# SOCIETY LIMITED AND OTHERS v. MUNICIPAL CORPORATION OF MUMBAI AND OTHERS

- **Citation:** [2013] 4 S.C.R. 478
- **Court:** Supreme Court of India
- **Decided:** 2013-02-27
- **Case number:** Civil Appeal No. 7934 of 2012
- **Bench:** G.S. Singhvi, Sudhansu Jyoti Mukhopadhaya
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/society-limited-and-others-v-municipal-corporation-of-mumbai-and-others-29034
- **Pages:** 56

## Headnote

C
Urban Development - Maharashtra Regional and Town
Planning Act, 1966 - ss.44, 45, 47, 52 to 57 - Illegal and
unauthorized construction made by developers/builders -
Demolition order - Plea of flat buyers for regularization of
construction - Held: By rejecting the prayer for regularization
D of the floors constructed in wanton violation of the sanctioned
plan, the Deputy Chief Engineer of the Mumbai Municipal
Corporation and the Appellate Authority demonstrated their
determination to ensure planned development of the city -
The 1966 Act does not mandate regularization of construction
E made without obtaining the required permission or in violation
thereof - The 1963 Act too does not entitle the flat buyers to
seek a mandamus for regularization of unauthorized/illegal
construction - The 1991 Regulations also cannot be invoked
for regularization of the disputed construction because the
F same were enforced much later - The flat buyers had entered
into agreements with the developers/builders much before
commencement of the construction - They were aware of the
facts and had consciously occupied the flats illegally
constructed by the developers/builders - No case made out
G for directing the respondents to regularize construction made
in violation of the sanctioned plan -
No authority
administering municipal laws and other similar laws can
encourage such violation - The Courts are also expected to
refrain from exercising equitable jurisdiction for regularization
H
478
ESHA EKTA APARTMENTS._CHS LIMITED\'. MUN.
479
CORPORATION OF MUMBAI
of illegal and unauthorized constructions - Flat buyers,
A
however, free to avail appropriate remedy against the
developers/builders -: Mumbai Municipal Corporatio'n Act,
1888- ss.337, 351 and 354A - Maharashtra Ownership Flats
(Regulation of the. Promotion of Construction, Sale,
Management an~· Transfer) Act, 1963 - ss.2(c), 3(2), 4, 7(2)
B
& 13- Development Control Rules for Greater Mumbai, 1967
- Development, Control Regulations for Greater Mumbai,
1991.
Orders were passed by Deputy Chlet Engineer, c
Building Proposals (City) of the Mumbai Municipal
Corporation and the Appellate Authority refusing to
regularize illeg.al. constructions r~ised· by developers/
builders. Even' though the Planning Authority had not
sanctioned. the plans, the developers/builders had
D
constructed additional floors and utilized the Floor Space
Index (FSI) far in excess of what was permitted by·the
Mumbai Municipal Corporation Act, 1888 and the
Development Control Rules for Greater Mumbai, 1967.
.
~
The Municipal Corporation of Mumbai issued notices
E
under Section 351 of the 1888 Act, giving details of the
illegal structures. proposed to be demolished. The
housing societies concerned submitted their respective
replies. which . were rejected by the Corporation,
whereupon they filed Long Cause Suits for quashing the
F
notices issued under Section 351 of the 1888 Act and the
rejection order passed by the Corporation. They also
filed applications for restraining the Corporation from
demolishing the illegal portions of th.e buildings.
G
· The trial Court dismissed ·the applications for
temporary injunction· and further rejected the contention
of the members of the housing societies that they had
purchased the flats without knowing. that the same were
illegally constructed ·by the ~evelopers/builders.
H
.,
.
480
SUPREME COURT· REPORTS ·
[2013) 4 S.C.R.
A
The app-eals filed by the housing societies and their
members were dismissed by the High Court, and,
therefore the instant appeals. The Supreme Court,
keeping in view that demolition of the illegal and
unauthorized construction would adversely affect the flat
B buyers and their families and that a writ petition filed by
them for regularization of the disputed construction was
pending before the High Court, considered it appropriate
to transfer. the same to this Court
· Various question's · therefore came up ·. for
C consideration before this Court, viz. 1) whether the orders

## Text

_Characters 0–39,706 of 108,605. This is a partial read: ask again with offset=39706 for what follows._

[2013] 4 S.C.R. 478
A
ESHA EKTA APARTMENTS CO-OPERATIVE HOUSING
B
SOCIETY LIMITED AND OTHERS
v.
