Unauthorized Construction And Authority Negligence: What The Supreme Court Has Said

Introduction

The rapid urbanization and unprecedented growth in population has increased the need for affordable housing and lodging multifold. The infrastructure sector has grown like no other in our country and so has the problem of unauthorized and illegal construction. While unauthorized construction implies modification/reconstruction/addition of a structure without the necessary permissions from the local authorities, illegal construction involves a serious violation of the local laws and regulations such as the building code, land regulations, issues related to ownership etc. Considering the legal nature of an unauthorized constructions, they are items of property with a restricted right of possession, use and disposal. The restricted possession is reflected in the absence of a title to such ownership, use (prohibition of exploitative use of the unauthorized object), disposal (prohibition of registering the ownership of the unauthorized building) and making any kind of transactions.¹

While every state has local laws in place to regulate this sector, the lack of proper implementation of local laws by the authorities has led to safety hazards, environmental issues and legal complications. While it is imperative that addressing unauthorized construction is necessary for proper urban planning and public safety, however, common mass finds it difficult to adhere to the regulations due to lack of awareness, complex procedures related to approvals and to save time and cost, especially in the metropolitan areas.

Recently, the Hon'ble Supreme Court of India was presented with a case concerning unauthorized construction in the matter of Rajendra Kumar Barjatya & Anr. Vs. U.P. Awas Evam Vikas Parishad & Ors.² The Court expressed serious concerns regarding the current trend in regulating urban planning and dealing with unauthorized and illegal construction and the issues arising from the same. The observations were made by the Apex Court while deciding upon appeals made by the parties against the final judgement and order dated 05.12.2014 ("impugned judgement") passed by the division bench of the Allahabad High Court (hereinafter referred to as "High Court") in Writ-C No. 46342 of 2013. The judgment was delivered by a division bench of the Hon'ble Supreme Court comprising Justice J.B. Pardiwala and Justice R. Mahadevan on 17.12.2024.

Brief Facts

Veer Singh ("Respondent No. 5") was originally allotted a plot bearing No.661/6, situated in Bhoomi Vikas, Grisathan Yojna No.7, Sector No.6, Phase-1, Shastri Nagar, Meerut, U.P. ("subject property") by U.P. Awas Evam Vikas Parishad ("Respondent No.1") on 30.08.1986. Possession was also handed over to him on 15.06.1989. In respect of the subject property, Respondent No.1 executed a freehold deed dated 06.10.2004 in favour of Respondent No.5 with specific condition that the property shall be used only for residential purposes. However, Respondent No. 5, with assistance of his POA agent i.e. Vinod Arora ("Respondent No. 6") started raising commercial construction on the said property without obtaining any approval from Respondent No. 1. After receiving no response to the Show Cause Notices issued, the Executive Engineer, Construction Division-8, ("competent authority") passed the order of demolition of the illegal/unauthorized construction on 31.05.2011 ("Demolition Order").

Respondent No.1, being unable to execute the Demolition Order due to lack of cooperation from local and police authorities, filed a Writ Petition bearing no. 46342 of 2013, which was allowed by the Hon'ble High Court vide the impugned judgement on 05.12.2014.

The appeal in question was filed by Mr. Rajendra Kumar Barjatya and Mr. Rajeev Gupta ("Appellants"), who were third party to the proceedings, seeking issuance of a writ of Mandamus to direct the Respondent No 2 to 4 to stop the illegal/unauthorized construction on the subject property and to provide police force to execute the Demolition Order passed by the competent authority.

Arguments on behalf of the Parties

The following submissions were made on behalf of the Appellants:

1. That construction, i.e. shops on the subject property, had been in existence for the past 24 years.
2. Respondent No. 1 had converted the subject property from leasehold to freehold vide document dated 06.10.2004 on "as is where is basis" and as per Clause 6 of the said deed, Respondent No. 1 had accepted the construction made on the subject property.
3. The Appellants had purchased the shops for valuable consideration and were earning their livelihood, however Respondent No. 1 erroneously took steps to demolish the entire construction without issuing proper notice under Section 82 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 ("Act").
4. Reliance was placed on the judgments of Municipal Corporation, Ludhiana v. Inderjeet Singh³ in support of its contention regarding improper notice.
5. The High Court should have directed the authorities to explore the possibility of regularising the alleged illegal construction, especially when there were more than 600 shops in question.
6. Respondent No.1 to seek demolition is barred by delay and laches and they were negligent and acted hand in glove with the people responsible for such sorry state of affairs and that, in terms of Sections 92 to 94 r/w Sections 3, 7 and 8 of the Act, the State Government has full rights and control over the Respondent No.1, but they failed to exercise the same in proper perspective.

