Gujarat High Court
Mansingbhai Kahalsingbhai And Ors. vs Surat Municipal Corporation And Ors. on 20 June, 2000
Equivalent citations: AIR2001GUJ44, (2000)2GLR109, AIR 2001 GUJARAT 44
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT B.C. Patel, J.
1. Special Civil Application Nos. 6982 of 1999 and 10017 of 1999 filed at the instance of the petitioners were heard together and were disposed of by the learned single Judge on 17-2-2000 against which the present appeals are preferred. The facts giving rise to these appeals are required to be narrated which are as under. Appellants of these appeals are referred to as 'the petitioners'.
2. InSpecialCivilApplicationNo. 6982of 1999 the petitioners invoked the jurisdiction of this Court under Article 226 of the Constitution of India inter alia praying to issue a writ in the nature of mandamus or any other writ, order or direction restraining the respondent Corporation from demolishing the construction put up in the land bearing Survey Nos. 470/1 and 472 of Katargam, Taluka: Chdryasi, District Surat.
3. In Special Civil Application No. 10017 of 1999 the petitioners invoked the jurisdiction of this Court under Article 226 of the Constitution of India and prayed for issuance of writ in the nature of mandamus or any other appropriate writ, order or direction declaring that the order passed by the respondent Corporation on 19-11-1999 and the order, if any, passed on 29-10-1999 in respect of the land bearing Survey No. 470/1 and 472 of village Katargam (to be precise plot Nos. 45, 46, 47, 48 and 49 of Keshavpark, Ved Road, Surat) are illegal and in violation of Section 29 of the Gujarat Town Planning and Urban Development Act, 1976 and further prayed to quash and set aside the order dated 19-11-1999 and any order passed on 29-10-1999 rejecting the development plan submitted by the petitioners on 7-8-1999 in respect of the aforesaid lands.
4. Suffice it to say that the dispute between the parties is whether the construction work carried out by the petitioners is in accordance with law or not. Before the learned single Judge only three questions were raised which are as under :--
(a) that the construction in question is not offending and the same can be regularised by the Corporation by charging appropriate penalty.
(b) that notice under Section 260(1) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'the Act') could not have been issued as the Town Planning Scheme is applicable for the area in question.
(c) that the plans submitted by the petitioners have not been dealt with by the Corporation and therefore, plans deemed to have been sanctioned.
5. From the contents of the petition it transpires that five petitioners approached this Court in respect of construction carried out in sub-plot Nos. 45, 46, 47, 48 and 49 of final plot No. 35 situated at Ved Road, Surat.
6. The original owner of the land in question submitted a Scheme under Section 21 of the Urban Land (Ceiling and Regulation) Act, 1976 for the purpose of providing houses to the weaker sections of the society. Reading the order vide Annexure~A to the petition, it appears that permission was granted to carry out construction by the Corporation. Reading the said order, which is known as "raja chitty" it appears that permission was granted to carry out construction as per the plans submitted for Survey Nos. 470/1 and 472 situated in Katargam. It is interesting to note that this permission was in favour of Mohanbhai Kuberbhai Patel and others but not in favour of the petitioners. There are no details on the record of the case to indicate that permission under Section 21 of the Urban Land (Ceiling and Regulation) Act was granted and thereafter houses were constructed in accordance with the plans approved by the competent authority. There is nothing on record to indicate as to whether the land in question remained with the owners in view of the permission granted by the competent authority or not. It Is clear that an application was made under Section 21 of the Urban Land (Ceiling and Regulation) Act so as to see that the land is not considered as excess land by the holder under the provisions of the Act. A scheme was framed but till the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force, houses were constructed or not for weaker sections of the society is not stated. There appears to be a fraud on the statute by the concerned persons, namely, the owners of the land and the officers of the State Government who were responsible to look after the procedure under the Repealed Act to achieve the object of the Act.
7. The petitioners have come out with the version that they were allotted sub-plot Nos. 45, 46, 47, 48 and 49. All the plot holders decided to develop the plot jointly. It is averred in the petition that in good faith they started to construct over the land within the permissible bye-laws of the respondent Municipal Corporation. They have not stated that any permission was obtained from the competent authority for constructing residential building on the aforesaid sub-plots. Naturally, as the petitioners commenced the construction work illegally, the respondent Corporation initiated proceedings. The Officers of the Corporation visited the site for the purpose of demolition. The petitioners have averred in the petition that no offending construction was being carried out as the permission was originally granted by the respondent Corporation. It appears that the petitioners were of the view that they were not required to take any permission for construction. Commencement of construction work is sought to be suggested as an innocent task undertaken by the petitioners. Earlier they averred in the petition that in good faith they started construction over the said lands within the permissible bye-laws of the Municipal Corporation but it is clear that it was without permission. In the second stage, they have come out with the version that permission was granted earlier by the Corporation and therefore they were entitled to carry out the construction. Even assuming for the sake of argument, if their contention is to be accepted, then if they erected a building as per the plan approved by the Corporation in the year 1991, possibly the Corporation would not have ob-
jected, but in violation of all the norms, Rules and Regulations, by taking law in their hands, the petitioners commenced construction, therefore, naturally the Officers would surely object. The person who has given notice under Section 253 or Section 254 of the Act can proceed with work within one year and not thereafter as per Rule 3 of Chapter XII of Appendix IV of the Act.
