Unauthorized Constructions in India

Unauthorized Constructions in India: A Legal Analysis of Permission, Enforcement, and Judicial Scrutiny

Introduction

The phenomenon of "construction without permission," encompassing structures erected without prior legal sanction or those deviating significantly from approved plans, poses a persistent challenge to urban governance and environmental sustainability in India. Planned urban development is crucial for ensuring public safety, preserving environmental integrity, and providing essential civic amenities. Unauthorized constructions undermine these objectives, often leading to structural hazards, overburdened infrastructure, and chaotic urban sprawl.[5] The legal framework in India, comprising various municipal corporation acts, state-specific town planning legislations, and environmental regulations, unequivocally mandates prior permission for construction activities. This article critically examines the legal regime governing unauthorized constructions in India, focusing on the statutory requirements for permission, the mechanisms for enforcement against violations, and the robust jurisprudence evolved by the Indian judiciary. The Supreme Court of India, in a series of landmark pronouncements, has consistently adopted a stringent stance against such illegalities, often prioritizing demolition over regularization for substantial violations to uphold the rule of law and safeguard public interest. Cases such as Priyanka Estates International Private Limited And Others v. State Of Assam And Others[1], Dipak Kumar Mukherjee v. Kolkata Municipal Corporation And Others[2], Esha Ekta Apartments Cooperative Housing Society Limited And Others v. Municipal Corporation Of Mumbai And Others[3], and Supertech Limited v. Emerald Court Owner Resident Welfare Association And Others[4] serve as significant milestones in this judicial endeavor.

The Imperative of Prior Sanction: Statutory Mandates

A foundational principle underpinning building law in India is the mandatory requirement of obtaining prior sanction from the competent municipal or planning authority before commencing any construction or reconstruction. This is not a mere procedural formality but a substantive legal obligation designed to ensure that development aligns with master plans, zoning regulations, building bye-laws, and safety standards.

Various state and local statutes explicitly codify this requirement. For instance, in Krushna Kishore Bal v. Sankarsan Samal And Others (1973), the Orissa High Court referred to Section 266 (of the relevant Orissa Municipal Act), which enjoins that construction or reconstruction shall not begin unless and until the Executive Officer has granted permission.[8] Similarly, the Madras High Court in Mayandi Chettiar v. Madura Municipality (1940) highlighted provisions like Section 197 (requiring an application for approval of site and permission to execute work) and Section 199 (prohibiting commencement of construction until permission is granted) of the then-applicable Madras District Municipalities Act.[9] The Supreme Court in Mahendra Baburao Mahadik And Others v. Subhash Krishna Kanitkar And Others (2005) noted the necessity of giving notice under sub-section (2) of the relevant statute before initiating construction, with permission to be granted by the Chief Officer or the Council.[11] Further, the Madras High Court in P.A Rani Etc. v. K.G Krishnan And Others (1994) affirmed that Section 48 of the Tamil Nadu Town and Country Planning Act, 1971, makes it impermissible to undertake construction without obtaining written permission from the Planning Authority.[20] These statutory provisions typically require submission of detailed site plans, building plans, elevations, sections, and specifications for scrutiny by the authorities.[9]

Consequences of Construction Without Permission

Engaging in construction activity without the requisite permission or in contravention of sanctioned plans invites severe consequences, ranging from administrative actions like stop-work notices and demolition orders to penal sanctions and judicial interventions mandating punitive measures.

Powers of Authorities to Interdict and Demolish

Municipal and development authorities are vested with extensive powers to address unauthorized constructions. Upon detection of illegal activity, authorities can issue stop-work notices to halt further construction.[11] If construction proceeds despite such notices or is completed unlawfully, these bodies are empowered to order the demolition of the offending structures. The Supreme Court in Mahendra Baburao Mahadik observed that the Chief Officer may, by written notice, require the person to stop construction and alter or demolish any construction already made.[11] The Orissa High Court in Krushna Kishore Bal noted Section 273-A, which confers power on the Executive Officer to demolish constructions unlawfully commenced, carried on, or completed.[8] Similarly, Section 478 of the relevant Act, as discussed by the Supreme Court in Municipal Corporation Of The City Of Ahmedabad v. Ben Hiraben Manilal (1983), deems any work done without written permission of the Commissioner as unauthorized, empowering the Commissioner to require its removal or pulling down.[12] The Tamil Nadu Town and Country Planning Act, 1971, under Section 56(1)(a)(i), also provides for demolition in cases of construction without permission.[20]

However, the exercise of such drastic powers is generally subject to principles of natural justice. The Supreme Court in Priyanka Estates[1] (citing Muni Suvrat-Swami Jain S.M.P Sangh v. Arun Nathuram Gaikwad[1]) emphasized the necessity of issuing show-cause notices before demolition orders. The Madras High Court in S.PAULPANDIAN v. THE ADDITIONAL SECRETARY (TECHNICAL) (2025) issued directions for a prior show-cause notice, returnable either in accordance with local municipal laws or within 15 days, whichever is later, before carrying out demolition.[16]

Penal Sanctions

Beyond demolition, statutory provisions often prescribe penal sanctions for unlawful building. Section 385-A, discussed in Krushna Kishore Bal, stipulates fines for construction carried on or completed otherwise than in accordance with permissions, including further daily fines for continuing offences.[8] The imposition of such penalties does not preclude other enforcement actions. As held in Ashok Chandak v. State Of A.P. (2010), citing Corpn. of Calcutta v. Mulchand Agarwalla (AIR 1956 SC 110), a previous conviction under a municipal act for unauthorized construction will not bar a subsequent prosecution for a breach of Building Rules, as the defaults are distinct.[23]

Judicial Mandates for Demolition

The Supreme Court of India has consistently demonstrated a firm resolve in ordering or upholding demolition of significantly unauthorized constructions, particularly those undertaken in blatant disregard of law. In Priyanka Estates, the Court upheld the demolition of three unauthorized upper floors.[1] A "zero tolerance" approach was articulated in Dipak Kumar Mukherjee, where the Court ordered the complete demolition of unauthorized storeys, emphasizing that such constructions are against public interest.[2] This stance was reiterated in Esha Ekta Apartments, directing demolition of illegal structures built beyond the sanctioned Floor Space Index (FSI).[3] Perhaps one of the most prominent examples is the Supertech Limited case, where the Apex Court ordered the demolition of two entire 40-storey towers due to violations of building regulations and lack of consent from existing residents.[4] More recently, in RAJENDRA KUMAR BARJATYA . v. U.P. AVAS EVAM VIKAS PARISHAD . (2024), the Supreme Court confirmed a High Court order for demolition of unauthorized construction and issued directions for its expeditious execution.[17]

The Limited Scope of Regularization and Compounding

While some statutes provide for the compounding or regularization of minor deviations from sanctioned plans, the judiciary has consistently cautioned against the liberal or routine use of such provisions, especially for substantial and deliberate violations. The Supreme Court in Friends Colony Development Committee criticized the tendency to treat compounding as a routine measure and advocated for minimal leniency towards professional builders who are expected to know and comply with regulations.[5]

The Allahabad High Court in Sardar Mahendra Singh v. Commissioner/Chairman, Mussoorie Dehradoon Development Authority (1997) observed that the moment compounding is suggested, it implies an admission that the constructions are unauthorized. Crucially, it held that an illegality which is incurable, such as constructions violating setback rules or street alignment, can never be compounded, citing K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, Udipi And Others.[18] This view was echoed in Suraksha Rani Chopra and Anr. v. State of U.P.& Ors. (2005), stating that compounding cannot be had for the mere asking.[24]

The Supreme Court has clarified that certain violations are non-compoundable. In Priyanka Estates, the addition of extra floors was categorized as a non-compoundable violation under the relevant bye-laws, mandating demolition.[1] In Dipak Kumar Mukherjee, the Court found Rule 25 of the Calcutta Municipal Corporation Building Rules, which allowed for revision of plans, inapplicable for post-construction regularization of blatant violations undertaken in defiance of stop-work notices.[2] Similarly, Esha Ekta Apartments underscored the principle of non-regularization for deliberate and significant violations.[3]

Upholding Public Interest and Planned Development

The judiciary's stringent approach towards unauthorized constructions is rooted in the imperative to protect public interest, ensure planned urban development, and uphold the sanctity of environmental and building regulations.