MUNICIPAL CORPORATION OF MUMBAI AND OTHERS
(Civil Appeal No. 7934 of 2012)
FEBRUARY 27, 2013
[G.S. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
C
Urban Development - Maharashtra Regional and Town
Planning Act, 1966 - ss.44, 45, 47, 52 to 57 - Illegal and
unauthorized construction made by developers/builders -
Demolition order - Plea of flat buyers for regularization of
construction - Held: By rejecting the prayer for regularization
D of the floors constructed in wanton violation of the sanctioned
plan, the Deputy Chief Engineer of the Mumbai Municipal
Corporation and the Appellate Authority demonstrated their
determination to ensure planned development of the city -
The 1966 Act does not mandate regularization of construction
E made without obtaining the required permission or in violation
thereof - The 1963 Act too does not entitle the flat buyers to
seek a mandamus for regularization of unauthorized/illegal
construction - The 1991 Regulations also cannot be invoked
for regularization of the disputed construction because the
F same were enforced much later - The flat buyers had entered
into agreements with the developers/builders much before
commencement of the construction - They were aware of the
facts and had consciously occupied the flats illegally
constructed by the developers/builders - No case made out
G for directing the respondents to regularize construction made
in violation of the sanctioned plan -
No authority
administering municipal laws and other similar laws can
encourage such violation - The Courts are also expected to
refrain from exercising equitable jurisdiction for regularization
H
478
ESHA EKTA APARTMENTS._CHS LIMITED\'. MUN.
479
CORPORATION OF MUMBAI
of illegal and unauthorized constructions - Flat buyers,
A
however, free to avail appropriate remedy against the
developers/builders -: Mumbai Municipal Corporatio'n Act,
1888- ss.337, 351 and 354A - Maharashtra Ownership Flats
(Regulation of the. Promotion of Construction, Sale,
Management an~· Transfer) Act, 1963 - ss.2(c), 3(2), 4, 7(2)
B
& 13- Development Control Rules for Greater Mumbai, 1967
- Development, Control Regulations for Greater Mumbai,
1991.
Orders were passed by Deputy Chlet Engineer, c
Building Proposals (City) of the Mumbai Municipal
Corporation and the Appellate Authority refusing to
regularize illeg.al. constructions r~ised· by developers/
builders. Even' though the Planning Authority had not
sanctioned. the plans, the developers/builders had
D
constructed additional floors and utilized the Floor Space
Index (FSI) far in excess of what was permitted by·the
Mumbai Municipal Corporation Act, 1888 and the
Development Control Rules for Greater Mumbai, 1967.
.
~
The Municipal Corporation of Mumbai issued notices
E
under Section 351 of the 1888 Act, giving details of the
illegal structures. proposed to be demolished. The
housing societies concerned submitted their respective
replies. which . were rejected by the Corporation,
whereupon they filed Long Cause Suits for quashing the
F
notices issued under Section 351 of the 1888 Act and the
rejection order passed by the Corporation. They also
filed applications for restraining the Corporation from
demolishing the illegal portions of th.e buildings.
G
· The trial Court dismissed ·the applications for
temporary injunction· and further rejected the contention
of the members of the housing societies that they had
purchased the flats without knowing. that the same were
illegally constructed ·by the ~evelopers/builders.
H
.,
.
480
SUPREME COURT· REPORTS ·
[2013) 4 S.C.R.
A
The app-eals filed by the housing societies and their
members were dismissed by the High Court, and,
therefore the instant appeals. The Supreme Court,
keeping in view that demolition of the illegal and
unauthorized construction would adversely affect the flat
B buyers and their families and that a writ petition filed by
them for regularization of the disputed construction was
pending before the High Court, considered it appropriate
to transfer. the same to this Court
· Various question's · therefore came up ·. for
C consideration before this Court, viz. 1) whether the orders
·passed by the Deputy Chief Engineer and the Appellant
Authority refusing to regularize the illegal constructions
were .legally sustainable; 2) whether the flat buyers were
not aware of the facts and should not be penalized for
D the illegalities committed by the developers/ builders; 3)
whether in· view· of the Development Control Regulations
for Greater,Mumbai, 1991, the Corporation should be
directedJo'regularize the additional FSI by charging
appropriate penalty; .and that 4) whether In ,view of
E Circular. No.CHE/2005/DP/GEN dated. 4.2.2011 (issued by
the Corporation for regularization of the illegal
construction by charging penalty), this Court may
rexerclse power· under Article 142 of the Constitution for
directing regularization of the disputed construction else
F the flat buyers will be deprived of. the only shelter
available to them;
· ·
·
·
· Dismissing the appeals and the transferred cases,
•
the Court·
·
·
·.
