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Synopsis

The Supreme Court of India recently held that 'unauthorized constructions must be dealt with an iron hand, not kid gloves' while issuing a slew of directions to address the same.

"In a catena of decisions, this Court has categorically held that illegally of unauthorized construction cannot be perpetuated. If the construction is made in contravention of the Acts / Rules, it would be construed as illegal and unauthorized construction, which has to be necessarily demolished", Justice JB Pardiwala led bench said.

The bench, also comprising Justice R Mahadevan, has emphasized that unauthorized constructions cannot be legitimized or protected solely under the ruse of the passage of time, the inaction of authorities, or the excuse that substantial money has been spent on the construction.

"In the ultimate analysis, we are of the opinion 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," the court added.

While highlighting that each and every construction must scrupulously adhere to the rules, the Court held that in the event of any violation being brought to its notice, it must be curtailed with an iron hand, and any lenience afforded would amount to misplaced sympathy.

The court further emphasised that delays on the part of authorities in performing their duties cannot be used as a shield to defend actions. It said, "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."

Referring to the State Governments, the court observed that, more often than not, the government seeks to enrich itself through the process of regularization by condoning or ratifying violations and illegalities. It said that the State remains unmindful of the fact that this gain is insignificant compared to the long-term damage it causes to orderly urban development and the irreversible adverse impact on the environment.

Noting that regularization schemes must be brought out only in exceptional circumstances, the court pointed out that unauthorised constructions, not only pose a threat to the life of the occupants and the citizens living nearby, it also affects resources like electricity, groundwater and access to roads, which are primarily designed to be made available in orderly development and authorized activities.

The court further added, "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". It stressed the significance of streamlining the administration and holding accountable the persons entrusted with the implementation of the Act for their failure to perform statutory obligations.

"If the officials are let scot-free, they will be emboldened and would continue to turn a nelson’s eye to all the illegalities resulting in the derailment of all planned projects and pollution, disorderly traffic, security risks, etc," it added.

In light of the aforementioned, the court issued the following directions, in addition to the directives issued by the court in Re: Directions in the matter of demolition of structures (supra):

(i) 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. 

(ii) 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.

(iii) 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. 

(iv) 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. 

(v) 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. 

(vi) 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. 

(vii) 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.

(xii) The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.

Case Title: Rajendra Kumar Barjatya & Another vs. U.P. Avas Evam Vikas Parishad & Ors