REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8026 OF 2009 [Arising out of SLP(C) No.14480 of 2006]

Priyanka Estates International Pvt. Ltd. & Ors. ....Appellants

Versus

State of Assam  & Ors. ....Respondents

WITH

C.A.NO.8025 OF 2009 [Arising out of SLP(C) No.15546 of 2006]

C.A.NO.8027 OF 2009 [Arising out of SLP(C) No.15547 of 2006]

C.A.NO.8028 OF 2009 [Arising out of SLP(C) No.16898 of 2006]

AND C.A.NOS.8029-8032 OF 2009

[Arising out of SLP(C) Nos.28291-28294 of 2009]

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. The principal question that emerges for consideration  

in these appeals is whether to sustain the order of  

demolition as passed by the Gauhati High Court vide  

impugned judgment and order or to put an imprimatur  

of  this  Court  to  the  unauthorised  constructions  

raised  by  M/s.  Priyanka  Estates  International  (P)  

Ltd. (Appellant No.1 herein) beyond 5½ floors. Facts  

material for deciding the said appeals are mentioned  

hereinbelow.

3. For the sake of convenience, the facts appearing in SLP (C)

No. 14480 of 2006 titled as M/s Priyanka Estates International  

(P) Ltd. & Others Vs. State of Assam & Others are taken into  

consideration. Appellant No.1 is a company of which Appellant  

Nos.2 & 3 are  Directors.  

4. Appellant  No.1  herein  purchased  an  open  piece  of  land  

approximately admeasuring  4.62 Kathas from one Smt. Nandita  

Banerjee   on 9.8.1999 by registered deed of sale. Prior to  

execution of sale, the vendor of Appellant No.1 applied to  

Guwahati  Metropolitan  Development  Authority  (hereinafter  

referred to as 'GMDA') for grant of ‘No Objection Certificate’  

for  sale  of  land.   The  said  permission  was  accorded  on  

17.7.1999 mentioning therein that permission is granted for  

“residential-cum-commercial  use”  of  the  said  plot  and  that  

proposed width of the road abutted by plot is approximately 50  

feet.  

5. Pursuant to the said permission, Sale Deed was executed in  

favour of Appellant No.1, whereafter it applied to Guwahati  

Municipal Corporation (hereinafter referred to as 'GMC')  on  

16.11.1999  for  according  permission  for  construction  of  

basement,  ground, mezzanine,  first, second, third,  fourth  

and half of 5th floors. The permission was accorded to M/s.  

Priyanka Estates International (P) Ltd. on 03.02.2000 by the  

GMC for construction of basement, ground floor, mezzanine upto  

fourth  floor  and  half  on  the  5th floor.   For  1st floor  to  

fourth, the floor area permissible was 7283 sq. ft. but on 5th  

floor, the permissible floor area was fixed at half of it,  

i.e., 3817 sq. ft only.  It was granted on certain conditions

as mentioned in the sanction dated 3.2.2000.

6. Thereafter, on 08.02.2000, Appellant No.1 applied for  

grant of permission for construction of remaining part of 5th ,  

6th, 7th and 8th floors.  This permission was refused by GMC on  

27.3.2000 on the following grounds.       

“i) Maximum allowable height of building can be  76' and proposed height would be 93'.

ii) The margin on both sides and  rear is less  than required norms.

iii) FAR is exceeded than  allowable 300.

iv) The  structural  certificate  is  not  submitted.”

So,  proposal  for  5th (part)  6th,  7th and  8th floor  building,  

permission was rejected.

7. Feeling  aggrieved  by  the  said  rejection  by  GMC,  

appellants  preferred  an  appeal  under  Section  438  of  the  

Guwahati Municipal Corporation Act, 1971 (hereinafter referred  

to as 'the Act') before the Standing Appellate Committee (in  

short 'SAC').

8. This  came  to  be  disposed  of  on  5.5.2000  with  the  

following directions:

“In  view  of  the  above  discussion  as  well  as  observation,  in  our  considered  opinion,  the  appellant’s  case  deserve  consideration.  Accordingly,  we  hold  that  the  appellant  be  accorded permission as sought for.  We hereby set  aside the impugned order, as aforesaid, passed by  the Commissioner, GMC, the Respondent.  

In the result, the appeal is allowed.”

9. Since, despite the fact that SAC had allowed the appeal of  

Appellants with regard to construction of 5th (part), 6th, 7th

and  8th floors,  no  formal  permission  was  still  accorded  by  

Commissioner  GMC  to  it,  they  moved  further  application  on  

28.8.2001  before  Administrator-cum-  Minister,  Guwahati  

Development Department, as it appears by that time, GMC had  

been dissolved.

10. The said appeal was considered by Administrator-cum-

Minister and the appeal verdict was reviewed on 29.5.2002 with  

certain conditions as mentioned hereinbelow :

“i) To obtain NOC from State Fire Department;

ii) Submit affidavit regarding the Structural  Certificate;

iii) Compulsory  covered  parking  and  private  service system like drainage, sewage, storm drain,  water supply etc.;

iv) No further FAR beyond 487.00;

v) To  submit  completion  certificate  and  obtain Occupancy Certificate from GMC;

vi) To pay a penal charge to the Corporation  amounting to Rs.10,00,000.00 (ten lacs);

vii) Your  building  is  liable  for  instant  demolition at your own risk and cost in case of  non-compliance of the above.”