·
· ·
··
·
·
-
G
HELD: 1.1. By rejecting the prayer for regularization
of the floors constructed in wanton violation of the
sanctioned plan, the Deputy Chief Engineer and the
Appellate
Authority · have
demonstrated. their
determination to ·ensure planned development of the·
H commercial capital of the country and the orders passed
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 481
CORPORATION OF MUMBAI
by them have given a hope to the law abiding citizens
A
that someone in the hierarchy of administration will not
allow unscrupulous developers/builders to take law into
their hands and get away with it. [Para 3) (494-D-F]
1.2. The Deputy Chief Engineer had rejected the
8
request made by the architect for exemption of the area
of staircase, lift and lift lobby from FSI by observing that
the same is not in conformity with Clause 35(2)(c) of the
1991 Regulations because the Corporation had decided
the proposal prior to coming into force of those
regulations and the permissible FSI had already been
C
exhausted. The Appellate Authority agreed with the
Deputy Chief Engineer that the 1991 Regulations cannot
be invoked for regularization of the disputed
construction because the same were enforced much after
rejection of the amended plans and the plot in question
D
is situated in CRZ area. The reasons assigned by the
Deputy Chief Engineer and the Appellate Authority are in
consonance with the law laid down by this Court. The
Appellate Authority had rightly declined to invoke the
1991 Regulations for entertaining the prayer made by the
E
architect for regularization of the constructions made in
violation of the sanctioned plan. (Paras 34, 35, 36) [518F-H; 519-A-B; 522-E)
Suresh Estates Private Limited v. Municipal Corporation
F
of Greater Mumbai (2007) 14 SCC 439: 2007 (13) SCR 882
- relied on.
2. The argument that the flat buyers should not be
penalized for the illegality committed by the lessee and
the developers/builders in raising construction in G
violation of the sanctioned plan has no merit. The flat
buyers had entered into agreements with the developers/
builders much before commencement of the construction.
They were aware of the fact that the revised plans
submitted by the architect had not been approved by the
H
482
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A Planning Authority and the developers/builders had
foretold them about the consequence of rejection of the
revised plans. Therefore, there is no escape from the
conclusion that the flat buyers had consciously occupied
the flats illegally constructed by the developers/builders.
B In this scenario, the only remedy available to them is to
sue the lessee and the developer/builder for return of the
money and/or for damages and they cannot seek a
direction for regularization of the illegal and unauthorized
construction made by the developers/builders. [Para 37]
c [522-F-H; 523-A-B]
3. An analysis of the provisions of the Maharashtra
Regional and Town Planning Act, 1966 make it clear that
any person who undertakes or carries out development
or changes the use of land without permission of the
D Planning Authority is liable to be punished with
imprisonment. At the same time, the Planning Authority
is empowered to require the owner to restore the land to
its original condition as it existed before the development
work was undertaken. The scheme of these provisions
E do not mandate regularization of construction made
without obtaining the required permission or in violation
thereof. [Para 39] [525-E-G]
4. Circular No. CHE/2005/DP/GEN dated 4.2.2011
F (issued by the Corporation for regularization of illegal
construction by charging penalty) cannot be invoked for
entertaining the prayer for regularization. That circular
only contains the procedure for regularization of
unauthorized works/structures. It neither deals with the
issues relating to entitlement of the applicant to seek
G regularization nor lays down that the Planning Authority
can regularize illegal construction even after dismissal of
the appeal filed under Section 47 of the 1966 Act.
Therefore, the procedure laid down in Circular dated
4.2.2011 is of no avail to the flat buyers. [Para 40] [525-H;
H 526-A-B]
ESHA EKTA APARTMENTS CHS LIMITED v. MUN.
483
CORPORATION OF MUMBAI
5. Though the argument that the developers I
A
builders I promoters are responsible for the illegal
construction finds support from the provisions of the
Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and
Transfer) Act, 1963, but that does not help the housing
B
societies and their members because there is no
provision under that Act for condonation of illegal/
unauthorized construction by the developers/builders
and promoters or regularization of such construction. The
1963 Act obligates the promoter to obtain sanctions and c
approvals from the concerned authority and disclose the
same to the flat buyers. The Act also provides for
imposition of penalty on the promoters. However, the
provisions contained therein do not entitle the flat buyers
to seek a mandamus for regularization of the
0
unauthorized/illegal construction. [Paras 41, 44) [526-CD; 532-H; 533-A]
Jayantilal Investments v. Madhuvihar Cooperative
Housing Society (2007) 9 SCC 220: 2007 (1) SCR 677 -
relied on.
