MCD Lawyers
"How to get stay on demolition Notice of MCD"
By Advocate N.K.Sharma
How to get stay on demolition of property?
"How To Get Stay On Demolition Notice of MCD"
By Advocate N.K.Sharma
After the Kangana Ranaut incident, the topic of property demolition due to unauthorised construction, unlawful construction, and encroachment is in the headlines. To be able to respond quickly to such a circumstance, we must comprehend the aforementioned ideas. We may very easily grasp how to obtain a stay on property destruction if we are aware of the legal requirements and the associated problems. This would be very helpful in addressing such situations.Unauthorized building, illegal construction, and encroachment disputes are frequent in urban areas, especially in large cities like Delhi and Mumbai.It is made worse by the fact that the government or the relevant officials frequently choose to take discriminatory action against a specific property.
Most often, the municipal corporation’s executives select out any property for their own purposes. We observe the similar situation right now with the Kangna Ranaut controversy that is receiving widespread media coverage.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 building’s construction is complete, the owner must request an occupancy or completion certificate from the local authority, which is often the municipality’s building department. It include checking the structure’s structural safety, ensuring compliance with building regulations, etc. Following that, the building’s completion certificate is issued, certifying that the home is ready for occupancy. Only after approval by the relevant departments are the water supply connection, sewer connection, and power connection provided
Demolition of Property – Important Words & Concept Explanations
- The plot's layout and the locations of the building and other facilities are shown on the plan.
- 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: A building's construction continued after it was not intended to.
- Illegal construction: The construction done without sanction plan of the building.
- Encroachment: Constructing beyond the plot mainly on government land adjoining the plot.
- Building demolition: In accordance with the legislation, the municipality's or the municipal corporation's structure department must destroy any portions of a building that are in violation of the approved building design.
- 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 :
A legal map that has been approved serves as the foundation for any building construction. Subsequent additions and adjustments to the structure made by the owner or occupant that depart from the approved building design are prohibited. Of course, the owner or occupant has the right to request modifications, additions, and alterations in the built structure after requesting approval from the municipality’s or municipal corporation’s building department. The building bye laws are notified papers with legal authority, and the construction plan must precisely adhere to them in order to be approved. The local authorities would take action if there was any variation from the approved plan, or if anything was added or changed that wasn’t allowed under the building bylaws.
Thus, it is evident that the building bye laws govern the entire structure and that the building’s sanction plan is a sacred document that must be adhered to at all costs.
.
Deviation, Addition And Alteration In The Building
The building bye-laws allow for a small amount of variation in the approved building designs, which are also governed. In the majority of communities, the building department must be specifically consulted before any renovations, additions, or alterations are made to an existing structure. Furthermore, if permissible deviations are carried out in line with the notices issued by the building departments, certain cities, like Delhi, do not require approval or authorization.
The municipal authorities have the authority to take action against the offending building in the event that any deviation, addition, or alteration is discovered in the structure at any time.
Process Of Action By Municipality
The majority of communities have precise rules about how to handle any deviations from approved building plans or building bye laws. Building Department representatives inspect the problematic structure. The majority of the time, a notice outlining the violations and deviations is provided along with a map of the structure and the deviations made inside. It is requested that the infringing building owner or occupant provide his response. Action for the deconstruction of the offending portion of the structure is ordered following receipt of the reply or after the expiration of the time frame specified in the notification. The owner or occupant of the structure is also served with the final demolition or sealing order.
The owner or occupant of the building has the right to appeal the legal action taken against him. The majority of cities have tribunals set up to handle matters like this, or the party can file a writ petition to go straight to the High Court.
How To Obtain a Stay On Property Demolition
The procedure of obtaining a halt to property destruction is mostly governed by legislation, which takes the form of municipal corporation Acts or bye laws established by municipalities. There are municipal corporations Acts in major cities that govern the entire procedure.
A notification stating encroachments, deviations, unlawful construction, or unapproved construction is often issued by the building department. The notification is accompanied with a map that shows the deviations. The majority of the time, the narrator describes the diversion and the unlawful building.
The building’s occupant or owner is requested to respond to the same or, in some cases, discontinue any continuing development.
If the authorities have such justification, they may also issue a seal-the-premises order. According to the requirements of the relevant Act, the building’s owner or occupant has the right to file a complaint with the Tribunal or a court. He may even use the High Courts’ writ jurisdiction in certain situations if the situation calls for it. Most of the time, the courts grant the appeal and order the government to provide a status report. When necessary and based on that evidence, courts will occasionally request more evidence.
