Home Air (Prevention and Control of Pollution) Act Notice for illegal construction

Notice for illegal construction

December 27, 2024

This article is written by Nishka Kamath. This article covers everything an individual should know on notice for illegal construction. This includes the provisions, noteworthy case laws, format and specimens, FAQs, etc., related to notice for construction without permission.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

Have you ever thought about what happens when buildings are constructed without seeking prior permissions from the authorities? These illegal constructions are more common than we may think! But they can cause serious legal troubles.

Then, there is rapid development, urbanization, etc., (especially, in Tier-1 cities where every square foot counts!) which are becoming a major contributing factor in illegal constructions in our country. These constructions have been a contributor to several issues (which lead to a surge in legal and environmental challenges) like-

Hampered safety of workers who work there,
Major hazard to the people residing there,
Potential trouble to the local public nearby, etc.

So, whenever the authorities come across any such illegal or unauthorised construction, they send a notice of illegal construction to the concerned parties. If you have received any such notice or if you are a lawyer or an advocate who wants to reply to such a notice or simply someone who wants to learn about notice for illegal construction, this article will serve as a guide to help you understand the legal nitty-gritty, draft a response and navigate all the relevant laws, regulations and procedures thus involved.

Point to be noted

Please note, this article is divided into five major parts. The first part is a brief on the complexities of illegal construction and includes what is illegal constructions and the laws associated with the same. The second part talks about the key factors to know related to illegal construction like the common reasons for sending and receiving a notice for illegal construction, the actions to take, the repercussions for ignoring the notice, case laws, etc. Whereas, the third part talks about how to prevent receiving such a notice. Then, the fourth part mentions the specimens related to the same and the fifth part addresses the FAQs related to notice on illegal construction.

Navigating the complexities of illegal construction in India

Before we begin to read on notice of illegal construction, it is important that we have a fair idea of what exactly can be illegal construction in India. So, let us begin, shall we?

What is an illegal construction

While learning about illegal construction it is important to understand what exactly the terms ‘illegal construction’ mean. Well, illegal construction can be defined as any building or construction that is carried on without seeking prior permission from the concerned authority. In most of the states it is the local municipality authorities who give permission for such constructions.

An illegal construction may include constructing residential or commercial buildings having no proper sanction, or they could be some sort of encroachment (meaning the owner of one property is infringing the rights of the actual owner by building on or extending a structure on to the adjacent land or property intentionally or otherwise), on a public land or a restricted area or simply a violation of zoning laws and building codes. More often than not, these illegal constructions come in the middle of the effort of urban planning and may also compromise safety standards. Such unauthorized constructions may cause significant legal issues or lead to heavy fines for builders and occupants.

Reasons for illegal construction

Construction of illegal buildings is a major problem that urban and rural areas are facing nowadays. The reason behind this could be :

The ever-growing rates of houses in such areas;
Major delays in granting permission from the requisite department to build up a certain site; or
The bureaucratic process that is followed by the authorities in such matters.

Pictorial representation of notice on illegal construction

Key factors one must know on notice for illegal construction

Why and how is a notice for illegal construction sent

Usually, the municipality or local authorities or other such regulatory bodies serve notice for illegal construction. Here, notice includes all the details about the type and nature of the encroachment or the violation of law, legal provisions that were breached, and the corrective actions needed to be taken thence. Such a notice will act as a formal document and a sort of curtain-raiser to take possible legal actions.

Any person who gets such a notice must take it with utmost seriousness as failure to respond or act on it in an appropriate manner, may lead to severe sanctions, including the whole demolition of the illegal construction. Now if we look at all this, it becomes important to understand what the notice contains and implies. This becomes the only way to solve such matters and avoid legal troubles.

Reasons for sending notice for illegal construction

Well, there are some grounds on which the authorities send notices for illegal constructions. Wanna know a few key pointers? Here, are they-

Construction without permission

The authorities, if they find out it is an illegal construction, and if they are well aware or after enquiry come to know it was constructed without proper permissions, they may send a legal notice.

Encroachment

Now, if the authorities see that the lands are constructed without the person doing so actually owning it, then they may send a notice. Also, if the land is not legally leased, the constructor itself or if it is a public land, then also the notice may be sent.

Not following the approved plan

Now, if the builder/constructor does not follow the sanctioned plan, nor do they take permission for changing the plan, then the authority may send a legal notice.

Neglecting local zoning laws

If the builder/constructor is building something in an area that he/she should generally not then a notice could be sent. Let me explain with the help of an example.