The following submissions were made on behalf of the Respondents:

1. That the Respondent No. 5 started illegal construction over the subject property without obtaining any sanction from the competent authority and deliberately did not respond to the show cause notices issued to him.
2. Respondent No. 5 got the subject property converted from leasehold to freehold based on fabricated construction completion certificate.
3. Appellants were aware of the unauthorized construction and notices issued to stop the same, at the time of purchasing the shops itself.
4. The Demolition Order was rightly passed; however Respondent No. 1 could not enforce the same due to lack of support from local and police authorities.
5. The Appellants' right over the shops was created in pursuance of the change in usage of plot and unauthorized construction raised by the original allottee, which was never approved by Respondent No.1 and therefore, in no way, their rights were being infringed by Respondent No.1.
6. It was stated on behalf of Respondent No. 5 that Respondent No.5 executed power of attorney in respect of the subject property in favour of Respondent No.6, who raised the illegal / unauthorized commercial construction on the same. He categorically admitted that the construction was made without any sanctioned map / plan by the Respondent No.6.

Issues at hand

1. Whether illegal/unauthorized construction, despite prolonged occupancy and investment by third parties, can be regularized?
2. What measures can be taken to ensure that public authorities are accountable in granting authorization/approval for construction?

Findings and decision of the Court

• The Court analyzed the provisions of the Act as well as the deed executed between the Respondents and observed that Clause 6-B of the deed dated 06.10.2004 clearly stated that the subject property shall be used only for residential purposes. No material was available to prove that Respondent No. 5 was in possession of the sanctioned plan in respect of the construction made on the subject property or that he submitted any application before the authority concerned seeking sanction / approval for such construction and the same was pending. The same had been admitted by Respondent No. 5 and 6 before the High Court. Accordingly, Respondent No. 5 and 6 illegally and unauthorizedly constructed the shops on the subject property and sold the same to the Appellants and others for valuable consideration.
• The Court observed that the Respondent No. 1 was aware of the construction made on the subject property at the beginning itself, which prompted them to issue Show Cause Notices to the Respondents. Respondent No. 1 also requested Respondent No. 5 to get the same regularised but despite sufficient opportunities given, they did not utilise and continued the illegality.
• The Court emphasized that there could not be any estoppel against law. The lapses on the part of the authorities would not vest any person with a right to put up construction without planning approval and in violation of the conditions regarding usage. However, the fact that the notices issued by the authorities between 1990 to 2013 did not culminate into demolition, spoke volumes about the lackadaisical attitude of the authorities and that also hinted of collusion with the violators. The fact that the building stood over 24 years would not help the Appellants with any right in law.
• It was further held that there had been no violation of the principles of natural justice and the Respondent No.1 after sending notices to the original allottee i.e., Respondent No.5 took steps to remove the unauthorized construction made on the subject property. Therefore, the action impugned was not de novo
• The Court reprimanded the Respondents and applying the doctrine of Caveat Emptor stated that they should have verified the original allotment order before purchasing the property to know the use of the said property. Accordingly, it rejected the arguments of the Appellants concerning improper notice.
• It was further stated that Respondent No. 1 granting freehold right to the Respondent No. 5 could not be treated as a license to construct shops without necessary approvals and that registration of the property could not amount to regularising the unauthorised construction. The Court relied on various judgements⁴ to hold that if the construction was made in contravention of the Acts / Rules, it would be construed as illegal and unauthorized construction, which had to be necessarily demolished. It could not be legitimized or protected solely under the ruse of the passage of time or citing inaction of the authorities or by taking recourse to the excuse that substantial money had been spent on the said construction. Therefore, the Court emphasized on the necessity of zero-tolerance approach to uphold the laws related to urban planning.
• It was held that "Each and every construction must be made scrupulously following and strictly adhering to the Rules. In the event of any violation being brought to the notice of the Courts, it must be curtailed with iron hands and any lenience afforded to them would amount to showing misplaced sympathy. Delay in directing rectification of illegalities, administrative failure, regulatory inefficiency, cost of construction and investment, negligence and laxity on the part of the authorities concerned in performing their obligation(s) under the Act, cannot be used as a shield to defend action taken against the illegal/unauthorized constructions"
• Accordingly, the Court confirmed the order passed by the High Court and directed the Appellants to vacate and handover the vacant premises to the Respondent Authorities and further directed the Respondents to undertake demolition of the unauthorised construction. It further directed the other authorities to provide the necessary assistance to execute the directions in letter and spirit. It also directed that appropriate criminal as well as departmental action would be taken against the erring officials / persons concerned.

