed, setting aside the High Court’s order and directing demolition, compensation, and penalty.
Issues considered
- Whether the Division Bench order directing the municipal authority to consider a regularisation application after a hearing is sustainable in view of the demolition order and the builder's violation of the sanctioned plan.
- Whether Rule 25 of the Kolkata Municipal Corporation Building Rules, 1990 can be invoked to regularise unauthorized construction that was completed after the issuance of stop‑work notices.
- Whether the builder is liable to compensate purchasers of the illegal flats and to pay a penalty for violating the sanctioned plan.
Legislation cited
- Contempt of Courts Act, 1971
- Kolkata Municipal Corporation Act, 1980s. 396, s. 400, s. 400(8), s. 401, s. 401A
- Kolkata Municipal Corporation Building Rules, 1990s. Rule 25(1), s. Rule 25(2), s. Rule 25(3)
Subjects
illegal constructionunauthorised buildingdemolition ordermunicipal lawRule 25compensation to purchaserspenaltyplanned developmentmunicipal regulations
Judgment
[2012] 10 S.C.R. 757
DIPAK KUMAR MUKHERJEE A
V.
KOLKATA MUNICIPAL CORPORATION AND OTHERS
(Civil Appeal No. 7356 of 2012)
OCTOBER 8, 2012
B
[G.S. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
Ko/kata Municipal Corporation Act, 1980 - ss. 396 -
Kolkata Municipal Corporation Building Rules, 1990 - r.25(2) C
- Construction of building - In violation of the plan sanctioned
under the Act - Unauthorised construction continued despite
the order of Municipal Corporation for demolition of such
construction - Writ petition challenging the unauthorized
construction - Single Judge of High Court directed demolition D
of such construction - The builder completed the construction
and filed application for regularization thereof - A/so filed
appeal against order of Single Judge - Division Bench of
High Court directing the competent authority to pass
appropriate order after giving opportunity of hearing to the E
builder - On appeal, held: Since construction in violation of
sanctioned plan not disputed and the demolition order was
passed by the Municipal Corporation, order of Division Bench
of High Court not sustainable - Builder cannot take
advantage of r.25 for regularization of the unauthorized F
construction - The builder is a/so guilty of cheating those who
purchased the portions of unauthorized construction -
Direction to the builder to compensate the purchasers by
refunding the cost of the flat with interest, and to pay cost of
Rs. 25,00,0001- for violation of sanctioned plan despite stop G
work notice.
Urban Development - Illegal unauthorized construction
- Held: Such construction not only violates the municipal laws
757 H
758 SUPREME COURT REPORTS [2012] 10 S.C.R.
A and the concept of planned development, but also affects
various fundamental and constitutional rights of other persons.
Respondent No. 7, the construction company
entered into an agreement with respondent No. 8 for
development of a plot. Building plan submitted by the
8
construction company was sanctioned by the Municipal
Corporation for two storeys. However, the construction
was done upto 3rd floor in deviation of the sanctioned
plan. The Corporation issued 'stop work notice' u/s. 401
of the Act. The construction company, instead of
C stopping the work, added one more floor. Thereafter,
notice u/s. 400(1) and 401 (A) were issued and after
considering the issue Mayor-in-Council decided to
demolish the unauthorized construction and accordingly
the unauthorized construction was demolished.
D
In the meantime, the appellant had filed writ petition
before High Court seeking direction to demolish the said
construction. Single Judge of High Court directed not to
carryout illegal construction. The construction company,
E despite the order of the High Court and the demolition
order of Mayor-in-Council, continued the construction in
violation of the sanctioned plan.
The appellant filed fresh writ petition for demolition
of the unauthorized construction. Single Judge of High
F Court directed demolition of unauthorized construction.
Thereafter the representative of the construction
compahy filed application for regularization of the
unauthorized construction. Simultaneously, also filed
appeal challenging the order of Single Judge. Division
G Bench of High Court disposed of the petition directing the
Corporation to take appropriate decision in accordance
with law after giving opportunity of hearing to the builder.
Hence, the present appeal.
H Allowing the appeal, the Court
DIPAK KUMAR MUKHERJEE v. KOLKATA 759
MUNICIPAL CORPORATION
HELD: 1.1. Illegal and unauthorised constructions of A
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 B
illegal and unauthorised constructions are supported by
the people entrusted with the duty of preparing and
executing master plan/development plan/zonal plan. The
failure of the State apparatus to take prompt action to
demolish such illegal constructions has convinced the c
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. [Para
8] [7'70-C-G] D
K. Ramadas Shenoy v. Chief Officers, Town Municipal
Council (1974) 2 SCC 506: 1975 (1) SCR 780; Virender
Gaur v. State of Haryana (1995) 2 SCC 577: 1994 (6) Suppl.
SCR 78; Pleasant Stay Hotel v. Palani Hills Conservation
Council (1995) 6 SCC 127: 1995 (3) Suppl. SCR 588; E
Cantonment Board, Jabalpur v. S.N. Awasthi 1995 Supp.(4)
SCC 595: 1995 (4) Suppl. SCR 739; Pratibha Coop.
Housing Society Ltd. v. State of Maharashtra (1991) 3 SCC
341: 1991 (2) SCR 7 45; G. N. Khajuria (Dr) v. Delhi
Development Authority (1995) 5 SCC 762: 1995 (3) Suppl. F
SCR 212; Manju Bhatia v. New Delhi Municipal Council
(1997) 6 SCC 370: 1997 (1) Suppl. SCR 156; M./. Builders
Pvt. Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464: 1999
(3) SCR 1066; Friends Colony Development Committee v.
State of Orissa (2004) 8 SCC 733: 2004 (5) Suppl. G
SCR 818; Shanti Sports Club v. Union of India (2009) 15
SCC 705: 2009 (13) SCR 710; Priyanka Estates International
Pvt. Ltd. v. State of Assam (2010) 2 SCC 27: 2009 (16)
SCR 80 - relied on.
H
760 SUPREME COURT REPORTS (2012] 10 S.C.R.
A 1.2. 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
B 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
c 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. [Para 27] [788-F-H]
2.1. Since, respondent No.7 has not disputed that the
D 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
E appropriate order after giving opportunity of hearing to
respondent No.7 cannot be sustained. 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
F in violation of the plan sanctioned under Section 396 of
Kolkata Municipal Corporation Act, 1980 and continued
with that activity despite the order of the Mayor-in-Council.
[Paras 21 and 23] [781-C-E; 786-G-H]
G 2.2. Respondent No.7 cannot take benefit of Rule 25
of Kolkata Municipal Corporation Building Rules, 1990 for
regularizing the unauthorized structure 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
H
DIPAK KUMAR MUKHERJEE v. KOLKATA 761
MUNICIPAL CORPORATION
application for regularization of the unauthorized A
construction was made after completion of the
construction. [Para 26] [788-B-C]
2.3. Respondent No.7 is guilty not only of violating
the sanctioned plan and the relevant provisions of the
8
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, C
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. [Para 27]
[788-B-E] D
3. It is directed that within three months from the date
of the judgment, respondent No.7 shall pay the price of
the flats etc. to the purchasers with interest@ 18% per
annum from the date of payment. The occupiers of illegal/ E
unauthorized construction shall vacate such portions of
the building within next one month. Within next one
month, the Corporation shall demolish unauthorized
construction after taking adequate precautionary
measures. Respondent No.7 shall pay cost of F
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 and shall be
utilized for providing legal aid in deserving cases. G
Reports showing compliance of the aforesaid directions
be filed by the Corporation and respondent No.7 in the
Registry of the High Court within six months. Thereafter,
the matter be placed before the Single Judge who had
passed order dated 28.7.2010. If the Single Judge finds
that any of the aforesaid directions has not been H
762 SUPREME COURT REPORTS (2012] 10 S.C.R.
A 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.
(Paras 28 and 29] [789-8-G]
Case law Reference:
B
1975 (1) SCR 780 Relied on Para 2
1994 (6) Suppl. SCR 78 Relied on Para 2
1995 (3) Suppl. SCR 588 Relied on Para 2
c 1995 (4) Suppl. SCR 739 Relied on Para 2
1991 (2) SCR 745 Relied on Para 2
1995 (3) Suppl. SCR 212 Relied on Para 2
D 1997 (1) Suppl. SCR 156 Relied on Para 2
1999 (3) SCR 1066 Relied on Para 2
2004 (5) Suppl. SCR 818 Relied on Para 2
E 2009 (13) SCR 710 Relied on Para 2
2009 (16) SCR 80 Relied on Para 2
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7356 of 2012.
F
From the Judgment & Order dated 02.05.2011 of the
Division Bench of Calcutta High Court in FMA No. 2320 of
2011.
Bhaskar P. Gupta, Kalyan Bandopadhyay, Partha Sil, LC.
G Agrawala, Abhijeet Chatterjee, Abhijit Sengupta for the
Appearting parties.