11. However,  it  appears  that  without  compliance  of  the  

aforesaid conditions fully and without getting actual sanction  

for  construction  of  building  beyond  5½  floors  from  the  

Commissioner  of  G.M.C.  Appellants  continued  with  the  

construction activities and tried to complete the same.

12. Guwahati Metropolitan Development Authority (As already  

referred to as 'GMDA') now came into picture and issued notice  

to  Appellant  No.2  on  02.02.2001  to  show  cause  and  to  give  

explanation as to without grant of proper sanction under GMDA

Act, how the construction work is progressing.

13. Another notice by GMDA was issued to the Appellant No.2  

on  5.9.2001  asking  to  remove/demolish  the  

building/construction/ development or the portion erected by  

them  which  is  in  violation  of  the  provisions  of  Guwahati  

Metropolitan  Development  Authority  Act  (for  short  'the  

Development Act').  No replies to the aforesaid two notices  

were sent by the Appellants herein on the ground that the same  

were not received.

14. Last and final notice in this regard was issued by GMDA  

on  18.2.2002  mentioning  therein  with  regard  to  earlier  two  

notices sent on 2.2.2001 and 5.9.2001 and finally asking the  

Appellants to remove the construction within three days from  

the receipt of this last notice failing which, necessary action  

as  per  provision  of  the  Development  Act  will  be  initiated  

without giving further intimation.

15. Appellants replied to the said last notice on 18.2.2002  

mentioning therein that they had not received the earlier two  

letters but mentioned that permission has been granted by GMC  

on  3.2.2000,  and  is  still  operative,  which  clarified  the  

position of construction of the building beyond 5½ floors also  

but  did  not  actually  present  any  sanctioned  or  approved  

plans/maps beyond 5½ floor.

16. Not being satisfied with the reply to the show cause  

notice, submitted by the Appellants, the Respondents proceeded  

to issue another notice to the Appellant No.2 on 3.5.2002, with  

a categorical statement that construction  over and above 6th

and 7th floor was wholly  illegal, without due sanction and  

therefore, the same be removed/demolished.

17. It  appears  that,  thereafter,  some  correspondence  

between the parties continued.  Finally on 31.7.2002 by two  

orders, the Commissioner, GMC informed the Appellant No.1 that  

plans  submitted  by  them  are  insufficient  for  the  following  

reasons and requested it to furnish the required materials as  

under and to forthwith stop the construction :  

“1. Affidavit  for  structural  design  as  per  format at the building bye laws.  

2. NOC from State Fire Department.

3. Declaration in affidavit to maintain the  FAR within 487.”  

18. The Appellants, therefore, were constrained to move the  

High Court challenging the said order dated 31.7.2002 by filing  

W.P.(C) No.5018 of 2002 purportedly under Articles 226 and 227  

of Constitution of India.

19. Further order of demolition came to be issued to the  

Appellant  No.2  by  GMDA  on  30.5.2006,   clearly  mentioning  

therein that no sanction was obtained by the Appellants under  

Section  24  &  25  of  the  Development  Act  and  had  actually  

violated  the  provisions  of  Building  Bye-laws  of  Guwahati  

Municipal Corporation (for short, 'building bye-laws'), in the  

following manner :

“1. FAR of the building is 490 which exceeds  allowable FAR 300.

2. Maximum floor height 93’ exceeds allowable  height 76’ in this road.

3. Since  the  building  is  mixed  used  with  residential at top floors, setback required is 15’

side to 20’ rear, which is not maintained.

4. Balcony projection is allowed, maximum ¼  of the building length in any side, which is not  maintained.

5. Two  staircases  and  lift  on  opposite  direction is required which is not available in  the building as per building plan.

6. Construction  of  building  is  going  on  despite our order to stop construction.”

20. The  said  order  further  directed  demolition  of  the  

building  beyond  the  sanctioned  plan  dated  3.2.2000.   The  

Appellants,  therefore,  challenged  the  said  order  dated  

30.5.2006  issued  by  Chief  Executive  Officer  GMDA  by  filing  

another W.P.(C)No.2747 of 2006.  In W.P.(C) No.5018 of 2002,  

(earlier W.P. filed in the Gauhati High Court) an order of  

status  quo came  to  be  passed  on  12.8.2002  and  it  further  

directed that Municipal Authority shall take no steps to pull  

down  the  building  and  the  operation  of   the  letter  dated  

31.7.2002 was stayed.

21. It appears that pursuant to the said order, Appellants  

continued with the construction activities presumably on the  

ground that order of status quo is against the Respondents of  

the  Writ  Petition  and  not  against  the  Appellants.   Thus,  

Sanatan Dharam Sabha, Guwahati filed an application seeking  

permission  to  be  impleaded  in  the  said  petition  and  also  

bringing to its notice that despite the order of maintenance of  

status quo, Appellants are continuing with the construction.  