Directions issued by the Court

• The Court inter-alia outlined the menace caused due to improper urban development and its impact on the environment, life of citizens residing nearby, electricity, ground water and access to roads etc. and directed the state authorities to ensure that regularization schemes must be brought out only in exceptional circumstances and as a onetime measure for residential houses after a detailed survey and considering the nature of land, fertility, usage, impact on the environment, availability and distribution of resources, proximity to water bodies/rivers and larger public interest.
• Master plan or the zonal development cannot be just individual centric but also must be devised keeping in mind the larger interest of the public and the environment.
• The Court also threw light on accountability of the persons entrusted with implementation of the acts and directed that builders must provide undertakings ensuring that the possession of the constructed unit is handed over only after obtaining completion certificates/occupancy certificates in line with the approved plans. Approved building plans must be displayed at construction sites during the entire construction period to promote transparency. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified.
• Authorities are mandated to conduct periodic inspection of construction sites and provide utilities like electricity, water and sewage connection only after production of completion/occupancy certificate. No permission /licence to conduct any business/trade must be given by any authorities including local bodies of States/Union Territories in any unauthorized building irrespective of it being residential or commercial building.
• Banks / financial institutions shall sanction loan against any building as a security only after verifying the completion/occupation certificate issued to a building and the violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.

Analysis and Conclusion

The aforesaid judgement highlights the commitment of the Apex Court to ensure proper urban planning and development, while maintaining the sanctity of the law of the land. By way of issuing detailed directions, the Court has not only taken a strict stance against illegal/unauthorized construction but also upheld the principle of "EX TURPI CAUSANON ORITUR ACTIO", which means that courts will not assist a party whose case is based on an illegal act. Recognising illegal/unauthorized construction as a menace, the Apex Court has taken a strict approach, which is the need of the hour for a safe and proper development for the present as well as future generations.

Footnotes

1. https://www.e3s-conferences.org/articles/e3sconf/pdf/2023/08/e3sconf_afe2023_02052.pdf

2. Civil Appeal No. 14604 of 2024 arising out of SLP (C ) No. 36440 of 2024 along with Civil Appeal No. 14605 of 2024 arising out of SLP ( C) No. 1184 of 2015; decided on 17.12.2024.

3. (2008) 13 SCC 506

4. K. Ramadas Shenoy v. Chief Officers, Town Municipal Council (1974) 2 SCC 506 ; Dr.G.N. Khajuria and others v. Delhi Development Authority and others (1995) 5 SCC 762; M.I. Builders (P) Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464 ; Esha Ekta Apartments Coop Housing Society Limited v. Municipal Corporation of Mumbai (2013) 3 Supreme Court Cases (Civil) 89 ; Supertech Limited v. Emerald Court Owner Resident Welfare Association and others (2021) 10 SCC 1; Kerala State Costal Zone Management Authority vs. Maradu Municipality (2021) 16 SCC 822 ; State of Haryana v. Satpal (2023) 6 SCC 643 ; Re: Directions in the matter of demolition of structures 2024 SCC OnLine SC 3291

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