PRIYANKA ESTATES INTERNATIONAL P. LTD. & ORS. v. STATE OF ASSAM & ORS

Citation: [2009] 16 S.C.R. 80

Court: Supreme Court of India

Bench: V.S. SIRPURKAR, DEEPAK VERMA

Case summary

PRIYANKA ESTATES INTERNATIONAL P. LTD. & ORS. v. STATE OF ASSAM & ORS.pdf

Judgment text

[2009] 16 (ADDL. ) S. C. R. 80 PRIYANKA ESTATES INTERNATIONAL P. LTD. & ORS. '( v. STATE OF ASSAM & ORS. (Civil Appeal No. 8026 of 2009) DECEMBNER 3, 2009 [V. S. SIRPURKAR AND DEEPAK VERMA, JJ. ] Guwahati Metropolitan Development Authority Act, 1985 - ss. 24 and 25 - Construction of extra floors without sanction - Authority concerned directing demolition of the extra floors - Writ petition - High Court directing demolition of extra floors - On appeal, held: construction of building beyond 5Yi floors was illegal, unauthorized and without any sanction or approval of plans - However, if half unsanctioned portion of 5th floor, is found to be compoundable, the same not to be demolished - Authorities at liberty to demolish 6th to 8th floors and half of the 5th floor if not cnmpounded ultimately - Urban Development. s.

88 - Notice to individual - Failure in - Effect of- Held: Public notice by authorities cautioning the proposed purchasers to enter into agreement of purchase of flats on seeing Completion and Occupancy Certificates in favour of builders, would be deemed to be notice to the individuals - Notice. Pursuant to permission granted by Guwahati Metropolitan Development Authority (GDMA) for sale of the land for residential-cum-commercial use, the land was sold to appellant No. 1. Thereafter Guwahati Municipal Corporation (GMC) granted permission for construction of basement, ground and upto 51/2 floors. Thereafter, applicant No. 1 applied for grant of permission for construction of remaining part of 5th floor and 6th, 7th and 8th floors. The permission was refused by GMC. Appellant ORS. v. STATE OF ASSAM " preferred appeal against refusal order and the same was allowed by Standing Appellate Committee (SAC) directinu that permission be granted.

Despite the order, no formal permission was granted by GMC. Appellant moved further application, wherein Administrator-cum-Minister reviewed the verdict in appeal and granted permission for further construction, subject to fulfilment of certain conditions. Appellants continued with construction of building beyond 5% floors, without compliance of the conditions and without getting actual sanction for such construction. GMDA issued notices to the appellant for demolition of the construction beyond 5% floors. Appellants filed writ petition challenging the order, wherein status quo was ordered to the effect that the Municipal Authority shall take no steps to pull down the building and operation of notices for demolition was stayed. Subsequently GMDA passed order of demolition. This order was also challenged in other writ petition, by the appellants. Despite the order of status quo, appellants continued with the construction.

By a further clarificatory order, High Court directed that no further construction to be carried out. Third parties also filed writ petitions seeking demolition of extra construction. High Court, by the impugned order dismissed the petitions filed by ,. appellants and allowed that filed by third parties directing demolition. Hence the present appeals. Dismissing the appeals, the Court HELD: 1. 1. 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 ~he citizens to obey and follow such 1 rules which ar~ _. •ade 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.

[Para 74] [108-8-D] 1. 2. 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. [Para 29] [94-H; 95-A-B] 1. 3. The only plan approved was for 5Yz floors by GMC. Order passed by SAC also does not give them blanket permission to construct upto 8th floor. The respondents have come to the conclusion and have conceded before this court, 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. Thus, if no permission u/s.

24 and 25 of the Development Act was obtained by the appellant, 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 3Yz floors i. e. beyond 51/z floors. [Paras 51 and 52] [101-C-D] 1. 4. 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 ORS. v. STATE OF ASSAM ) ( 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. [Para 59) (104-A-C] 1. 9.

However, it is not acceptable 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 the person, whose flat is situated on the 6th floor should also be directed to be considered on a suitable representation being made by her. The construction of an extra floor does not fall within the category of compoundable items which is manifest from Appendix Ill of the building bye-laws of the Corporation. 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. [Paras 68, 69 and 72] [106-G-H; 107- A, F] 1. 10. Respondent-authorities shall be at liberty to proceed with demolition of half of the 5th floor, if not ultimately compounded; and 6th, 7th and 8th floors.

[Para 82] [110-B] '" M. I Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors. (1999) 6 SCC464; Friends Colony Development Committee v. State of Orissa and Ors. (2004) 8 SCC 733; Royal Paradise Hotel (P) Ltd. vs. State of Haryana and Ors. (2006) 7 SCC 597; Mahendra Buburao Mahadik and Ors. v. Subhash Kris,hna Kanitkar and Ors. (2005) 4 SCC 99, relied on. Corporation of Calcutta v. Mulchand Agarwala AIR 1956 SC 110; Syed Muzaffar Ali and Ors. v. Municipal Corporation of Delhi 1995 Supp. (4) SCC 426; Muni Suvrat-Swamy Jain S. M. P. Sangh v. Arun Nathuram Gaikwad and Ors. {2006) 8 ,____ ORS. v. STATE OF ASSAM ) ;:,drture 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 8 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. lnderjit 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 sec 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. t 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 μertinent 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 helght 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 Ill 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 5Y2 floors as these orders were passed subject 'E 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 1 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 sea! nf 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 A 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. 8 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. c K. K. T. Appeals dismissed.