Back
Third Parties Can Move Court Against Inaction on Unauthorised Construction:
The 's Circuit Bench at Port Blair has affirmed that public-spirited citizens can approach the to compel municipal authorities to act against , rejecting the argument that such petitions lack . The Division Bench of Justice Shampa Sarkar and Justice Arjun Ray Mukherjee upheld a single judge's order directing demolition of unauthorised portions of in Sri Vijaya Puram, subject to consideration of any applicable .
The Genesis of the Dispute
The roots of the dispute trace back to when the (formerly ) passed a against Dr. R. Thulasidasan, owner of . The sanctioned building plan permitted a total floor area of 293.49 square meters, but the construction at site measured a staggering 1,156.5 square meters – an excess of 863.01 square meters. The council found violations in setback, plot coverage, FAR, and height, which were classified as under the building bye-laws.
Despite the , no action was taken for years. In , Mr. M. Sethu, a citizen, responded to a newspaper appeal by the seeking information about and encroachments. He lodged a complaint and later filed a seeking implementation of the order. The single judge directed the council to seal the hotel and execute the demolition unless the construction was regularised. Aggrieved, Dr. Thulasidasan appealed.
Core Legal Questions
Two primary issues emerged before the Division Bench: whether a third party has the locus to seek enforcement of a , and whether the constructions could be saved under the Administration's regularization policy.
Arguments From Both Sides
The appellant, represented by , contended that the writ petitioner was a with no connection to the land. He argued that the construction could be regularised under a policy flowing from a committee resolution and a notification modifying the master plan, which allowed regularization of buildings up to G+3 and height up to 12.5 meters. The appellant claimed only the third floor was illegal and the fourth floor was a temporary GI sheet roof.
In contrast, the Municipal Council and Administration, represented by , submitted that the violations were far beyond any regularization scope. The building had extra unauthorised floors, commercial conversion without permission, and encroachment on public land. They specifically stated that the construction could not be regularised even under the modified master plan.
The writ petitioner, through , argued that any can bring illegality to the court's notice when authorities remain complacent.
Legal Analysis and Precedents
The court relied on the 's decision in Deepak Kumar Mukherjee v. Kolkata Municipal Corporation (2013) 5 SCCC 336 to hold that a can approach the when municipal authorities fail to act. The court observed that the writ petitioner had responded to the Administration's appeal for information and had a legitimate expectation that the law would be enforced.
On regularisation, the court cited Friends Colony Development Committee v. State of Orissa (2004) 8 SCCC 733, which held that unauthorised floors are a burden on general welfare. It also referred to Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn. (2021) 10 SCCC 1, which called for strict handling of , and Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai (2013) 5 SCCC 357, which warned against .
The court emphasised that the authorities had examined the construction and determined it fell outside the
. The court refused to substitute its judgment for the
of the authorities, noting that
"regularisation is not a matter of right"
.
Key Observations From the Bench
The court made several emphatic observations:
"Rampant unauthorised construction in urban areas is a burden on the civic amenities. It is also a ."
"Such constructions deny other citizens a by causing risks, inconveniences and hardships."
" not only destroy the concept of , but they are a burden on the basic amenities and facilities provided by the civic authorities."
"The cannot be imported to save the illegal construction of the appellant."
"Courts are duty bound to ensure adherence to law."
Final Decision and Its Implications
The Division Bench dismissed the appeal, holding that the writ petitioner had and that the authorities' determination of violations must be respected. However, the court directed that demolition be implemented only after considering the applicable to the extent it may apply to the appellant. The time for demolition was extended by eight weeks from communication of the order. On reclaimation of encroached revenue land, the court said law would take its own course.
The judgment reinforces the principle that citizens can hold municipal authorities accountable for inaction on illegal constructions. It also clarifies that courts will not interfere with expert assessments of compoundable violations, and that regularisation is a concession, not a right. The decision serves as a stern reminder that will not find safe harbour through judicial sympathy.