Say, there is a builder named Mr. Gokhale. He is building a commercial mall in an area marked as residential. This infringement stands in the way of urban planning. It also obstructs the safety of the residents nearby. This obviously will land Mr. Gokhale in legal and financial (more like fine-nancial) troubles.

So, the quicker his actions are to resolve the issue, the lesser the scope of such punishments. Simply put, the faster the mitigation of these problems is entertained, the less the chances of having an unfavourable outcome.

Illegal use of any land

If say, a property or land is meant to be used for agriculture or residential purpose only and it is used for commercial purpose, thereby also building a commercial sort of structure (say a mall, where a residential building must be made), chances are, the concerned authority may send a legal notice to the infringer and consider it as illegal construction.

Non compliance of environmental laws

If any property is not built in accordance with the set environmental laws, the authorities may send a notice for the same and may regard it as an illegal construction as well. So, it is crucial that the necessary rules under Water (Prevention and Control of Pollution) Act, 1974, and Air (Prevention and Control of Pollution) Act, 1981, are properly followed, amongst other laws and regulations. An example of this could be a factory that has been redirecting industrial waste which is toxic, ignitable, corrosive or reactive into clean water sources like a river or lake, thereby harming the life of sea animals in/near that water body, flora and fauna in/near that water body, the environment, the groundwater (and in turn the drinking water), and the human health.

All these violations interfere with urban planning and safety while also paving a path for a breeding ground for legal and financial repercussions for all the parties. The quicker the mitigation of such issues, the lesser the possibility of the adverse outcomes.

What happens after a notice on illegal construction is issued

Municipal corporations and other authorities issue legal notices when they deem a construction was illegal. Mentioned below are some of the necessary steps the authorities, especially the municipal corporations take to rectify and remedy the circumstance:

Identifying the illegal construction

Municipal corporations of every state have designated teams who carry out regular inspections for pinpointing illegal constructions. Here, the term ‘teams’ include the following members:

Professional, experienced officials;
Qualified engineers;
Expert surveyors, etc.

These teams assess the buildings and check if there are any plans, provisions, rules or regulations being violated.

Issuing the notice

Once the authorities are sure that there is some illegal construction, the authorities send a legal notice to the owner/developer/constructor. Such a notice usually includes all the necessary information regarding the breach, like-

Details about the unauthorised floor area,
Information on the deviation from the already approved plan,
Construction without having the permission and approval.

Timeline for rectifying the violation

Within the notice, the authorities make sure there is a deadline before which the owner must fix the infringement/breach on the property. This timeline will depend on how serious is the violation and who the local authorities are. However, if you have gotten such a notice, you better follow whatever they say and the set timeline. Chances are, you could face some issues if you do not! I have talked about the repercussions in the upcoming passage.

Legal actions

If the owner/developer does not adhere to the sent notice, then the authorities will have to take some legal action. It will include fines, sealing or demolitioning the property, etc.

Read the following to know more on what I just said-

Repercussion of neglecting a notice for illegal construction

Not acting on a notice for illegal construction would have serious consequences and strict sanctions, including:

Order for demolition

The local authorities (like the municipal corporation) could pass an order for demolishing the illegal construction. If challenged, the same could also be sent by way of judicial order. Then, here the court has to ensure that the legitimate process of demolition is followed, including sending proper notices and giving just and fair opportunities to the parties to respond, while maintaining fairness and legal integrity.

This demolition may also cause a major loss to the individual who built the site.

Order to pay fines

The local authorities (or if needed, the court) may ask the person(s) to pay a huge amount of fines so no such activity is performed again. This also acts as a deterrence and also helps in making sure others follow the set construction codes and rules. Also, when I talk about fines, they can vary depending upon the violation and encroachments or the nature of such an illegal construction.

Sealing the property

If the authorities reach an inference that the property is illegal and the owner or the person receiving the notice for illegal construction did not act on the same, they can order the property to be sealed. A notice will be sent to the concerned party regarding the same.
Then, this person(s) could also face legal proceedings, restrictions on constructing anything further, penalties, etc., as I have reiterated time and again. So, I say, you better beware!

Legal framework related to notice for illegal construction

Now, before I start to tell you about the laws and important sections on illegal construction, do understand-

This is not an exhaustive list,
I have simply mentioned a quick summary of a few Acts,
If needed, go talk to your real estate lawyer.

Public Premises (Eviction of Unauthorised Occupants) Act, 1971

First in the line will be the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. This Act simply discusses laws on the eviction of unauthorised occupants, especially from public property (as the title suggests), amongst other things. This makes it a little easy for the authorities to demolish/evict the people/property in these areas. These lands could be either public premises that are owned by the government- like government lands or buildings.

Let us take a look at some of the key sections (again, not an exhaustive list).