8. The respondent has pointed in the affidavit that the permission which was sought was for land bearing Survey No. 470/1 and 472 but in view of the implementation of the Scheme under the Gujarat Town Planning and Development Act, there was re-plotting of the entire area covered under the Scheme and five plots were allotted to the petitioners and therefore under the shelter of permission to construct building granted to someone else in the year 1991 for survey Nos. 470/1 and 472, the petitioners could not have commenced construction work. It appears that the Officers of the Corporation Impressed upon the petitioners that they have to submit plans for the purpose of construction and only after the plans are sanctioned they can carry out the construction in accordance with law. Instead of demolishing, they wanted the petitioners not to carry out any further construction. It is required to be noted that when a person wants to commence construction work It is for him to apply to the appropriate authority for the purpose of construction and only after permission is granted he can carry out the construction and not before that.
9. The petitioners averred that on 7-8-1999, an Architect/Engineer appointed by them submitted plans with requisite fees. The petitioners have come out with the version that they were under a bona fide impression that once the plan was sanctioned they can develop the said land. Despite the fact that the application was submitted the Corporation was trying to demolish the premises put up on the said lands and hence the petitioners were constrained to approach this Court by filing Special Civil Application Nos. 6982 of 1999 on 12-9-1999. The order passed by the Court at initial stage reads as under :--
"Coram : M. S. Shah, J. (13-9-1999).
Notice returnable on 27th September, 1999. Till then status quo regarding the construction on the site as on today.
The petitioner shall file an affidavit along with the photographs showing the construction as on today within week from today.
D. S. is permitted, today."
10. It appears that the learned Judge with a view to see that there is no further construction, directed the petitioners to file an affidavit along with photographs showing the construction as on 13-9-1999. Even direct service was permitted to be effected on the same day. It is interesting to note that the petitioners have averred that service of the notice was lately effected for the reasons beyond their control. No explanation is rendered in the petition as to why service could not be effected on the same day though the petitioners took the direct service and kept the process of Court with them without effecting the service. When the petitioners were eager to obtain the order on the same date, it was their bounden duty to act according to the order passed by the Court but with a view to see that under the guise of an order they can construct further without process being served and without filing affidavit and placing photographs on record continued the work. The petitioners have averred in the petition that "meanwhile the respondents again visited the premises on 20-10-1999 with entire demolishing squad of the respondent Corporation supported by 100 labourers". It is further averred that "the respondents started demolishing the premises, though the development plan was pending before the respondent Corporation. The person who was present there informed the respondents that the Court has granted stay and the demolition should not be carried out". It is required to be noted that nothing is placed before us as to point out that the order which was passed by the learned single Judge On 13-9-1999 was extended till 20-10-1999. Even under the order of status quo, the petitioners were required not to construct further but, since the petitioners wanted to carry out construction, they did not serve the order even on 20-10-1999 when the Officers of the Corporation arrived for demolition of the buildings.
11. It is alleged in the petition that a blank cheque from a relative of the first petitioner was obtained by the respondent-Corporation. This fact has been denied by the respondent-Corporation. The respondent-Corporation has pointed out in the affidavit that the petitioners carried out illegal construction and as the same was to be demolished, action was required to be taken. For erection of the building, no permission was granted. Merely, because application was submitted, person constructing building unauthorisedly cannot carry on construction activity. One must know that erection of a building can be commenced only after permission is granted and not before that. The Officers of the respondent-Corporation have denied the demand of Rs. 10,00,000/- but it has been pointed out that the petitioners were present and the petitioners voluntarily handed over the cheque by way of security to the Corporation. The petitioners gave clear understanding to the respondent-Corporation that they shall not carry out further construction. By way of assurance, cheque was given by the petitioners and there is nothing to disbelieve the version of the respondent Officers in this behalf.