E
6. The petitioners in the transferred case have failed
to make out a case for directing the respondents to
regularize the construction made in violation of the
sanctioned plan. No authority administering municipal
laws and other similar laws can encourage violation of
F
the sanctioned plan. The Courts are also expected to
refrain from exercising equitable jurisdiction for
regularization of illegal and unauthorized constructions
else it would encourage violators of the planning laws
and destroy the very idea and concept of planned
G
development of urban as well as rural areas. [Para 45]
[533-B-D]
Royal Paradise Hotel (P) Ltd. v. State of Haryana and
Ors. (2006) 7 SCC 597: 2006 (5) Suppl. SCR 396 - held
inapplicable.
H
484
SUPREME COURT REPORTS
[2013) 4 S.C.R.
A
Friends Colony Development Committee v. State of
Orissa (2004) 8 SCC 733: 2004 (5) Suppl. SCR 818; Shanti
Sports Club v. Union of India (2009) 15 SCC 705: 2009 (13)
SCR 710; Priyanka Estates International Pvt. Ltd. v. State of
Assam (2010) 2 SCC 27: 2009 (16) SCR 80 and Dipak
B Kumar Mukherjee v. Kolkata Municipal Corporation and
others (2012) 10 SCALE 29 - referred to.
7. There is no impediment in the implementation of
notices issued by the Corporation under Section 351 of
the 1888 Act and order passed by the competent
C authority. The Corporation is expected to take action in
the matter at the earliest. This Court also directs that the
State Government and its functionaries/officers as also
the officers/employees of the Corporation shall not put
any hurdle or obstacle in the implementation of notices
D issued under Section 351 of the 1888 Act. The flat buyers
shall be free to avail appropriate remedy against the
developers/builders. [Paras 46, 47 and 48] [533-E-G]
E
F
G
Case Law Reference:
2004 (5) Suppl. SCR 818 referred to
Para 1
2006 (5) Suppl. SCR 396 relied on
Para 1, 45
2009 (13) SCR 710
referred to
Para 1
2009 (16) SCR 80
referred to
Para 1
(2012) 10 SCALE 29
referred to
Para 1
2007 (13) SCR 882
relied on
Para 35
2007 (1) SCR 677
relied on
Para 43
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7934 of 2012.
From the Judgment & Order dated 24.08.2011 of the High
Court of Judicature at Bombay in Appeal from Order No. 1124
H of 2010.
ESHA EKTA APARTMENTS CHS LIMITED v. MUN.
485
CORPORATION OF MUMBAI
WITH
C.A. Nos. 7935, 7936, 7937 & 7938 of 2012
T.C. (C) No. 55 of 2012.
A
G.E. Vahanvati, AG, Dr. A.M. Singhvi, Ravi Shankar
B
Prasad, Pallav Shishodia, Dushyant Dave, C.U. Singh, Raju
Ramachandran, Abhimanyu Bhandari, Aakansha Munjhal,
Harish Pandey, Naveen Kumar, S. Sukumararr, R.A.
Malandkar, J.J. Xavier, Anand Sukumar, Bhupesh Kumar
Pathak, C. Mukund, Pankaj Jain, Saravana Raja P.V., Kavita
C
Wadia, Chitesh, Kavin Gulati, Rashmi Singh, Kumar Kartikay,
Vasu Sharma, Pushpinder Singh for the appearing parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. In last five decades, the provisions
D
contained in various municipal laws for planned development
of the areas to which such laws are applicable have been
violated with impunity in all the cities, big or small, and those
entrusted with the task of ensuring implementation of the master
plan, etc., have miserably failed to perform their duties. It is
E
highly regrettable that this is so despite the fact that this Court
has, keeping in view the imperatives of preserving the ecology
and environment of the area and protecting the rights of the
citizens, repeatedly cautioned the concerned authorities against
arbitrary regularization of illegal constructions by way of
F
compounding and otherwise. In Friends Colony Development
Committee v. State of Orissa (2004) 8 SCC 733, this Court
examined the correctness of an order passed by the Orissa
High Court negating the appellant's right to be heard in a
petition filed by the builder who had raised the building in
G
violation of the sanctioned plan. While upholding the appellant's
plea, the two-Judge Bench observed:
" ......... 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
H
486
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 4 S.C.R.
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 noncompoundable 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 ............ .
The conduct of the builder in the present case deserves
to be noticed. He knew it fully well what was the
permissible construction as per the sanctioned building
plans and yet he not only constructed additional built-up
area on each floor but also added an additional fifth floor
on the building, and such a floor was totally unauthorised.
In spite of the disputes and litigation pending he parted with
his interest in the property and inducted occupants on all
the floors, including the additional one. Probably he was
under the impression that he would be able to either
ESHA EKTA APARTMENTS CHS LIMITED v. MUN.