Lega Issues Involved :
It has been noted that quite frequently, the authorities take enforcement action against the violating structure without outlining the condition of the work. Additionally, it has been noted that the authorities do not take the necessary precautions to guarantee that the owner or occupant of the structure receives the notification. Most of the time, we discover that the authorities don’t allow the notice recipients enough time to respond, and hastily issued orders to stop work, demolish buildings, or shut off areas before receiving a response. The majority of courts allow challenges to such decrees since this is a blatant breach of the Rules of Natural Justice.
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 extensively discussed this problem on several times and has provided detailed instructions to handle such circumstances. The municipal authorities are required to abide by it in certain circumstances, and the impacted party is free to bring legal action if the aforementioned instructions are broken.
The Supreme Court made a decision and gave clear instructions on the procedure that the Maharashtra government must follow in such situations. Municipal Corporation of Greater Mumbai v. Sunbeam High Tech Developers Private Ltd., Civil Appeal Nos. 7627 and 7626 of 2019, determined on: 24.10.2019 The relevant portion of the Supreme Court’s directives are reprinted below. The court had provided explicit instructions for addressing such situations by the Mumbai Municipal Corporation.
“23. We also want to provide more instructions on how to gather evidence of illegal building, reconstruction, etc., and how to issue and deliver notifications. Consequently, we give the following instructions:
(1) Within a year, all Municipal Corporations in the State of Maharashtra having a population of 50 lakh people or more must have the regions under their control geomapped and photographed. Additionally, a 10-kilometer radius from the perimeter of such locations will be geomapped. The records must be updated and maintained by the municipal corporations within the time frame that they feel appropriate, taking into account the unique conditions of the territory under their authority.
(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 or Competent Authority shall send a show cause notice to the owner, occupant, builder, contractor, etc., granting 7 days in accordance with Section 351, upon learning that an unauthorised structure has been built. The Commissioner/Competent Authority shall additionally submit visual photos and photographs taken on the site that clearly show the unauthorised building together with this warning. The time and date the image was taken should be digitally shown on 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 the event that the owner responds to the notification, the Commissioner/Competent Authority of the Municipal Corporation shall take the reply into consideration and issue a reasoned order. If the response is not deemed acceptable, the owner, occupant, builder, contractor, etc. will be notified in the manner described below and given an additional 15 days’ notice before the property is demolished. The owner, occupant, builder, contractor, etc. may seek redress from the appellate or revisional authority or from the High Court within this time.
(4) In the event that continuing construction is being done in defiance of the relevant legislation, as claimed by the municipal corporation:
4.1. The Commissioner or Competent Authority must give a show cause notice to the owner, occupier, builder, contractor, architect, etc. within 24 hours of learning that construction is taking place in a manner that violates the applicable legislation. The Commissioner/Competent Authority shall additionally submit visual photos and photographs taken on the site that clearly show the unauthorised building together with this warning. The time and date the image was taken should be digitally shown on 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. The Municipal Corporation shall demolish the structure without delay if the notification is not responded to within the allotted period, which is 24 hours;
4.4. The Commissioner/Competent Authority of the Municipal Corporation shall assess the reply and give a reasoned order thereon in the event that the owner, occupier, builder, contractor, architect, etc. files a response to the notice. If the response is not deemed acceptable, the order must be informed to the owner, occupant, builder, contractor, architect, etc. in the manner described below, providing him an additional 7 days’ notice before the property is demolished. The appellate/revisional authority or the High Court might be contacted during this time by the owner, the occupant, the builder, the contractor, the architect, etc.
(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) Until the State enacts legislation in this area, we order that before any construction, reconstruction, or repair work that is not a tenantable repair is done, the owner, occupier, builder, contractor, architect, in fact, all of them, be required to provide a plan of the structure as it currently stands. Additionally, they will include a cell phone number and email address where any notices, if any, can be delivered. The construction can then be approved when this map is officially recorded. Even if the destruction is unlawful in this case, it would still be simple to determine the building’s measurements. This information should not only be in paper form in the nature of a plan, but should also be in the form of
(6) Until the State enacts legislation in this area, we order that before any construction, reconstruction, or repair work that is not a tenantable repair is done, the owner, occupier, builder, contractor, architect, in fact, all of them, be required to provide a plan of the structure as it currently stands. Additionally, they will include a cell phone number and email address where any notices, if any, can be delivered. The construction can then be approved when this map is officially recorded. Even if the destruction is unlawful in this case, it would still be simple to determine the building’s measurements. This information should not only be in paper form in the nature of a plan, but should also be in the form of