12. The petitioners have averred in the petition that on the returnable date, the petitioners were required to file an affidavit and were required to place photographs of the construction on the record of the petition but the same was not done. An explanation is given that the petitioner who was handling the matter was away. If all the petitioners filed a petition jointly then all were and are required to act as per the order of the Court. Order binds them all. Once by filing a petition the petitioners have obtained orders, it was the duty of each of the petitioners to see that the order is carried out in its true spirit. It is nowhere stated as to when the petitioner who was looking after the matter, went out of the Surat District, on what date the mother expired and on what date he came back from his native place. These are vague averments with a view to avoid the responsibilities. The process was intentionally not served because the petitioners wanted to complete the construction, under any circumstances. The reason given by the petitioners is that "the other petitioners were under a bona fide belief that notices have been served". In the affidavit none of the petitioners has given reason to believe that the process was served on the respondents. In several cases, the apex Court has pointed out that the party filing an affidavit must clearly, specifically and separately parawise state as to what part of the affidavit is true to the knowledge of the deponent, what part of the affidavit is believed to be true by the deponent with reasons for such belief and what part of the affidavit is true according to information stating the source of such information. If affidavit is not clear, then for want of these details affidavit cannot be accepted and cannot be read. It was for the petitioners to come out with clear statement and not with vague statement. Respondents are expected to reply the statement of the facts which are clear and not vague. The other petitioners were not knowing that they were required to file the affidavit and photographs. On the returnable date, a request was made before the Hon'ble Court for extension of stay but the same was not transcribed. The Advocate of the petitioners was under the bona fide belief that the notices have been served and therefore when it was conveyed that the respondents have undertaken the demolition, the Advocate of the petitioners informed that the interim orders were in vague." How contradictory statement is made in the petition. In the same para it is stated that one of the petitioners who was handling the matter was away. If this was so, how others were under the bona fide belief that notices have been served. Even averments are made in the petition to the effect that the order was not transcribed meaning thereby the order was pronounced in the open Court but not transcribed. Was it not the duty of the Advocate who obtained direct service for serving immediately to file an affidavit of service as per the rules? Was it not the duty of the Advocate to enquire whether the order is transcribed or not? Very carefully the petitioners have stated that the order was not transcribed.
13. On behalf of the respondent-Corporation it is placed on record that the petitioners engaged the Architect/Engineer and submitted an application on 7-8-1999 under the provisions of Sections 253, 254 of the Act. Section 253 refers to notice to be given to the Commissioner to erect building.
14. With regard to application, the Officer of the respondent-Corporation has stated that the application was tendered under the provisions of Section 253 and Section 254 of the Act and under Sections 27, 34, 49 of the GujaratTown Planning and Urban Development Act on 7-8-1999. The said application was accompanied by a certificate of the Supervision indicating that one Mr. L. K. Savani shall carry out construction and all correspondence should be communicated to their Engineer, Mr. L. K. Savani. On 7-8-1999 plans along with application were submitted with the signatures of the petitioners as well as their Engineer, Mr. L. K. Savani. On record, at page 51 application is placed wherein the applicants have indicated their address for correspondence as C/o. Savani L. K., G/1 Pardesi Park II, Desai Falia, Katargam. At page 58, the respondents have placed on record a letter addressed by the petitioners to the respondent-Corporation inter alia pointing out that Mr. L. K. Savani has been appointed as the Architect/Engineer. The entire correspondence should be with the said Engineer and that would bind to them. Thus, all the petitioners authorised Mr. L. K. Savani to act on their behalf. Permission for erecting building was rejected on 29-10-1999, a copy of which was received by Mr. L. K. Savani on the same date. Copy of the order is placed on record at page 59. Reading the order, it clearly appears that after giving reasons the application has been rejected. As the application was rejected on the ground of non-compliance as indicated in the order itself, by letter dated 19-11-1999, the petitioners and others were again informed that despite rejection of the application there is further construction and the application of the petitioners for erection of a building was filed.
15. It is required to be noted that as the petitioners were engaged in erection of the building unauthorisedly, on 17-6-1999 the respondent issued a notice and called upon the petitioners to stop further construction and to remove the construction as the same was not in accordance with law. Notice under Section 260(1)(a) was also issued and as there was no reply thereto, a direction was given that within a period of three days after removal of unauthorised construction, the Corporation should be informed failing which at the cost of the petitioners the Corporation shall remove unauthorised construction. On 17-6-1999 a notice was also issued indicating that by committing breach of Building Regulations as found in Chapter XII of Appendix IV of the Act, construction was being carried out, and, by a notice the petitioner were called upon to remove the construction or to give reasonable explanation for not removing the same failing which they will be subjected to Section 260(2) of the Act. By the notice, the petitioners were informed that on 7-7-1999 the Officers will enter the premises for removal of construction and there should be no obstruction to their work.
16. On behalf of the respondent, it is pointed out that the construction work which commenced was without any permission as contemplated under the Act. The construction was carried out without leaving margin of land and open space and without plans being sanctioned. It is pointed out by the respondent that on 1-7-1999 notice was issued and the Commissioner issued authorisation under Section 387 of the Bombay Provincial Municipal Corporations Act and on 7-7-1999 the ground floor plinth level RCC work and column were demolished. The petitioners very well knew that the Corporation has demolished unauthorised construction and they cannot commence construction yet they commenced construction work and they completed four storeys of the building. Even on 26-10-1999 authorisation was issued under Section 387 which was served on the petitioners for demolition of illegal construction. Certain part of the building, namely, of fourth floor was demolished i.e. RCC slab and parapet wall of surrounding terrace of the fourth floor. As pointed out by the respondent under the guise of the order passed by the Court, the petitioners continued with illegal construction and flouted the order of the Court. It is pointed out by the respondent that the petitioners are not entitled to the reliefs which are discretionary in the nature.