487
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
escape the clutches of the law or twist the arm of the law
A
by some manipulation. This impression must prove to be
wrong.
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
B
of legislative enactments and rules and regulations framed c
thereunder. 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
0
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.
The municipal laws regulating the building construction
activity may provide for regulations as to floor area. the
number of floors. the extent of height rise and the nature
E
F
of use to which a built-up property may be subjected in any
G
particular area. The individuals as property owners have
to pay some price for securing peace. good order. dignity,
protection and comfort and safety of the community. Not
only filth. stench and unhealthy places have to be
eliminated, but the layout helps in achieving family values.
H
488
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A
youth values. seclusion and clean air to make the locality
a better place to live. Building regulations also help in
reduction or elimination of fire hazards, the avoidance of
traffic dangers and the lessening of prevention of traffic
congestion in the streets and roads. Zoning and building
B
regulations are also legitimised from the point of view of
the control of community development. the prevention of
overcrowding of land. the furnishing of recreational
facilities like parks and playgrounds and the availability of
adequate water. sewerage and other governmental or
c
utility services.
D
E
F
G
H
Structural and lot area regulations authorise the municipal
authorities to regulate and restrict the height. number of
storeys and other structures; the percentage of a plot that
may be occupied; the size of yards. courts and open
spaces: the density of population: and the location and use
of buildings and structures. All these have in our view and
do achieve the larger purpose of the public health. safety
or general welfare. So are front setback provisions.
average alignments and structural alterations. Any violation
of zoning and regulation laws takes the toll in terms of
public welfare and convenience being sacrificed apart from
the risk, inconvenience and hardship which is posed to the
occupants of the building.
Though the municipal laws permit deviations from
sanctioned constructions being regularised by
compounding but that is by way of exception. Unfortunately,
the exception, with the lapse of time and frequent exercise
of the discretionary power conferred by such exception,
has become the rule. Only such deviations deserve to be
condoned as are bona fide or are attributable to some
misunderstanding or are such deviations as where the
benefit gained by demolition would be far less than the
disadvantage suffered. Other than these, deliberate
deviations do not deserve to be condoned and
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 489
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
compounded. Compounding of deviations ought to be kept
A
at a bare minimum. The cases of professional builders
stand on a different footing from an individual constructing
his own building. A professional builder is supposed to
understand the laws better and deviations by such builders
can safely be assumed to be deliberate and done with the
intention of earning profits and hence deserve to be dealt
with sternly so as to act as a deterrent for future. 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 which can be utilised for
compensating and rehabilitating such innocent or unwary
buyers who are displaced on account of demolition of
illegal constructions."
(emphasis supplied)
In Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors.
(2006) 7 SCC 597, this Court noted that the construction had
been made in the teeth of notices issued for stopping the
unauthorized construction and held that no authority
administering municipal laws can regularize the constructions
made in violation of the Act. Some of the observations made
in that judgment are extracted below:
"Whatever it be, the fact remains that the construction was
made in the teeth of the notices and the directions to stop
the unauthorized construction. Thus, the predecessor of the
appellant put up the offending construction in a controlled
area in defiance of the provisions of law preventing such
B
c
D
E
F
a construction and in spite of notices and orders to stop
the construction activity. The constructions put up are thus
G
illegal and unauthorized and put up in defiance of law. The
appellant is only an assignee from the person who put up
such a construction and his present attempt is to defeat
the statute and the statutory scheme of protecting the sides
of highways in the interest of general public and moving
H
A
B
c
D
E
F
G
H
490
SUPREME COURT REPORTS
[2013] 4 S.C.R.
traffic on such highways. Therefore, this is a fit case for
refusal of interference by this Court against the decision
declining the regularization sought for by the appellant.
Such violations cannot be compounded and the prayer of
the appellant was rightly rejected by the authorities and the
High Court was correct in dismissing the Writ Petition filed
by. the appellant. It is time that the message goes aboard
that those who defy the Jaw would not be permitted to reap
the benefit of their defiance of law and it is the duty of High
Courts to ensure that such definers of law are not
rewarded. The High Court was therefore fully justified in
refusing to interfere in the matter. The High Court was
rightly conscious of its duty to ensure that violators of Jaw
do not get away with it.
We also find no merit in the argument that regularization
of the acts of violation of the provisions of the Act ought to
have been permitted. No authority administering municipal
laws and other laws like the Act involved here, can
encourage such violations. Even otherwise, compounding
is not to be done when the violations are deliberate,
designed, reckless or motivated. Marginal or insignificant
accidental violations unconsciously made after trying to
comply with all the requirements of the law can alone
qualify for regularization which is not the rule, but a rare
exception. The authorities and the High Court were hence
right in refusing the request of the appellant."
