The Supreme Court while laying the guidelines held that illegal construction can’t be regularized irrespective of long occupancy and investments.
The bench of Justice J.B. Pardiwala and Justice R. Mahadevan has observed that construction(s) put up in violation of or deviation from the building plan approved by the local authority and the constructions which are audaciously put up without any building planning approval, cannot be encouraged. Each and every construction must be made scrupulously following and strictly adhering to the Rules.
“The State Governments often seek to enrich themselves through the process of regularisation by condoning/ratifying the violations and illegalities. The State is unmindful that this gain is insignificant compared to the long-term damage it causes to the orderly urban development and irreversible adverse impact on the environment. Hence, regularization schemes must be brought out only in exceptional circumstances and as a onetime measure for residential houses after a detailed survey and considering the nature of land, fertility, usage, impact on the environment, availability and distribution of resources, proximity to water bodies/rivers and larger public interest,” the bench said.
The bench stated that unauthorised constructions, apart from posing a threat to the life of the occupants and the citizens living nearby, also have an effect on resources like electricity, ground water and access to roads, which are primarily designed to be made available in orderly development and authorized activities. Master plan or the zonal development cannot be just individual centric but also must be devised keeping in mind the larger interest of the public and the environment.
The court directed the appellants to vacate and handover the vacant premises to the respondent authorities within a period of three months.
On such surrender, the respondent authorities shall take steps to demolish the unauthorised construction made on the subject property, within a period of two weeks.
The court directed that all the authorities shall provide necessary assistance to the Avas Evam Vikas Parishad to execute the order of the High Court in its letter and spirit.
The court further stated that appropriate criminal as well as departmental action shall be taken against the erring officials / persons concerned in line with the order of the High Court and a report shall be filed before this Court.
Background
One Mr. Veer Singh was originally allotted a plot by Avas Evam Vikas Parishad on 30.08.1986. Possession was also handed over to him on 15.06.1989. In respect of the subject property, the Avas Evam Vikas Parishad executed a freehold deed dated 06.10.2004 in favour of the Mr. Veer Singh with specific condition that the property shall be used only for residential purposes.
Contrary to the same, the Veer Singh with the assistance of his power of attorney agent started raising illegal commercial construction on the subject property without obtaining any sanction/approval from the Avas Evam Vikas Parishad. Though show cause notices were issued to him, he neither responded to the same nor took any steps against the illegal construction, which compelled the competent authority to pass the order of demolition of the illegal/unauthorized construction.
However, the Avas Evam Vikas Parishad was unable to execute the order, due to lack of co-operation from the local as well as police authorities. Therefore, they preferred the Writ Petition which was allowed by the High Court, by order dated 05.12.2014, which is assailed in these appeals by the appellants, who are the owners of the commercial shops, which are stated to have been illegally/unauthorizedly constructed.
Guidelines By The Supreme Court
In the larger public interest, the supreme court to issued the directions, in addition to the directives issued by this Court in Re: Directions in the matter of demolition of structures.
- Take Undertaking From Builder
While issuing the building planning permission, an undertaking be obtained from the builder/applicant, as the case may be, to the effect that possession of the building will be entrusted and/or handed over to the owners/beneficiaries only after obtaining completion/occupation certificate from the authorities concerned.
- Builder To Display copy of the approved plan On Construction Site
The builder/developer/owner shall cause to be displayed at the construction site, a copy of the approved plan during the entire period of construction and the authorities concerned shall inspect the premises periodically and maintain a record of such inspection in their official records.
- Completion/occupation certificate To Be Issued After conducting personal inspection
Upon conducting personal inspection and being satisfied that the building is constructed in accordance with the building planning permission given and there is no deviation in such construction in any manner, the completion/occupation certificate in respect of residential / commercial building, be issued by the authority concerned to the parties concerned, without causing undue delay.
If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified.
- Service Connections To Be Given After production of completion/occupation certificate
All the necessary service connections, such as, Electricity, water supply, sewerage connection, etc., shall be given by the service provider / Board to the buildings only after the production of the completion/occupation certificate.
- Strict Actions To Be Taken Against Officer Indulged in issuance of wrongful occupation certificate
Even after issuance of completion certificate, deviation / violation if any contrary to the planning permission brought to the notice of the authority immediate steps be taken by the said authority concerned, in accordance with law, against the builder / owner / occupant; and the official, who is responsible for issuance of wrongful completion /occupation certificate shall be proceeded departmentally forthwith.
- No Permission of Trade in unauthorized building
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.
- Development Must Be In Conformity With The Zonal Plan And Usage
The development must be in conformity with the zonal plan and usage. Any modification to such zonal plan and usage must be taken by strictly following the rules in place and in consideration of the larger public interest and the impact on the environment.
- Disciplinary Action Against The Erring Officials
Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co-operation and any delay or dereliction would be viewed seriously. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge.
- Authority To Dispose Of Appeals/Revisions Within 90 Days
In the event of any application / appeal / revision being filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the same shall be disposed of by the authority concerned, including the pending appeals / revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided.
- Necessary instructions should be issued by all the State/UT Governments in the form of Circular
If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal / Courts relating to house / building constructions would come down drastically. Hence, necessary instructions should be issued by all the State/UT Governments in the form of Circular to all concerned with a warning that all directions must be scrupulously followed and failure to do so will be viewed seriously, with departmental action being initiated against the erring officials as per law.
- Banks To sanction loan Based On occupation certificate
Banks / financial institutions shall sanction loan against any building as a security only after verifying the completion/occupation certificate issued to a building on production of the same by the parties concerned.
- Violation Of Any Condition Accounts To Contempt
The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.
Case Details
Case Title: Rajendra Kumar Barjatya Versus U.P. Avas Evam Vikas Parishad & Ors.
Case No.: CIVIL APPEAL NO. 14604 OF 2024
Date: 17/12/2024
