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REPORTABLE      

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     7356       of     2012   (Arising out of SLP(C) No. 23780/2011)

Dipak Kumar Mukherjee         …Appellant

versus

Kolkata Municipal Corporation and others                     …Respondents

J     U     D     G     M     E     N     T   

G.     S.     Singhvi,     J.   

1. Leave granted.

2. In last four decades, the menace of illegal and 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 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,  

Jabalpur v.  S.N.  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.

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Delhi Development Authority (1995) 5 SCC 762; (7)  Manju Bhatia v.  New Delhi  

Municipal Council (1997) 6 SCC 370; (8) M.I. Builders Pvt. Ltd. v. Radhey Shyam  

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 (2010) 2  

SCC 27.

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 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 Muni-

cipal Committee on the ground that the theatre owner had spent huge amount. While  

setting aside the 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 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 be- nefit of the residents of the locality. The Municipality acts in  aid of the Scheme. The rights of the residents in the area are in- vaded by an illegal 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 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 de- mand compliance by a local authority with its duty to observe

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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 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 demoli-

tion of the illegally 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 unau- thorised constructions never pays and is against the interest of  the  society  at  large.  The  rules,  regulations  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.”

5. In Friends Colony Development Committee v. State of 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 building  plans and indulge in deviations much to the prejudice of the  planned development of the city and at the peril of the occu- pants 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 time, the infrastructure consisting of water sup- ply, 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  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 have  the staff consisting of engineers and inspectors whose duty is to

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keep a watch on building activities and to promptly stop the il- legal constructions or deviations coming up, they often fail in  discharging  their  duty.  Either  they  don't  act  or  do  not  act  promptly or do connive at such activities apparently for illegit- imate considerations. If such activities are to stop some strin- gent 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  ad- equately 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 emphasis on  planned development of cities which is sought to be achieved  by zoning, planning and regulating building construction activ- ity. Such planning, though highly complex, is a matter based on  scientific research, study and experience leading to rationalisa- tion of laws by way of legislative enactments and rules and reg- ulations 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  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 subor- dinated 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 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 unne- cessary or unreasonable intermeddling with the private owner- ship 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 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 se- curing peace, good order, dignity, protection and comfort and  safety of the community. Not only filth, stench and unhealthy  places have to be 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 congestion in  the streets and roads. Zoning and building regulations are also

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legitimised from the point of view of the control of community  development, the prevention of overcrowding of land, the fur- nishing of recreational facilities like parks and playgrounds and  the availability of adequate water, sewerage and other govern- mental or utility services.

Structural and lot area regulations authorise the municipal au- thorities to regulate and restrict the height, number of storeys  and other structures; the percentage of a plot that may be occu- pied; the size of yards, courts and open 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  public welfare and convenience being sacrificed apart from the  risk, inconvenience and hardship which is posed to the occu- pants of the building.”

(emphasis supplied)

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 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 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, 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 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

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unmindful of the grave consequences of their 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 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  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 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 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 relief  should be given to the violator of the town planning scheme,  etc. on the ground that he has spent substantial 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 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 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  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

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urban areas. It is high time that the 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  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 appel-

lant and observed:

“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 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.”

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 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 disadvantaged section of the society frequently appear in the print media

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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 constructions has con-

vinced the citizens that planning laws are enforced only against poor and all com-

promises 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 cognizance of the preced-

ents in which this Court held that there should be no judicial tolerance of illegal and  

unauthorized 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 Corpora-

tion (for short, ‘the Corporation’) have been extremely vigilant and taken steps for  

enforcing the provisions of the Kolkata Municipal Corporation Act, 1980 (for short,  

‘the 1980 Act’) and the rules framed thereunder for demolition of illegal construc-

tion 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 construc-

tions and those indulging in such activities will not be spared.

10. The appellant is an enlightened resident of Kolkata. He succeeded in convin-

cing the learned Single Judge of the Calcutta High Court to order demolition of un-

authorised 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 this Court.

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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.8/1F, Gopal Doctor Road, Kolkata. The building plan submitted by respondent  

No.7 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 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 Sec-

tion 401 of the 1980 Act.  However, instead of stopping the construction, respondent  

No.7 added one more floor.  This 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 En-

gineer (Building) to the Director General (Building) – II, for demolition of the unau-

thorised 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 de-

cided to demolish the unauthorised construction. 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 Corporation to demolish the illegal construction by re-

spondent 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

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construction be decided by the competent authority after hearing the affected parties.  