17. It is in this background that the present L. P. A.s are to be considered. Learned single Judge has appreciated the material placed on record. The learned single Judge arrived at a conclusion that despite the repeated calls the petitioners did not bother to act in accordance with law and hence demolition work started on 7-7-1999. The petitioners constructed four floors in violation of Development Regulations. There is flagrant violation of Floor Space Index (FSI) which is available only 1.2. It is clear from the record that FSI used by the petitioners is more than three times. On behalf of the respondent Corporation it was pointed out that the construction on the margin of land cannot be regularised. It was pointed out that the construction is against the regulation Nos. 3, 4, 1-1. (i) (a) and regulation No. 11-1-4, 11-6-1, 11-6-4, 11-7-1 and regulation No. 16. Despite the removal of construction the petitioners commenced the construction work and therefore notice was given on 26-10-1999. After filing Special Civil Application the petitioners made fur-
ther construction up to fourth floor. This speaks a volume about the illegal act of the petitioners. Learned single Judge, in our opinion, has committed no error in passing the impugned order. Before us, an attempt was made as was made before the learned single Judge that the petitioners are ready and willing to remove construction which is unauthorised but before removal of construction, the Court should adjourn the matter and they should be directed to approach the Commissioner and till the Commissioner decides, status quo as on today should be maintained meaning thereby unauthorised erection should be allowed to remain till the Commissioner decides.
18. The petitioners moved Division Bench by filing Civil Application No. 954 of 2000, inter alia praying to stay implementation, execution and operation of the judgment and the order passed by the learned single Judge. On 21-2-2000, the Division Bench passed the following order :
"Coram : D. M. Dharmadhikari, C. J. and C. K. Thakkar, J.
Let the applicants first demolish the unauthorised construction admittedly raised by them against the building bye-laws and regulations. After demolishing the alleged unauthorised construction, the spot shall be inspected by the Deputy Municipal Commissioner and the report shall be submitted. A month's time is granted for this period (sic. purpose.) Put up after the report is submitted. For a month, the Corporation will not take any action against the applicants in the matter of unauthorised construction."
19. It appears that in view of the orders passed by the Court, the Officer of the Corporation visited the site on 18-3-2000 and tendered a report before the Court. The report clearly reveals that without permission/sanction of the Surat Municipal Corporation and without getting sanction for the consolidation of plots in accordance with the Approved Development Regulation Rule 11.1.4, construction work was carried out.
What is found on spot is shortly narrated as under :--
Encroachment of width of 1.5 mt. and 25.60 mt. height - on the road of the width of 9.14 mt. is in violation of Regulation Rule 11.1.4.1 Encroachment of the width of 2 mt. on the northern side margin - 2.56 mt. width towards southern side and 15.60 mt. height -
all in violation of Rule 16.1.2.
70% of built up work of the height of 3.60 mt. by consolidating five plots - making encroachment by construction on open space, margin, road exceeding 100% area is required to be demolished.
Bycommitting breach of Rule 11.6.1 (pertaining to FSI which allows 1.2 FSI) ground floor plus four floors have been constructed by using five FSI.
There is illegal construction of 3.16 mt. width in'average.
There is projection of 2.84 mt. on eastern side and of 62 cm. on the southern side.
On 28-2-2000, only slab concrete of the terrace and parapet wall were removed. However, the beam and columns and steel irons of fourth floor were not removed so as to cast the slab again subsequently.
Thus, the applicants have not demolished the construction which is in contravention of the Building Regulation etc.
20. It appears that the Architect/Engineer of the petitioners insisted that nothing is illegal and plans will be placed before the High Court. This approach is required to be deprecated. It is for the respondent Corporation to sanction the plan and decide whether it is in accordance with law or not. Persons who are carrying out illegal activities cannot sit tight over the situation after construction of building illegally. They cannot say that building will be demolished only after the decision is rendered by the Court. So far as the erection of the building is concerned the Legislature has conferred power on the Commissioner of the Corporation and it is for him to take a decision whether the work which the petitioners carried out is in accordance with law or not. In view of the task entrusted by the legislature, the respondent Corporation is required to take a decision to sanction the plan or not after applying its mind. Ordinarily, the decision to sanction or not to sanction a plan rendered by the authority is to be accepted unless it is pointed out that it is illegal and that too in a case where erection of a building is in accordance with law.
21. Reading the report, it is absolutely clear that the petitioners are in no mood to demolish the construction. In our opinion, if once the Court passed an order, the petitioners ought to have removed the unauthorised construction. The order if read, it becomes clear that at the stage of admission it was made clear that the construction admittedly raised by the petitioners is unauthorised and against the building bye-laws and regulations. Direction was given that the applicants first demolish unauthorised construction. However, having not done so, the petition must be dismissed.
