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" The defendant (Corporation) has granted permission to the plaintiff to construct cellar for stores, ground floor for residential purpose, hollow plinth for parking place and the first floor for residential purpose. On or about 6.11.93, it was noticed that the plaintiff commenced construction of shops in the cellar on R.C.C. pillars."

As the construction was in progress, a prohibitory order was issued on 6.11.93 under section 267 of the Act which was served to the plaintiff on 8.11.93, calling upon the plaintiff to stop the unauthorised construction. Police Inspector of Navrangpura Police Station was also requested in this behalf. Despite the prohibitory order served on the plaintiff, the plaintiff continued illegal activities of unauthorised construction. It is in view of this that the Corporation was constrained to post security guards. Sketches were prepared by the Inspector of the Corporation and it was clear that the plaintiff carried out construction in violation of the permission granted to it. Deputy Estate Officer made an inquiry and he prima-facie came to a conclusion that the plaintiff has carried out the construction as indicated in the sketches prepared by the Inspector, without permission of the Corporation. It was pointed out in the written statement that the Deputy Estate Officer visited the site and thereafter the notice was issued on 23.6.94 under section 260(1) of the Act, which was served on the plaintiff on 30th June, 1994, calling upon the plaintiff to submit an explanation on or before 7.7.94 and to produce evidence as mentioned in the show cause notice as the facts were within the special knowledge of the plaintiff. The sketches of unauthorised construction were attached with the show cause notice.

7. It appears to us that the trial court has overlooked the provisions contained in the Act, rules, building regulations and the written statement filed by a public officer. It is required to be noted that no affidavit is filed by the engineer, architect or licensed engineer who have signed the maps in support of the say of the plaintiff that the work which was found by the Inspector and the Deputy Estate Officer was not as per the notice but was as per the plans approved.

8. In the written statement, it has been pointed out that the plaintiff was granted permission to construct ground floor and hollow plinth for parking purpose only. The plaintiff has carried out construction of walls by use of bricks and cement which is shown in red colour. The plaintiff has also covered the projection, porch and the gallery and by making substantial changes has carried out the construction of shops. The plaintiff has put up rolling shutters. The plaintiff has carried out construction outside the boundary of built up area and has also carried out construction in the margin and common area known as "Consolidated Open Plot" and thereby Consolidated open plot is reduced. No hollow plinth was found. Permission was granted to construct the first floor for residential units only. However, by making substantial changes, the shops have been constructed with shutters. Unauthorised construction is shown in red colour. It was also pointed out that the plaintiff has carried out construction in the terrace and the first floor and that construction is shown in red colour. It is also indicated that there were some occupiers in the shops and thus, unauthorised construction was permitted to be used without Building Use Permission being granted by the Corporation. It is specifically pointed out that the Deputy Estate Officer has issued a notice to the occupiers who were found in possession at that time. Mr. Chhaya, learned advocate appearing for the Corporation submitted that in all 6 occupiers as per the record of the Corporation were found and they were served with notices. They were also called to appear in person. However, they have not bothered even to file a reply to the show cause notice.

9. The plaintiff has also filed an undertaking before the Corporation that the plaintiff will carry out construction as per the permission granted by the Corporation. The plaintiff tendered further undertaking that the plaintiff would remove unauthorised construction at its own costs. The plaintiff further stated that some portion of the Cellar as well as parking place was removed. On 18.6.94, the plaintiff tendered an affidavit along with letter. The plaintiff assured on oath that as per permission granted, construction shall be carried out. By a letter dated 13.7.94, the plaintiff gave an assurance in writing that he would provide space for parking. He further stated that they are removing shutters and clearing margin on the road side. The plaintiff assured the Corporation that it will provide best possible parking in the basement. Thus, it was admitted position before the Corporation that the plaintiff has carried out unauthorised construction. There was a shop in the name of Havmor Sweets & Bakery in which, no permission was granted by the Corporation as stated by Mr. Chhaya, learned advocate for the Corporation. The decision of the Corporation which was taken on the basis of this material was served on the plaintiff on 23.8.94. Similar decision was served on 6 occupants. The plaintiff did not bother to produce original plan approved by the Corporation though the plaintiff was in possession of the same.

There are judgments wherein the Apex Court has taken the view that illegal construction should be demolished. In the case of DR. G.N. KHAJURIA, V. DELHI DEVELOPMENT AUTHORITY reported in (1995) 5 SCC 766, the Apex Court has observed as under.

"10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of full inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."