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Article Published in the Express Magazine Dated
April 8, 2001
General Attorney : Rajiv K. Luthra
Is the builder bound to construct according to
the approved map plan? Or can he make changes to
the construction even after starting the work?
What are the consequences, if the builder refuses
to follow the approved plan?
Naveen Bhagat, Delhi (Similar Query: Pritam Matai,
Pune)
The regulation and bylaws in respect of buildings
are means to serve the public interest and this
falls within the jurisdiction of the specific
Municipal Corporation of each city.
According to the Delhi Municipal Corporation Act,
1957 the owner of a plot or the builder, who
wishes to construct a building, is bound to erect
the building in accordance with the sanction. At
any time during the erection of the building or
after the completion the Commissioner may specify
any matter in respect of which the erection or
execution of any building is contrary or without
the sanction and require the builder or the owner
to make alterations with the object to bring the
building or work in conformity with the sanction.
If the erection of any building or execution of
any work is carried on without approval or
contrary to the sanction, the Commissioner may
order that such work be sealed or demolished by
the person at whose instance the erection or work
has been completed, within a period not less than
five days and not more than fifteen days from the
date of order when received by such person. If the
work is pending completion, the Commissioner may
direct the person to stop work. However, before
any order of demolition is made, the builder shall
be given sufficient opportunity to plead before
the Commissioner stating reasons as to why the
order not be passed. Where the Commissioner has
directed stoppage of work, he may depute a police
officer or a municipal officer at the cost of the
owner to watch the premises to ensure that the
execution of the work is not continued. The
builder always has the option to appeal to a court
against the orders of the Commissioner. In the
event of failure to comply with the prescribed
sanctions, the Act prescribes a penalty of simple
imprisonment, which may extend to six months or
with fine, which may extend to Rs. 5000/- or with
both.
Are the unconstitutional orders of any
authority binding on citizens? Can citizens refuse
to accept such orders?
Pritam Matai, Pune
An unconstitutional order may be in the form of a
direct attack on the fundamental right of a
person. Fundamental rights as slated in Part III
of the Indian Constitution are not absolute and
have limitations prescribed in the Constitution
itself. But the provisions in Part III of the
Constitution are not self-executory and any person
whose fundamental rights are violated by a law or
order of the authorities have the right to seek
assistance of the Court to enforce his rights. The
person whose fundamental rights are violated or
who is aggrieved or effected by an
unconstitutional order may evoke the remedy of
writ jurisdiction. In the petition you may ask for
a restraint order against enforceability of such
unconstitutional order. The law imposes a burden
on the person alleging unconstitutionality to
establish the same. It is for the Court to decide
whether a law or an act of State is
unconstitutional. Whenever fundamental rights may
be offended by an act of State it must be examined
to discover whether such an act is to protect the
public order, morality and health; whether it is
to give effect to the other provisions of Part III
of the Constitution or whether it is authorized by
a law made to regulate or restrict any economic,
financial, political or secular activity in public
policy. If the Court is of the opinion that the
law or order so passed by the authority is
unconstitutional it shall declare these laws or
orders as unconstitutional and void. “Acts of the
State” will include not only the executive and
legislative organs of the Union and the States,
but also local bodies as well as “other
authorities”, which may cover any other person or
body performing public duty.
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