Priyanka Estates International (P) Ltd. vs State of Assam

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 5= 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 5= 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 5= floors also

but did not actually present any sanctioned or approved

plans/maps beyond 5= 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 < 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 5= 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 5= 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 5= floors, Appellants only showed them the plans which were sanctioned and/or approved for

construction of, only upto 5= 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 5= floors. Thus, they

have contended that the building constructed beyond 5= 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 5= 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 5= floors, i.e., for the remaining 3=

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 5= 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 3= floors i.e. beyond 5= 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 5= 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 5= 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.