Simultaneously, it was ordained that no illegal construction be 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 plan. Therefore, the appellant filed fresh writ  petition  

which came to be registered as WP No.13815/2010 for demolition of the unauthor-

ised construction and for issue of a direction to the Corporation not to issue comple-

tion certificate in favour of respondent Nos.7 and 8. The second writ petition was  

disposed of by the learned Single Judge vide order dated 28.7.2010, the relevant por-

tions 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 sanc- tioned plan. It is evident from the photo copies of the records  that it was resolved on 14th January, 2010 in the M.I.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 con- struction should be taken forthwith under section 400(8) of the  Kolkata Municipal Corporation Act with the help of the local  administration.

Since  admittedly,  unauthorized  construction  has  been  raised,  that is, construction has been carried out beyond the sanctioned  plan, I direct the Director General (Buildings-II) Kolkata Muni- cipal Corporation and the Executive Engineer (Civil), Building  Department, Borough-IX, the respondent nos. 3 and 4 respect- ively, to demolish the unauthorized structure, as resolved, with- in eight weeks from the date of communication of this order.  During such demolition, if need be the respondent nos. 3 and 4  are at liberty to seek assistance of the Officer-in-Charge, Wat- gunge Police Station, Kolkata, the respondent no.6 shall render  all assistance in implementing the order of this Court.”

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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 application reads as under:

Date: 13.08.2010 “To: The Executive Engineer (Civil)  Building Department Br.-IX,  The Kolkata Municipal Corporation,  11, Belvedere Road, Kolkata-700027.

Sub: Regularisation of additional floor over  Sanctioned Building.

Re:    Pre: No. 8/ 1 F, Gopal Doctor Road,  Ward No.76, Br.-IX.

Dear Sir,

I Md. Shahid, attorney of the above mentioned premises,  am submitting herewith one copy of ammonia print of five stor- ied building plan. The said building was sanctioned of two stor- ied, 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 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 this  respect and oblige me.

Thanking you.

              Yours faithfully,

    Sd/- Md. Shahid.”

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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 repro-

duced below:

“5.  I state  that  a  plan  dated  11.04.2009  vide  building  permit  no.2009090004  was  sanctioned  for  premises no. 8/1F, Gopal Doctor Road, Kidderpore,  Kolkata-700023, by the Kolkata Municipal Corpora- tion, 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 the five storied building is measuring about  559.57 square meter and the present F.A.R is 3.83.

6. I say that according to Clause (b) Sub-Rule 2 of Rule  25 of the Kolkata Municipal Corporation Building Rules 1990,  "if during the erection or execution of work any external devi- ation 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 erection or execution of works, submit, in ac- cordance with the provisions of the said rules, a revised plan in- corporating the deviation intended to be carried out, for obtain- ing necessary sanction thereof.”

7. I further say that Clause (b) Sub-Rule 2 of Rule 25 of the  Kolkata  Municipal  Corporation  Building  Rules,  1990,  em- powers 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  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  Corporation  Building Rules,  1990, empowers the Kolkata Municipal  Cor-

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poration 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 Judg- ment  of  this  Hon'ble  Court  delivered 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 unrelaxable building rules the Commissioner has discre- tion not to order 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 concerned au- thority. Copy of the letter dated 13th August, 2010 and the re- vised plan is collectively annexed hereto and marked with the  letter "R-l".

10. I say that the construction erected by me in the present  case is not of a serious nature and there is no immediate threat  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.

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 respondent  No.7 was illegal.   Thereafter,  re-

spondent 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 them-

selves 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 newspa-

pers, one in Bengali and another in English so as to enable other purchasers of the

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unauthorised portions of the building to present their cause before the Court.  The  

relevant portion of that order reads as under:

“01.03.2011

Mr. Bhaskar Ghosh, learned Advocate, has filed a re- port 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

Let the said report be kept on record.  

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 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. Bhattacharya, learned Ad- vocate appearing for the owner that their clients already have  been granted bail in that criminal proceeding and trial is con- tinuing.

It is further submitted by the learned Advocate appearing  for the Developer/appellant and the learned Advocate appearing  for the respondent/Owner 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 occupation in different flats by selling the con- cerned flats of said property or providing their occupation on  considering their earlier tenancy right.

