1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7356 of 2012

(Arising out of SLP(C) No. 23780/2011)

Dipak Kumar Mukherjee …Appellant

versus

Kolkata Municipal Corporation and others …Respondents

JUDGMENT

G. S. Singhvi, J.

1. Leave granted.

2. In last four decades, the menace of illegal and unauthorised constructions of

buildings and other structures in different parts of the country has acquired

monstrous proportion. This Court has repeatedly emphasized the importance of

planned development of the cities and either approved the orders passed by the High

Court or itself gave directions for demolition of illegal constructions - (1) K.

Ramadas Shenoy v. Chief Officers, Town Municipal Council (1974) 2 SCC 506; (2)

Virender Gaur v. State of Haryana (1995) 2 SCC 577; (3) Pleasant Stay Hotel v.

Palani Hills Conservation Council (1995) 6 SCC 127; (4) Cantonment Board,

Jabalpur v. S.N. Awasthi 1995 Supp.(4) SCC 595; (5) Pratibha Coop. Housing

Society Ltd. v. State of Maharashtra (1991) 3 SCC 341; (6) G.N. Khajuria (Dr) v.

Page 1
 2

Delhi Development Authority (1995) 5 SCC 762; (7) Manju Bhatia v. New Delhi

Municipal Council (1997) 6 SCC 370; (8) M.I. Builders Pvt. Ltd. v. Radhey Shyam

Sahu (1999) 6 SCC 464; (9) Friends Colony Development Committee v. State of

Orissa (2004) 8 SCC 733; (10) Shanti Sports Club v. Union of India (2009) 15 SCC

705 and (11) Priyanka Estates International Pvt. Ltd. v. State of Assam (2010) 2

SCC 27.

3. In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council (supra),

the resolution passed by the Municipal Committee authorising construction of a

cinema theatre was challenged on the ground that the site was earmarked for the

construction of Kalyan Mantap-cum-Lecture Hall and the same could not have been

used for any other purpose. The High Court held that the cinema theatre could not

be constructed at the disputed site but declined to quash the resolution of the Muni-

cipal Committee on the ground that the theatre owner had spent huge amount. While

setting aside the High Court’s order, this Court observed:

“An illegal construction of a cinema building materially affects

the right to or enjoyment of the property by persons residing in
the residential area. The Municipal Authorities owe a duty and
obligation under the statute to see that the residential area is not
spoilt by unauthorised construction. The Scheme is for the be-
nefit of the residents of the locality. The Municipality acts in
aid of the Scheme. The rights of the residents in the area are in-
vaded by an illegal construction of a cinema building. It has to
be remembered that a scheme in a residential area means
planned orderliness in accordance with the requirements of the
residents. If the scheme is nullified by arbitrary acts in excess
and derogation of the powers of the Municipality the courts will
quash orders passed by Municipalities in such cases.
The Court enforces the performance of statutory duty by public
bodies as obligation to rate payers who have a legal right to de-
mand compliance by a local authority with its duty to observe

Page 2
 3

statutory rights alone. The Scheme here is for the benefit of the
public. There is special interest in the performance of the duty.
All the residents in the area have their personal interest in the
performance of the duty. The special and substantial interest of
the residents in the area is injured by the illegal construction.”

4. In Pratibha Coop. Housing Society Ltd. v. State of Maharashtra (supra), this

Court approved the order passed by the Bombay Municipal Corporation for demoli-

tion of the illegally constructed floors of the building and observed:

“Before parting with the case we would like to observe that this
case should be a pointer to all the builders that making of unau-
thorised constructions never pays and is against the interest of
the society at large. The rules, regulations and bye-laws are
made by the Corporations or development authorities taking in
view the larger public interest of the society and it is the
bounden duty of the citizens to obey and follow such rules
which are made for their own benefits.”

5. In Friends Colony Development Committee v. State of Orissa (supra), this

Court noted that large number of illegal and unauthorised constructions were being

raised in the city of Cuttack and made the following significant observations:

“………Builders violate with impunity the sanctioned building

plans and indulge in deviations much to the prejudice of the
planned development of the city and at the peril of the occu-
pants 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 sup-
ply, sewerage and traffic movement facilities suffers unbearable
burden and is 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 designs 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 unauthorised 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

Page 3
 4

keep a watch on building activities and to promptly stop the il-

legal 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 illegit-
imate considerations. If such activities are to stop some strin-
gent 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 ad-
equately compensated by the builder. The arms of the law must
stretch to catch hold of such unscrupulous builders………….
In all developed and developing countries there is emphasis on
planned development of cities which is sought to be achieved
by zoning, planning and regulating building construction activ-
ity. Such planning, though highly complex, is a matter based on
scientific research, study and experience leading to rationalisa-
tion of laws by way of legislative enactments and rules and reg-
ulations framed thereunder. Zoning and planning do result in
hardship to individual property owners as their freedom to use
their property in the way they like, is subjected to regulation
and control. The private owners are to some extent prevented
from making the most profitable use of their property. But for
this reason alone the controlling regulations cannot be termed
as arbitrary or unreasonable. The private interest stands subor-
dinated to the public good. It can be stated in a way that power
to plan development of city and to regulate the building activity
therein flows from the police power of the State. The exercise
of such governmental power is justified on account of it being
reasonably necessary for the public health, safety, morals or
general welfare and ecological considerations; though an unne-
cessary or unreasonable intermeddling with the private owner-
ship of the property may not be justified.
The municipal laws regulating the building construction activity
may provide for regulations as to floor area, the number of
floors, the extent of height rise and the nature of use to which a
built-up property may be subjected in any particular area. The
individuals as property owners have to pay some price for se-
curing peace, good order, dignity, protection and comfort and
safety of the community. Not only filth, stench and unhealthy
places have to be eliminated, but the layout helps in achieving
family values, youth values, seclusion and clean air to make the
locality a better place to live. Building regulations also help in
reduction or elimination of fire hazards, the avoidance of traffic
dangers and the lessening of prevention of traffic congestion in
the streets and roads. Zoning and building regulations are also

