[mpisgmedia] Opinion & Analysis


M J Antony: Mushrooming illegalities


M J Antony / New Delhi April 06, 2005

There is no town or city in this country that does not suffer from unauthorised construction and the resultant ills. The builders’ lobby and ruling politicians can even tamper with master plans.

The Supreme Court is currently dealing with such changes in the master plan of Delhi. Meanwhile, the court passed yet another judgement last month dealing with the problem of illegal buildings, this time in Maharashtra’s Bhiwandi town, in Mahendra Mahadik vs Subhash Kanitkar.

The judgement made two emphatic points that civic authorities and activists all over the country should note. It asserted that such buildings could not be authorised by devious methods like “regularisation” and “compounding”.

It also carried forward the right of the aggrieved citizens to examine the documents in the official records that allowed such constructions in the first place.

As in several other fields, the judiciary has advanced this right to information, while the law-makers and the executive are hesitating to grant this valuable power to the citizens.

A citizen moved the Bombay High Court, alleging that illegal constructions had come up in private as well as government lands in the town.

However, the authorities neither took action to stop it nor supplied him with a certified copy of the assessment register demanded by him. The high court ruled that he was entitled to inspect the documents and get their certified copies on payment of requisite charges.

It further ruled that the buildings could not be regularised by payment of development charges, recovery of taxes or compounding the offences.

A resolution by the municipal council ratifying the construction has no force of law. The high court quashed such a resolution in this case.

Though the court ordered the demolition of the six-storey building raised on the excuse of “repairs” to an existing single-storey house, it was subject to the vacation of a stay order obtained by the builder from a civil court.

“The municipal council was obliged not only to prosecute the owner but also to carry out the demolition,” the judgement said.

Such cases have become increasingly common. Five months ago, the Supreme Court dealt with another public interest case in Friends Colony vs State of Orissa.

The court roundly condemned the municipal authorities who permitted deviations by regularisation and compounding. Such procedures should be allowed only in exceptional cases. The court regretted that it has become the rule now.

“It is common knowledge that the builders enter into underhand dealings. Be that as it may, the state governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund that can be utilised for compensating and rehabilitating innocent and unwary buyers who are displaced on account of demolition of illegal constructions,” the court had said.

In 1999, the court dealt with a building that came up on a public park (MI Builders Ltd vs Radhey Shyam). Upholding the Allahabad High Court order, the Supreme Court said: “The high court has directed the dismantling of the whole object and restoration of the park to its original condition. 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 on the rule of law...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.”

Even in 1955, the Supreme Court had discussed the problem in Corporation of Calcutta vs Mulchand Agarwalla. In that judgement, it declared that a magistrate had the discretionary power to order demolition of illegal constructions.

“It would be most unfortunate, and the interests of the public will greatly suffer, if the notion were to be encouraged that a person might with impunity break the building rules and put up a construction and get away with it by payment of fine,” the court asserted.

Half a century after this ruling, the problem has increased manifold and the citizens’ rights appear to have shrunk in proportion.

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