The aforesaid observations found their echo in Shanti
Sports Club v. Union of India (2009) 15 SCC 705 in the
following words:
"In the last four decades, almost all cities, big or small,
have seen unplanned growth. In the 21st century, the
menace of illegal and unauthorised constructions and
encroachments has acquired monstrous proportions and
everyone has been paying heavy price for the same.
Economically affluent people and those having support of
ESHA EKTA APARTMENTS CHS LIMITED v. MUN.
491
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
the political and executive apparatus of the State have
A
constructed buildings, commercial complexes, multiplexes,
malls, etc. in blatant violation of the municipal and town
planning laws, master plans, zonal development plans and
even the sanctioned building plans. In most of the cases
of illegal or unauthorised constructions, the officers of the
municipal and other regulatory bodies turn blind eye either
due to the influence of higher functionaries of the State or
other extraneous reasons. Those who construct buildings
in violation of the relevant statutory provisions, master plan,
B
etc. and those who directly or indirectly abet such violations c
are totally unmindful of the grave consequences of their
actions and/or omissions on the present as well as future
generations of the country which will be forced to live in
unplanned cities and urban areas. The people belonging
to this class do not realise that the constructions made in
D
violation of the relevant laws, master plan or zonal
development plan or sanctioned building plan or the
building is used for a purpose other than the one specified
in the relevant statute or the master plan, etc., sudh
constructions put unbearable burden on the public facilities/
amenities like water, electricity, sewerage, etc. apart from
creating chaos on the roads. The pollution caused due to
traffic congestion affects the health of the road users. The
pedestrians and people belonging to weaker sections of
E
the society, who cannot afford the luxury of air-conditioned
cars, are the worst victims of pollution. They suffer from skin
diseases of different types, asthma, allergies and even
more dreaded diseases like cancer. It can only be a
matter of imagination how much the Government has to
spend on the treatment of such persons and also for
controlling pollution and adverse impact on the environment
G
due to traffic congestion on the roads and chaotic
conditions created due to illegal and unauthorised
constructions. This Court has, from time to time, taken
cognizance of buildings constructed in violation of municipal
and other laws and emphasised that no compromise
F
H
492
A
B
c
D
E
F
SUPREME COURT REPORTS
[2013] 4 S.C.R.
should be made with the town planning scheme and no
relief should be given to the violator of the town planning
scheme, etc. on the ground that he has spent substantial
amount on construction of the buildings, etc.
Unfortunately, despite repeated judgments by this Court
and the High Courts, the builders and other affluent people
engaged in the construction activities, who have, over the
years shown scant respect for regulatory mechanism
envisaged in the municipal and other similar laws, as also
the master plans, zonal development plans, sanctioned
plans, etc., have received encouragement and support
from the State apparatus. As and when the Courts have
passed orders or the officers of local and other bodies
have taken action for ensuring rigorous compliance with
laws relating to planned development of the cities and
urban areas and issued directions for demolition of the
illegal/unauthorised constructions, those in power have
come forward to protect the wrongdoers either by issuing
administrative orders or enacting laws for regularisation of
illegal and unauthorised constructions in the name of
compassion and hardship. Such actions have done
irreparable harm to the concept of planned development
of the cities and urban areas. It is high time that the
executive and political apparatus of the State take serious
view of the menace of illegal and unauthorised
constructions and stop their support to the lobbies of
affluent class of builders and others, else even the rural
areas of the country will soon witness similar chaotic
conditions."
In Priyanka Estates International Pvt. Ltd. v. State of
G Assam (2010) 2 SCC 27, this Court declined the appellant's
prayer for directing the respondents to regularize the illegal
construction and observed:
"It is a matter of common knowledge that illegal and
H
unauthorised constructions beyond the sanctioned plans
ESHA EKTA APARTMENTS CHS LIMITED v. MUN.
493
CORPORATION OF MUMBAI [G.S. SINGH.VI, J.]
are on rise, may be due to paucity of land in big cities.
A
Such activities are required to be dealt with by firm hands
otherwise builders/colonisers would continue to build or
construct beyond the sanctioned and approved plans and
would still go scot-free. Ultimately, it is the flat owners who
fall prey to .such activities as the ultimate desire of a
B
common man is to have a shelter of his own. Such unlawful
constructions are definitely against the public interest and
hazardous to ·\he safety of occupiers and residents of
multistoreyed byildings. To some extent both parties can
be said to be eq4ally responsible for this. Still the greater c
loss would be of those flat owners whose flats are to be
demolished as conwared to the builder."