Page 4
 5

legitimised from the point of view of the control of community

development, the prevention of overcrowding of land, the fur-
nishing of recreational facilities like parks and playgrounds and
the availability of adequate water, sewerage and other govern-
mental or utility services.
Structural and lot area regulations authorise the municipal au-
thorities to regulate and restrict the height, number of storeys
and other structures; the percentage of a plot that may be occu-
pied; the size of yards, courts and open spaces; the density of
population; and the location and use of buildings and structures.
All these have in our view and do achieve the larger purpose of
the public health, safety or general welfare. So are front setback
provisions, average alignments and structural alterations. Any
violation of zoning and regulation laws takes the toll in terms of
public welfare and convenience being sacrificed apart from the
risk, inconvenience and hardship which is posed to the occu-
pants of the building.”

(emphasis supplied)

6. In Shanti Sports Club v. Union of India (supra), this Court approved the order

of the Delhi High Court which had declared the construction of sports complex by

the appellant on the land acquired for planned development of Delhi to be illegal

and observed:

“In the last four decades, almost all cities, big or small, have
seen unplanned growth. In the 21st century, the menace of
illegal and unauthorised constructions and encroachments has
acquired monstrous proportions and everyone has been paying
heavy price for the same. Economically affluent people and
those having support of the political and executive apparatus of
the State have constructed buildings, commercial complexes,
multiplexes, malls, etc. in blatant violation of the municipal and
town planning laws, master plans, zonal development plans and
even the sanctioned building plans. In most of the cases of
illegal or unauthorised constructions, the officers of the
municipal and other regulatory bodies turn blind eye either due
to the influence of higher functionaries of the State or other
extraneous reasons. Those who construct buildings in violation
of the relevant statutory provisions, master plan, etc. and those
who directly or indirectly abet such violations are totally

Page 5
 6

unmindful of the grave consequences of their actions and/or

omissions on the present as well as future generations of the
country which will be forced to live in unplanned cities and
urban areas. The people belonging to this class do not realise
that the constructions made in violation of the relevant laws,
master plan or zonal development plan or sanctioned building
plan or the building is used for a purpose other than the one
specified in the relevant statute or the master plan, etc., such
constructions put unbearable burden on the public
facilities/amenities like water, electricity, sewerage, etc. apart
from creating chaos on the roads. The pollution caused due to
traffic congestion affects the health of the road users. The
pedestrians and people belonging to weaker sections of the
society, who cannot afford the luxury of air-conditioned cars,
are the worst victims of pollution. They suffer from skin
diseases of different types, asthma, allergies and even more
dreaded diseases like cancer. It can only be a matter of
imagination how much the Government has to spend on the
treatment of such persons and also for controlling pollution and
adverse impact on the environment due to traffic congestion on
the roads and chaotic conditions created due to illegal and
unauthorised constructions. This Court has, from time to time,
taken cognizance of buildings constructed in violation of
municipal and other laws and emphasised that no compromise
should be made with the town planning scheme and no relief
should be given to the violator of the town planning scheme,
etc. on the ground that he has spent substantial amount on
construction of the buildings, etc.

Unfortunately, despite repeated judgments by this Court and the

High Courts, the builders and other affluent people engaged in
the construction activities, who have, over the years shown
scant respect for regulatory mechanism envisaged in the
municipal and other similar laws, as also the master plans, zonal
development plans, sanctioned plans, etc., have received
encouragement and support from the State apparatus. As and
when the Courts have passed orders or the officers of local and
other bodies have taken action for ensuring rigorous compliance
with laws relating to planned development of the cities and
urban areas and issued directions for demolition of the
illegal/unauthorised constructions, those in power have come
forward to protect the wrongdoers either by issuing
administrative orders or enacting laws for regularisation of
illegal and unauthorised constructions in the name of
compassion and hardship. Such actions have done irreparable
harm to the concept of planned development of the cities and

Page 6
 7

urban areas. It is high time that the executive and political

apparatus of the State take serious view of the menace of illegal
and unauthorised constructions and stop their support to the
lobbies of affluent class of builders and others, else even the
rural areas of the country will soon witness similar chaotic
conditions.”

7. In Priyanka Estates International Pvt. Ltd. v. State of Assam (supra), this

Court refused to order regularisation of the illegal construction raised by the appel-

lant and observed:

“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 multistoreyed 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.”

