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Judgment
S.C. Sharma, J.—The petitioner before this Court has filed this present writ petition being aggrieved by the Notice dated 29/11/2011 by which the Building Officer, Indore Municipal Corporation, Indore has directed the petitioner to remove the unauthorised structure / construction.
Contention of the petitioner is that the petitioner is the owner of the property in question bearing House No. 17/1, South Tukoganj, Indore and applied for building permission and the same was granted on 16/12/1992. The petitioner thereafter constructed the building as stated by him in consonance with the sanctioned plan, however, notices were issued by the Indore Municipal Corporation stating that the petitioner has constructed in excess of the Marginal Open Space portion and shops have been constructed in the basement and ground floor. The petitioner thereafter preferred an appeal u/S. 403 of the M.P. Municipal Corporation Act before the Appellate Committee and a fine was imposed to the tune of Rs.5,000/- on 15/12/1995. The petitioner has thereafter deposited the aforesaid fine. Petitioner has further stated that thereafter notices were issued on 29/11/2011 and 7/12/2011 directing the petitioner to remove the unauthorised construction and later on it was also brought to the notice of the petitioner that the State Government has cancelled the compounding order dated 15/12/1995. The petitioner before this Court has prayed for quashment of notice dated 29/11/2011.
A detailed and exhaustive reply has been filed in the matter and the stand of the respondent - Corporation is that the petitioner has raised illegal construction contrary to the sanctioned map causing nuisance, traffic hazards, traffic congestions etc., It has also been stated that the site in question is also dangerous to the public at large and, therefore, deserves to be removed. The respondents have further stated that the petitioner was granted permission for residential complex, however, he has constructed shops and other illegal structures on every floor. It has also been stated that the petitioner has encroached Marginal Open Space and the area which was reserved for parking in the basement, has been converted into shops. Respondents have also stated that the petitioner was initially served a notice on 31/3/1993 thereafter on 16/4/1993, 25/9/1995 and the petitioner finally went before the Appellate Committee. The orders of the Appellate Committee was set aside by the State Government on 9/5/1997. The respondents have further stated that even if it is presumed that the order of the Appellate Committee is in existence, it does not make any difference as it is an established principle of law that in case of compounding, it is only the offence which is compounded and not the illegal structure. The respondents have stated that such type of illegal structures are creating nuisance in the township and there is no parking space available, people are parking their vehicles on roads because of the persons like the petitioners who have encroached the space which is exclusively reserved for parking.
Heard learned counsel for the parties at length and perused the record. The matter is being disposed of at the admission stage itself with the consent of the parties.
The present case establishes the highhandedness on the part of the Builder who has constructed the building contrary to the sanctioned layout. The illegal structure constructed by the petitioner is not in dispute. The petitioner himself has accepted the compounding done by the Indore Municipal Corporation and has deposited a fine of Rs.5000/-. The Building Permission was granted for residential purpose, however, after spot verification it was established that the petitioner has constructed the shops and other illegal constructions on every floor and has gone to the extent of constructing shops in the parking area. The Appellate Committee has never compounded the illegal constructions. The Appellate Committee has compounded the offence and the illegal construction done in Marginal Open Space, construction of shops, illegal constructions put on floors covering the balcony merging into rooms, has never been compounded, nor it can be compounded. The petitioner inspite repeated notices by the Indore Municipal Corporation, with a defiant attitude has raised a building and constructed a commercial complex.
Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Nand Kishore Vs. Nagar Palika Nigam reported in [1986 MPWN 247 S.N. 176], decided on 26/4/1985 and his contention is that in the light of the judgment delivered by the learned Single Judge that once compounding fees is charged, Corporation cannot take any action.
This Court has very carefully gone through the aforesaid judgment. In the present case, it is the petitioner who has constructed contrary to the sanctioned lay out. The Appellate Committee has certainly passed an order, though which is not in existence, compounding the matter, but the fact remains that it is the offence which is compounded and not the illegal structure.
The apex Court in the case of Friends Colony Development Committee Vs. State of Orissa and Others, has held as under :
The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorized constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don''t act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop, some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by connivance.
Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some mis-understanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into under hand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions.
The application for compounding the deviations made by the builders should always be dealt with at a higher level by multi-membered High Powered Committee so that the builders cannot manipulate. The officials who have connived at unauthorized or illegal constructions should not be spared. In developing cities the strength of staff which is supposed to keep a watch on building activities should be suitably increased in the interest of constant and vigilant watch on illegal or unauthorized constructions.
