What is illegal & unauthorised construction?
The Commissioner has authority to approve any plan, section, description, structural drawings or structural calculations for making construction within city limits. Permission of the Commissioner has to taken by every person whoever has intention of making any new construction on a site or; reconstructing:
- Any building of which more than one-half of the cubical contents of the building above the level of the plinth have been pulled down, burnt, or destroyed, or
- Any masonry building of which more than three-fourths of the superficial area of the external walls above the level of the plinth has been pulled down, or
- Any frame building of which more than three quarters of the number of the posts or beams in the external walls have been pulled down; or
Even conversion of any building into a stall, shop, warehouse or godown; making structural alteration two or more tenements into greater or lesser number; conversion of single dwelling house to more; roofing or cover an open space between walls or buildings; etc. will be taken as constructing a property.
A notice is needed to be sent to the Commissioner, containing all the required & necessary information as prescribed by the laws, by every person who wants to:
- Construct a building within city limits[Section 253 of the Gujarat Provincial Municipal Corporations Act, 1949]; or
- Make alterations to already existing building within city limits. [Section 254 of the Gujarat Provincial Municipal Corporations Act, 1949]
If a person fails to provide required documents as per the directions given by the Commissioner (while approving any plan, section, description, structural drawings or structural calculations for purpose of constructing a building), then such non-compliance would be considered as a failure to not serving the required notice to the Commissioner under Section 253 or Section 254. [Section 256 of the Gujarat Provincial Municipal Corporations Act, 1949]
The Commissioner has authority to decline any plan, section, description, structural drawings or structural calculations which are not provided in a lawful manner.[Section 255 of the Gujarat Provincial Municipal Corporations Act, 1949]
So if any construction is made without the approval or against the directions of the Commissioner then it will be said to illegal and unauthorised.
How does the authority ensure that lawful constructions taking place within city?
During any time of an ongoing construction or at any time within three months after the completion of it, the Commissioner by written notice can specify any matter in respect of which such construction is contravening the law &; direct the person to follow the required lawful steps.[Section 262 of the Gujarat Provincial Municipal Corporations Act]
It is duty of every person who has completed the construction of a building within city limits to inform about the same to the Commissioner[Section 263 of the Gujarat Provincial Municipal Corporations Act]
- The owner of such property has to apply for the permission by serving a notice to the Commissioner within period of one month from the date of completion of the work.
- The notice has to include the necessary certificate & all the documents prescribed under the law so that the Commissioner can inspect the building before granting his permission to the owner for occupying its premises & making use of it.
- If no refusal has been expressed to the notice served by the owner of the property from the office of the Commissioner within period of twenty-one days then the owner is free to occupy & start making use of it.
What is the proceeding for unlawful construction?
If the construction of any building has started & on-going, contrary to the laws, the Commissioner can by written notice ask the person to:
- Show sufficient cause why such building or work shall not be removed, altered or pulled down;
- Attend personally or by an agent duly authorized by him to show sufficient cause why such building or work shall not be removed, altered or pulled down, on specified date and time. [Section 260(1) of the Gujarat Provincial Municipal Corporations Act, 1949]
If such person fails to show sufficient cause, the Commissioner may remove, alter or pull down the building or work and the expenses will have to be paid by the said person. [Section 260(2) of the Gujarat Provincial Municipal Corporations Act, 1949]
What steps does the authority take in case unlawfully construction is carried on?
1) The Commissioner can require, by a written notice with the approval of the Standing Committee, for necessary alterations in the construction or pulling down any part of the construction to the permissible extent, from the person who has:
- Done anything contrary to any provision of this Act or of any rule or by-law or;
- Failed to comply with any provision of this Act or of any rule or by-law or;
- Done the construction is far too advanced to permissible under the law. [Section 261(1) of the Gujarat Provincial Municipal Corporations Act, 1949]
If any loss or damage has been suffered by the person due to making changes in the existing construction required by the commissioner & it is found that no unlawful work has been done or is been carried out then such aggrieved person will be provided with the compensation for the same by the Commissioner. [Section 261(2) of the Gujarat Provincial Municipal Corporations Act, 1949]
2) If the Commissioner is satisfied that unlawfully work is carried on then he may direct to stop such construction by serving a written notice to the builder [Section 267 of the Gujarat Provincial Municipal Corporations Act, 1949];
3) If even after such notice has been served but the construction is still carried on & has not been stopped by the builder then the Commissioner can order removal of such a person from such premise by any police officer who is not ready to comply with the notice [Section 267 of the Gujarat Provincial Municipal Corporations Act, 1949];
4) Also, the Commissioner can take necessary steps to prevent the re-entry of such person on the premises without his permission. And all such costs have to be borne by non-complying party. [Section 267 of the Gujarat Provincial Municipal Corporations Act, 1949]
What if there is failure on the part of Municipality in taking necessary steps to demolish an unlawful construction?
If there is failure on part of the Municipality to take necessary steps to demolish an illegal & unauthorised construction within municipal corporation limits then a civil suit can be filed after period of 30 days directing the Municipal Commissioner for removing it.[Section 253 of Gujarat Municipalities Act, 1963]
- Notice in writing is to be issued to the municipality for removal for illegal and unauthorised construction/ structure;
- This notice is to be issued within six months from the date of the accrual of cause of action;
- The suit can be filed (only after inaction from the municipality) after the completion of one month (hence giving sufficient time to the authorities for taking appropriate measures) from the date of sending notice to the municipality;
- The suit is to specify in the notice the cause of action and the name and address of the intending plaintiff and of his advocate, pleader or agent (if any).
Written by Advocate Monika Thakkar
[B.A.LL.B.(Hons.); LL.M. (Business Laws)]