8. What needs to be emphasised is that illegal and unauthorised constructions of

buildings and other structure not only violate the municipal laws and the concept of

planned development of the particular area but also affect various fundamental and

constitutional rights of other persons. The common man feels cheated when he finds

that those making illegal and unauthorised constructions are supported by the people

entrusted with the duty of preparing and executing master plan/development

plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging

to poor and disadvantaged section of the society frequently appear in the print media

Page 7
 8

but one seldom gets to read about demolition of illegally/unauthorisedly constructed

multi-storied structure raised by economically affluent people. The failure of the

State apparatus to take prompt action to demolish such illegal constructions has con-

vinced the citizens that planning laws are enforced only against poor and all com-

promises are made by the State machinery when it is required to deal with those who

have money power or unholy nexus with the power corridors.

9. We have prefaced disposal of this appeal by taking cognizance of the preced-

ents in which this Court held that there should be no judicial tolerance of illegal and

unauthorized constructions by those who treat the law to be their sub-servient, but

are happy to note that the functionaries and officers of Kolkata Municipal Corpora-

tion (for short, ‘the Corporation’) have been extremely vigilant and taken steps for

enforcing the provisions of the Kolkata Municipal Corporation Act, 1980 (for short,

‘the 1980 Act’) and the rules framed thereunder for demolition of illegal construc-

tion raised by respondent No.7. This has given a ray of hope to the residents of

Kolkata that there will be zero tolerance against illegal and unauthorised construc-

tions and those indulging in such activities will not be spared.

10. The appellant is an enlightened resident of Kolkata. He succeeded in convin-

cing the learned Single Judge of the Calcutta High Court to order demolition of un-

authorised construction of multi-storied building by respondent No.7 – M/s. Unique

Construction on the plot owned by respondent No.8 – Sarjun Prasad Shaw but could

not persuade the Division Bench to affirm the order of the learned Single Judge and

this is the reason why he has approached this Court.

Page 8
 9

11. Mohammad Shahid, (the sole proprietor cum attorney of respondent No.7)

entered into an agreement with respondent No.8 for development of plot bearing

No.8/1F, Gopal Doctor Road, Kolkata. The building plan submitted by respondent

No.7 for construction of two storied building was sanctioned by the Corporation on

11.4.1990 and five years time was given for completing the construction. When the

site was inspected by the officers of the Corporation in October, 2009, they found

that respondent No.8 had raised unauthorised construction by erecting RCC column

upto 3rd floor along with staircase in deviation of the sanctioned plan. Thereupon,

stop work notice was issued by the Executive Engineer (Civil), Building under Sec-

tion 401 of the 1980 Act. However, instead of stopping the construction, respondent

No.7 added one more floor. This brazen defiance of law by respondent No.7 led to

the issuance of notices dated 15.10.2009 and 10.11.2009 under Sections 400(1) and

401(A) respectively. Simultaneously, a report was submitted by Deputy Chief En-

gineer (Building) to the Director General (Building) – II, for demolition of the unau-

thorised construction on the ground that structural stability of the illegal construction

was doubtful and existence of the same was dangerous to the lives of the people.

The issue was then considered by the Mayor-in-Council on 14.1.2010 and it was de-

cided to demolish the unauthorised construction. Accordingly, about 600 sq. ft. out

of the total constructed area measuring 1500 sq. ft. was demolished on 4.2.2010.

12. In the meanwhile, the appellant filed WP No. 23741/2009 in the High Court

for issue of a direction to the Corporation to demolish the illegal construction by re-

spondent No.7. The same was disposed of by the learned Single Judge on 3.3.2010

with the direction that the objection raised by the appellant against the unauthorised

Page 9
 10

construction be decided by the competent authority after hearing the affected parties.

Simultaneously, it was ordained that no illegal construction be carried out in the

premises in question.

13. Notwithstanding the decision of the Mayor-in-Council and the order of the

High Court, respondent No.7 continued with the construction of building, albeit in

violation of the sanctioned plan. Therefore, the appellant filed fresh writ petition

which came to be registered as WP No.13815/2010 for demolition of the unauthor-

ised construction and for issue of a direction to the Corporation not to issue comple-

tion certificate in favour of respondent Nos.7 and 8. The second writ petition was

disposed of by the learned Single Judge vide order dated 28.7.2010, the relevant por-

tions of which are extracted below:

“It appears from the submissions that the construction has been
raised up to ground plus fourth floor which is beyond the sanc-
tioned plan. It is evident from the photo copies of the records
that it was resolved on 14th January, 2010 in the M.I.C. meeting
of the Corporation that as the person responsible continued with
the unauthorised construction which might lead to an accident,
appropriate action towards demolition of the unauthorised con-
struction should be taken forthwith under section 400(8) of the
Kolkata Municipal Corporation Act with the help of the local
administration.
Since admittedly, unauthorized construction has been raised,
that is, construction has been carried out beyond the sanctioned
plan, I direct the Director General (Buildings-II) Kolkata Muni-
cipal Corporation and the Executive Engineer (Civil), Building
Department, Borough-IX, the respondent nos. 3 and 4 respect-
ively, to demolish the unauthorized structure, as resolved, with-
in eight weeks from the date of communication of this order.
During such demolition, if need be the respondent nos. 3 and 4
are at liberty to seek assistance of the Officer-in-Charge, Wat-
gunge Police Station, Kolkata, the respondent no.6 shall render
all assistance in implementing the order of this Court.”