22. If the petitioners are not in agreement with the decision of not approving plan then they have to file a Civil Suit before erection of a building wherein disputed questions can be decided but certainly they cannot file Special Civil Applications after constructing the buildings. As a matter of fact, unless and until the plans are sanctioned, one cannot commence the construction work. One has to wait till permission is granted. In the report it is pointed out that Raja Chitty bearing No. TDO No. 117 dated 26-4-1991 was issued for construction as per the Low Cost Housing Rules as per Rule 16 of the Development Control Regulations. The permission was granted for the area of 9.14 metres x 3.96 metres of the ground floor by leaving separate different spaces. At the cost of repetition, we are again pointing out that in petition petitioners have averred in para 3.7 that"... no offending construction was being carried out and that permission was originally granted by the respondent Corporation. ..." and have averred in para 3.9 that "the petitioners were under bona fide impression that earlier plan was sanctioned by the respondent-Corporation and, therefore, the petitioners can develop the said land". Thus, petitioners have come out with the case that they commenced the construction of a building as per old plan. So far as the new plan is concerned, the same being not sanctioned, under the shelter of deemed permission, petitioners could not have erected a building in breach of building regulations. In the property bearing subplot No. 45 to 49 of the aforesaid sanctioned plan, illegal construction have been made on the consolidated land without getting sanction for the consolidation as per Development Control Regulations Rule 11.1.4.
23. Before us, it was submitted that in other areas the respondent-Corporation has permitted construction in breach of the Regulations for FSI. One thing is clear that under whatever circumstances, the petitioners are keen to see that the building which they have erected remains as it is. So far as this aspect is concerned, before us it was sub-
mitted that Surat Municipal Corporation passed Resolution on 29-12-1999 permitting certain other societies for allowing variation with certain conditions. The Resolution was not placed before the learned single Judge.
24. Allegations against the Corporation of assisting the societies by regularising the work must be stated to be meritless. Town Planning Scheme No. 2 (Udhna) Preliminary Scheme was sanctioned on 10-12-1987, which has come into force on 18-1-1988. Before the Scheme was sanctioned, there were several Co-operative Societies and Industries Estates. After erection of the buildings on the land, there was replotting in view of the Scheme. For different purposes the plots were allotted and plots were also kept in reserve. In view of the construction already carried out before the scheme came into force, it was not feasible to implement the scheme as prepared. Therefore, considering the request made by the residents of the societies and their organizers, the societies were permitted to hold the plots with structures on condition that they should purchase the land and they should hand over to the authority concerned. Now on this condition variation was allowed. We find nothing illegal in this. If the society was already in existence and in view of the Scheme there is bifurcation of the plot it may happen that the land with the society which may be open, might have been merged with some other plot which would deprive the society of all the benefits of open land which otherwise they were entitled to. In view of the Resolution dated 24-12-1996 a decision was taken that the said land may be permitted to be kept by the societies on condition that the land of equal area as required, is purchased and handed over to the authority. In our opinion, no mala fide can be attributed. The case of the petitioners is not similar to the case of the societies and hence the contention is raised making allegations against the Officers of the Corporation which is required to be rejected.
25. The learned Advocate submitted before the learned single Judge that the petitioners were ready and willing to remove the construction which is not as per the Building bye-laws. He submitted before the learned single Judge that unless the Corporation specifically brings to the notice of the petitioners as to the portion that could be regularised and the portion that cannot be regularised on payment of penalty, it is not possible for them to know which is the objectionable construction and therefore cannot be regularised by the Corporation. On behalf of the Corporation it has been pointed out before us that except the first floor remaining portion is required to be demolished and with regard to the margins excess area covered is also required to be demolished. Learned single Judge also expressed an opinion that the Corporation may regularise such portion which can be regularised in accordance with Rules and Regulations. Before us it was reiterated by the respondent Corporation that if the petitioners are removing the illegal construction which cannot be regularised, the Corporation has no objection to regularise the rest of the portion which can be regularised. It is required to be noted that the petitioners have availed of services of the Engineer. The Engineer appointed by petitioners and working on their behalf was expected to know building regulations, consolidation of plots etc. If the petitioners are insisting that whatever they say is in accordance with law and whatever they say is to be regularised then they are under misconception. It is for the respondent-Corporation under the Act to determine as to what construction is permissible and what construction is not permissible. Before us it was submitted by the learned counsel appearing for the petitioners that it is the bounden duty of the respondent-Corporation to regularise the construction. Submission to regularise is without any support of law. Whatever illegal construction is there can never be regularised. If all the illegal constructions are to be regularised in this fashion there would be no need to have the Department to supervise the construction work which is expected to be carried out as per Building Regulation. Building Regulations are framed for the benefit of general public. Chapter XV of the Act provides Building Regulations, Supervision of Buildings and work. The Act empowers the Commissioner to cancel permission, inspection etc. It also provides action to be taken in case building or work commenced is contrary to Rules or bye-laws. It also mandates to deliver a certificate in the form prescribed along with the notice of completion of work. It provides for Building Use Permission and prohibition to occupy with-
out occupancy certificate. Chapter XII of Appendix IV of the Act, also provides Building Regulations. Thus, erection of a building can be only as per the provision. Rule 6 of Chapter XII of Appendix IV of the Act contemplates of issuance of notice to the City Engineer for proposed date of commencement of the work for erection of a building. So far as regularisation is concerned, the authority must bear in mind that there is no breach of specific Rule or regularisation is not in breach of FSI. If the people are not obeying the Building Regulations then there would be jungle of cement concrete and not a planned society and there will be no safety of the people. After having long experience decision is taken to have Building Regulations and as and when necessary, changes are made in it. The builders and plot-holders with the connivance of the staff/Officers of the Corporation, go on erecting buildings in clear violations of the provisions of the Building Regulations.
