2009 Supreme(SC) 1795

2009(8) Supreme 30
SUPREME COURT OF INDIA
V.S. Sirpurkar and Deepak Verma, JJ.
Priyanka Estates International Pvt. Ltd. & Ors. — Appellants
versus
State of Assam & Ors. — Respondents
Civil Appeal No. 8026 of 2009
[Arising out of SLP(C) No.14480 of 2006]
Decided on : 03-12-2009

IMPORTANT POINT
Where constructions have been made in absolute and flagrant violation of the sanctioned plan then the only alternative is to direct demolition of the same.

Headnote:Guwahati Municipal Corporation Act, 1971 – Section 438 – Development Act –Section 88 – Appellant .1 purchased an open piece of land approximately admeasuring 4.62 Kathas by registered deed of sale – Appellant No.1, applied to Guwahati Municipal Corporation for according permission for construction of basement, ground, mezzanine, first, second, third, fourth and half of 5th floors – The permission was accorded to M/s.Priyanka Estates International (P) Ltd. by GMC for construction of basement, ground floor, mezzanine upto fourth floor and half on the 5th floor- Thereafter, Appellant No.1 applied for grant of permission for construction of remaining part of 5th ,6th, 7th and 8th floors – This permission was refused by GMC- Without getting actual sanction for construction of building beyond 5= floors from Commissioner of G.M.C. Appellants continued with construction activities and tried to complete the same – Issuance of notice to Appellant .1 asking to remove/demolish building/construction/ development or the portion erected by them which was in violation of provisions of Guwahati Metropolitan Development Authority Act – On Writ petition status quo came to be passed and it was directed that Municipal Authority shall take no steps to pull down the building – Pursuant to said order, Appellants continued with the construction activities presumably on the ground that order of status quo was against the Respondents of Writ Petition and not against Appellants – Thus, another order clarifying the earlier order came to be passed by the High Court whereby a categorical direction was issued that no further construction over the said land shall be made and all construction activities should come to a standstill immediately – Writ Petitions filed by appellants – Dismissed – Appeals – Held order of SAC could not be construed as an order of sanction as it was not a semblance of permission – It was not end of the matter because necessary sanction or permission could have been granted only by Municipal Commissioner and not by Appellate Authority – Admittedly, even after passing of order by SAC in appeal, there was no further sanction by Municipal Commissioner or by Chief Executive Officer of the Development Authority granting permission to raise the height of the building upto 8th floor – Thus, looking to the matter from all angles, held that construction of the building beyond 5= floors was not only illegal, unauthorized and without any sanction or approval of plans but was also against the spirit of Appellate Order of SAC – Hence held that , except for directing the Respondent – authorities to demolish 6th, 7th and 8th floor, there was no other alternative – Appeals dismissed. (Paras 56 to 59, 76 to 82)

       Facts of the Case :

        Appellant .1 herein in the instant case purchased an open piece of land approximately admeasuring 4.62 Kathas by registered deed of sale-Appellant No.1, applied to Guwahati Municipal Corporation for according permission for construction of basement, ground, mezzanine, first, second, third, fourth and half of 5th floors. The permission was accorded to M/s.Priyanka Estates International (P) Ltd. by GMC for construction of basement, ground floor, mezzanine upto fourth floor and half on the 5th floor. Thereafter, Appellant No.1 applied for grant of permission for construction of remaining part of 5th ,6th, 7th and 8th floors. This permission was refused by GMC. Without getting actual sanction for construction of building beyond 5= floors from Commissioner of G.M.C. Appellants continued with construction activities and tried to complete the same. Notices were issued to Appellant .1 asking to remove/demolish building/construction/ development or the portion erected by them which was in violation of provisions of Guwahati Metropolitan Development Authority Act .On Writ petition status quo came to be passed and it was directed that Municipal Authority shall take no steps to pull down the building. Pursuant to said order, Appellants continued with the construction activities presumably on the ground that order of status quo was against the Respondents of Writ Petition and not against Appellants. Thus, another order clarifying the earlier order came to be passed by the High Court whereby a categorical direction was issued that no further construction over the said land shall be made and all construction activities should come to a standstill immediately. Writ Petitions filed by appellants were dismissed.

        2. Present appeals have been filed against said order of High Court.

       Findings of the Court :

        Held order of SAC could not be construed as an order of sanction as it was not a semblance of permission.It was not end of the matter because necessary sanction or permission could have been granted only by Municipal Commissioner and not by Appellate Authority.Admittedly, even after passing of order by SAC in appeal, there was no further sanction by Municipal Commissioner or by Chief Executive Officer of the Development Authority granting permission to raise the height of the building upto 8th floor. Thus, looking to the matter from all angles, held that construction of the building beyond 5= floors was not only illegal, unauthorized and without any sanction or approval of plans but was also against the spirit of Appellate Order of SAC.Hence held that , except for directing the Respondent-authorities to demolish 6th, 7th and 8th floor, there was no other alternative. Appeals were dismissed.