Page 10
 11

14. Immediately thereafter, Mohammad Shahid submitted an application dated

13.8.2010 for regularisation of unauthorised portion of the building under Section

400(1) of the 1980 Act. That application reads as under:

Date: 13.08.2010
“To:
The Executive Engineer (Civil)
Building Department Br.-IX,
The Kolkata Municipal Corporation,
11, Belvedere Road, Kolkata-700027.

Sub: Regularisation of additional floor over

Sanctioned Building.

Re: Pre: No. 8/ 1 F, Gopal Doctor Road,

Ward No.76, Br.-IX.

Dear Sir,

I Md. Shahid, attorney of the above mentioned premises,

am submitting herewith one copy of ammonia print of five stor-
ied building plan. The said building was sanctioned of two stor-
ied, and additional three more storied has been constructed for
accommodation of existing tenants and our family members.

Now I do request and pray to your goodself to regularize

the unauthorized portion of the said building under section
400(1). For that I am ready to pay the penalty and charges for
the same.

Hope your honour would extend your co-operation in this

respect and oblige me.
Thanking you.
Yours faithfully,
Sd/-
Md. Shahid.”

Page 11
 12

15. Simultaneously, respondent No.7 challenged the order of the learned Single

Judge by filing an appeal. During the pendency of the appeal, Mohammad Shahid

filed an additional affidavit dated 16.9.2010, paragraphs 5 to 10 whereof are repro-

duced below:

“5. I state that a plan dated 11.04.2009 vide

building permit no.2009090004 was sanctioned for
premises no. 8/1F, Gopal Doctor Road, Kidderpore,
Kolkata-700023, by the Kolkata Municipal Corpora-
tion, for erection of a two storied building, covering
a sanctioned area measuring about 145.82 square
meter. The proposed F.A.R for the said plan was
0.99 over land measuring about 145.927 square
meter. But the building has been constructed upto
five storied. Presently, the total constructed cover
area for the five storied building is measuring about
559.57 square meter and the present F.A.R is 3.83.

6. I say that according to Clause (b) Sub-Rule 2 of Rule

25 of the Kolkata Municipal Corporation Building Rules 1990,
"if during the erection or execution of work any external devi-
ation beyond the sanctioned covered space is intended to be
made and which does not violate the provisions of the Act or
the said Rules, the person erecting such construction, prior to
carrying out such erection or execution of works, submit, in ac-
cordance with the provisions of the said rules, a revised plan in-
corporating the deviation intended to be carried out, for obtain-
ing necessary sanction thereof.”

7. I further say that Clause (b) Sub-Rule 2 of Rule 25 of the

Kolkata Municipal Corporation Building Rules, 1990, em-
powers the Municipal authorities to allow a person to construct
beyond the sanctioned covered area, which means construction
exceeding the Floor Area Ratio can be allowed to be carried on.

8. I say that there is no express provision in the Kolkata

Municipal Corporation Act 1980 and also in Kolkata Municipal
Corporation Building Rules, 1990, stopping a person
from constructing beyond the Floor Area Ratio. I further say
that though none of the provisions of the Kolkata Municipal
Corporation Act, 1980 and Kolkata Municipal Corporation
Building Rules, 1990, empowers the Kolkata Municipal Cor-

Page 12
 13

poration to regularize the construction made in excess of the

sanctioned plan, but the Kolkata Municipal Corporation gets the
said power of regularization by virtue of the Full Bench Judg-
ment of this Hon'ble Court delivered in the case of Ramesh
Prasad Agarwal (Supra) reported in All India Reporter 1972
Calcutta 459. I n the said case this Hon'ble Court was pleased to
decide that 'even in respect of matters which involve violation
of an unrelaxable building rules the Commissioner has discre-
tion not to order demolition if the violation is not of a serious
nature.’

9. I say that I, on 13th August, 2010, have already applied

before the Kolkata Municipal Corporation for regularization of
the construction erected beyond the sanctioned plan and have
submitted a revised plan for sanction before the concerned au-
thority. Copy of the letter dated 13 th August, 2010 and the re-
vised plan is collectively annexed hereto and marked with the
letter "R-l".

10. I say that the construction erected by me in the present

case is not of a serious nature and there is no immediate threat
that the building may fall down and the said fact shall be
proved from the structural stability certificate issued by Sri
Prabir Kumar Mitra, Civil Engineer, after due inspection of the
premises in question.

A copy of the structural stability certificate is annexed

hereto and marked with the letter "R-2".

16. The appellant filed detailed counter affidavit dated 17.1.2011 reiterating his

plea that the construction made by respondent No.7 was illegal. Thereafter, re-

spondent No.8 filed affidavit dated 22.2.2010 and questioned the locus standi of the

appellant to file the writ petition. Shri Tapas Chandra and Smt. Asha Devi Shaw, to

whom the unauthorised portions of the building are said to have been sold, got them-

selves impleaded as parties to the appeal filed by respondent No.7. On 1.3.2011, the

Division Bench of the High Court suo-motu directed issue of notice under Order 1

Rule 8 of the Code of Civil Procedure and publication thereof in two daily newspa-

pers, one in Bengali and another in English so as to enable other purchasers of the

Page 13
 14

unauthorised portions of the building to present their cause before the Court. The

relevant portion of that order reads as under:

“01.03.2011

Mr. Bhaskar Ghosh, learned Advocate, has filed a re-

port of the Officer-in-Charge of the Watgunge Police Station.