In the light of the aforesaid judgment, this Court is of the considered opinion that the Indore Municipal Corporation has rightly issued the notice of demolition to the petitioner. The illegal structure of the petitioner is resulting in traffic congestion, unbearable burden upon the public at large and has to be demolished as it is not in consonance with the building plan.
The Apex Court in the case of Esha Ekta Apartments CHS Ltd. and Others Vs. The Municipal Corporation of Mumbai and Another, has held as under :
In these cases, the trial Court and the High Court have, after threadbare analysis of the pleadings of the parties and the documents filed by them concurrently held that the buildings in question were constructed in violation of the sanctioned plans and that the flat buyers do not have the locus to complain against the action taken by the Corporation under Section 351 of 1888 Act. Both, the trial Court and the High Court have assigned detailed reasons for declining the petitioners'' prayer for temporary injunction and we do not find any valid ground or justification to take a different view in the matter.
The submission of Dr. Abhishek Manu Singhvi that the constructed area should be measured with reference to the total area of the plot cannot be accepted for the simple reason that the State Government had sanctioned change of land use only in respect of 13049.45 sq. meters.
In view of the above, we may have dismissed the special leave petitions and allowed the Corporation to take action in furtherance of notices dated 19.11.2005 and orders dated 3/8.12.2005, but keeping in view the fact that the flat buyers and their families are residing in the buildings in question for the last more than one decade, we feel that it will be in the interest of justice that the issue relating to the petitioners'' plea for regularization should be considered by this Court at the earliest so that they may finally know their fate.
We, therefore, direct the petitioners to furnish the particulars of the writ petitions filed for regularization of the construction which are pending before the High Court. The needful be done within a period of two weeks from today. Within this period of two weeks, the petitioners shall also furnish the particulars and details of the developers from whom the members of the societies had purchased the flats. List the cases on 16th March, 2012 (Friday).
If the petitioners fail to comply the aforesaid directions, the special leave petitions shall stand automatically dismissed.
The apex Court, later on, in respect of the same parties, ie., Esha Ekta Apartments Co-operative Housing Society Ltd. and Others Vs. Municipal Corporation of Mumbai and Others, has held as under :
At the cost of repetition, it will be apposite to note that the Deputy Chief Engineer had rejected the request made by the architect for exemption of the area of staircase, lift and lift lobby from FSI by observing that the same is not in conformity with Clause 35(2)(c) of the 1991 Regulations because the Corporation had decided the proposal prior to coming into force of those regulations and the permissible FSI had already been exhausted. The Appellate Authority agreed with the Deputy Chief Engineer that the 1991 Regulations cannot be invoked for regularization of the disputed construction because the same were enforced much after rejection of the amended plans and the plot in question is situated in CRZ area.
In our view, the reasons assigned by the Deputy Chief Engineer and the Appellate Authority are in consonance with the law laid down by this Court in Suresh Estates Private Limited v. Municipal Corporation of Greater Mumbai (supra). The facts of that case were that after purchasing a plot measuring 8983 sq. mtrs. situated at Dr.Babasaheb Jaykar Marg, appellant Nos. 1 and 2 submitted plans to develop the same by constructing a luxury hotel in terms of the D.C. Rules. In the application, the appellants mentioned that they are entitled to additional FSI as per Rule 10(2) of the D.C Rules. The Corporation made a recommendation to the State Government that in view of the CRZ notification and the D.C. Rules, additional FSI be granted to the appellants. The Ministry of Environment and Forest sent communication dated 18.8.2006 to the Principal Secretary, Urban Development Department, Government of Maharashtra clarifying that the D.C. Rules, which existed on 19.2.1991 would apply to the areas falling within the CRZ notification and the word ''existing'' means the rules which prevailed on 19.2.1991. It was also mentioned that the draft regulations of 1989, which came into force on 20.2.1991 would not apply. At that stage, the appellants filed a writ petition before the High Court with the complaint that the Corporation had not communicated its decision within 60 days. The same was disposed of by the High Court with a direction to the State Government to decide the application of the appellants within six weeks. Before this Court, it was argued on behalf of the Corporation that the D.C. Rules would not apply to the development permission sought by the appellants and the 1991 Regulations are applicable in the matter. According to the Corporation, the 1991 Regulations do not provide for additional FSI for the proposed hotel project. It was further argued that the restrictions contained in the CRZ notification will be attracted because the plot is situated in CRZ area. This Court noted that the 1991 Regulations were notified on 20.2.1991 and came into force on 25.3.1991 whereas CRZ notification was issued on 2.2.1991 and observed:
The word "existing" as employed in the CRZ notification means the town and country planning regulations in force as on 19-2-1991. If it had been the intention that the town and country planning regulations as in force on the date of the grant of permission for building would apply to the building activity, it would have been so specified. It is well to remember that CRZ notification refers also to structures which were in existence on the date of the notification. What is stressed by the notification is that irrespective of what local town and country planning regulations may provide in future the building activity permitted under the notification shall be frozen to the laws and norms existing on the date of the notification.