Sections under the Public Premises (Eviction Of Unauthorised Occupants) Act, 1971, related to illegal construction and its notices

Section 3

Under Section 3 of the Act, the Central Government is entrusted with the authority to appoint estate officers. So, if there is any illegal construction being carried on, such officials can take legal action against such a construction by sending a notice for illegal construction.

Section 4

As per Section 4(1), if the estate officer comes to know there is any sort of illegal construction or unauthorised occupancy-on a public property, then a notice can be issued by them. This has to be done within 7 working days from the time the officer was notified that it was an illegal site.

Now, there is another provision which you should know-Section 4(1A). Under this, if the estate officer believes a person is an ‘unauthorised occupation’ and is on a public property, a notice be sent in writing. This officer may call upon the individual to show cause (sort of give reason/justification or proof) for why the premise must not be vacated.

Then, this is one more Section. Under Section 4(2), the notice shall-

Discuss the basis upon which the order to empty the property is being based on, and
Mandate the concerned people who are living on or occupying the property of the public premises to-

Show cause (if any), against the proposed order as mentioned in the notice. This must not be done after 7 days from issuing the notice.
Appear before the estate office as specified in the notice. This has to be with proper proof to support the cause shown and also for personal hearing, if needed.

Then there is another law you should know-Section 4(3). It says that the estate officer must make sure that notice is served by fixing it on the outer door or some part of the property that is visible. Such a notice has to be served to all the concerned individuals.

Section 5

Another Section here is Section 5. Here, an estate office is very sure the occupancy is unauthorised (and has proof to back up the same), he/she can ask the people living there to vacate.

He/she will make an order of evidence asking the occupants to vacate the place. The time period for evacuating such a premises as per this provision is as mentioned in the order or notice. However, it shall not exceed 15 days.

Then, there are Sections 5A, 5B, and 5C. They discuss the authority’s power to remove unauthorised construction, pass an order on the same and the power to seal it.

Section 7

Then there is Section 7. Under this, an estate officer can ask the infringer to pay rent or damages (obviously after an order is passed, he cannot simply go and tell them- “Hey, pay the money”. After the order, the money has to be paid as mentioned in that time period only.

Section 11

Here, if a person is living unlawfully on public property, he/she can face a punishment. Let me explain with an example.

Say, there is a man named Golu who is living in an unauthorised, illegal area. When the authorities catch him and give him the proof, he can face some sort of penalty. Now, the penalty can be a jail time not going beyond 6 months. It can also be a fine of ₹5000. At times it can be both. Better not do what Golu did!

Sections under the Bharatiya Nyaya Sanhita, 2023

Please note: TBNS was previously known as the Indian Penal Code, 1860.

Well, there are no explicit laws here under the BNS on illegal construction. But the authorities can look at these sections-

Section 270

Section 270 of the BNS, 2023, was under Section 268 of the IPC. Here, any person who acts like any type of threat, hindrance, annoyance or causes any injury to any people who live there, can be blamed for committing public nuisance. Such a Section makes sure it does not cause harm or inconvenience to the general public. Also, the people doing wrong get punishment. So, an officer while sending a notice can include this if they wish to and if feasible.

Section 285

Section 285 previously came under Section 283 of the IPC. Under this, if a person poses as a threat (becomes a hindrance or injures someone), there is a punishment. Now, let me explain this with the help of an example.

Say, there is a boy named Dholu. If Dholu does any of this, there could be a fine. Dholu will have to face a fine of ₹5000/-.

Section 324

Now, Section 324 of the BNS was previously known as Section 425 of the IPC. Here, if any person destroys or makes changes in a land which diminishes the value or its utility, will be said to commit mischief (not the one a kg kid does, this is serious).

Further, there are subsection that say as follows:

Subsection (2) states that such an illegitimate act will attract a punishment of description extendable to 6 months and a fine, if needed- both.
Subsection (3) states that if there is any damage to the property (the property being owned by the Government or the local authority), the act will attract an imprisonment which is extendable to 1 year or a fine, at times, both.
Subsection (4) states that if the amount of damage exceeds ₹20,000/- but is below ₹100,000/-, then there could be imprisonment which is extendable to 2 years or a fine, at times, both.
Subsection (5) states that if the amount of damage exceeds ₹1,00,000/-, there could be imprisonment which is extendable to 1 year or a fine, at times, both.

So, if the individual causes damage to any property, thereby, committing mischief, will face any of the aforementioned punishment and the local authorities could charge and send a notice to the wrongdoer under such sections, inter alia.