Let 1st and 2nd pages of the said report be endorsed by

the learned Advocate, Mr. Ghosh

Let the said report be kept on record.

From the said report it appears that in an unauthorized

construction without sanction plan above 2nd floor, in terms of
the complaint filed by the Kolkata Municipal Corporation, Case
No. 320 dated 14.10.2010 under Section 401(A) KMC Act was
started and Developer/appellant and the respondent/Owner are
accused in the said proceeding.

It is submitted by the learned Advocate, Mr. Chatterjee,

appearing for the Developer and Mr. Bhattacharya, learned Ad-
vocate appearing for the owner that their clients already have
been granted bail in that criminal proceeding and trial is con-
tinuing.

It is further submitted by the learned Advocate appearing

for the Developer/appellant and the learned Advocate appearing
for the respondent/Owner that the concerned premises, as has
been constructed, though on breach of the sanction plan of the
Kolkata Municipal Corporation but many persons have been
provided with occupation in different flats by selling the con-
cerned flats of said property or providing their occupation on
considering their earlier tenancy right.

Let affidavits be filed by them disclosing the total num-

ber of flats of the concerned premises, the names of the occu-
pants therein, if any, detailing the particulars, namely their right
and the instruments executed by the appellant and/or the re-
spondent/ Owner concerned, so that the Court may
pass appropriate order was to whether those persons should be
heard to not before passing any decision in this appeal.

Let such affidavits be filed within 10 days from date.

Page 14
 15

The matter is posted for hearing on 15th March, 2011 at

10.30 A.M. as fixed matter.

Since it is the submission of the appellant that

there are many occupants above the 2nd floor of the
concerned premises upto 5th floor which have been
constructed without any sanction plan, for effective
adjudication, let notice under Order 1 Rule 8 of the
Code of Civil Procedure be published by the appel-
lant within a week in the two daily Newspapers hav-
ing State-wide publication; one in Bengali and an-
other in English and will submit a Supplementary
Affidavit disclosing his action to that effect.”

17. On 15.3.2011, the High Court, after taking note of the fact that none of the oc-

cupants had come forward to espouse their cause, directed that a fresh notice be pub-

lished under Order 1 Rule 8 C.P.C. The second opportunity given by the High Court

was also not availed by the occupants of the illegally constructed portion of the

building. The appeal filed by respondent No.7 was finally disposed of by the Divi-

sion Bench of the High Court on 2.5.2011 and the competent authority of the Cor-

poration was directed to take appropriate decision in accordance with law after com-

plying with the principles of natural justice. This is evinced from the following ex-

tracts of the impugned order:

“Having heard the learned Counsel appearing for

the parties and considering the facts and cir-
cumstances of the case, We are of the view that the
competent authority of the Kolkata Municipal
Corporation should take appropriate decision under
the provisions of the Kolkata Municipal Corporation
Act and Building Rules framed thereunder while
dealing with the allegations of unauthorized con-
struction in respect of any building. In the present
case, specific allegation has been made to the effect,
that two floors of the building in question were con-

Page 15
 16

structed even in absence of sanctioned building

plan.

In the aforesaid circumstances, the competent au-

thority of the Kolkata Municipal Corporation must
take appropriate decision in respect of the building
in question upon complying with the provisions of
the Kolkata Municipal Corporation Act and the
Building Rules framed thereunder.

The Court cannot usurp the authority of the Kolk-

ata Municipal Corporation in this regard. The valid-
ity and/or legality of the decision of the Kolkata Mu-
nicipal Corporation authorities regarding demolition
and/or retention of any unauthorized structure
can be challenged before this Court but this Court
under normal circumstances should not dictate the
Kolkata Municipal Corporation authorities to take
any specific decision regarding demolition or reten-
tion of any structure without allowing the compet-
ent authority to take appropriate decision in this re-
gard.

The Kolkata Municipal Corporation authorities

should take appropriate decision in respect of the
fate of an illegal structure at the first instance and
the Court will thereafter adjudicate the correctness
of such decision. The Court under normal circum-
stances should not either direct retention of any il-
legal structure or demolition of the same before al-
lowing the competent authority of the concerned
Kolkata Municipal Corporation to take appropriate
decision in accordance with law.

For the aforementioned reasons, we direct the com-

petent authority of Kolkata Municipal Corporation
to consider the nature and magnitude of the unau-
thorised construction at the premises in question
and take specific decision regarding retention or de-
molition of the same or any part thereof.

Needless to mention that the competent authority of

the Kolkata Municipal Corporation will take appro-
priate decision strictly in accordance with law and
upon observing the principles of natural justice

Page 16
 17

without any further delay but positively within a

period of two months from date.”