On 2-2-1991 when the CRZ notification was issued, the only building regulations that were existing in city of Mumbai, were the DC Rules, 1967. In view of the contents of CRZ II notification issued under the provisions of the Environment (Protection) Act which has the effect of prevailing over the provisions of other Acts, the application submitted by the appellants to develop the plot belonging to them would be governed by the provisions of the DC Rules, 1967 and not by the draft development regulations of 1989 which came into force on 20-2-1991 in the form of the Development Control Regulations for Greater Bombay, 1991.
The argument that in view of the provisions of Section 46 of the Town Planning Act, 1966, the Planning Authority has to take into consideration the draft regulations of 1989 and, therefore, the appellants would not be entitled to additional FSI is devoid of merits.
Section 3 of the Environment (Protection) Act, 1986 inter alia provides that the provisions of the Act and any order or notification issued under the said Act will prevail over the provisions of any other law.
The phrase ''any other law'' will also include the MRTP Act, 1966. As noticed earlier the Notification dated 19-2-1991 issued under the provisions of the Environment (Protection) Act, 1986 freezes the building activity in an area falling within CRZ II to the law which was prevalent and in force as on 19-2-1991. The draft regulations of 1989 would therefore not apply as they were not existing law in force and prevalent as on 19-2-1991.
In view of the peculiar circumstances obtaining in the instant case, the Court is of the opinion that Section 46 of the MRTP Act, 1966 would not apply to the facts of the instant case. Further, when the sanctioned DC Regulations for Greater Bombay, 1991 do not apply to areas covered within CRZ II, since those Regulations came into force with effect from 25-3-1991, its previous draft also cannot apply. The draft published is to be taken into consideration so that the development plan is advanced and not thwarted. The draft development plan was capable of being sanctioned, but when the final development plan is not applicable, its draft would equally not apply as there is no question of that plan being thwarted at all. As far as development in the area covered by CRZ II is concerned, one will have to proceed on the footing that the draft plan after CRZ notification never existed. Even otherwise what is envisaged under Section 46 of the MRTP Act is due regard to draft plan only if there is no final plan. The DC Rules of 1967 were in existence as on 19-2-1991 and therefore the plan prepared thereunder would govern the case.
The draft regulations of 1989 were not in force as on 19-2-1991 and, therefore, would not apply to the plot in question. What is emphasised in Section 46 of the MRTP Act, 1966 is that the Planning Authority should have due regard to the draft rules (sic regulations). The legislature has not used the phrase ''must have regard'' or ''shall have regard''. Municipal Corporation of Greater Mumbai which is the Planning Authority had given due regard to the draft DC Regulations of 1989 in the light of CRZ notification and recommended to the Government to grant additional FSI of 3.73 times permissible as per the Development Control Rules, 1967 over and above 1.33 permissible, to the appellants. Having regard to the facts of the case this Court is of the opinion that the contention that the Planning Authority has to take into consideration the draft regulations of 1989 and, therefore, the appellants would not be entitled to additional FSI, cannot be accepted and is hereby rejected.
(Emphasis supplied)
In view of the aforesaid judgment of the three Judge Bench, it must be held that the Appellate Authority had rightly declined to invoke the 1991 Regulations for entertaining the prayer made by the architect Shri Jayant Tipnis for regularization of the constructions made in violation of the sanctioned plan.
The apex Court has turned down the claim of the flat buyers for regularization on the ground of equity. The apex Court has held that if the Courts exercise equity jurisdiction to regularise illegally constructed flats, this will encourage violators and others to commit further such illegalities. It was held that the flat owners are having remedy to sue the sellers of flat / developers for refund of their money / for damages.
In the light of the aforesaid judgments delivered by the apex Court, this Court is of the considered opinion that this Court does not have the power to regularise the illegal structure which is contrary to the sanctioned lay out and the respondent - Indore Municipal Corporation has got every right to demolish the illegal structure and to clear the area which is meant for parking. Regularising such structures will certainly amount to giving a premium to a person who has violated the law of the land and such persons are to be dealt with stern action. The Writ Petition is accordingly dismissed. No orders as to costs. The respondent - Indore Municipal Corporation is directed to take appropriate action in accordance with law.