The Public Trust Doctrine

The Public Trust Doctrine, which posits that certain natural resources and public properties are held by the state in trust for the benefit of the public, has been invoked to invalidate unauthorized constructions on public land. In M.I Builders Pvt. Ltd. v. Radhey Shyam Sahu And Others (1999), the Supreme Court quashed the construction of an underground shopping complex in a public park, holding that the Mahapalika (municipal corporation) had breached its fiduciary duty as a trustee of public property. The Court relied on the principles articulated in M.C Mehta v. Kamal Nath.[6]

Sanctity of Town Planning Schemes and Building Regulations

Adherence to town planning schemes and building regulations is paramount for orderly urban growth. In K. Ramadas Shenoy, the Supreme Court held that the conversion of a Kalyana Mantap (marriage hall) into a cinema theatre in a residential zone violated the Town Planning Scheme, and such an illegality was incurable.[7] The Supertech Limited case saw the demolition of towers due to violations of the National Building Code (NBC) and other regulations concerning minimum distance between towers, Floor Area Ratio (FAR), and setbacks.[4] The Andhra Pradesh High Court in V. Narasimham And Another v. Greater Hyderabad Municipal Corporation, Hyderabad And Another (2007) emphasized the need for strict adherence to Master Plans, citing Supreme Court decisions in M.C. Mehta v. Union of India and S.N. Chandrasekhar v. State of Karnataka, which dealt with illegal land use changes.[13]

Rights of Residents and Purchasers

Unauthorized constructions often impinge upon the rights of existing residents and unsuspecting purchasers. The Supreme Court in Supertech Limited highlighted that modifications affecting common areas required the consent of the Residents' Welfare Association (RWA) under the Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010, and ordered refunds with interest to buyers in the towers slated for demolition.[4] The Court in V. Narasimham suggested that unwary purchasers affected by demolitions must be adequately compensated by the builder.[13] However, in Esha Ekta Apartments, it was observed that flat buyers who were aware of the unauthorized nature of the construction at the time of purchase have limited recourse in seeking regularization.[3]

Addressing Collusion and Official Accountability

The judiciary has taken serious note of the unfortunate reality that rampant unauthorized constructions often occur due to collusion between developers and officials in planning authorities. The Supreme Court in Supertech Limited explicitly pointed out the collusion between the developer and the New Okhla Industrial Development Authority (NOIDA).[4] This concern was echoed by the Madras High Court in M.SHANMUGASUNDARAM v. THE ASSISTANT DIRECTOR (2025), which cited Supertech on how such collusion contributes to the problem.[14]

Consequently, courts have called for fixing accountability on erring officials. The Andhra Pradesh High Court in V. Narasimham stressed that responsibility should be fixed on officials whose duty it was to prevent unauthorized constructions but who failed to do so, either through negligence or connivance.[13] The Supreme Court in RAJENDRA KUMAR BARJATYA directed that appropriate criminal as well as departmental action be taken against the erring officials involved.[17] The Himachal Pradesh High Court in radhey shyam v. principal director defence estate western command and others (2019) lamented the support often extended by the state apparatus to lobbies seeking regularization of illegal constructions, thereby undermining planned development.[15]

Special Contexts and Considerations

The legal principles governing unauthorized constructions apply with added stringency in ecologically sensitive or specially regulated zones.

Constructions in Regulated Zones

In Piedade Filomena Gonsalves v. State Of Goa And Others (2004), the Supreme Court dealt with construction raised without permission within a Coastal Regulation Zone (CRZ). It affirmed that violations of CRZ Notifications, issued to protect coastal environments, cannot be lightly condoned and dismissed the appeal against demolition.[22] Similarly, specific restrictions apply to constructions near military establishments, often requiring approval from high-ranking military officers, as highlighted in Travels Star Hotels (India) Limited v. Union Of India And Others (2009) by the Punjab & Haryana High Court.[10]

Procedural Fairness in Enforcement

While advocating strict enforcement, courts also ensure adherence to procedural fairness. The Supreme Court in Priyanka Estates, referencing precedents like Muni Suvrat-Swami Jain S.M.P Sangh and Olga Tellis v. Bombay Municipal Corpn., underscored the importance of natural justice, including the issuance of show-cause notices before demolition.[1] The Madras High Court in S.PAULPANDIAN laid down specific directions regarding notice periods and time for occupants to vacate, though these directions were stated not to apply to unauthorized structures in public places, on or abutting water bodies, or where demolition is ordered by a court.[16] The Kerala High Court in M/S Essar Telecom Infrastructure (P) Ltd. v. State Of Kerala & Ors. (2011) discussed specific licensing requirements under the Kerala Panchayat Raj (Licensing of Dangerous Trade) Rules, 1996, and permission for establishing workplaces using power under Section 233 of the Kerala Panchayat Raj Act, indicating that local laws may impose additional layers of permission for certain types of structures or activities.[21] Furthermore, construction without the permission of the rightful landowner, such as a temple, also constitutes an actionable wrong, as seen in Mohammed Rafiq (died) & Others v. Arulmigu Pasupatheeswarar Swamy Koil, Avoor (2020).[19]

Conclusion

The legal landscape in India concerning construction without permission is characterized by a strong statutory framework mandating prior sanctions and a judiciary that has consistently adopted a firm stance against unauthorized activities. Landmark decisions from the Supreme Court, including Priyanka Estates, Dipak Kumar Mukherjee, Esha Ekta Apartments, and Supertech Limited, alongside foundational rulings like Friends Colony Development Committee, M.I Builders, and K. Ramadas Shenoy, have established clear principles prioritizing the rule of law, planned urban development, public safety, and environmental protection over private interests seeking to legitimize illegal constructions. While procedural fairness is ensured, the overarching message is one of zero tolerance for substantial and deliberate violations. The limited scope for regularization and compounding, coupled with calls for accountability of colluding officials, underscores the judiciary's commitment to curbing this menace. Despite this clear legal position, the persistence of unauthorized constructions highlights the ongoing challenges in administrative enforcement and the continuous need for vigilance from both authorities and citizens to ensure that urban development proceeds in a lawful, orderly, and sustainable manner.

References

  1. Priyanka Estates International Private Limited And Others v. State Of Assam And Others (2010 SCC 2 27, Supreme Court Of India, 2009)
  2. Dipak Kumar Mukherjee v. Kolkata Municipal Corporation And Others (2013 SCC 5 336, Supreme Court Of India, 2012)
  3. Esha Ekta Apartments Cooperative Housing Society Limited And Others v. Municipal Corporation Of Mumbai And Others (2013 SCC 5 357, Supreme Court Of India, 2013)
  4. Supertech Limited v. Emerald Court Owner Resident Welfare Association And Others (2021 INSC 427, Supreme Court Of India, 2021)
  5. Friends Colony Development Committee v. State Of Orissa And Others (2004 SCC 8 733, Supreme Court Of India, 2004)
  6. M.I Builders Pvt. Ltd. v. Radhey Shyam Sahu And Others (1999 SCC 6 464, Supreme Court Of India, 1999)
  7. K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, Udipi And Others (1974 SCC 2 506, Supreme Court Of India, 1974)
  8. Krushna Kishore Bal v. Sankarsan Samal And Others (Orissa High Court, 1973)
  9. Mayandi Chettiar v. Madura Municipality (Madras High Court, 1940)
  10. Travels Star Hotels (India) Limited v. Union Of India And Others (Punjab & Haryana High Court, 2009)
  11. Mahendra Baburao Mahadik And Others v. Subhash Krishna Kanitkar And Others (Supreme Court Of India, 2005)
  12. Municipal Corporation Of The City Of Ahmedabad v. Ben Hiraben Manilal . (Supreme Court Of India, 1983)
  13. V. Narasimham And Another v. Greater Hyderabad Municipal Corporation, Hyderabad And Another (Andhra Pradesh High Court, 2007)
  14. M.SHANMUGASUNDARAM v. THE ASSISTANT DIRECTOR (Madras High Court, 2025)
  15. radhey shyam v. principal director defence estate western command and others (Himachal Pradesh High Court, 2019)
  16. S.PAULPANDIAN v. THE ADDITIONAL SECRETARY (TECHNICAL) (Madras High Court, 2025)
  17. RAJENDRA KUMAR BARJATYA . v. U.P. AVAS EVAM VIKAS PARISHAD . (Supreme Court Of India, 2024)
  18. Sardar Mahendra Singh v. Commissioner/Chairman, Mussoorie Dehradoon Development Authority (1997 SCC ONLINE ALL 3, Allahabad High Court, 1997)
  19. Mohammed Rafiq (died) & Others v. Arulmigu Pasupatheeswarar Swamy Koil, Avoor by its Executive Officer, Temple premises, Valangaiman (2020 SCC ONLINE MAD 26400, Madras High Court, 2020)
  20. P.A Rani Etc. v. K.G Krishnan And Others (1994 SCC ONLINE MAD 94, Madras High Court, 1994)
  21. M/S Essar Telecom Infrastructure (P) Ltd. v. State Of Kerala & Ors. (2011 SCC ONLINE KER 3925, Kerala High Court, 2011)
  22. Piedade Filomena Gonsalves v. State Of Goa And Others (2004 SCC 3 445, Supreme Court Of India, 2004)
  23. Ashok Chandak v. State Of A.P. (Andhra Pradesh High Court, 2010)
  24. Suraksha Rani Chopra and Anr. v. State of U.P.& Ors. (Allahabad High Court, 2005)