Thus, another order clarifying the earlier order came to be  

passed by the High Court on 20.9.2002 whereby a categorical  

direction was issued that no further construction over the said

land shall be made and all construction activities should come  

to  a  standstill  immediately.   It  appears  that  only  after  

passing the said order, Appellants stopped the construction  

work.   

22. Sanatan  Dharam  Sabha  alongwith  three  residents  of  

Panbazar locality of Guwahati city filed W.P.(C) No.5146 of  

2002 in the Gauhati High Court   against the action of GMC and  

GMDA  granting  permission  to  the  appellant,  M/s.  Priyanka  

Estates for multi-storeyed building in question and prayed for  

its demolition.   

23. Thus,  all  the  three  petitions,  i.e.  W.P.(C)  

No.5018/2002,  W.P.(C) No.2747/2006 and  W.P.(C) No.5146/2002  

were consolidated for the purpose of analogous hearing and have  

been disposed of by Division Bench of Gauhati High Court vide  

impugned  judgment  and  order  dated  28.7.2006.  Vide  impugned  

judgment, the Writ Petitions preferred by Appellants herein  

numbered as 5018/02 and 2747/06 having been found devoid of  

merit and substance were dismissed but W.P.(C) No. 5146/2002  

filed by Sanatan Dharam Sabha has been allowed to the extent  

indicated in the impugned order.

24. Feeling aggrieved and dissatisfied with the aforesaid  

judgment  and  order,  civil  appeal  arising  out  of  

S.L.P.(C)No.14480/06  titled,  'M/s.  Priyanka  Estates  

International (P) Ltd.  & Ors. vs. State of Assam & Ors.' has  

been filed by Builder and its Directors;  civil appeals arising  

out of S.L.P.(C) No.15546/06 titled, 'Vishal Saraf v. State of  

Assam  &  Ors.'  and  civil  appeal  arising  out  of

S.L.P.(C)No.15547/06 titled, 'Suresh Kumar Harlalka v. State of  

Assam & Ors.' have been filed by  owners of flats on 7th floor  

and civil appeal arising out of S.L.P.(C) No. 16898/06 titled,  

'Sarla Devi Lahoty vs. State of Assam & Ors.' has been filed by  

owner  of  one  flat  on  6th floor.   Insofar  as  civil  appeals  

arising out of S.L.P.(C) Nos.28291-28294/2009 titled, 'Shyam  

Sunder Agarwala vs. State of Assam & Ors.' are concerned, the  

same have been filed by owner of one flat on 5th floor only.  

Since  the  matters  were  common  and  identical  challenging  

primarily the order passed by Division Bench of the High Court  

and pertained to the same building claiming identical reliefs,  

these Appeals have been heard together. Perused the records.

25. Mr. Shekhar Naphade, leaned Senior Counsel, Mr. Mukul  

Rohtagi, learned Senior Counsel with Mr. Shankar Divate, Mr.  

Dhruv  Mehta,  Mr.  Yashraj  Singh  Deora,  Advocates,  Mr.  Vijay  

Hansaria, learned Senior Counsel with Mr. P.I. Jose and Mr.  

Kamal Mohan Gupta, Advocates appeared for the Appellants in the  

aforesaid appeals. Mr. L. Nageshwar Rao, learned Senior Counsel  

with Ms. Millie Hazarika and Mr. Manish Goswami appeared for  

the Respondents.  

26. Respondents have contended that for construction of any  

building,  permission  from  GMC  is  a  condition  precedent  and  

unless  such  permission  is  granted  no  construction  can  be  

raised.  

27. It has further been submitted that such construction  

has to be as per the sanctioned plan approved by GMC and no  

deviation from such approved plan can be made.

28. According  to  them,  Appellant  No.1  was  admittedly  

granted permission for construction of 5½ storeyed building,  

apart  from  basement,  ground  and  mezzanine  floor  vide  order  

dated 03.02.2000, thereafter, no further permission has been  

granted for raising any construction on remaining part of 5th  

floor  and  upwards.  The  order  of  the  SAC  dated  05.05.2000  

setting aside the order of Commissioner, GMC dated 27.3.2000  

rejecting the permission to raise construction on part of the  

5th floor  up  to  8th floor  was  itself  illegal,  beyond  the  

jurisdiction and competence of SAC as it violated the building  

bye-laws.

29. In view of the admitted position that the width of the  

road is only 38 feet and under the building bye-laws, maximum  

allowable height can be double the width of the road, i.e., 76  

feet but in the instant case the SAC has allowed construction  

upto  93  feet,  which  contravenes  the  building  bye-laws,  

therefore, such an order of SAC has no legal force and cannot  

be  basis  for  construction  beyond  76  feet,  allowable  under  

building bye-laws.

30. It has been submitted by them that the order of the SAC  

dated  05.05.2000  lost  its  force  and  sanctity  after  the  

communication dated 29.05.2002 was issued by GMC by which the  

Appellants were asked to comply with certain conditions before  

granting  any  permission  for  construction  of  a  building  for  

remaining part of 5th floor and above.  