Let affidavits be filed by them disclosing the total num- ber of flats of the concerned premises, the names of the occu- pants therein, if any, detailing the particulars, namely their right  and the  instruments  executed  by the  appellant  and/or  the  re- spondent/ Owner  concerned,  so  that  the  Court  may  pass appropriate order was to whether those persons should be  heard to not before passing any decision in this appeal.

Let such affidavits be filed within 10 days from date.

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The matter is posted  for  hearing on  15th March, 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 notice under Order 1 Rule 8 of the  Code  of Civil Procedure be published by the appel- lant within a week in the two daily Newspapers hav- ing State-wide publication; one in Bengali  and an- other in English and  will submit a Supplementary  Affidavit disclosing his action to that effect.”

17. On 15.3.2011, the High Court, after taking note of the fact that none of the oc-

cupants had come forward to espouse their cause, directed that a fresh notice be pub-

lished under Order 1 Rule 8 C.P.C.  The second opportunity given by the 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 Divi-

sion Bench of the High Court on 2.5.2011 and the competent authority of the Cor-

poration was directed to take appropriate decision in accordance with law after com-

plying with the principles of natural justice.  This is evinced from the following ex-

tracts of the impugned order:  

“Having  heard  the  learned  Counsel  appearing  for  the   parties   and   considering   the   facts and cir- cumstances of the 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 con- struction 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 con-

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structed  even  in  absence  of  sanctioned  building  plan.

In the aforesaid circumstances, the competent au- thority of the Kolkata Municipal Corporation must  take appropriate 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 Kolk- ata Municipal Corporation in this regard. The valid- ity and/or legality of the decision of the Kolkata Mu- nicipal Corporation authorities regarding demolition  and/or   retention  of  any unauthorized  structure  can be challenged before this Court but this Court  under normal circumstances should not dictate the  Kolkata  Municipal  Corporation  authorities  to  take  any specific decision regarding demolition or reten- tion of any structure without allowing the compet- ent authority to take appropriate decision in this re- gard.

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 circum- stances should not either direct retention of any il- legal structure or demolition of the same before al- lowing  the  competent  authority  of  the  concerned  Kolkata Municipal Corporation to take appropriate  decision in accordance with law.

For the aforementioned reasons, we direct the com- petent  authority  of  Kolkata Municipal  Corporation  to consider the nature and magnitude of the unau- thorised construction at  the  premises  in  question  and take specific decision regarding retention or de- molition of the same or any part thereof.

Needless to mention that the competent authority of  the Kolkata Municipal Corporation will take appro- priate decision strictly in accordance with law and  upon  observing  the  principles  of  natural  justice

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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 ar-

gued that the direction given by 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 14.1.2010 for demolition of the unauthorised construction.  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 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 International (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 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 to show that the representative of respondent

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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’).

20. Learned counsel  for  respondent  No.7 fairly conceded that  the construction  

raised by his client is contrary to the 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 pos-

sesses inherent power to regularise the illegal construction and there is no justifica-

tion to demolish the unauthorised portion of the building without deciding the ap-

plication submitted on 13.8.2010.

21. We have considered the respective arguments and carefully perused the re-

cord.  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 Di-

vision Bench of the High Court to the 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 no-

tices issued by the competent authority of the Corporation under Sections 400, 401  

and 401A of the 1980 Act and order dated 14.1.2010 passed by the Mayor-in-Coun-

cil, else it would not have decided the appeal by assuming that the competent author-

ity had not passed an order for demolition of the illegal construction. The factum of

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illegal construction having been raised by respondent No.7 is also evinced from the  

counter affidavits filed on behalf of respondent Nos.1 to 5 and respondent No.7 re-

spectively.   In paragraphs 4 (a) to (c),  (e) to (h),  (j)  and (k),  Shri Amitava Roy  

Chaudhary,  Executive Engineer  (Civil),  Building Department,  Kolkata  Municipal  

Corporation has explained the Corporation’s stand in the following words:

“ 4. I crave leave of this Hon'ble Court to set out the follow- ing facts in connection with the present S.L.P. :-