The Real Estate (Regulation and Development) Act, 2016

The Real Estate (Regulation and Development) Act, 2016, promises transparency and accountability in real estate deals thereby leaving no scope for illegal construction.

Section 3

Under Section 3 of the Real Estate (Regulation and Development) Act, 2016, all the real estate construction projects have to be registered with the Real Estate Regulatory Authority (RERA). They cannot advertise, market, book, sell, offer for sale or invite people to purchase such property (could be any plot, apartment, building, etc.,) unless registered. So, if anyone infringes this provision, it will be considered as an illegal construction and the authorities can send a legal notice for such activities.

Further, the Section states that, registration of the following real estate projects is not necessary-

When the area of the property exceeds 500 square metres or the total number of apartments does not go beyond 8. However, if the appropriate Government considers it necessary, it may lessen the threshold below to 500 square metres or 8 apartments, as the case may be, including all phases, for exemption from registration under this Act.
Wherein the promoter has received completion certificate for a real estate project before commencement of the Real Estate (Regulation and Development) Act.
If the property is being renovated or repaired or redeveloped and does not involve marketing, advertising, selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.

Section 11

Under Section 11 of the Real Estate (Regulation and Development) Act, 2016, which talks about functions and duties of promoters, the real estate promoter must specify all the details, like:

The project approvals and permits;
The project plans and specifications of the projects thus proposed;
Buyers rights and agreements;
The timelines and construction phases within which the stages of construction will commence and end, etc.;

So, the promoter must report deviation or illegality, if there is any. Failure to do so, may attract a penalty along with a notice for illegal construction from the concerned authorities.

Definition of promoter

Here, the term ‘promoter’ can be defined as-

An individual who carries out a construction or causes to carry out a construction for an independent building or a building that has several apartment or converts a pre-existing building or a part thereof into apartments, for selling all or some of the apartments to other individuals and includes his/her assignees; or
An individual who develops land into a project, irrespective of the fact as to whether or not the individual has also constructed structures on any of the plots, for selling the whole property or its parts to other individuals, whether with or without structures theron; or
Any development authority or any other public body in respect of allottees of-

buildings or apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or
plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or

An apex state-level co-operative housing finance society and a primary co-operative housing society which constructs apartments or buildings for its Members or in respect of the allottees of such apartments or buildings; or
Any other individual who plays the role of a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale; or
Any other individual who constructs any building or apartment for sale to the general public.

Please note: For the purpose of this clause, if any individual who constructs or converts a building into apartments or develops a plot to be put up for sale and the person who sells apartments or plots occur to be two different people, then in such cases both of them will be considered to be the promoters of the said property. Further, both the individuals will be held liable for the functions and responsibilities mentioned under the Act and the rules and regulations mentioned herein.

Section 14

Now, let us look at Section 14. Here, the promoter is supposed to propose a project while also considering the pre-approved plans and layouts. Basically, this Section does not allow many changes in the plans (it kind of restricts modifications), especially without prior consent from the allottees. If anyone goes against it, they may receive a notice related to illegal construction for not adhering to the approved plans.

Did you know? If there is any sort of structural defect or any issues related to workmanship, quality or provision of services or any obligations of the promoter as per the agreement and the same are put forth within 5 years from the date of handing over possession, the promoter must rectify the defect without charging any additional fees within a period of 30 days. If the promoter is not successful in rectifying or fixing the issue, the aggrieved allottees will be entitled to receive an appropriate compensation.

Section 31

Let us take a look at this last Section under the Act. This Section is Section 31. Under this Section, any party (the aggrieved one’s only, not a random party) may complain to the authority for any infringement (as the Act mentions).

Did you know? This complaint could be filed against-

A promoter,
A real estate agent, or
Someone who is responsible for doing what I have talked about above.

The Municipal Corporation Acts

Almost all the states in India have their own, city-specific provisions. These provisions look after everything ranging from development of the buildings and the areas to illegal construction on such sites. Say, for Maharashtra, there is The Maharashtra Municipal Corporations Act, 1949. Then, for Mumbai there is The Mumbai Municipal Corporation Act, 1888. Whereas, for Delhi, there is The Delhi Municipal Corporation Act, 1957.

Development control regulations

Each state or city in India has its own set of city/state specific development control regulations. These regulations are carefully tailored in accordance with the local urban planning needs, infrastructure capacities and topographical considerations. While these regulations can vary from state to state, there are some similarities in each of the regulations, namely:

To stop unfavourable demand and misuse of any land where there is illegal construction.
The power to authorities to punish the defaulters in case of any illegal construction, inter alia.

All the aforementioned rules, regulations and provisions are enacted so that proper safety standards, and environmental norms are followed. