Municipal Authority Must Conduct Fresh Site Inspection and Determine Regularity Prior to Ordering Demolition of Unauthorized Structures

The petitioner filed a writ petition alleging illegal construction within the jurisdiction of the Siliguri Municipal Corporation (Respondent No. 1).

This matter represents a second round of litigation ("chequered history") regarding the same premises.

While a portion of the structure found to be illegal had been demolished previously, the legality of the remaining existing structure remained in dispute.

The petitioner contended that the Corporation's reports were repetitive and expressed a willingness to submit a revised building plan since the original plan had expired.

1. Whether the existing structure at the subject premises constitutes unauthorized construction de hors the sanctioned plan.

2. Whether such alleged deviations or illegal constructions are regularisable under the prevailing municipal laws.

3. Whether the submission of a revised building plan can stay or impede the demolition process of unauthorized structures.

The court's directions were guided by the principles of municipal administrative law and the statutory powers of the Municipal Commissioner (Respondent No. 3) to regulate unauthorized construction.

The court emphasized the principle of audi alteram partem (right to a fair hearing), requiring the authority to issue prior notice and a reasoned order before any demolition.

Furthermore, it applied the doctrine of "Regularization," where only deviations strictly in accordance with law can be regularized, while non-regularisable illegalities must be removed.

The Court determined that since the dispute involved factual determinations regarding deviations from a sanctioned plan, a fresh independent inspection was necessary.

By directing the jurisdictional Executive Engineer to conduct a site visit in the presence of the petitioner, the Court sought to reconcile the "repetitive" previous reports with the actual state of the "existing structure".

The Court reasoned that if a construction is found to be de hors (outside) the plan, the authority must first exercise its discretion to see if it is "regularisable" under the law.

If not, the authority is legally bound to pass a reasoned order for demolition.

Crucially, the Court analyzed that the legal right to submit a revised building plan does not act as an automatic stay against the removal of already existing illegal structures.

It ordered: (i) an inspection within seven days' notice; (ii) the provision of a detailed inspection report and minutes to the petitioner within three days of the visit [para. 9(iii)]; (iii) a determination on whether deviations can be regularized [para. 9(iv)]; and (iv) if not regularisable, a hearing must be conducted and a reasoned demolition order passed within one week thereafter.

The Court held that any demolition must be completed within three weeks of the reasoned order, with police assistance if necessary.

Finally, it held that while the petitioner may submit a revised plan, the demolition of existing illegalities shall not wait for said submission.

No costs were awarded.