Document Fragment View

Matching Fragments

9. Giving details of the measurements of extra ground coverage, floor area etc. in tabular form in paragraph-13 to the writ petition, the petitioner alleged that in sheer violation of the building rules, the building plan was sanctioned. Inserting two tables containing block-wise and area-wise measurements of FAR, ground coverage etc. in paragraphs -17 and 18 of the writ petition, the petitioner sought to demonstrate that the building was constructed in deviation of the sanctioned building plan.

26. Referring to the averments made in paragraphs 12, 13, 17 and 18 of the writ petition, Mr. Saha Roy arduously contended that in terms of Rule 54(2) of the Building Rules, for a plot of land having total area of 6040 sq. meters (approx.), the maximum permissible ground coverage would be 35 % of total area but 65.70% of the total area has been sanctioned as ground coverage. He pointed out that Rule 48A (1) of the Building Rules mandates that the FAR, as defined in Section 2(30) of the Building Rules, in respect of a plot having means of access of 5.5 meters would be 1.75 i.e. 10570 sq. meters (approx..) but FAR to the extent of 3.44 has been sanctioned only to facilitate the private respondents to enjoy additional FAR of 20817 sq. meters. As per the Building Rules, the maximum permissible height of the building is 12.5 meters but the builder was allowed to elevate the height of the building up to 15.25 meters. He next contended that as per the prevailing rules, floor to floor height would be at least 3.5 meters but the construction has been made in violation of such rule. He claimed that extra commercial space has been sanctioned. He claimed that violation of the building rules and deviation of the sanctioned plan have been detailed in the writ petition. According to him, such building plan should be scrapped immediately. To invigorate his submission, he referred the decisions rendered in the judgments, reported in (1999)6 SCC 464 (M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu & Ors.), (1995) 5 SCC 762 (Dr. G.N. Khajurai & Anr. vs. Delhi Development Authority & Ors.), (2013) 5 SCC 336 (Dipak Kumar Mukherjee -vs- Kolkata Municipal Corporation & Ors.), (2021) 10 SCC 1 (Supertech Limited vs. Emerald Court Owner Resident Welfare Association & Ors.), (2010) 2 SCC 27 (Priyanka Estates International Pvt. Ltd.& Ors. vs. State of Assam & Ors.)

56. In respect of commercial space in 4 blocks, 11715.60 sq. meters has been sanctioned in excess of the permissible limit and extra open space beyond the permissible limit has been sanctioned.

57. Rule 45(1)(a) of the Building Rules, 2007 speaks that every plot shall abut a means of access which may be a public street or private street or passage. Rule 45 (2)(a) prescribes the measurement of 'abutting road'. Admittedly, FAR, maximum permissible height of the building etc. have been calculated by the petitioner treating the road having width of 5.5 meters (cemented concrete road) touching the express highway across the plot of land as 'abutting road'. The private nos. 4 and 5 and the Municipality have conjointly voiced that the petitioner has misguided itself in treating that road as 'abutting road' and in the event, the express highway is treated as 'abutting road', there shall be no deviation of the building rules. The petitioner riposted such claim asserting that the road having width 5.5 meters had been rightly based on making those calculations.

70. Therefore, in such conspectus, there is no way out from the irresistible conclusion that the building plan having no legal foundation is ex facie illegal and the building was constructed in egregious violation of the building rules and since the buildings was constructed in terms of such illegal building plan, the buildings are also illegal. Issue no. 4:

71. The question which positively next comes is whether it would be justified to direct demolition of the building. A power is enjoined upon the Municipality to compound the minor deviation of building rules but Municipality which is duty bound to act within the four corners of law cannot claim to have unfettered power to condone the violations of building rules of such magnitude. In the judgment of Shanti Sports Club (supra), it was ruled that no compromise should be made with the town planning scheme and no relief should be given to the violator of town planning scheme etc. on the ground that the builder/promoter has spent substantial amount on construction of the buildings, etc. In Priyanka Estates International (P) Ltd. (supra), the Hon'ble Apex Court unauthorised constructions have to be dealt with firm hands and if unauthorised constructions are allowed to stand or give a seal of approval by court then it is bound to affect the public at large.