31. It has also been contended that even though the order  

passed in Appellants’ Writ Petition was to maintain status quo

but  taking  advantage  thereof,  they  continued  with  the  

construction  and  only  on  subsequent  order  being  passed  on  

20.09.2002, the construction activities were stopped but by  

that time Appellants had already raised construction upto 8th  

floor, in flagrant violation of building bye-laws.  

32. They  have  also  contended  that  GMDA  passed  an  order  

under  Section  88  of  the  Development  Act  for  demolition  of  

construction for remaining part of the 5th floor and above and  

that too after issuance of notices to Appellants and giving  

reasonable opportunity to them to show cause. Appellants were  

aware  that  construction  beyond  5½  floor  was  without  due  

sanction  and  approval,  thus,  obviously  illegal,  yet  they  

continued with the same.  

33. They further submitted that there was no violation of  

principles of natural justice. It was contended that Appendix  

III of the building bye-laws provides for compoundable and non-

compoundable items.  It is evident therefrom that construction  

of extra floor falls in the category of non-compoundable items  

meaning  thereby  if  extra  floor  is  constructed  without  due  

sanction/approval,  then,  it  would  be  beyond  the  purview  of  

compoundable  items.  As  regards  violation  of  principles  of  

natural justice, they have contended that before passing the  

order of demolition, notices were issued to the Appellants to  

show cause, as required under Section 88 of Development Act but  

they did not take any action thereon.  

34. Whenever  Respondents  asked  for  sanctioned/approved  

plans for construction beyond 5½ floors, Appellants only showed

them  the  plans  which  were  sanctioned  and/or  approved  for  

construction of, only upto 5½ floors. It was also contended by  

them that even upto that stage Appellants had failed to show  

any  approved  sanctioned  plans  and  maps  allowing  them  to  

construct beyond the permissible limit of 5½ floors. Thus, they  

have contended that the building constructed beyond 5½ floors  

is absolutely illegal, unauthorized and without any sanction  

plans, thus liable to be demolished.  

35. In order to understand the various provisions of the  

Act,  it  is  necessary  to  know  the  import  of  the  relevant  

sections of the Act material for deciding the appeals.

36. Section  327  of  the  Act  prohibits  any  person  from  

erecting or re-erecting any building without written permission  

from the Corporation. Section 328 provides for submission of an  

application  by  a  person  interested  to  erect  or  re-erect  a  

building to the Corporation for approval of the site together  

with site plan with land title document, elevation and sections  

of the building, specification of the work and also containing  

such particulars as may be required by bye-laws in that behalf.  

Section 329 empowers the Commissioner of the GMC to refuse such  

permission and to disapprove the site on the grounds formulated  

in Section 330. Section 331 provides for the grounds on which  

permission to erect or re-erect the building can be refused by  

GMC.  Section  332  empowers  the  Commissioner  to  direct  

modification of the sanctioned plan. Section 333 stipulates the  

period within which erection or re-erection is to be completed.  

Section 337 empowers the Commissioner to require the removal or

alteration of the work which may not be in conformity with bye-

laws etc. Section 416 of the Act empowers the GMC to formulate  

different  bye-laws  including  the  bye-laws  relating  to  the  

building. Section 438 of the Act provides for appeal from the  

order passed by the Commissioner including the order refusing  

to grant permission to construct or re-construct a building to  

the SAC. Sub-section (3) of Section 438 of the Act empowers the  

State Govt. to call for the records of any matter from the  

Corporation and to pass such orders as may be deemed necessary  

after examination of such records.

37. It  is  necessary  to  refer  to  Section  88  of  the  

Development Act which reads as under :

“88. Power of demolition of building.-(1) Where  any  development  has  been  commenced  or  is  being  carried on or has been completed in contravention  of  the  Master  Plan  or  development  scheme  or  without  the  permission,  approval  or  sanction  referred to in Section 25 and Section 30 of the  Act or in contravention of any conditions subject  to which such permission, approval or sanction has  been granted, the authority may in addition to any  prosecution that may be instituted under the Act,  make  an  order  directing  that  such  development  shall  be  removed  by  demolition,  filling  or  otherwise by the owner, occupier, manager or by  any person at whose instance the development has  been commenced or is being carried out or has been  completed within such period not being less than  five days and more than thirty days from the date  on which a copy of the order of removal with brief  statement  of  the  reasons  thereof  has  been  delivered to the owner, occupier and manager or  the person at whose instance the development has  been commenced or is being carried out or has been  completed as may be specified in the order and on  his  failure  to  comply  with  the  order,  the  authority may remove or cause to be removed the  development and the expenses of such removal shall  be recovered from the owner, occupier, manager or  any person at whose instance the development was  commenced  or  was  being  carried  out  or  was  completed  as  arrears  of  land  revenue;  provided

that no such order shall be made unless the owner,  occupier, manager or the person concerned has been  given a reasonable opportunity to show cause why  the order shall not be made.

(2) The provisions of this section shall be in  addition to and not in derogation of any other  provision  relating  to  demolition  of  buildings  contained in any other law for the time being in  force.

(3) No compensation shall be claimed by any person  for any damage which he may sustain in consequence  of  the  removal  of  any  development  under  this  section or the discontinuance of the development  under Section 87 of this Act.”