26. Before the learned single Judge decision in the case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, reported in (1999) 6 SCC 464 : (AIR 1999 SC 2468) was pressed into service and there is no reason why the same principle should not be made applicable in the present case.
27. Learned counsel submitted that application was submitted on 7-8-1999 and if there was no communication within a period of one month then the application is deemed to have been granted. It is submitted on behalf of the petitioners before us that the Corporation has come out with concocted version that the application was rejected. It is averred in the petition that if the application was rejected on 26-10-1999, then why the Corporation did not take any action till November 1999. Affidavit of Engineer Mr. L. K. Savani is filed with a view to indicate that he has not been served with any letter dated 29-10-1999. He has stated that as the original was not given to him, he is not in a position to compare the signatures. There is no substance in the contention that the deemed permission is granted in favour of the petitioners. However, even if that is accepted then the application which was submitted on 7-8-1999, period of 30 days would be over on 6-9-1999. Is it the case of the petitioners that within the period of only 7 days, (the date on which Special Civil Application No. 6982 of 1999 was filed on or about 12-9-1999) they completed four stories of the building? It goes without saying that before permission being granted or even according to the petitioners permission deemed to have been granted, they commenced construction work in violation of the Building Regulations. No notice of proposed construction is given to the City Engineer and no specific statement is made in the petition in this behalf which would clinch the issue as to when the petitioners commenced the work.
28. It is necessary to bear in mind the definition given in the Act for "occupier" and "owner" in Section 2(41) and (42) of the said Act. 'Street' is defined in Section 2(63) of the Act. The buildings which are to be constructed on the streets or nearby the streets are to be constructed in such a way so as to see that the people who are entitled to enjoy the right of passage are not adversely affected. The question of density is required to be borne in mind while deciding the FSI of the building. If on a road which is narrow and more and more multi storied buildings are constructed which would provide more occupancy, but would naturally cause a serious problem for the residents. It is necessary for the Corporation to consider the size of the road while granting permission so that there is no problem of traffic on the streets. It is necessary for the Corporation to provide road or street which is sufficient for easy flow of traffic. The legislature has provided in Chapter XV of the Act, which is known as "building regulations". For erection of a building, notice is to be given to the Commissioner as provided therein. Even if one has an intention of making alteration or addition in the building, even then, it is necessary to follow the procedure prescribed in Section 254. Section 258 of the Act empowers the Commissioner to cancel permission granted under Section 253 or 254 on the ground of material misrepresentation by the applicant. If there is material misrepresentation or a fraudulent statement contained in the notice for erection, addition or alteration, or information which is furnished under Section 253 or 254 or even further information if furnished is found to be based on misrepresentation or fraud, the powers can be exercised. The legislature has empowered the Commissioner to inspect at any time during the erection of a building or the execution of any such work without giving prior notice of his intention to do so. Section 260 provides the initiation of proceedings in respect of building or work commenced contrary to the rules or bye-laws.
29. So far as the deemed permission is concerned. Rule 3 of Chapter XII of Appendix IV of the Act is required to be perused which reads as under :--
"Rule 3 When building or work may be proceeded with -- If within thirty days after receipt of any notice under Section 253 or 254 or further information, if any, called for under Rule 1, the Commissioner does not issue an order under Sub-rule (1) or Sub-rule (2) of Rule 5 or fails to intimate in writing to the person who has given the said notice his disapproval of the building which the said person proposes to erect, or of the work which he proposes to execute;
or if, within the said period, the Commissioner signifies in writing to the said person his approval of the said building or work;
the said person may, subject to the provisions of Sub-rules (3) and (4) of Rule 5, at any time within one year from the date of the delivery of the notice to the Commissioner, proceed with the said building or work in accordance with his intention as described in the notice or in any of the documents aforesaid, but not so as to contravene any of the provisions of this Act or any rule or bylaw. "
30. Under Section 263 of the said Act, on completion of the erection of a building or execution of any such work as described in Section 254, one has to give in writingnotice of such completion accompanied by certificate in the form prescribed in the bye-laws signed and subscribed in the manner so prescribed and has to give all necessary facilities to the Commissioner for inspection of such buildings or of such work and thus has to apply for permission to occupy such building. As per Sub-section (2) of Section 263 of the Act, no person can occupy or permit anyone to occupy any such building or use or permit to be used the building or part thereof erected by any one until permission has been given by the Commissioner in this behalf or the Commissioner has failed for 21 days after receipt of the notice of completion to intimate his refusal of the said permission. The duty is cast on the Commissioner to issue "Building Use Permission (hereinafter referred to as the BU Permission) if the construction is as per approved plan. On account of negligence or conniv-
ance on part of the officer of the Corporation in discharging the duties if the BU permission is not rejected for 21 days and application is kept pending, the wrong doer cannot get the advantage of his own wrong by saying that BU Permission is deemed to have been granted as the application has not been decided within 21 days. If the plan approved for construction provides for parking and a show is made as if parking is provided, but in fact it is to be used for a different purpose, and the officer of the Corporation whose duty is to grant or refuse BU Permission in accordance with the rules/bye-laws abstain from doing so, either carelessly, negligently or fraudulently it cannot be said that permission is deemed to have been granted. If the construction is as per the plan approved and the officer of the Corporation is informed in writing as per law/bye-laws or rules and officer of the Corporation has visited the site and has found everything as per the plan and no intimation is given either for approval or rejection and the owner/ builder has constructed as per the plan, one can say that the BU Permission is deemed to have been granted, but not otherwise.
