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PERMITTING HIGH RAISE COMMERCIAL BUILDING IN RESIDENTIAL ZONE IS AGAINST PUBLIC SAFETY 2001 SC

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Justice V.N. Khare & Justice K.G. Balakrishnan in the case before Supreme Court in V.M. Kurian v. State of Kerala and Ors., reported in AIR 2001 SC 1401, wherein it is held that in the case of grant of permission for construction for high-rise building without compliance of technical clearance is a serious lapse. Where the public safety is involved, the lapses cannot be condoned.

ADDITIONAL CITATIONS IN THIS REGARD COLLECTED FROM VARIOUS SOURCES

In Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733 AIR 2005 SC 1, the Supreme Court emphasised the need of planned development of the cities in the following words: In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed there under. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified........................Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/ apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorised constructions, but who failed in doing so either by negligence or by connivance. READ MORE


In Rajender Singh v. State of Haryana 2005 (8) SCJ 630 : (2005) 9 SCC 1, the Supreme Court interpreted the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 and approved the action taken by the concerned authorities for demolition of illegal constructions. In the course of judgment, the Supreme Court observed as under: The Act seeks to achieve the object of leaving clear areas adjacent to scheduled roads intended for swift and safe moving of vehicular traffic. Any attempt to defeat that object by putting constructions of dhabas, residential or industrial buildings against the terms of the Development Act, would tend to affect public safety and endanger lives and property and courts must discourage such attempts. Lethargy or studied indifference of officials to act promptly cannot be made use of to thwart public interest. It is, therefore, not just or proper for courts to entertain pleas of technical nature which would tend to defeat the object of the Act.

In M.C. Mehta v. Union of India AIR 2006 SC 1325 . the Supreme Court emphasized the need of strict adherence to the Master Plan prepared by the experts after taking into account various aspects like healthy living, environment, lung space need, land use intensity, areas where the residential houses are to be built and where the commercial buildings are to be located, need of household industries, etc. and held that residential houses cannot be converted into commercial shops and residential properties cannot be used for commercial and trading activities. It says "This court has a constitutional duty to protect the fundamental rights of Indian citizens. When violators and/or abettors of the violations are those, who have been entrusted by law with a duty of protect these rights, the task becomes difficult and also requires urgent intervention by court so that the rule of law is preserved and people may not lose faith in it finding violations at the hands of supposed implementers. The problem is not of the absence of law, but of its implementation." .............. In respect of an area where the notified/specified land use is residential sanction for erection of a commercial building cannot be accorded, as is apparent from sub-section (2) of Section 336. Section 347 contains a specific prohibition for change of the use of any land or building. A bare perusal of building bye - laws shows how relevant is the user, commercial or residential, and the large impact of occupation load on various facilities including water, sanitation and drainage. ............ Neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the master Plan. If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential. The provision of user may be regulatory but all the same, they are mandatory and binding. In fact, almost all the planning provisions are regulatory. The violations of the regulatory provisions on massive scale can result in plans becoming merely scraps of papers. That is the ground reality in the capital of the country. None has any right, human or fundamental, to violate the law with immunity and claim any right to use a building for a purpose other than authorized. .................... READ MORE

In S.N. Chandrasekhar v. State of Karnataka AIR 2006 SC 1204, the Supreme Court interpreted the provisions of Karnataka Town and Country Planning Act, 1961 and held that the plot earmarked for residential purpose cannot be converted into commercial by allowing the allottee to start a restaurant.READ MORE

In Dr. G.N. Khajuria v. Delhi Development Authority (1995) 5 SCC 762 AIR 1996 SC 253, the Supreme Court held that allotment of land reserved for park in a residential colony for nursery school amounted to misuse of power and was liable to be quashed. Their Lordships further held that the mere fact that some construction had already been raised by the allottee was not relevant for determining the legality of the allotment. READ MORE

In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464 , AIR 1999 SC 2468 the Supreme Court considered the question whether the construction of underground shopping complex in a park is legally permissible. While declaring that the construction was illegal and upholding the direction of the High Court for demolition thereof, their Lordships of the Supreme Court laid down the following propositions: " 1) By allowing underground construction the Mahapalika has deprived itself of its obligatory duties to maintain ........... parking lots. 2) The Mahapalika is the trustee for the proper management of the park. When the true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by the Supreme Court in Span Resort case {M.C. Mehta v. Kamal Nath (Span Resort case) - (1997) 1 SCC 388}. Public trust doctrine is part of Indian law. This public trust doctrine in our country has grown from Article 21 of the Constitution. 3) Action of the Mahapalika in agreeing to the construction of an underground shopping complex in contravention of the provisions of the Act and then entering into an agreement with the builder against settled norms was wholly illegal and has been held to be so by the High Court. No doubt the Mahapalika is a continuing body and it will be estopped from changing its stand in the given case. But when the Mahapalika finds that its action was contrary to the provisions of law by which it was constituted there could certainly be no impediment in its way to change its stand. There cannot be any estoppel operating against the Mahapalika. 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." READ MORE

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