How to get stay on demolition of property or sealing of property explained with the legal concepts and procedure. Explanation of the legal issues related to How to get stay on demolition of property by the experts.
The issue of demolition of the property on the ground of unauthorized construction, illegal construction and encroachment is in news now days after the Kangana Ranaut episode. We need to understand the aforesaid concepts so that we can take any timely action when faced with such situation. Once we understand the legal provisions and the related issues, we can very well understand how to get stay on demolition of property. This will go long way in handling such eventualities.
The dispute of unauthorized construction, illegal construction and encroachment is a common dispute in the urban area and more particular in the metropolitan cities like Delhi and Mumbai. It is compounded by the fact when the Government or the officials concerned very often decide to take selective action on a particular property. Mostly, the officials the municipal corporation single out any property for their own considerations. We find the same currently in the case of Kangna Ranaut issue being reported by the media widely.
In the urban areas, municipalities regulate all types of construction coupled with the land use and other related aspects. In big cities the urban area is mainly handed over the Urban Development Authority for developing and providing the civic amenities and then to be handed over back to the municipality or the municipal corporation for providing the civic services and regulating the building activities.
Any construction in the urban area is to be done in accordance with the building bye laws as prescribed by the municipality or the state government. The plot owner applies for the sanction of the map for the proposed building in accordance with the building bye laws and the Unified Building Bye Laws as prescribed by the Urban Ministry of the central government. Once the building plan is sanctioned, the owner of the plot has to comply with the conditions and construct the building as per the sanction. Several aspects related to the construction are regulated by the local authorities such as Fire Department, Lift
Department, Electricity Department, Water Supply Department, Severe Disposal Department, and Ground Water Authority etc.
Once the construction of the building is completed, the owner has to seek the occupancy or the completion certificate from the local authority which is mainly the building department of the municipality. It involves the inspection of the building from structural safety point, compliance of the building bye laws etc. The completion certificate to the building is issued thereafter which make the house fit for human habitation. The water supply connection, sewer connection, electricity connection are granted only thereafter by the concerned departments.
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Demolition of Property – Important Words & Concept Explanations
Layout plan: The plan for the plot showing its lay out and location of the building and other facilities.
Building plan: The plan showing the entire technical details of the proposed building with its dimensions. It also includes the depiction of the electrical wiring, location of kitchen, toilets, shafts, lifts, staircase and all other specific details.
Key plan: It is part of the building plan showing all the technical details and dimensions of the building.
Compounding: The permitted deviations which can be compounded by paying penalty or some extra charges.
Unauthorized construction: The construction carried on beyond plan for a building.
Illegal construction: The construction done without sanction plan of the building.
Encroachment: Constructing beyond the plot mainly on government land adjoining the plot.
Demolition of building: It is done by the building department of the municipality or the municipal corporation under the law for demolishing the offending parts of the building which are in deviation of the sanctioned building plan.
Deviations: The constructions or location of facilities that are in deviations of the building from the sanctioned plan which are not permitted.
BUILDING BYE LAWS:
The sanctioned map becomes the basic as well legal document to determine any construction in the building. If subsequently the owner or occupier of the building makes any additions and alterations in the building from the sanctioned building plan, the same is illegal. Of course the owner or the occupier has the right to seek modification, addition and alteration in the constructed building after seeking permission from the building department of the municipality or the municipal corporation.
The building bye laws are notified documents having statutory force and the building plan is sanctioned strictly in accordance with the same. Any deviation or addition or alteration in the sanctioned plan, not in accordance with the building bye laws would lead to action by the municipal authorities.
Thus it is clear that the building bye laws regulate the entire building and the sanction plan of the building is the sacrosanct document which is to be followed under all circumstances.
DEVIATION, ADITION AND ALTERATION IN THE BUILDING:
The building bye-laws permit nominal deviation by way of addition and alteration in the sanctioned building plans which are also regulated. In most of the cities, specific permission is to be taken from the building department before the renovation, addition, and alteration in the already constructed building. Furthermore, in some cities like Delhi, there are permitted deviations which do not need any permission or sanction if done in accordance with the notifications issued by the building departments.
