DIPAK KUMAR MUKHERJEE versus KOLKATA MUNICIPAL CORPORATION AND OTHERS

Citation: [2012] 10 S.C.R. 757 · Decided: 08-10-2012 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2012] 10 S.C.R. 757 
DIPAK KUMAR MUKHERJEE 
V. 
KOLKATA MUNICIPAL CORPORATION AND OTHERS 
(Civil Appeal No. 7356 of 2012) 
OCTOBER 8, 2012 
[G.S. SINGHVI AND SUDHANSU JYOTI 
MUKHOPADHAYA, JJ.] 
A 
B 
Ko/kata Municipal Corporation Act, 1980 - ss. 396 -
Kolkata Municipal Corporation Building Rules, 1990 - r.25(2) 
C 
- Construction of building - In violation of the plan sanctioned 
under the Act - Unauthorised construction continued despite 
the order of Municipal Corporation for demolition of such 
construction - Writ petition challenging the unauthorized 
construction - Single Judge of High Court directed demolition 
D 
of such construction - The builder completed the construction 
and filed application for regularization thereof - A/so filed 
appeal against order of Single Judge - Division Bench of 
High Court directing the competent authority to pass 
appropriate order after giving opportunity of hearing to the 
E 
builder - On appeal, held: Since construction in violation of 
sanctioned plan not disputed and the demolition order was 
passed by the Municipal Corporation, order of Division Bench 
of High Court not sustainable -
Builder cannot take 
advantage of r.25 for regularization of the unauthorized 
F 
construction - The builder is a/so guilty of cheating those who 
purchased the portions of unauthorized construction -
Direction to the builder to compensate the purchasers by 
refunding the cost of the flat with interest, and to pay cost of 
Rs. 25,00,0001- for violation of sanctioned plan despite stop 
G 
work notice. 
Urban Development - Illegal unauthorized construction 
- Held: Such construction not only violates the municipal laws 
757 
H 
758 
SUPREME COURT REPORTS 
[2012] 10 S.C.R. 
A and the concept of planned development, but also affects 
various fundamental and constitutional rights of other persons. 
Respondent No. 7, the construction company 
entered into an agreement with respondent No. 8 for 
8 development of a plot. Building plan submitted by the 
construction company was sanctioned by the Municipal 
Corporation for two storeys. However, the construction 
was done upto 3rd floor in deviation of the sanctioned 
plan. The Corporation issued 'stop work notice' u/s. 401 
of the Act. The construction company, instead of 
C stopping the work, added one more floor. Thereafter, 
notice u/s. 400(1) and 401 (A) were issued and after 
considering the issue Mayor-in-Council decided to 
demolish the unauthorized construction and accordingly 
the unauthorized construction was demolished. 
D 
In the meantime, the appellant had filed writ petition 
before High Court seeking direction to demolish the said 
construction. Single Judge of High Court directed not to 
carryout illegal construction. The construction company, 
E despite the order of the High Court and the demolition 
order of Mayor-in-Council, continued the construction in 
violation of the sanctioned plan. 
The appellant filed fresh writ petition for demolition 
of the unauthorized construction. Single Judge of High 
F Court directed demolition of unauthorized construction. 
Thereafter the representative of the construction 
compahy filed application for regularization of the 
unauthorized construction. Simultaneously, also filed 
appeal challenging the order of Single Judge. Division 
G Bench of High Court disposed of the petition directing the 
Corporation to take appropriate decision in accordance 
with law after giving opportunity of hearing to the builder. 
Hence, the present appeal. 
H 
Allowing the appeal, the Court 
DIPAK KUMAR MUKHERJEE v. KOLKATA 
759 
MUNICIPAL CORPORATION 
HELD: 1.1. Illegal and unauthorised constructions of A 
buildings and other structure not only violate the 
municipal laws and the concept of planned development 
of the particular area but also affect various fundamental 
and constitutional rights of other persons. The common 
man feels cheated when he finds that those making 
B 
illegal and unauthorised constructions are supported by 
the people entrusted with the duty of preparing and 
executing master plan/development plan/zonal plan. The 
failure of the State apparatus to take prompt action to 
demolish such illegal constructions has convinced the c 
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 money 
power or unholy nexus with the power corridors. [Para 
8] [7'70-C-G] 
D 
K. Ramadas Shenoy v. Chief O

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