SC Gives New Guidelines on Demolition of Building; Asked to be Transparent in the Role Assigned to

 



       File Photo; Supreme Court of India


New Delhi: The Apex Court issued detailed guidelines on the practice to be espoused, when a building has been illegally bulldozed by the State before the legality of the structure is decided. The Court also went into say of whether such buildings can be re-erected when its legality is yet to be ascertained. A Division Bench of Justices Deepak Gupta and Aniruddha Bose was hearing with allied issues stemming from the practice followed in Maharashtra following the Bombay High Court's judgment in Sopan Maruti Thopte and Another v. Pune Municipal Corporation and Another. In particular, the Supreme Court framed the question of law before it as follows.


"whether if a municipal corporation demolishes a structure in exercise of powers vested in it but in violation of the procedure prescribed, can the High Court direct the 'owner/occupier' of the building to reconstruct the demolished structure?" while the course of the judgment, the Bench also emphasised that the law must be followed scrupulously by all parties involved - whether its the builders/owners while constructing the buildings or by the State in demolishing illegal constructions. In this regard, it was observed. 


"The exercise of the power of destruction which affects the property of the citizens of this country must be exercised in an absolutely fair and transparent manner. Rules in this regard must be followed. At the same time, the Court has to balance the private interest with the larger public interest. Cities and towns must be well planned and unlawful structures must be demolished. Rule of law comprises not only of the principles of natural justice but also provides that the procedure prescribed by law must be followed. Rule of law also envisages that illegal constructions which are constructed in violation of law must be demolished and there can be no sympathy towards those who infringe law."


The Court also observes the following general practice may be adopted by the High Court when it comes to remedying complaints of illegal demolition:- 



  • Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally.

  • It must come to a clear finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering.

  • In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure.

  • While doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the doors and windows face; how many floors are permitted etc.

  • Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built.

  • Till the State frames any laws in this regard, we direct that before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists.

  • This map can be taken on record and, thereafter, the construction can be permitted. In such an eventuality even if the demolition is illegal it will be easy to know what were the dimensions of the building.

  • This information should not only be in paper form in the nature of a plan but should also be in the form of 3D visual information, in the nature of photographs, videos etc.

  • eriod the owner/occupier/builder/contractor/architect etc. can approach the appellate/revisional authority or the High Court.


As for the dispute at hand, the Supreme Court noted that in one appeal, reconstruction of the demolished building had already taken place. Remarking that the same cannot be undone, the Court directed that fresh notice be issued by the Municipal Corporation and further that the body strictly proceed in accordance with law against the respondent. Further, the respondent was granted liberty to move the High Court if it wishes to challenge any adverse order passed by the Corporation. As far as the second appeal was concerned, no re-erection had been carried out. The Supreme Court partly allowed the appeal, save for the High Court's direction to allow re-construction, before remitting the matter back to the High Court.