18. Shri Bhaskar P. Gupta, learned senior counsel appearing for the appellant ar-

gued that the direction given by the Division Bench is legally unsustainable because

while deciding the appeal preferred by respondent No.7, the Division Bench of the

High Court overlooked the fact that the Mayor-in-Council had, after giving notice

and opportunity of hearing to the representative of respondent No.7, already passed

order on 14.1.2010 for demolition of the unauthorised construction. Learned senior

counsel emphasised that respondent No.7 had defied the ‘stop work notice’, decision

taken by Mayor-in-Council and continued with the construction of building even

after demolition of unauthorised portion thereof and argued that the Division Bench

of the High Court committed serious error by ordaining compliance of the rule of

audi alteram partem ignoring that respondent No.7 had never contested the factum

of unauthorised construction. Shri Bhaskar P. Gupta relied upon the judgments of

this Court in Friends Colony Development Committee v. State of Orissa (supra) and

Priyanka Estates International (P) Ltd. v. State of Assam (supra) and argued that the

Division Bench of the High Court committed serious error by interfering with the

direction given by the learned Single Judge for demolition of the construction which

was raised by respondent No.7 in violation of the sanctioned plan and by showing

total contempt for the notices issued by the Corporation under Sections 400 and 401

of the 1980 Act.

19. Shri Kalyan Bandopadhyay, learned counsel for the Corporation extensively

referred to the pleadings of the parties to show that the representative of respondent

Page 17
 18

No.7 had admitted construction of building in violation of the sanctioned plan and

argued that such construction cannot be regularised under Rule 25 (2) of the Kolkata

Municipal Corporation Building Rules, 1990 (for short, ‘the Rules’).

20. Learned counsel for respondent No.7 fairly conceded that the construction

raised by his client is contrary to the sanctioned plan but argued that the Corporation

is duty bound to pass appropriate order on the application filed for regularisation of

such construction. Learned counsel submitted that even though Rule 25(2) of the

Rules may not be strictly applicable to the case of his client, the Corporation pos-

sesses inherent power to regularise the illegal construction and there is no justifica-

tion to demolish the unauthorised portion of the building without deciding the ap-

plication submitted on 13.8.2010.

21. We have considered the respective arguments and carefully perused the re-

cord. Since, respondent No.7 has not disputed that the building was constructed in

violation of the sanctioned plan and the Mayor-in-Council passed order dated

14.1.2010 for demolition of the disputed construction, the direction given by the Di-

vision Bench of the High Court to the competent authority of the Corporation to pass

appropriate order after giving opportunity of hearing to respondent No.7 cannot be

sustained. It appears that attention of the Division Bench was not drawn to the no-

tices issued by the competent authority of the Corporation under Sections 400, 401

and 401A of the 1980 Act and order dated 14.1.2010 passed by the Mayor-in-Coun-

cil, else it would not have decided the appeal by assuming that the competent author-

ity had not passed an order for demolition of the illegal construction. The factum of

Page 18
 19

illegal construction having been raised by respondent No.7 is also evinced from the

counter affidavits filed on behalf of respondent Nos.1 to 5 and respondent No.7 re-

spectively. In paragraphs 4 (a) to (c), (e) to (h), (j) and (k), Shri Amitava Roy

Chaudhary, Executive Engineer (Civil), Building Department, Kolkata Municipal

Corporation has explained the Corporation’s stand in the following words:

“ 4. I crave leave of this Hon'ble Court to set out the follow-

ing facts in connection with the present S.L.P. :-

(a) A Building plan being Building Sanction Plan No.

200909004 was sanctioned on 11.04.2009 by the concerned au-
thority of the Corporation in favour of one Md. Sahid for con-
struction of two storied residential building in respect of the
premises No.8/1F, Gopal Doctor Road, Kolkata-700023 (here-
inafter referred to as the said premises) and the same to be com-
pleted within five years from the date of sanction i.e.
10.04.2014 as per the said sanction.

(b) On or about October, 2009 the concerned officers of the

Corporation inspected the said premises after receiving a com-
plaint over telephone about the unauthorized construction being
made in the said premises. Upon the said complaint the con-
cerned officials inspected the said premises and found that
R.C.C. columns were erected upto 3 rd floor level with projec-
tions of some columns above 3rd floor level and casting of
R.C.C. slab were made upto 3rd floor level along with staircase
in deviation from the said sanction plan for which a notice un-
der section 401 of the K.M.C. Act, 1980 was served on
08.10.2009 to Md. Shahid, the person responsible, to stop forth-
with further progress of construction work and the same was re-
ceived by the person responsible. Moreover, an intimation was
sent to the Officer-in-charge, Watgunge Police Station, Kolkata,
requesting him for follow up action in the prevention of unau-
thorized construction at the said premises which was in devi-
ation and beyond sanction plan.
A true copy of Notice u/s. 401 of the K.M.C. Act and a
copy of the intimation given to Officer in-charge Watgunge Po-
lice Station, Kolkata, are annexed as Annexures P-l & P-2 at
pages 23-27 of the SLP Paper Book.

Page 19
 20

(c) It appeared from the records of the K.M.C. that inspite of

service of notice u/s. 401 of the K.M.C. Act, 1980 to stop con-
struction forthwith, the person responsible continued with the
construction works defying the said stop-work notice for which
first time Municipal guard watch was posted from 12.10.2009
in respect of the said premises and an intimation of the said
posting of guard watch was given to the person responsible for
prevention of the continuance of unauthorized construction
thereon.

