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10. Mrs. G. Jyothi Kiran, earned Counsel for the Corporation argued that the conversion of cellar and stilt meant for parking of vehicles into shops etc., is a blatant violation of the provisions of the 1955 Act, Regulation 11 of the Zoning Regulations, 1981 and Regulation 12 of the Multistoreyed Building Regulations, 1981 apart from the Sectioned building plan and, therefore, the action initiated by the Corporation for demolition of the unauthorised construction cannot be termed as illegal or arbitrary so as to warrant interference by this Court under Article 226 of the Constitution of India. She emphasized that the Commissioner had accorded permission for construction of cellar, ground floor plus three upper floors only and, therefore, the construction made in the cellar, which is exclusively meant for parking of vehicles must be treated as a gross violation of the statutory provisions as well as Sectioned plan and the Court may not interfere with the notices issued by the Corporation requiring the petitioners to bring the premises (cellar) to its original status. Mrs. Jyothi Kiran then argued that the petitioners cannot take benefit of the judgment and decree dated 28-8-2002 passed in O.S. No. 1925 of 1997 because the same does not have the effect of restraining the Corporation and its functionaries from removing the unauthorised constructions made in the cellar portion of the building. Earned Counsel submitted that the main issue decided in the suit was whether the plaintiff changed the user of the property from residential to commercial and the Court below held that the use of residential building for commercial activities did not warrant demolition of the same by the defendant after eight years. She pointed out that the defendant's plea regarding construction of shop and office rooms in the cellar portion was specifically discarded by the trial Judge and argued that the petitioners, who are doing business in the cellar portion cannot take advantage of the injunction order passed by the civil Court.

(4) 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.

Rejecting the plea of the builder that it had made huge investment for construction of underground shopping complex, the Supreme Court observed:

In this case the builder got an interim order from this Court and on the strength of that order got Section of the plan from the Mahapalika and no objection from LDA. It has no doubt invested considerable amount on the construction which is 80% complete and by any standard is a first class construction. Why should the builder take such a risk when the interim order was specific that the builder will make construction at its own risk and will not claim any equity if the decision in the appeal goes against it? The builder is not an innocent player in this murky deal when it was able to get the resolutions of the Mahapalika in its favour and the impugned agreement executed. Now, construction of shops will bring in more congestion and with that the area will get more polluted. Any commercial activity now in this unauthorised construction will put additional burden on the locality. The primary concern of the Court is to eliminate the negative impact the underground shopping complex will have on the environmental conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting the complex. There is no alternative to this except to dismantle the whole structure and restore the park to its original condition leaving a portion constructed for parking as required under clause (ix-a) of Section 114 of the U.P. Municipal Corporation Act, 1959.

19. So far as the State of Andhra Pradesh is concerned, the concept of planned development has gone haywire in almost all the cities including Hyderabad, Visakhapatnam, Vijayawada and Warangal on account of unchecked illegal and unauthorised constructions. In most of the cases, the officers of the Corporation and Hyderabad Urban Development Authority (so far as the twin cities of Hyderabad and Secunderabad are concerned) and similar bodies in other Corporation areas have miserably failed to check illegal and unauthorised constructions. In over 5,000 cases in the twin cities of Hyderabad and Secunderabad, the violators of Master Plan, Zonal Plan and Sectioned plans have succeeded in raising construction under the guise of interim orders passed by the civil Courts. It should be a matter of concern of all right-thinking people that this should be so despite the enactment of various statutes by the Legislature for planned development of the local areas. Hyderabad has already become an important I.T. hub and a number of multi-national companies are vying to set up their establishments in the city and nearby areas. If the menace of illegal and unauthorised construction goes unabated, not only the common man would suffer, but investors will also turn to other cities.