38. Mr.  Shekhar  Naphade,  learned  Senior  Counsel  for  

Appellants firstly strenuously contended before us that NOC  

dated 17.7.1999 granted by GMDA clearly stipulated that the  

plot purchased by Appellants would fall in the category of  

“residential-cum-commercial use” and width of the road abutted  

by the plot is proposed to be 50 feet. Thus, according to him,  

the height of the building can be 100 feet, being the double of  

the width of the road. Since the height of the building of the  

Appellants even after construction upto 8th floors is only 93  

feet, the part of the building beyond 5½ floors is not liable  

to be demolished.  

39. It was also contended by him that initial permission  

was granted by GMC whereas notices of demolition have been  

issued by GMDA which appears to be absolutely contrary and  

against  the  provisions  of  law.  It  was  also  contended  that  

Respondents have failed to prove that any notices were sent to  

them  on  02.02.2001  or  05.09.2001  by  GMDA  as  it  has  been  

categorically mentioned by the Appellants pursuant to third

notice received by them and replied to.

40. It was also argued that in the light of specific order  

passed  by  SAC,  conscious  decision  has  been  taken  by  the  

Government  and  denial  of  hearing  itself  would  amount  to  

prejudice,  consequently,  violation  of  principles  of  natural  

justice.   

41. If Commissioner was dissatisfied with the modification  

of his order by the SAC then as provided under sub-section (2)  

of Section 438 of the Act, he was required to make a reference  

to the Corporation within 60 days thereof which he failed to  

do.  He was, therefore, bound by the Appellate Order of SAC and  

could not have super-imposed his own views or conditions.

42. Mr. Mukul Rohtagi, learned Senior Counsel appearing for  

Shyam Sunder Agarwala submitted that he is owner of part of the  

5th floor which has not been sanctioned.  

43. According to Mr. Mukul Rohtagi half of the 5th floor has  

already  been  sanctioned  and  even  if  the  width  of  the  road  

abutted to the building is taken as 38 feet, the height allowed  

would be 76 feet. Thus, it will have no height problem.  At the  

most,  the  only  objection  can  be  with  regard  to  FAR  which  

objection can be waived as the same falls within compoundable  

items.

44. Shri Shyam Sunder Agarwala had purchased the said flat  

on 18.04.2005 for a total amount of Rs.9,43,850. It has also  

been contended that after purchase of the said flat his name  

has  been  mutated  in  the  Corporation  records.  He  is  paying  

property tax, water tax etc., which Corporation is accepting.

Thus, for this reason also it is not liable to be demolished.

45. He further contended that two parallel bodies, that is,  

GMC and GMDA cannot take action for demolition of the building  

as  the  permission  was  accorded  by  GMC  whereas  notices  of  

demolition have been issued by GMDA. Thus, according to him,  

whole procedure is illegal and void, thus liable to be quashed.

46. In  the  light  of  this,  it  has  been  contended  that  

Section 88 of the Development Act could not be put into service  

against the Appellants as the same amounts to violation of  

principles of natural justice as no notice has been served on  

the said Appellant.  

47. Mr. Vijay Hansaria, learned Senior Counsel appearing  

for other Appellants submitted that they are owners of flat  

No.7A/7C and 7D having purchased on 14.06.2004 and 03.01.2005  

for a sum of Rs.17,72,460 and 9,43,850 respectively. He has  

reiterated that Section 88 of the Development Act has not been  

complied with inasmuch as no opportunity to show cause has been  

given  to  these  Appellants,  thus  violation  of  principles  of  

natural justice is writ large from the record. Commissioner had  

no other alternative but to abide by the Appellate Order of SAC  

and in any case it should have been treated as deemed sanction.

48. Shri Kamal Mohan Gupta, learned counsel appearing for  

Sarla  Devi  Lahoty,  owner  of  a  flat  on  6th floor  has  also  

reiterated the aforesaid arguments already advanced by M/s.  

Shekhar  Naphade,  Vijay  Hansaria  and  Mukul  Rohtagi.  

Additionally, he has submitted that Sarla Devi Lahoty purchased  

a  flat  on  27.12.2004  for  Rs.  8,63,010,  after  making  due

inquiries with regard to sanction of building plans etc. Thus,  

she would be a bonafide purchaser for value and for any acts of  

omission or commission said to have been committed by builder  

M/s. Priyanka Estates International Pvt. Ltd. this Appellant  

cannot be put to any loss.  

49. After  having  gone  through  the  record  carefully,  the  

crux  of  the  matter  is  whether  M/s.  Priyanka  Estates  

International Pvt. Ltd. is in possession of any  approved or  

sanctioned plan beyond 5½ floors, i.e., for the remaining 3½  

floors or not. If not, then what is the effect thereof?

50. It is clear from the record that the only plan approved  

was on 03.02.2000 for 5½ floors by GMC. Order dated 05.05.2000  

passed by SAC also does not give them blanket permission to  

construct upto 8th floor.

51. It is also to be seen that respondents have come to the  

conclusion and have fairly conceded before us that plan or  

sanction approved by either of the two authorities, that is,  

GMC  or  GMDA  will  hold  good  and  permission  from  both  the  

authorities simultaneously would not be required for the same,  

if it has already been accorded by any one of the authorities.