31. The builder/owner/occupier of a building knows about the plan and provision made therein and if he constructs in contravention of the plan approved, then he is a wrong doer and even if BU Permission is not granted because of connivance or negligence of the Municipal Officer, shelter of deeming provision cannot be sought by a wrong doer.
32. From the evidence placed before us by the petitioners in form of photograph it is very clear that the building is put to use. During submission learned counsel also stated that it would be difficult for the occupiers to find suitable accommodation if the building is required to be demolished. Persons who are carrying out construction must know about the provisions contained in the Act, Rules, bye-laws, regulations and Standing Orders, Rules formed in Chapter 29 of the Act under which the building Regulations have been enacted, is part of the Act itself. Section 263 of the Act reads as under :--
"263. Completion Certificates, permission to occupy or use :
(1) Every person shall, within one month after the completion of the erection of a building or the execution of any such work as it described in Section 254, deliver or send or cause to be delivered or sent to the Commissioner at his office notice in writing of such completion, accompanied by a certificate in the form prescribed in the bye-laws signed and subscribed in the manner so prescribed, and shall give to the Commissioner all necessary facilities for the inspection of such building or of such work and shall apply for permission to occupy the building.
(2) No person shall occupy or permit to be occupied any such building, or use or permit to be used the building or part thereof affected by any work, until --
(a) permission has been received from the Commissioner in this behalf or
(b) the Commissioner has failed for twenty one days after receipt of the notice of completion to intimate his refusal of the said permission."
So far as commencement of the work is concerned, Rule 6 is a relevant Rule and the relevant portion thereof reads as under :
"6(1) No person shall commence to erect a new building or to execute any such work as is described in Section 254.
(b) until he has given notice to the City Engineer of the proposed date of commencement.
33. Thus even after a period of one month as stated by the petitioner is over, it is necessary that unless and until notice is given to the City Engineer, the proposed date of commencement to erect a new building, the petitioners could not have commenced construction work. Section 263 and Rule 3 of Chapter XII refers to deeming provision. Reading the aforesaid provision assuming that the deeming provision is applicable for construction which is otherwise legal even then one has to give notice of commencement of work and only thereafter the work of erection of a building can be commenced. After completion of building within one month thereafter notice is required to be given in writing of completion accompanied by a certificate. Law also prohibits occupying the building in absence of any permit or occupation certificate issued to use the building. In the instant case, there is a flagrant violation of these provisions. No notice has been given and yet we find that persons have occupied the building. This speaks volume about the intention of the petitioners. The Court while exercising jurisdiction under Article 226 of the Constitution of India has to bear in mind that persons who are coming to the Court with clean hands and those who have acted in accordance with law are required to be assisted and not the persons who are committing breach of provisions of law.
34. The Apex Court in the case of Calcutta Municipal Corporation v. Anil Ratan Banerjee, reported in AIR 1995 SC 659 considered the submissions made by the learned counsel for the Municipal Corporation which is at para 12. The relevant portion is reproduced as under :--
"Para 12. Shri Tapas Ray, learned counsel for the Municipal Corporation, urged the following contentions :
1. That the plan sanctioned on April 27, 1985 for a eight storeyed building lapsed on 26th April, 1987 since no construction was made and completed within two years. Indeed, no construction was commenced by that date. It is true that on April 16, 1987, the respondents applied for renewal of the said plan but there was no provision in the Bengal Municipal Act for granting such renewal. Even assuming that such renewal could be granted and must be deemed to have been granted, such deemed renewal too expired on April 16, 1989 or, at any rate, on April 26, 1989. Admittedly, no construction was made, much less completed, by the said date. In other words, the sanction of the said plan, both actual and deemed, lapsed by 26th of April, 1987 and 26th April, 1989 respectively. No construction can be permitted on the basis of such plan after the said dates.
2. So far as the deemed sanction of the twelve-storeyed building applied for on August 24, 1987 is concerned, it cannot be deemed to have been sanctioned on the expiry of thirty days by virtue of Section 319 of the Bengal Municipal Act for the reason that no such permission could have been actually granted under the law then in force in the said area, having regard to the width of the road abutting the respondents' plot and other relevant circumstances. The Division Bench has itself recognised that the deemed permission cannot be inconsistent with the relevant rules and regulations. No deemed permission can be conceived of which is inconsistent with the relevant rules and regulations.