The Judgment of the Court was delivered by
G. S. SINGHVI, J. 1. Leave granted.
H
DIPAK KUMAR MUKHERJEE v. KOLKATA 763
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
2. In last four decades, the menace of illegal and A
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 B
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, Jaba/pur v. S.N. c
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. /. Builders Pvt. Ltd. v. Radhey Shyam D
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
(201 o) 2 sec 21.
E
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 F
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 G
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 H
764 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G 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."
H
DIPAK KUMAR MUKHERJEE v. KOLKATA 765
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
5. In Friends Colony Development Committee v. State of A
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 8
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 C
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 D
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 E
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 acfpromptly or do connive at such F
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 G
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
H
766 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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
c 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
D
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
E
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
F 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
G 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
H congestion in the streets and roads. Zoning and building
DIPAK KUMAR MUKHERJEE v. KOLKATA 767
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
regulations are also legitimised from the point of view of A
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. B
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 C
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 D
public welfare and convenience being sacrificed apart from
the risk, inconvenience and hardship which is posed to the
occupants of the building."
(emphasis supplied) E
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
F
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 G
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,
H
768 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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
c 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
D
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
E 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
F 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
G 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
H relief should be given to the violator of the town planning
DIPAK KUMAR MUKHERJEE v. KOLKATA 769
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
scheme, etc. on the ground that he has spent substantial A
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
8
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 C
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 D
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 E
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 F
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:
G
'"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 H
770 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
s 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."
c 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
D 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
E 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
F 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
G cognizance of the precedents in which this Court held that there
should be no judicial tolerance of illegal and unauthoriz~d
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')
H
DIPAK KUMAR MUKHERJEE v. KOLKATA 771
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
have been extremely vigilant and taken steps for enforcing the A
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 B
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 C
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 thi~ Court. D
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.8/1 F, Gopal Doctor
Road, Kolkata. The building plan submitted by respondent No.7 E
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 F
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 G
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
H
772 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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.
B 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
C 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
D 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
E 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
F 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
G the records that ifwas resolved on 14th January, 2010 in
the M.l.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
H be taken forthwith under section 400(8) of the Kolkata
DIPAK KUMAR MUKHERJEE v. KOLKATA 773
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
Municipal Corporation Act with the help of the local A
administration.
Since admittedly, unauthorized construction has been
raised, that is, construction has been carried out beyond
the sanctioned plan, I direct the Director General B
(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 C
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."
D
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 applicat:on reads as under:
E
Date: 13.08.2010
"To:
The Executive Engineer (Civil)
Building Department Br.-IX,
The Kolkata Municipal Corporation, F
11, Belvedere Road, Kolkata-700027.
Sub: Regularisation of additional floor overSanctioned
Building.
Re: Pre: No. 8/ 1 F, Gopal Doctor Road, Ward No. 76, G
Br.-IX.
Dear Sir,
I Md. Shahid, attorney of the above mentioned
premises, am submitting herewith one copy of ammonia H
774 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B
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
c this respect and oblige me.
Thanking you.
Yours faithfully,
Sd/-
D 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
E reproduced below:
"5. I state that a plan dated 11.04.2009 vide building permit
no.2009090004 was sanctioned for premises no. 8/1 F,
Gopal Doctor Road, Kidderpore, Kolkata-700023, by the
F 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
G
the five storied building is measuring about 559.57 square
meter and the present F.A.R is 3.83.
6.) say that according to Clause (b) Sub-Rule 2 of Rule
25 of the Kolkata Municipal Corporation Building Rules
H 1990, "if during the erection or execution of work any
DIPAK KUMAR MUKHERJEE v. KOLKATA 775
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
external deviation beyond the sanctioned covered space A
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 B
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, C
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 D
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 E
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 F
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 unrelaxab!e
building rules the Commissioner has discretion not to order G
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 H
776 SUPREME COURT REPORTS [2012] 10 S.C.R.
A concerned authority. Copy of the letter dated 13th August,
2010 and the revised plan is collectively annexed hereto
and marked with the letter "R-1".
10. I say that the construction erected by me in the present
case is not of a serious nature and there is no immediate
B
threa.t 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.
c 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
D 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
E 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
F building to present their cause before the Court. The relevant
portion of that order reads as under:
"01.03.2011
G 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
H
DIPAK KUMAR MUKHERJEE v. KOLKATA 777
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
Let the said report be kept on record. A
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
B
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. C
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 D
appearing for the Developer/appellant and the learned
Advocate appearing for the respondenUOwner 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
E
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 F
the occupants therein, if any, detailing the particulars,
namely their right and the instruments executed by the
appellant and/or the respondenU Owner concerned, so that
the Court may pass appropriate order was to whether those
persons should be heard to not before passing any G
decision in this appeal.
