While coming down very heavily on illegal constructions, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Rajendra Kumar Barjatya And Another vs U.P. Avas Evam Vikas Parishad & Ors in Civil Appeal No. 14604 and 14605 of 2024 (Arising out of SLP (C) No.36440 of 2014 and SLP (C) No.1184 of 2015) and cited in Neutral Citation No.: 2024 INSC 990 and cited in 2024 LiveLaw (SC) 1009 that was pronounced as recently as on December 17, 2024 minced just no words to state in no uncertain terms that illegal structures, irrespective of their investment or age cannot be regularized. The top court added that officers who issue wrong completion/occupancy certificates to unauthorised constructions must face departmental action. We need to note here that a Bench of Apex Court comprising of Hon’ble Mr Justice JB Pardiwala and Hon’ble Mr Justice R Mahadevan dismissed an appeal challenging the Allahabad High Court’s decision to demolish structures purchased by the appellants. Rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice R Mahadevan for a Bench of the Apex Court comprising of Hon’ble Mr Justice JB Pariwala and himself sets the ball in motion by first and foremost putting forth in para 2 that, “Challenging the final judgment and order dated 05.12.2014 passed by the High Court of Judicature at Allahabad (Hereinafter shortly referred to as “the High Court”) in Writ-C.No.46342 of 2013, the appellants herein, who are third parties to the proceedings, have preferred the present appeals.”
As we see, the Bench discloses in para 3 that, “The aforesaid writ petition was filed by the Respondent No.1 seeking for issuance of a Writ of Mandamus to direct the Respondent Nos.2 to 4 to stop the illegal/unauthorized commercial construction on residential plot no.661/6, Shastri Nagar Yojna No.7, Meerut, and to provide police force to execute the order of demolition dated 31.05.2011 passed by the competent authority viz., Executive Engineer, Construction Division-8, U.P. Avas Evam Vikas Parishad, Sector 9, Shastri Nagar, Meerut.”
To put things in perspective, the Bench envisages in para 5 that, “At the outset, it is imperative to note the relevant background facts leading to the present litigation. The Respondent No.5 by name, Veer Singh was originally allotted a plot bearing No.661/6, situated in Bhoomi Vikas, Grisathan Yojna No.7, Sector No.6, Phase-1, Shastri Nagar, Meerut, U.P.2 by the Respondent No.1 on 30.08.1986. Possession was also handed over to him on 15.06.1989. In respect of the subject property, the Respondent No.1 executed a freehold deed dated 06.10.2004 in favour of the Respondent No.5 with specific condition that the property shall be used only for residential purposes. Contrary to the same, the Respondent No.5 with the assistance of his power of attorney agent by name, Vinod Arora i.e., Respondent No.6, started raising illegal commercial construction on the subject property without obtaining any sanction/approval from the Respondent No.1. Though show cause notices were issued to him, he neither responded to the same nor took any steps against the illegal construction, which compelled the competent authority to pass the order of demolition of the illegal/unauthorized construction on the subject property on 31.05.2011. However, the Respondent No.1 was unable to execute the said order, due to lack of co-operation from the local as well as police authorities. Therefore, they preferred the Writ Petition bearing No.46342 of 2013, which was allowed by the High Court, by order dated 05.12.2014, which is assailed in these appeals by the appellants herein, who are the owners of the commercial shops, which are stated to have been illegally/unauthorizedly constructed on the subject property by the Respondent Nos.5 and 6.”
Most significantly, what constitutes the cornerstone of this notable judgment is then laid bare in para 20 wherein it is postulated that, “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. Each and every construction must be made scrupulously following and strictly adhering to the Rules. In the event of any violation being brought to the notice of the Courts, it has to be curtailed with iron hands and any lenience afforded to them would amount to showing misplaced sympathy. 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. That apart, the State Governments often seek to enrich themselves through the process of regularisation by condoning/ratifying the violations and illegalities. The State is unmindful that this gain is insignificant compared to the long-term damage it causes to the orderly urban development and irreversible adverse impact on the environment. Hence, regularization schemes must be brought out only in exceptional circumstances and as a onetime measure for residential houses after a detailed survey and considering the nature of land, fertility, usage, impact on the environment, availability and distribution of resources, proximity to water bodies/rivers and larger public interest. Unauthorised constructions, apart from posing a threat to the life of the occupants and the citizens living nearby, also have an effect on resources like electricity, ground water and access to roads, which are primarily designed to be made available in orderly development and authorized activities. 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. Unless the administration is streamlined and the persons entrusted with the implementation of the act are held accountable for their failure in performing statutory obligations, violations of this nature would go unchecked and become more rampant. 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 derailment of all planned projects and pollution, disorderly traffic, security risks, etc.”
Most remarkably, the Bench propounds in para 21 stating that, “Therefore, in the larger public interest, we are inclined to issue the following directions, in addition to the directives issued by this 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. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified.
(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.
(viii) Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co-operation and any delay or dereliction would be viewed seriously. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge.
(ix) In the event of any application/appeal/revision being filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the same shall be disposed of by the authority concerned, including the pending appeals/revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided.
(x) If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal/Courts relating to house/building constructions would come down drastically. Hence, necessary instructions should be issued by all the State/UT Governments in the form of Circular to all concerned with a warning that all directions must be scrupulously followed and failure to do so will be viewed seriously, with departmental action being initiated against the erring officials as per law.
(xi) Banks/financial institutions shall sanction loan against any building as a security only after verifying the completion/ occupation certificate issued to a building on production of the same by the parties concerned.
(xii) The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.”
More to the point, the Bench hastens to add in para 22 holding that, “As far as the present case is concerned, we pass the following orders:
(i) The order of the High Court shall stand confirmed.
(ii) The appellants are directed to vacate and handover the vacant premises to the respondent authorities within a period of three months from the date of receipt of a copy of this judgment.
(iii) On such surrender, the respondent authorities shall take steps to demolish the unauthorised construction made on the subject property, within a period of two weeks therefrom.
(iv) All the authorities shall provide necessary assistance to the Respondent No.1 to execute the order of the High Court in its letter and spirit.
(v) Appropriate criminal as well as departmental action shall be taken against the erring officials/persons concerned in line with the order of the High Court and a report shall be filed before this Court.
(vi) The amount deposited by the appellants in SLP (C)No. 36440 of 2014 be refunded to them, along with accrued interest.”
Finally, the Bench then concludes by holding in para 23 that, “With the aforesaid observations and directions, these appeals stand dismissed. There is no order as to costs. Pending application(s), if any, shall stand disposed of.”
In a nutshell, we thus see that the top court has made it abundantly clear that the illegal constructions can’t be regularised irrespective of the long occupancy and investments. In addition, the Apex Court has also made it pretty clear in no uncertain terms that the officers who issue wrong completion/occupancy certificates to unauthorized constructions must face departmental action. Absolutely right! No denying or disputing it!
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