52. On the strength of this, we can safely proceed that if  

no permission under Section 24 and 25 of the Development Act  

was obtained by M/s. Priyanka Estates International Pvt. Ltd.  

then  it  would  not  be  detrimental  to  the  interest  of  the  

Appellants, provided there is sanction and approval of plans by  

the Corporation for remaining 3½ floors i.e. beyond 5½ floors.

53. Here, it is pertinent to point out that Respondents had

also issued a public notice on 02.07.2002, published in local  

newspaper in vernacular giving general warning and information  

to all proposed purchasers of flats that unless builder is able  

to show Completion Certificate and Occupancy Certificate duly  

issued by authorities, no one should enter into agreement to  

purchase flat/flats from the builder. It is, therefore, to be  

construed that public notice will hold good even with regard to  

adherence to the requirement of Section 88 of the Development  

Act,  if  individual  person  had  not  been  noticed  by  the  

authorities.

54. Clause (a) of building bye-law 37 stipulates that for  

the purpose of calculation of building height, existing width  

of the road shall be taken into account and not the proposed  

width.  Even if the proposed width is 40 feet or 50 feet, it  

will not make any difference because it clearly contemplates  

that what is to be taken into consideration is the existing  

width of the road. There is nothing on record to show that the  

existing width of the road is more than 38 feet. Thus, at the  

most, the construction could have been only upto the height of  

76 feet, provided there was sanction granted by either of the  

two Authorities.  

55. Appendix III of building bye-laws deals with penalties  

to  be  levied  for  violation  of  provisions  of  Master  Plans,  

Zoning  Plans  Regulations  and  Bye-laws.  Certain  items  are  

compoundable items but certain items fall in the category of  

non-compoundable items. However, addition of extra floor falls  

in the category of non-compoundable items. Thus, in any case

anything that has been constructed beyond 5th floor would be  

non-compoundable and same cannot be compounded at all. In other  

words,  minor  deviations  from  the  sanctioned  plan  should  be  

confined only to the FAR permissible but should not extend to  

the extra floor.

56. For better appreciation of the aforesaid provision the  

same is reproduced hereinbelow :-

“Appendix III PENALTIES TO BE LEVIED FOR VIOLATIONS OF PROVISION OF  MASTER PLAN/ZONING PLAN REGULATIONS AND BYE LAWS.

(i)  All provisions of Bye-laws except items given below  shall not be compounded/regularized and shall have to be  rectified by alteration/demolition at the risk and cost  of owner.

Compoundable items:

(1)   Coverage     -   maximum of 15% (2)   F.A.R.     -   maximum of 10% (3)   Set Back     -   Upto 2’- 6” (4)   Open Space     -   Maximum 10% reduction (5)   Total Height of     -   1.5%          Building

Non Compoundable items:

(1)Use of building (2)Addition of extra floor (3)Parking Norms (4)Parking Norms (5)Projection/encroachment  of  public  

land.”

Critical and analytical perusal of the same would show that  

addition  of  extra  floor  falls  within  the  ambit  of  non-

compoundable items.

57. The order of SAC cannot be construed as an order of  

sanction as it is not a semblance of permission. It was not end  

of the matter because necessary sanction or permission could

have been granted only by the Municipal Commissioner and not by  

the Appellate Authority. Admittedly, even after passing of the  

order by SAC in appeal, there was no further sanction by the  

Municipal Commissioner or by Chief Executive Officer of the  

Development Authority granting permission to raise the height  

of the building upto 8th floor.  

58. Thus, looking to the matter from all angles, we are of  

the opinion that construction of the building beyond 5½ floors  

was not only illegal, unauthorized and without any sanction or  

approval of plans but was also against the spirit of Appellate  

Order  of  SAC.  Thus,  except  for  directing  the  Respondent-

authorities to demolish 6th, 7th and 8th floor, we are left with  

no alternative.

59. As regards construction of two flats on remaining half  

of 5th floor, Mr. L. Nageshwar Rao, learned Senior Counsel for  

Respondent-authorities   fairly  conceded  that  on   suitable  

representations being made by the occupants, their cases can be  

considered afresh to find out if the same would fall within the  

category of compoundable items or not. If the same are found  

within the category of compoundable items then necessary order  

by respondents in this regard would be passed otherwise order  

of demolition would follow for them also.  Thus, on the promise  

of  Sr.  Advocate  Mr.  L.  Nageshwar  Rao,  we  hope  and  trust,  

suitable orders would be passed by the Authorities as regards  

two flats on 5th floor are concerned within two months from the  

date of submission of the Representations.

60. Even though various authorities had been placed before

us by the learned counsel appearing for parties, it is not  

required  to  deal  with  them  in  extenso.  However,  a  cursory  

reference to the same would meet the ends of justice.  

