The Supreme Court has set aside a Punjab and Haryana High Court order directing municipal authorities to act against alleged illegal constructions in Gurgaon’s DLF City phases 1 to 5, and asked the High Court to reconsider the matter after hearing all affected parties. Emphasising that due process and opportunity of hearing are essential, the apex court said unauthorised construction cannot be protected but must be determined through proper inquiry by competent authorities.

In its October 28 order, a bench of Justice J K Maheshwari and Justice Vijay Bishnoi said, “…unauthorised or illegal construction commercial use of residential property contrary to the norms, rules and regulations cannot be protected. But the determination of such fact ought to be made by the authorities affording due opportunity to the owners and occupiers.”

The court said that the HC’s February 13 order “appears to be without joining the appellants as party in the writ petition”. “It goes without saying that opportunity of hearing is a sine qua non for fair administration of justice and the observations of the court should not adjudicate the rights of any parties,” it added, according to a report by The Indian Express.

Restoring the petitions before the HC, the SC asked those aggrieved to file applications before the HC within two weeks and the matter to be decided in six months after all concerned are afforded the opportunity of being heard.

The HC order came on petitions filed by DLF City Residents Welfare Association and others seeking directions to municipal authorities “to take appropriate action in furtherance of the Action Taken Reports passed by… District Town Planner (Enforcement),” which “after taking note of the unauthorised construction in areas of DLF City, Gurugram… inter alia… recommended that the Occupation Certificates issued (to) persons/owners who had raised unauthorised construction… be cancelled and further criminal cases be registered”.

The petitions also sought direction “to take appropriate action, including the removal/demolition of the illegal and unauthorised construction in the form of five to seven storey buildings/structures in DLF City, Gurugram”.

The HC noted that after the issue was brought to the notice of the authorities, “a memo dated 25.08.2018 was issued by the office of District Town Planner (Enforcement) to DTP (Planning), observing… that various property owners in DLF Phase III Gurugram had been raising unauthorised constructions beyond the permissible zoning limits, in their respective properties and further that some of these residential properties were also being illegally used for commercial purposes”.

“In view of the above, it was inter alia recommended that the Occupation Certificates of the aforesaid properties may immediately be revoked and that appropriate actions be taken under Act of 1975. Pursuant to the above said memo…, more than two years have lapsed, however, no substantial steps have been taken by the official respondents especially DTP (Planning) to carry out the recommendations of DTP (Enforcement),” it had added.

The HC said that “it is amply clear that a powerful lobby of certain groups/land mafia are ruining the very basic character of the developed colony in active connivance with the local administration/official respondents that too only because the authorities have turned a blind eye and are permitting such illegal and unauthorised constructions/illegal developments; which are coming up at an alarming rate right under their nose”.

Maintaining that the illegal and unauthorised constructions are in clear violation of the zoning plan as well as building byelaws, it added, “…in case such haphazard and unplanned development is not stopped, it will lead to total collapse of over infrastructure of Gurugram, including but not limited to potable drinking water, sewerage, air quality, transport, electricity, other common infrastructure and other facilities and amenities.”

The HC further noted that the authorities were constrained from acting as civil courts, despite the Haryana Development and Regulation of Urban Areas Act, 1975, barring them from matters falling under the Act, had entertained suits filed by the alleged violators and “mechanically and perfunctorily” stayed the operation of the orders passed by the competent statutory authorities.