If there is a case any deviation, addition, or alteration is noticed in the building at any stage, the municipal authorities are empowered to take action against the offending building.
PROCESS OF ACTION BY MUNICIPALITY
In most of the cities, there are specific provisions with regard to the process of handing any deviation from the building bye laws or the sanctioned building plan. The offending building is inspected by the officials from the Building Department. A notice describing the deviations and violations is issued mostly along with a map of the building and the deviations made therein. The offending building owner or the occupier is asked to submit his reply. After the receipt of the reply or after the period prescribed under the notice is lapsed, action for demolition of the offending part of the building is ordered. The final order of demolition or sealing is also served on the building owner or the occupier.
The owner of the building or the occupier has a right to challenge the action initiated against him before the courts. Mostly in cities there are Tribunals created to handle such cases or the party can directly approach the High Court by filing a writ petition.
HOW TO GET STAY ON DEMOLITION OF PROPERTY
The process of getting stay on demolition of property is mainly guided by law which is in form of the municipal corporation Acts or the bye laws prescribed by the municipalities.
In metropolitan cities, there are municipal corporations Acts which regulate the entire process.
In most of the cases, the building department issues a notice, mentioning the encroachments, deviations, illegal construction or unauthorized construction. There is a map attached to the notice which depicts the deviations.
In most of the cases, there is a description of the deviation and the unauthorized construction by narration.
The occupier or the owner of the building is asked to submit their reply to the same or stop the ongoing construction as the case may be.
If the owner or occupier is able to submit the reply, then it is considered by the authorities however in most of the cases, it is treated like a ritual only.
The authorities thereafter pass an order in accordance with the Act which can be either stoppage of work order or demolition order.
The authorities can also pass order for sealing of the premises if such grounds are made by them.
The owner or occupier of the building has the right to approach the Tribunal or the court as per the provisions of the applicable Act. In some cases he can also approach the High Courts under writ jurisdiction under extraordinary circumstances.
The courts mostly entertain the challenge and ask the authorities to submit a status report.
In some cases, courts also seek evidence if required and based on which it proceeds.
The matter is then decided by the courts based on the facts of the case and the provisions of the municipal Act.
If it is noticed by the court that there is some irregularity in the process or service of notice, the court restrains the municipal authorities from taking any action.
In some cases, the civil courts also issue stay order on such processes and the property is protected from demolition.
For getting a stay on demolition of the property, it is always better to get the services of the best lawyer for filing the appeal, writ or the civil suit before the court.
LEGAL ISSUES INVOLVED:
It has been observed that the authorities very often initiate action against the offending building without describing the status of the construction.
It has also been observed that the authorities do not take care to ensure the service of the notice on the owner or occupier of the building.
In most of the cases, we find that sufficient time to reply the notice is not given by the authorities and the orders on stoppage of construction, demolition, sealing is passed hurriedly even without waiting for the reply. This is a clear violation of the Rules of Natural Justice and most of the courts accept the challenge to such orders.
As in news now a days, the proceedings against the offending building is very often initiated on selective basis and on extraneous reasons which can be political as well.
DIRECTIONS BY COURTS – Demolition or Property
The Supreme Court has elaborately dealt with this subject on several occasions and has issued comprehensive directions to deal such situations. It is to be followed in such cases by the municipal authorities and in case there is any violation of the said directions, the affected person is at liberty to take up the matter before courts.
Supreme Court has determined and issued specific directions prescribing the process for the authorities of Maharashtra to follow in such cases. Civil Appeal Nos. 7627 and 7626 of 2019, decided On: 24.10.2019 titled as “Municipal Corporation of Greater Mumbai Vs. Sunbeam High Tech Developers Private Ltd.” The court had issued specific directions for handling such cases by the Mumbai Municipal Corporation, the relevant part of the directions issued by the Supreme Court is reproduced hereunder:
“23. We also would like to give further directions regarding the manner in which the evidence of illegal construction/reconstruction etc., is collected and notices are issued and served. We, therefore, issue the following directions:
(1) It will be obligatory for all Municipal Corporations in the State of Maharashtra where the population is 50 lakhs or more to get geomapping and geo-photography of the areas under their jurisdiction done within a period of one year. Geomapping will also be done of an area of 10 Kms. from the boundary of such areas. The records should be maintained and updated by the Municipal Corporations within such time period as the Municipal Corporation deems fit, keeping in mind the specific circumstances of the area under its jurisdiction.