(e) On or about November, 2009 the concerned officers of the

Building Department of the Corporation further inspected
the said premises and found that the construction works
were going on up to 4th floor level in spite of posting of
guard watch. Accordingly, considering the gravity of the
situation and safety of the adjoining structure as well as the
safety of the public in general the concerned authority sug-
gested that action under section 401-A of the K.M.C. Act,
1980 may be taken against the said person responsible and a
proposal was made by the concerned officials of the Corpor-
ation, besides to it the same was sent to Watgunge Police
Station for taking action against the person responsible or
any other person who has conspired to make the said unau-
thorized construction. A true copy of the said proposal dated
10.11.2009 is annexed as Annexure P-4 at pg. 30 of the
S.L.P. Paper Book.

(f) After considering the said statement and the demolition

sketch the Deputy Chief Engineer (Building) submitted a report
to the Director General (Building)-II, K.M.C. In the said report
the Deputy Chief Engineer (Building) mentioned that since the
nature of the unauthorized construction works are massive and
there was defiant attitude of the person responsible and since
the premises is situated in congested area, the construction had
been done in a haphazard manner without following the norms
and practice of Civil Engineering. It was felt that the structural
stability of the impugned construction is doubtful which would
create several hazards like traffic congestion, fire hazards, en-
vironmental hazards etc. Accordingly, it was recommended that
action under section 400(8) of the K.M.C. Act, 1980 may be
taken against the said unauthorized construction in the said
premises to cause such building or work to be demolished
forthwith, and the same was placed before the Member, Mayor-
in-Council for approval.

Page 20
 21

(g) The Member, Mayor-in-Council approved the said re-

commendation. On 14.01.2010, upon such approval the Mayor-
in-Council resolved that unauthorized construction/ structures
at the said premises be demolished forthwith under section 400
(8) of the K.M.C. Act, 1980 with the help of the local adminis-
tration. A true copy of the said proposal of the said premises
and the resolution of the Mayor-in-Council dated 14.10.2010 is
annexed as Annexure P-5 (Colly) at pages 31-32 of the S.L.P.
Paper Book.

(h) In accordance with the said resolution of the May-

or-in-Council the demolition squad of the Corporation went to
the said premises on 04.02.2010 and was able to demolish a
portion of the unauthorized construction about 600 sq. ft. ap-
prox. out of approx. 1500 sq. ft. of the said unauthorized con-
struction in the said premises. The demolition squad also sub-
mitted a report of the said structure in the said premises. In the
said report the reason for not being able to demolish the entire
un-authorized structure was also stated. A true copy of the de-
molition report and the demolition sketch is annexed as Annex-
ure P-6 at page 33 of the S.L.P. Paper Book.

j) Pursuant to the directions of the Calcutta High Court, the

concerned Executive Engineer gave a hearing on 08.04.2010 to
the petitioner and the respondent, M/s. Unique Constructions
represented by its Proprietor - Md. Shahid, the person respons-
ible for making unauthorized constructions and on 16.04.2010
the concerned Executive Engineer passed an order and commu-
nicated the same to the respective parties. A true copy of the
said Order dated 16.04.2010 is annexed as Annexure P-8 (at
pages 36-37) of the S.L.P. Paper Book.

k) Thereafter, on the basis of the said order of the Executive

Engineer, on 20.07.2010 the concerned Assistant Engineer
along with the Sub-Assistant Engineer inspected the said
premises and found that the demolished portion of the said
building has been repaired by the said person responsible and
also found that the said building is full of occupancy.”

22. In paragraphs 4, 5 and 6 of his affidavit, Mohammad Shahid has averred as

under:

Page 21
 22

“4. That since the Premises No. 8/1F, Gopal Doctor Road, Po-
lice Station Watgunge, Kolkata having an area of about 2 Cot-
tahs 11 Chittacks 33 Square feet was covered with temporary
structures and some of which were tiles and asbestos etc. The
said structures were occupied by various tenants and partly by
the landlord. Therefore the owner/landlord decided to enter into
an agreement with the answering respondent for undertaking
necessary construction works since the property became unin-
habitable. Thus necessary agreements were executed by and
between the answering respondent and owner/landlord for the
construction work in the premises in question.
Accordingly, thereafter a Plan dated 11.04.2009 vide Building
Permit No. 2009090004 was sanctioned for premises No. 8/1F,
Gopal Doctor Road, Kidderpore, Kolkata- 700 023, by the
Kolkata Municipal Corporation for erection of a two storied
building, covering a sanctioned area measuring about 145.82
Square Meter. The proposed F.A.R. for the said plan was 0.99
over land measuring about 145.927 Square Meter. But the
building has been constructed upto five storied. Presently the
total constructed cover area for the five storied building is
measuring about 55.57 square meter and the present F.A.R. is
3.83.
5. That subsequent thereto as per the requirement of the
owner and tenants in the said premises construction upto the
floor more than sanctioned was constructed. Upon construction
the answering respondent filed an application with the Kolkata
Municipal Corporation under Rule 25(2)(b) of the Building
Rules on 13.08.2010 for regularization of the construction erec-
ted beyond sanctioned plan and a revised plan was submitted
for sanction before the competent authority.

6. That according to Clause (b) Sub-Rule 2 of Rule 25 of

the Kolkata Municipal Corporation Building rules 1990 it is
provided that if during the erection or execution of work any
external deviation beyond the sanctioned covered space is in-
tended to be made and which does not violate the provisions of
the Act or the said Rules, the person erecting such construction,
prior to carrying out such erection or execution of works, sub-
mit, in accordance with provisions of the said rules, a revised
plan incorporating the deviation intended to be carried out, for
obtaining necessary sanction thereof. Further the Clause (b)
Sub-Rule 2 of Rule 25 of the Kolkata Municipal Corporation
Building Rules, 1990, empowers the Municipal authorities to
allow a person to construct the sanctioned covered area, which

Page 22
 23

means construction exceeding the floor area ratio can be al-

lowed to be carried on.”