(a) A  Building  plan  being  Building  Sanction  Plan  No.  200909004 was sanctioned on 11.04.2009 by the concerned au- thority of the Corporation in favour of one Md. Sahid for con- struction of  two storied residential  building in respect  of  the  premises No.8/1F, Gopal Doctor Road, Kolkata-700023 (here- inafter referred to as the said premises) and the same to be com- pleted  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 receiving a com- plaint over telephone about the unauthorized construction being  made in the said premises. Upon the said complaint the con- cerned  officials  inspected  the  said  premises  and  found  that  R.C.C. columns were erected upto 3rd floor level with projec- tions  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 un- der  section  401  of  the  K.M.C.  Act,  1980  was  served  on  08.10.2009 to Md. Shahid, the person responsible, to stop forth- with further progress of construction work and the same was re- ceived 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 unau- thorized construction at the said premises which was in devi- ation 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 Po- lice Station, Kolkata, are annexed as Annexures P-l & P-2 at  pages 23-27 of the SLP Paper Book.

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(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 con- struction forthwith, the person responsible continued with the  construction works defying the said stop-work 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.

(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  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 sug- gested 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 concerned officials of the Corpor- ation, 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 unau- thorized construction. A true copy of the said proposal dated  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 report  to the Director General (Building)-II, 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 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, fire hazards, en- vironmental 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 same was placed before the Member, Mayor- in-Council for approval.

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(g) The  Member,  Mayor-in-Council  approved  the  said  re- commendation. On 14.01.2010, upon such approval the Mayor- in-Council  resolved that  unauthorized construction/  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 adminis- tration. 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 (Colly) at pages 31-32 of the S.L.P.  Paper Book.

(h) In  accordance  with  the  said  resolution  of  the  May- or-in-Council the demolition squad of the Corporation went to  the said premises on 04.02.2010 and was able to demolish a  portion of the unauthorized construction about 600 sq. ft. ap- prox. out of approx. 1500 sq. ft. of the said unauthorized con- struction in the said premises. The demolition squad also sub- mitted a report of the said structure in the said premises. In the  said report the reason for not being able to demolish the entire  un-authorized structure was also stated. A true copy of the de- molition report and the demolition sketch is annexed as Annex- ure P-6 at page 33 of the S.L.P. Paper Book.

j)  Pursuant to the directions of the Calcutta High Court, the  concerned 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 respons- ible for making unauthorized constructions and on 16.04.2010  the concerned Executive Engineer passed an order and commu- nicated the same to the respective parties. A true copy of the  said Order 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  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.”

22. In paragraphs 4, 5 and 6 of his affidavit, Mohammad Shahid has averred as  

under:

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“4. That since the Premises No. 8/1F, Gopal Doctor Road, Po- lice Station Watgunge, Kolkata having an area of about 2 Cot- tahs 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  answering respondent  for  undertaking  necessary construction works since the property became unin- habitable.  Thus  necessary  agreements  were  executed  by  and  between the answering respondent and owner/landlord for the  construction work in the premises in question.

Accordingly, thereafter a Plan dated 11.04.2009 vide Building  Permit No. 2009090004 was sanctioned for premises No. 8/1F,  Gopal  Doctor  Road,  Kidderpore,  Kolkata-  700  023,  by  the  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  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 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 erec- ted beyond sanctioned plan and a 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  is  provided that if during the erection or execution of work any  external deviation beyond the sanctioned covered space is in- tended 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, sub- mit, in accordance with provisions of the said  rules,  a revised  plan incorporating the deviation 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 to  allow a person to construct the sanctioned covered area, which

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means  construction  exceeding the floor  area  ratio  can be  al- lowed to be carried on.”

23. 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 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 of respondent No.7 might have thought  

that he will be able to pull strings in the power corridors and get an order for regular-

isation 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 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.

(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 may be taken against the  person at whose 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.

(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.”

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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 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 provi-

sions of the Act or the Rules is made, the Municipal Commissioner can, at an applic-

ation made in that behalf sanction the revise plan showing the deviation. Rule 25(3)  

is declaratory in nature.  It lays down that 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 Act and the Rules shall be dealt with accordingly.

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 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 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 compensate

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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 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 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.

28. In the result, the appeal is allowed and the impugned 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. Within three months from today, respondent No.7 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 one month.

3.     Within next one month, the Corporation shall demolish unauthorized  

construction after taking adequate precautionary measures.  

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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 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 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 the defaulting officers and/or respondent No.7 under the Contempt of Courts  

Act, 1971 and pass appropriate order.    

…..……….....……..….………………….…J.                      [G.S. SINGHVI]

…………..………..….………………….…J.  [SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi, October 8, 2012.