(2) Whenever any new area, which is not already geomapped, is brought under the jurisdiction of a particular municipality, it will be the duty of the concerned Municipal Corporation to ensure that geomapping of the area is conducted and the geomapping records of such area are created at the earliest.
(3) In cases where buildings are already existing and it is alleged by the Municipal Corporation that the building has been constructed in violation of applicable laws:
3.1. The Commissioner/Competent Authority on coming to know that an illegal building has been constructed, shall issue a show cause notice giving 7 days in terms of Section 351 to the owner/occupier/builder/contractor etc. Along with this notice the Commissioner/Competent Authority shall also send photographs and visual images taken on the site clearly depicting the illegal structure. Photographs and images should digitally display the time and date of taking the photographs;
3.2. In case the notice is not replied to within the time prescribed, i.e., 7 days, then the building shall be immediately demolished by the Municipal Corporation;
3.3. In case the owner files a reply to the notice, the Commissioner/Competent Authority of the Municipal Corporation shall consider the reply and pass a reasoned order thereon. In case the reply is not found satisfactory then the order shall be communicated in the manner laid down hereinafter to the owner/occupier/builder/contractor etc. giving him further 15 days’ notice before demolition of the property. During this period the owner/occupier/builder/contractor etc. can approach the appellate/revisional authority or the High Court.
(4) In those cases where according to the municipal corporation there is ongoing construction which is being carried on in violation of the applicable laws:
4.1. The Commissioner/Competent Authority on coming to know that there is ongoing construction in violation of the applicable laws shall issue a show cause notice giving 24 hours in terms of Section 351 to the owner/occupier/builder/contractor/architect etc. Along with this notice the Commissioner/Competent Authority shall also send photographs and visual images taken on the site clearly depicting the illegal structure. Photographs and images should digitally display the time and date of taking the photographs;
4.2. The Commissioner/Competent Authority can also issue an interim ‘stop-construction’ order along with the notice or any time after issuing the notice. Such order shall also include the relevant pictures of the alleged violation(s). Photographs and images should digitally display the time and date of taking the photographs;
4.3. In case the notice is not replied to within the time prescribed, i.e., 24 hours, then the building shall be immediately demolished by the Municipal Corporation;
4.4. In case the owner/occupier/builder/contractor/architect etc. files a reply to the notice, the Commissioner/Competent Authority of the Municipal Corporation shall consider the reply and pass a reasoned order thereon. In case the reply is not found satisfactory then the order shall be communicated in the manner laid down hereinafter to the owner/occupier/builder/contractor/architect etc. giving him further 7 days’ notice before demolition of the property. During this period the owner/occupier/builder/contractor/architect etc. can approach the appellate/revisional authority or the High Court.
(5) In regard to service of notice we direct as follows:
5.1. Wherever possible notice shall be served personally on the person who is raising or has raised the illegal structure including the owner/occupier/builder/contractor/architect etc.;
5.2. Notice, in addition to the traditional mode, can also be sent through electronic means, both by e-mail and by sending a message on the mobile phones. Even a message to a foreman or person in-charge of the construction at the site will be deemed to be sufficient notice;
5.3. In the notice, the municipal authorities shall also give an e-mail ID and phone number where the noticee can send his reply through e-mail or messaging services. This will hopefully do away with all disputes with regard to alleged non-service of notice.
(6) Till the State frames any laws in this regard, we direct that before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists. They will also provide an e-mail ID and mobile phone number on which notice(s), if any, can be sent. This map can be taken on record and, thereafter, the construction can be permitted. In such an eventuality even if the demolition is illegal it will be easy to know what were the dimensions of the building. This information should not only be in paper form in the nature of a plan, but should also be in the form of 3D visual information, in the nature of photographs, videos etc.”
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