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Who is liable to pay cost of illegal construction

(Querist) 16 December 2013 This query is : Resolved 
Respected Experts,
Upon complaint of owner and another complainant (me) of Chawl for demolition of illegal construction by occupier of one adjacent room, BMC issued first stop work notice and then waited for long time and construction was allowed to raise G+1 illegally. Thereafter officers of the Building & Factory department sudden came and made drama of demolition. Hammers were stricken in such a way that owners, complainant’s roof got destroyed. BMC officers made just few holes on the walls of the illegal structure and without complete demolition and went away. After few days offenders of illegal construction filled the holes of the illegal structure and started to occupy the same. Thereafter on further complaints, the Assistant Commissioner of the ward four times passed the order “demolition again” and finally date of demolition was fixed on 5th December, 2013,but even after six months of the date of first demolition action, no demolition action taken by the BMC. Now the officers of the Building & Factory saying that when owner of the Chawl pay the cost of first demolition, the demolition action will be taken. How the complainant (owner) is responsible for cost of demolition if he did not constructed illegal structure? Complainant and owner was directly affected by the illegal cutting of roof.
I am the complainant and the other complainant was the owner of chawl whose roof was destroyed by the BMC while first demolition action. Now my room’s roof is destroyed by BMC as revenge to file complaint for demolition of illegal construction. Please give me any citations, judgments of the Hon’ble Court where the demolition cost is levied from actual offender of illegal construction. Kindly provide me advice as I got a shock of illegal act of BMC officers. My mother aged 89 years old Senior Citizen is staying out of room. I am saying a real story of the tragedy happened to my family. Please help me.
Sadanand Panchal
ABDUL RAZIQUE (Expert) 17 December 2013
First chawl owner if he permitted to construct. If the tenant without any consent of owner made construction then the tenant is responsible for all cost and consequences.
krishna mohan (Expert) 17 December 2013
Where the local authority fails judiciary will come to the rescue of affected party. I suggest you to approach a lawyer if you can afford fee or free legal aid cell to take appropriate judicial remedy as it looks officially orders are issued 4 times to demolish. Normally errant party only need to bear the cost and if it done with the consent of owner by the owner of the property.
Vidhi Joshi (Expert) 17 December 2013
the owner of the illegal structure will pay the demolition charge, inform the same to concern Asst. Commissioner.
ajay sethi (Expert) 17 December 2013
Illegal constructions:Builders to pay for demolition expenses
Posted on March 6, 2013 |
The high court has directed the BMC to henceforth recover all costs of demolition of illegal structures from the owners of such illegal structures.The court has directed the BMC to issue a circular to the same effect on Tuesday.The direction was given by the division bench of Justice AM Khanwilkar and Justice AP Bhangale during the hearing of a petition filed by NGO Awaaz foundation against illegal structures in Manori (in crz zone).A notice was issued to the trust that made the structure and subsequently it was demolished.When the court asked BMC who had paid for the demolition,the BMC informed the court that it had footed the bill.The court then asked why the citizens should bear the expenses of demolishing illegal structures and passed the order.It also asked the BMC to file a compliance report at the next hearing.
Biswanath Roy (Expert) 17 December 2013
File a petition under Article 226 of the Constitution of India in the High Court against the State and BMC. The owner of the illegal construction is legally liable to pay demolition costs and charges.
T. Kalaiselvan, Advocate (Expert) 17 December 2013
I think Mr. Ajay Sethi has given some respite to the author for his query.
Sadanand B. Panchal (Querist) 18 December 2013
Respected Experts,
Thanks to all. I satisfied and after above views taken by the Experts, I understood how I shall proceed further in this situation. But little fact I want to submit. First of all some members of owner filed a complaint along with affected tenants against illegal construction stating that the construction was continued without consent of owner of Chawl and Chawl committee. When the said complaint was followed with the help of Corporator of the Ward, Designated officer issued Stop work Notice under Section 354(A) of the MMC Act. In spite of no reply within 24 hours from offenders of illegal structure as per the Notice, the BMC did not taken action immediately and the construction was allowed to complete upto the roof. Thereafter on 14/6/2013 sudden BMC with demolition men came and stricken hammers in such a away that two complainant’s roof destroyed but roof of illegal structure was saved.
Since then 4 times “again demolition order” passed and now on last Monday the said order set aside and order to send demand notice passed by the designated officer.
1) Once demolition starts it cannot be stopped in any event as per rules passed by earlier Municipal Commissioner Shri Subodh Kumar. (2) No safety precautions taken to save other structures while demolition (3) Who will pay the compensation for my roof and property destroyed by the demolition is a question.
The BMC is taking excuse of Demand notice so that illegal structure shall saved. Before passing of 4 times demolition order why the said demand notice was not sent to the owners/occupant is a question.
Sadanand B. Panchal
Biswanath Roy (Expert) 18 December 2013
Collect the name of the Officer who in his presence intentionally damaged the roof of the property causing thereby diminishing its utility instead of demolishing the illegal construction as complained of and lodge an F.I.R. against him in the local Police Station. Taking receipted copy of that written complaint file an application u/s.426 Indian Penal Code IN THE COURT OF JUDICIAL MAGISTRATE for relief and punishment to the officer.
Sadanand B. Panchal (Querist) 18 December 2013
Respected Experts,
Thanks to all!
Sadanand Bhisaji Panchal
Sadanand B. Panchal (Querist) 19 December 2013
Respected Experts,
Section 426 of IPC is cognizable offence. After the above discussion I reviewed the documents of certified copies of demolition report and the Police Memo issued by the Designated Officer who carried out demolition action on 14/06/2013. As per demolition report, demolition of unauthorised construction was carried out with the help of Police. I have certified copy of Police Memo showing 10 Police officers were present during demolition action. I have photographs to show that at the time of demolition Police officers were present. But the Police did not carry out Panchanama and also did not make vacant the unauthorised structure. The family of the offenders was inside while demolition.
Thus offence under Section 426 of Indian Pinal Code was effected in the presence of Police.
I have heard that if any cognizable offence happened in front of Police, the offence becomes cognizable. If this is right kindly inform me.
On the same day I lodged a complaint to the local Police station about the illegal act of BMC officers with names. Kindly inform me.
Sadanand Bhisaji Panchal
Biswanath Roy (Expert) 19 December 2013
Sec.426 I.P.C. is non cognizable,bailable and compoundable offence and triable by the Judicial Magistrate as a summon case. It may be tried by a competent Magistrate in summery procedure also. To make out a case under this section and in order to obtain a conviction on a charge of mischief you shall have to prove that the accused with the intent to cause or knowing that he is likely to cause wrongful loss or damage to any person causes destruction of any property or any such change in the property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously. if you are successful in this case you will be entitle for damage and compensation also.

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