A somewhat simila{ question was recently considered in
Dipak Kumar Mukherjee v. Kolkata Municipal Corporation
and others (2012) 10 SCALE 29. While setting aside the order
D
of the Division Bench of the Calcutta High Court, this Court
referred to the provisions of the Kolkata Municipal Corporation
Act, 1980 in the context of c0t1struction of additional floors in a
residential building in violatib_n of the sanctioned plan and
observed:
E
"What needs to be emphasised is that illegal and
unauthorised constructions of ~uildings and other structure
not only violate the municipal laws and the concept of
planned development of the particular area but also affect · F
various fundamental and constitutional rights of other
persons. The common man feels cheated when he finds
that those making illegal and unauthorised constructions
are supported by the people entrusted with the duty of
preparing and executing master plan/development plan/
G
zonal plan. The reports of demolition of hutments and jhuggi
jhopris belonging to poor and disadvantaged section of the
society frequently appear in the print media but one seldom
gets to read about demolition of illegally/unauthorisedly
constructed multi-storied structure raised by 'ec;:onomically
H
;.
494
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A
affluent people. The failure of the State apparatus to take
prompt action to demolish such illegal constructions has
convinced the citizens that planning laws are enforced only
against poor and all compromises are made by the State
machinery when it is required to deal with those who have
B
money power or unholy nexus with the power corridors."
2. We have prefaced disposal of these matters by taking
cognizance of the observations made in the aforementioned
judgments because the main question which arises for our
C consideration is whether the orders passed by Deputy Chief
Engineer, Building Proposals (City) of the Mumbai Municipal
Corporation (hereinafter referred to as 'the Deputy Chief
Engineer') and the Appellate Authority refusing to regularize the
illegal constructions made on Plot No.9, Scheme 58, Worli,
Mumbai are legally sustainable.
D
3. At the outset, we would like to observe that by rejecting
the prayer for regularization of the floors constructed in wanton
violation of the sanctioned plan, the Deputy Chief Engineer and
the Appellate Authority have demonstrated their determination
E to ensure planned development of the commercial capital of the
country and the orders passed by them have given a hope to
the law abiding citizens that someone in the hierarchy of
administration will not allow unscrupulous developers/builders
to take law into their hands and get away with it.
F
4. The Municipal Corporation of Mumbai (for short, 'the
Corporation') leased out the plot in question, of which land use
was shown in the development plan as 'General Industrial' to
M/s. Pure Drinks (hereinafter referred to as, 'the lessee') in
January, 1962. The lessee constructed a factory and started
G manufacturing cold drinks under the brand name 'Campa Cola'.
After about 16 years, the lessee engaged an architect for
utilizing the land for construction of residential buildings. The
architect made an application under Section 337 of the Mumbai
Municipal Corporation Act, 1888 (for short, 'the 1888 Act') for
H sanction of plans of the proposed residential buildings. The
ESHA EKTA APARTMENTS CHS LIMITED v. MUN.
495
CORPORATION OF MUMBAI [G.S. SINGHVI, J.)
same was rejected by the Planning Authority vide order dated
A
31.7.1980 on the ground that the required NOCs had not been
obtained and the Competent Authority had not given exemption
under the Urban Land (Ceiling and Regulation) Act, 1976.
Another application made by the architect was rejected by the
Planning Authority on similar grounds.
B
5. In view of the above development, the lessee made an
application to the Corporation for change of land use from
'General Industrial' to 'Residential'. The latter forwarded the
same to the State Government along with a proposal for
modification of the development plan of the area. The State
C
Government accepted the proposal of the Corporation and
passed an order dated 31.12.1980 under Section 37(2) of the
Maharashtra Regional and Town Planning Act, 1966 (for short,
'the 1966 Act') in respect of 13049 sq. meters leaving the
balance 4856 sq. meters for industrial use. This was subject
D
to the condition that development shall be as per the
Development Control Rules for Greater Mumbai, 1967 (for
short, 'the D.C. Rules') and other relevant statutory provisions.
Thereafter, the architect engaged by the lessee submitted
revised plans for construction of residential buildings. The
E
Planning Authority granted approval on 8.6.1981 for
construction 9f 6 buildings comprising basement, ground and
5 upper floors. The commencement certificate was issued on
10.6.1981. On 27 .6.1981, the Additional Collector and
Competent Authority granted permission under Section 22 of
F
the Urban Land (Ceiling and Regulation) Act for demolition of
the structure and redevelopment in accordance with the
provisions of the D.C. Rules.
6. On 12.8.1981, the lessee executed an Assignment
G
Agreement in favour of P.S.B. Construction Company Limited.