3. The position today is that the building rules framed in the year, 1990 (with effect from December 1, 1990) are more stringent than the pre-existing rules and regulations. According to these rules the maximum height of a building in the respondents' plot cannot exceed eight metres."
35. Before the Apex Court in the case of Calcutta Municipal Corporation (AIR 1995 SC 659) (supra) the learned counsel relied on the observations made by the High Court "that apart construction has actually taken place on the basis of a plan that could have been sanctioned as the law prevailing at that time in that event nothing could have been done." The Apex Court pointed out that Section 319 of the Bengal Municipal Act, 1932 expressly states that even in case of a deemed permission the applicant cannot execute the work so as to contravene any of the provisions of this Act or of Schedule VI or any Rule or Bye-law applying thereto.".
So far as the Act is concerned, Section 260(1) reads as under :--
"260(1) If the erection of any building or the execution of any such work as is described in Section 254 is commenced or carried out contrary to the provisions of the rules or bye-laws, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under Section 264, shall (2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person."
36. Thus, it goes without saying that deemed permission means that a person is erecting building after the expiry of the period mentioned in Rule 3 strictly in accordance with Rules, bye-laws etc. It is required to be emphasised here that when a person moves the Commissioner for permission of erection of a building, the person concerned knows the Rules and Regulations and Bye-laws with regard to Building Regulations. It is for him to carry out the construction as per the Building Regulations and Bye-laws and particularly keeping in mind the FSI. The person who constructs the building as per the Rules and Regulations can say that he has constructed the building as per the requirement of law but not otherwise. The deemed permission can be said to have been attracted in case where a person has carried out construction in accordance with the existing Rules, Bye-laws and Building Regulations and not otherwise. It is required to be noted that likewise the case of Calcutta Municipal Corporation before the Apex Court, Rule 3 of Chapter XII of Appendix IV of the Act provides that if within 30 days there is no disapproval, subject to the Rules one may commence the work of erection of a building but not so as to contravene any provisions of the Act or any Rule or bye-laws. Under the Act before the commencement, notice is required to be given as contemplated in Chapter XII of Appendix IV. In our opinion, therefore, one has to submit a plan for erection of a building keeping in mind all the Building Regulations and if any one constructs contrary to that, the same being illegal must be demolished. The suggestion made by the petitioners that whatever type of the plan is submitted and for which no intimation is given within thirty days then the person is deemed to have been granted permission has no merit. If such a view is taken, it will be for the benefit of wrong doers only who will carry out the construction and will transfer the building/flats and innocent purchasers would be in difficulty. Under the circumstances, if one constructs building in contravention of the Rules and Regulations and Bye-Laws then he is a wrong doer and even if permission is not granted because of connivance or negligence of the Officer, shelter of deeming provision cannot be made available to him. Learned single Judge was justified in arriving at the conclusion that the deemed permission cannot be inconsistent with the Rules and Regulations and no deemed permission can be against the relevant Rules and Regulations.
37. The Apex Court in the case of M. I. Builders Pvt Ltd. v. Radhey Shyam Sahu, reported in (1999) 6 SCC 464 : (AIR 1999 SC 2468) has pointed out that unauthorised construction should be demolished even though the builder has invested considerable amount. The Apex Court pointed as under in paragraph 73 (p. 529) (Para82 Page 2505 of AIR) :
"This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, If it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles."
38. In the result, we find no substance with regard to mala fide alleged by the petitioners. The petitioners have not come with clean hands before this Court and they do not deserve any assistance from the Court. In what we have indicated above, we find no substance in the appeals.
39. As the building is erected without the requisite permission of the respondent we directed the respondent to withhold the essential supplies and we also direct Surat Electricity Company through its Superintending Engineer to disconnect the electric supply and they are directed to supply the electric energy to a consumer only on production of building use permission granted by the respondent-Corporation. They shall strictly follow this with a view to avoid harm that may be caused to innocent buyers of the property. Registry to issue writs to the Surat Electricity Company, Surat.
40. We find no merit in these appeals and they are required to be dismissed with costs which we quantify at Rs. 10,000/- (Rupees ten thousand) in each appeal. The petitioners are directed to deposit the cost within a period of one week from today. The Civil Applications are also rejected accordingly.
ORDER On pronouncement of the judgment today, Mr. Mangukiya, learned Advocate requested the Court to stay implementation and operation of the judgment for eight weeks. The request is rejected. The judgment cannot be stayed.
Mr. Mangukiya submitted that the appellant may be protected for some time or till he is able to obtain the orders from higher Court. It is directed that the building erected shall not be demolished for a period of four weeks from today. However, the appellant shall maintain status quo and shall file an undertaking in this Court that he shall not cany out further construction. He shall place on record the photographs of the building as on today. Mr. Mangukiya states that ten days time may be granted to file the undertaking and to produce the photograph. Time is granted. It is however directed that the Municipal Corporation shall not regularise the construction merely because the petitioner is directed to maintain status quo. All other directions except with regard to demolition shall be carried out.