Let such affidavits be filed within 10 days from date.
The matter is posted for hearing on 15th March,
H
778 SUPREME COURT REPORTS [2012] 10 S.C.R.
A· 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
B
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."
c
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
D 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
E 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
F 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
G 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.
H In the aforesaid circumstances, the competent authority of
DIPAK KUMAR MUKHERJEE v. KOLKATA 779
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
the Kolkata Municipal Corporation must take appropriate A
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 B
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 C
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.
D
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 E
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.
F
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. G
Needless to mention that the competent authority of
the Kolk-ata Municipal Corporation will take appropriate
decision strictly in accordance with law and upon observing
H
780 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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 14.1.201 O for demolition of the unauthorised construction.
C 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
D 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
E lntemational (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
F 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
G 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').
H 20. Learned counsel for respondent No.7 fairly conceded
DIPAK KUMAR MUKHERJEE v. KOLKATA 781
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
that the construction raised by his client is contrary to the A
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 B
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 C
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 D
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 E
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
assumi'ilg that the competent authority had not passed an order
for d~olition of the illegal construction. The factum of illegal
construction having been raised by respondent No.7 is also F
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), 0) and (k), Shri Amitava Roy Chaudhary,
Executive Engineer (Civil), Building Department, Kolkata
Municipal Corporation has explained the Corporation's stand G
in the following words:
" 4. I crave leave of thi,S 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. H
782 SUPREME COURT REPORTS (2012] 10 S.C.R.
A 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.8/1 F, Gopal Doctor Road,
Kolkata-700023 (hereinafter referred to as the said
B 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
c 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
D 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 OB.10.2009 to Md. Shahid, the person
E 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
F 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
G
Annexures P-1 & 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
H construction forthwith, the person responsible continued
DIPAK KUMAR MUKHERJEE v. KOLKATA 783
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
with the construction works defying the said stop-work A
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. B
(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 C
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 D
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 E
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 F
report to the Director General (Building)-11, 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 G
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,
H
784 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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/
c 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
D (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
E 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
F 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 c::nnexed as Annexure
P-6 at page 33 of the S.L.P. Paper Book.
0) Pursuant to the directions of the Calcutta High Court,
G the concerneq 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
H Engineer passed an order and communicated the same
DIPAK KUMAR MUKHERJEE v. KOLKATA 785
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
to the respective parties. A true copy of the said Order A
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 B
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."
c
22. In paragraphs 4, 5 and 6 of his affidavit, Mohammad
Shahid has averred as under:
"4. That since the Premises No. 8/1 F, Gopal Doctor Road,
Police Station Watgunge, Kolkata having an area of about 0
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
E
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. F
Accordingly, thereafter a Plan dated 11.04.2009 vide
Building Permit No. 2009090004 was sanctioned for
premises No. 8/1 F, Gopal Doctor Road, Kidderpore,
Kolkata- 700 023, by the Kolkata Municipal Corporation G
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 H
786 SUPREME COURT REPORTS [2012] 10 S.C.R.
A Cl"l'lstructed 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
B
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
c 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
D 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
E erection or execution of works, submit, in accordance with
provisions of the said rules, a revised plan incorporating
the d~viation 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
F
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
G 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
H of respondent No.7 might have thought that he will be able to
DIPAK KUMAR MUKHERJEE v. KOLKATA 787
MUNICIPAL CORPORATION [G.S. SINGHVI, J.]
pull strings in the power corridors and get an order for A
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
8
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. C
(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 D
may be taken against the person at who_se 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. E
(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."
F
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 G
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 H
788 SUPREME COURT REPORTS [2012] 10 S.C.R.
A the deviation. Rule 25(3) is declaratory in nature. It lays down
that any deparhlre made during the execution of any work or
at any time the~after without sanction shall be deemed to be
in contravention of the Act and the Rules shall be dealt with
accordingly.
~
8
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
C 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
D 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
E 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
F 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
G 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.
H
DIPAK KUMAR MUKHERJEE v. KOLKATA 789
MUNICIPAL CORPORATION [GS. SINGHVI, J.]
28. In the result, the appeal is allowed and the impugned A
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. 'Nithin three months from today, respondent No.7
B
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 C
one month.
3. Within next one month, the Corporation shall
demolish unauthorized construction after taking
adequate precautionary measures.
D
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 E
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 F
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 G
the defaulting officers and/or respondent No.7 under the
Contempt of Courts Act, 1971 and pass appropriate order.
K.K.T. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "illegal construction"Sign in to search