61. Mr. Shekhar Naphade has placed reliance on  Corporation  

of Calcutta v. Mulchand Agarwala AIR 1956 SC 110  to contend  

that it should be a last resort to direct demolition of a  

building and if it falls within the compoundable limit then it  

should not be directed to be demolished. To advance contentions  

further in this regard, reliance has been placed on para 4 of  

an order of this Court in the case of  Syed Muzaffar Ali &  

Others v. Municipal Corporation of Delhi 1995 Supp. (4) SCC 426  

which is reproduced hereunder :

“4. However, it is to be pointed out that mere  departure from the authorized plan or putting up a  construction without sanction does not ipso facto  and  without  more  necessarily  and  inevitably  justify  demolition  of  the  structure.  There  are  cases  and  cases  of  such  unauthorized  constructions.  Some  are  amenable  to  compounding  and some may not be. There may be cases of grave  and serious breaches of the licensing provisions  or building regulations that may call for extreme  stage of demolition.  

62. Reliance has also been placed on yet another judgment  

of this Court in the case of  Muni Suvrat-Swamy Jain S.M.P.  

Sangh v. Arun Nathuram Gaikwad & Others (2006) 8 SCC 590, which  

dealt with Section 351 of the Bombay Municipal Corporation Act  

to hold that if execution of work has commenced contrary to  

provisions  of  the  Act,  then  to  give  notice  to  the  person  

carrying on the construction work to show cause why it should  

not be pulled down, is a must. The use of the word “shall”

would signify that it is mandatory to issue notice and then to  

pass any order. Lastly, a recent judgment of this Court in the  

case of  Municipal Corporation, Ludhiana v.  Inderjit Singh &  

Anr. (2008) 13 SCC 506  has been pressed into service. This  

also deals primarily with the requirement of issuance of show  

cause notice to the person who had raised construction, so as  

to enable the said party to show cause, if the construction has  

been made in total violation of the sanctioned map or it falls  

within the category of compoundable items.  

63. Mr. Vijay Hansaria has placed reliance on the famous  

off-quoted judgment of this Court in the case of  Olga Tellis  

and Others etc. v. Bombay Municipal Corporation & Others etc.  

(1985) 3 SCC 545  which dealt with plight of the pavement  

dwellers, who were in unauthorised possession and were sought  

to be evicted.  He sought to contend that the fundamental rule  

of  principles  of  natural  justice  should  have  been  followed  

before passing the order of demolition.

64. Further with regard to opportunity of hearing he has  

placed reliance on a judgment of this Court in the case of S.L.  

Kapoor v. Jagmohan and Others  (1980) 4 SCC 379.

65. On the other hand, Mr. L. Nageshwar Rao has placed  

reliance  on  various  judgments  of  this  Court,  viz.,  M.I.  

Builders Pvt. Ltd. v. Radhey Shyam Sahu and Others (1999) 6 SCC  

464;  Friends Colony Development Committee v. State of Orissa  

and Others (2004) 8 SCC 733; Royal Paradise Hotel (P) Ltd. Vs.  

State of Haryana and Others  (2006) 7 SCC 597;  and Mahendra  

Buburao  Mahadik  and  Others v.  Subhash  Krishna  Kanitkar  and

Others (2005) 4 SCC 99 to contend that where constructions have  

been made in absolute and flagrant violation of the sanctioned  

plan then the only alternative is to direct demolition of the  

same.

66. It  is  not  necessary  to  deal  with  the  aforesaid  

judgments of this Court in greater detail as the consistent  

ratio decidendi of this Court is that if the constructions are  

in absolute violation of sanctioned or approved plans and are  

not likely to fall in the category of compoundable items, then  

the necessary consequence is to order its demolition and seal  

of approval for such illegal activities is not required to be  

given by this Court.  

67. It is pertinent to mention here that hearing of the  

appeals had commenced on 22.10.2009 and had almost concluded on  

28.10.2009.  But on the said date, Mr. Anoop George Chaudhary  

and Ms. June Chaudhary, learned Senior Counsel, appeared with  

Mr. Kamal Mohan Gupta for Sarla Devi Lahoty and submitted that  

they would be replying to the arguments advanced by learned  

counsel  for  Respondents.  Though  not  approved  as  a  healthy  

practice, yet we granted them permission.  

68. It was submitted by them that if cases of two flat  

owners on the 5th floor are to be considered so as to find out  

whether the constructions raised by the builder in their cases  

would fall within the compoundable items or not, then the case  

of Sarla Devi Lahoty should also be directed to be considered  

on a suitable representation being made by her, as her flat is  

situated on the 6th floor.  It was contended that even after

taking the height of 6th floor, it would not cross the maximum  

height of 76 feet looking to the width of the existing road.

69. However,  the  said  contention  cannot  be  accepted  as  

construction  of  an  extra  floor  does  not  fall  within  the  

category of compoundable items which is manifest from Appendix  

III  of  the  building  bye-laws  of  the  Corporation  reproduced  

hereinabove.

70. However,  with  regard  to  two  flats  on  5th floor,  a  

direction can be given to the Respondents to consider their  

cases if they submit their representations within a period of  

30 days hereof. Respondents would examine whether their cases  

fall  within  the  compoundable  items/limit  or  not.  In  case,  

Respondents  come  to  the  conclusion  that  these  two  flats  

constructed on 5th floor fall within the compoundable limit,  

then necessary orders be passed in this regard, after charging  

compounding fees as may be applicable to the facts of the case,  

in accordance with law, otherwise, they would also face the  

wrath of demolition.

