Construction Put Up In Violation Of Approved Building Plan By Local Authorities Cannot Be Encouraged: SC Issues Directions

The Court dismissed Appeals challenging the demolition of unauthorised commercial constructions on a residential plot. The Court upheld the Allahabad High Court's 2014 judgment and directed the Appellants to vacate the premises within three months. It also ordered the respondent authorities to demolish the structures and initiate criminal and departmental action against the officials involved.

The Bench of Justice J.B. Pardiwala and Justice R. Mahadevan held, “In the ultimate analysis, we are of the opinion that construction(s) put up in violation of or deviation from the building plan approved by the local authority and the constructions which are audaciously put up without any building planning approval, cannot be encouraged. Each and every construction must be made scrupulously following and strictly adhering to the Rules. In the event of any violation being brought to the notice of the Courts, it has to be curtailed with iron hands and any lenience afforded to them would amount to showing misplaced sympathy. Delay in directing rectification of illegalities, administrative failure, regulatory inefficiency, cost of construction and investment, negligence and laxity on the part of the authorities concerned in performing their obligation(s) under the Act, cannot be used as a shield to defend action taken against the illegal/unauthorized constructions.”

Senior Advocate Jitendra Mohan Sharma represented the Appellants, while Senior Advocates Vishwajit Singh and S.R. Singh appeared for the Respondents.

The dispute pertained to a plot allotted by U.P. Avas Evam Vikas Parishad for residential use. Contrary to the terms of the allotment, the Respondent constructed commercial shops on the property without obtaining any sanctioned map or approval from the competent authority.

Despite notices issued between 1990 and 2011 to stop the illegal construction, the violations continued. The demolition order was passed under Section 83 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. However, due to a lack of cooperation from the local authorities and the police, the demolition could not be executed.

The U.P. Avas Evam Vikas Parishad eventually approached the High Court, which directed the demolition of the unauthorised construction and action against the erring officials. The Appellants, who had purchased the shops through registered sale deeds, challenged this Order.

The Supreme Court stated, “The State Governments often seek to enrich themselves through the process of regularisation by condoning/ratifying the violations and illegalities. The State is unmindful that this gain is insignificant compared to the long-term damage it causes to the orderly urban development and irreversible adverse impact on the environment. Hence, regularization schemes must be brought out only in exceptional circumstances and as a onetime measure for residential houses after a detailed survey and considering the nature of land, fertility, usage, impact on the environment, availability and distribution of resources, proximity to water bodies/rivers and larger public interest.”

It was held that unauthorised construction cannot be legitimised or protected solely under the ruse of the passage of time or citing inaction of the authorities or by taking recourse to the excuse that substantial money has been spent on the said construction.

“Unauthorised constructions, apart from posing a threat to the life of the occupants and the citizens living nearby, also have an effect on resources like electricity, ground water and access to roads, which are primarily designed to be made available in orderly development and authorized activities. Master plan or the zonal development cannot be just individual centric but also must be devised keeping in mind the larger interest of the public and the environment,” the Court observed.

“Unless the administration is streamlined and the persons entrusted with the implementation of the act are held accountable for their failure in performing statutory obligations, violations of this nature would go unchecked and become more rampant. If the officials are let scot-free, they will be emboldened and would continue to turn a nelson’s eye to all the illegalities resulting in derailment of all planned projects and pollution, disorderly traffic, security risks, etc,” the Court further observed.

In the larger public interest, the Court issued the following directions, in addition to the directives issued by the Court in Re: Directions in the matter of demolition of structures:

(i) While issuing the building planning permission, an undertaking be obtained from the builder/applicant, as the case may be, to the effect that possession of the building will be entrusted and/or handed over to the owners/beneficiaries only after obtaining completion/occupation certificate from the authorities concerned.

(ii) The builder/developer/owner shall cause to be displayed at the construction site, a copy of the approved plan during the entire period of construction and the authorities concerned shall inspect the premises periodically and maintain a record of such inspection in their official records.

(iii) Upon conducting personal inspection and being satisfied that the building is constructed in accordance with the building planning permission given and there is no deviation in such construction in any manner, the completion/occupation certificate in respect of residential / commercial building, be issued by the authority concerned to the parties concerned, without causing undue delay. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified.

(iv) All the necessary service connections, such as, Electricity, water supply, sewerage connection, etc., shall be given by the service provider / Board to the buildings only after the production of the completion/occupation certificate.

(v) Even after issuance of completion certificate, deviation / violation if any contrary to the planning permission brought to the notice of the authority immediate steps be taken by the said authority concerned, in accordance with law, against the builder / owner / occupant; and the official, who is responsible for issuance of wrongful completion /occupation certificate shall be proceeded departmentally forthwith.

(vi) No permission /licence to conduct any business/trade must be given by any authorities including local bodies of States/Union Territories in any unauthorized building irrespective of it being residential or commercial building.

(vii) The development must be in conformity with the zonal plan and usage. Any modification to such zonal plan and usage must be taken by strictly following the rules in place and in consideration of the larger public interest and the impact on the environment.

(viii) Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co-operation and any delay or dereliction would be viewed seriously. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge.

(ix) In the event of any application / appeal / revision being filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the same shall be disposed of by the authority concerned, including the pending appeals / revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided.

(x) If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal / Courts relating to house / building constructions would come down drastically. Hence, necessary instructions should be issued by all the State/UT Governments in the form of Circular to all concerned with a warning that all directions must be scrupulously followed and failure to do so will be viewed seriously, with departmental action being initiated against the erring officials as per law.

(xi) Banks / financial institutions shall sanction loan against any building as a security only after verifying the completion/occupation certificate issued to a building on production of the same by the parties concerned.

(xii) The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.

The Court finally directed, “The Registrar (Judicial) is directed to circulate a copy of this Judgment to the Registrar General of all the High Courts, so as to enable the High Courts to refer it, while considering the disputes relating to unauthorised construction, deviation / violation of building permission, plan, etc.”

Accordingly, the Supreme Court dismissed the Appeal.

Cause Title: Rajendra Kumar Barjatya & Anr. v. U.P. Avas Evam Vikas Parishad & Ors. (Neutral Citation: 2024 INSC 990)

Appearance:

Appellants: Senior Advocate Jitendra Mohan Sharma; Advocates Amrit Pradhan, Akshat Sharma, Durgesh Kumar, Sandeep Singh and Sanchit Garga; AOR Ajit Sharma and Pahlad Singh Sharma

Respondents: Senior Advocates Vishwajit Singh and S.R. Singh; Advocates Pankaj Singh, S. Singh, Ridhima Singh, Anamika Yadav, Rajeev Kumar Dubey and Ashiwan Mishra; AOR Abhishek Kumar Singh, Ashiwan Mishra and Kamlendra Mishra

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