Paragraphs 10 and 11 of that agreement read as under:
"10. The Developer shall construct the said buildings on
the said sub-plot in accordance with the approved plan of
the said buildings as sanctioned by the Corporation and/
H
A
B
c
D
E
496
SUPREME COURT REPORTS
(2013] 4 S.C.R.
or in accordance with modifications and/or amendments
thereto as may be sanctioned by the Corporation on the
application in that behalf being made by the Owner at the
instance of the Developer.
11. The Developer shall also construct the said building
on the said sub-plot in accordance with and subject to the
conditions stipulated in the letter of Intent dated 27th May
1981 made by the Additional Collector and Competent
Authority under the ULC Act or such modifications and/or
amendments thereto as may be sanctioned by the
Additional Collector and Competent Authority on the
application in that behalf being made by the Owner at the
instance of the Developer and the sanction under Section
22 under the ULC Act, to be obtained by the Owner after
compliance with the conditions in the said Letter of Intent
or any modifications and/or amendments thereto as
aforesaid and the development control rules of the
Corporation and such other rules and regulations as are
applicable".
Simultaneously, an irrevocable Power of Attorney was
executed by the lessee in favour of the developer, i.e., P.S.B.
Construction Company Limited.
7. Similar agreements were executed by the lessee on
20.8.1981 in favour of Mohamed Yusuf Patel son of Abdulla
F Patel and Mohinuddin son of Tayab Soni. On 16.6.1982, P.S.B.
Construction Company Limited entered into an agreement with
S/Shri B.K. Gupta, Manmohansingh Bhasin and Mohamed
Yusuf Abdullah Patel appointing the latter as promoters of the
builders and authorised them to develop one portion of the plot
G by demolishing the existing structures and constructing building
Nos. 1, 3 and 8 in accordance with the sanctioned plan.
8. The architect, who was initially engaged by the lessee,
continued to work on behalf of the developers/builders and
H promoters. The amended plans submitted by him for
ESHA EKTA APARTMENTS CHS LIMITED v. MUN.
497
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
construction of 9 buildings with ground and 5 upper floors were
A
also approved vide order dated 2.2.1983.
9. In 1983, the lessee secured permission from the Chief
Minister of the State to raise the height of the buildings up to
60 feet. However, the revised plans submitted for construction
B
of separate buildings comprising stilt and 24 upper floors; stilt
and 16 upper floors with additional 6th and 7th floor on building
No.2 and additional 6th floor on building No.3 were rejected by
the Planning Authority vide order dated 6.9.1984.
10. Notwithstanding rejection of the revised building plans,
C
the developers/builders continued to construct the buildings.
Therefore, Executive Engineer, A.E. Division of the Corporation
issued 'stop work notice' dated 12.11.1984 under Section
354A of the 1888 Act mentioning therein that if the needful is
not done, the construction will be forcibly removed. It is a
D
different story that after issuing 'stop work notice', the authorities
of the Corporation buckled under pressure from the developers/
builders and turned blind eye to the illegal constructions made
between 1984 and 1989. For the sake of reference, notice
dated 12.11.1984 is reproduced below:
E
"MUNICIPAL CORPORATION OF
GREATER BOMBAY
Notice under section 354A of the
Bombay Municipal
Corporation Act
12.11.1984
F
No.EB/3347/A of 1981
To
Shri Madanjit Singh C.A. Shri Charanjit Singh, Pure Drinks
Pvt. Ltd., Plot. No.9 Worli Scheme No.58 B.G. Kher Marg,
G
Worli Bombay-18.
Whereas the erection of a building work as described in
section 342 of the-above-rrnm11oned act is being unlawfully
H
A
B
c
D
E
498
SUPREME COURT REPORTS
[2013] 4 S.C.R.
carried on you at premises NO.C.S.No.868 and 1/868 of
Worli situated at plot No.9 Worli Scheme 58 B.G. Kher
Marg Worli.
And whereas under section 68 of the said Act the Municipal
Commissioner for greater Bombay has duly empowered
me to exercise the powers conferred upon him by section
354 A of the said Act. Now I do hereby give you notice
that if, after the expiration 24 hours from the service hereof
upon you, it is found that the construction of said building
work is still being carried on by you, I shall, pursuant to
section 354A of the said Act and in exercise of the powers
conferred on me as aforesaid, direct that you be removed
from the said-premises by police officer.
Work being carried out beyond approved plan in as much
as the foundation work of sky scrapper is being lane site
incharge plot no.9.
B.G. Kher Marg Worli.
A.E. Division
Executive Engineer
B.P. (City)
Bombay Municipal Corporation"
11.