71.    Even  a  conjoint  reading  of  the  order  dated  

05.05.2000  passed by SAC and the order dated 29.05.2002 of the  

Administrator-cum-Minister makes it clear as noon day that it  

does  not  clothe  the  Appellants  to  continue  with  the  

construction work beyond 5½ floors as these orders were passed  

subject to fulfilling certain conditions contained therein.  

72. It is obvious that what would ultimately constitute a  

sanctioned and duly approved map would be the one approved by  

the  Commissioner  as  he  alone  has  authority  to  do  so.  The

Appellants have failed to produce any such duly approved map.  

73. It is a matter of common knowledge that illegal and  

unauthorised constructions beyond the sanctioned plans are on  

rise, may be due to paucity of land in big cities.  Such  

activities  are  required  to  be  dealt  with  by  firm  hands  

otherwise  builders/colonisers  would  continue  to  build  or  

construct beyond the sanctioned and approved plans and would  

still go scot-free.  Ultimately, it is the flat owners who fall  

prey to such activities as the ultimate desire of a common man  

is to have a shelter of his own.  Such unlawful constructions  

are definitely against the public interest and hazardous to the  

safety of occupiers and residents of multi-storeyed buildings.  

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.

74. Even though on earlier occasions also, under similar  

circumstances, there have been judgments of this Court which  

should have been a pointer to all the builders that raising  

unauthorised  construction  never  pays  and  is  against  the  

interest of society at large, but, no heed to it has been given  

by the builders.  Rules, regulations and bye-laws are made by  

Corporation or by Development Authorities, taking in view the  

larger public interest of the society and it is a bounden duty  

of the citizens to obey and follow such rules which are made  

for their benefit.  If unauthorised constructions are allowed  

to stand or given a seal of approval by court then it is bound

to affect the public at large.  An individual has a right,  

including a fundamental right, within a reasonable limit, it  

inroads  the  public  rights  leading  to  public  inconvenience,  

therefore, it is to be curtailed to that extent.

75. The jurisdiction and power of courts to indemnify a  

citizen  for  injuries  suffered  due  to  such  unauthorised  or  

illegal construction having been erected by builder/coloniser  

is required to be compensated by them. An ordinary citizen or a  

common man is hardly equipped to match the might and power of  

the builders.  

76. In  the  case  in  hand,  it  is  noted  that  number  of  

occupiers were put in possession of the respective flats by the  

builder/developer  constructed  unauthorisedly  in  violation  of  

the laws.  Thus, looking to the matter from all angles it  

cannot be disputed that ultimately the flat owners are going to  

be the greater sufferers rather than builder who has already  

pocketed the price of the flat.

77. It is a sound policy to punish the wrong-doer and it is  

in that spirit that the courts have moulded the reliefs of  

granting compensation to the victims in exercise of the powers  

conferred on it.  In doing so, the courts are required to take  

into account not only the interest of the petitioners and the  

respondents but also the interest of public as a whole with a  

view that public bodies or officials or builders do not act  

unlawfully and do perform their duties properly.

78. In the case in hand, admittedly, at no point of time  

Appellant No.1- M/s. Priyanka Estates International Pvt. Ltd.

was able to show to its prospective purchasers the Occupancy  

Certificate or Completion Certificate issued by the authorities  

concerned. The same could not even be shown to us and without  

it, Appellant No.1 could not have embarked into sale of flats  

as it was mandatorily required.

79. The instant case is not a case of breach of contract.  

It is a clear case of breach of the obligation undertaken to  

erect the building in accordance with building regulations and  

failure to truthfully inform the warranty of title and other  

allied circumstances.

80. Even  though  at  the  first  instance,  we  thought  of  

invoking this Court's jurisdiction conferred under Article 142  

of  the  Constitution  of  India  so  as  to  do  complete  justice  

between  the  parties  and  to  direct  awarding  of  

reasonable/suitable compensation/interest to the flat owners,  

whose flats are ultimately going to be demolished, but, with a  

very heart, we have restrained ourselves from doing so, for  

variety of reasons and on account of various disputed questions  

that may be posed in the matter.  However, we grant liberty to  

those, whose flats are ultimately going to be demolished, to  

exhaust the remedy that may be available to them in accordance  

with law.

81. We also feel it necessary and expedient to direct the  

Respondent-authorities that if ultimately flat owners, whose  

flats are going to be demolished shall be given at least three  

months' time to vacate the same.  This would enable them to  

mitigate  the  losses  that  may  be  incurred  by  them.   We

accordingly direct so.

82. In  the  light  of  the  foregoing  discussions,  these  

appeals  are  dismissed  with  the  directions  contained  

hereinabove.  Respondent-authorities shall be at liberty to  

proceed  with  demolition  of  half  of  the  5th floor,  if  not  

ultimately  compounded;  6th,  7th and  8th floors  as  mentioned  

hereinabove.

83. Counsel's fee Rs. 10,000/- each.

......................J.             [V.S. SIRPURKAR]

......................J.         [DEEPAK VERMA]

New Delhi.                 December 03, 2009.