23. In view of the pleadings filed before the High Court and the affidavits filed

before this Court, there is no escape from the conclusion that respondent No.7 had

raised construction in violation of the plan sanctioned under Section 396 of the 1980

Act and continued with that activity despite the order of the Mayor-in-Council. In

the prevailing scenario, the representative of respondent No.7 might have thought

that he will be able to pull strings in the power corridors and get an order for regular-

isation of the illegal construction but he did not know that there are many mortals in

the system who are prepared to take the bull by horn and crush it with iron hand.

24. Rule 25 of the Rules, on which reliance was placed by respondent No.7 for

seeking regularisation of the illegal construction, reads as under:

“25. Deviation during execution of works.—(1) No

deviation from the sanctioned plan shall be made during
erection or execution of any work.

(2) Notwithstanding anything contained in sub-rule (1), if

during erection or execution of work any internal alterations or
external additions which do not violate the provisions of the
Act or these rules is made, the Municipal Commissioner may
without prejudice to any action that may be taken against the
person at whose instance such alteration or additions have been
made, allow the person referred to in sub-rule ( 1) of rule 4 to
submit, in accordance with the provisions of these rules, a
revised plan showing the deviation and may sanction such plan.

(3) Any departure made during the execution of any work or at

any time thereafter without sanction shall be deemed to be in
contravention of the provisions of the Act and these rules and
shall be dealt with accordingly.”

Page 23
 24

25. A reading of the plain language of Rule 25(1) makes it clear that a person,

who erects any structure or executes any work is not entitled to deviate from the

sanctioned plan. Rule 25(2) which contains a non-obstante clause and provides for

sanction of revised plan to be submitted by the person engaged in erection of

building or execution of work lays down that if during erection or execution of

work, any internal alterations or external additions which do not violate the provi-

sions of the Act or the Rules is made, the Municipal Commissioner can, at an applic-

ation made in that behalf sanction the revise plan showing the deviation. Rule 25(3)

is declaratory in nature. It lays down that any departure made during the execution

of any work or at any time thereafter without sanction shall be deemed to be in

contravention of the Act and the Rules shall be dealt with accordingly.

26. In our view, respondent No.7 cannot take benefit of Rule 25 because the

disputed construction was in clear violation of the sanctioned plan and the notices

issued by the competent authority of the Corporation and also because the

application was made after completion of the construction.

27. Before parting with the case, we consider it necessary to observe that

respondent No.7 is guilty not only of violating the sanctioned plan and the relevant

provisions of the 1980 Act and the Rules framed thereunder but also of cheating

those who purchased portions of unauthorized construction under a bona fide belief

that respondent No.7 had constructed the building as per the sanctioned plan. With

the demolition of unauthorized construction some of such persons will become

shelterless. It is, therefore, necessary that respondent No.7 is directed to compensate

Page 24
 25

them by refunding the cost of the flat, etc., with interest. Respondent No.7 must

also pay for raising construction in violation of the sanctioned plan. It must be

remembered that while preparing master plans/zonal plans, the Planning Authority

takes into consideration the prospectus of future development and accordingly

provides for basic amenities like water and electricity lines, drainage, sewerage, etc.

Unauthorized construction of buildings not only destroys the concept of planned

development which is beneficial to the public but also places unbearable burden on

the basic amenities and facilities provided by the public authorities. At times,

construction of such buildings becomes hazardous for the public and creates traffic

congestion. Therefore, it is imperative for the concerned public authorities not only

to demolish such construction but also impose adequate penalty on the wrongdoer.

28. In the result, the appeal is allowed and the impugned judgment is set aside.

With a view to ensure that the illegal construction raised by respondent No.7 is

pulled down without delay, we issue the following directions:

1. Within three months from today, respondent No.7 shall pay the price of the

flats etc. to the purchasers with interest @ 18% per annum from the date of

payment.

2. The occupiers of illegal/unauthorized construction shall vacate such portions

of the building within next one month.

3. Within next one month, the Corporation shall demolish unauthorized

construction after taking adequate precautionary measures.

Page 25
 26

4. Respondent No.7 shall pay cost of Rs.25,00,000/- for brazen violation of the

sanctioned plan and continuance of illegal construction despite ‘stop work

notice’. The amount of cost shall be deposited with the Kolkata State Legal

Service Authority within three months and the same be utilized for providing

legal aid in deserving cases.

29. Reports showing compliance of the aforesaid directions be filed by the

Corporation and respondent No.7 in the Registry of the Kolkata High Court within

six months. Thereafter, the matter be placed before the learned Single Judge who

had passed order dated 28.7.2010. If the learned Single Judge finds that any of the

aforesaid directions has not been implemented then he shall initiate proceedings

against the defaulting officers and/or respondent No.7 under the Contempt of Courts

Act, 1971 and pass appropriate order.

…..……….....……..….………………….…J.
[G.S. SINGHVI]

…………..………..….………………….…J.
[SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
October 8, 2012.

Page 26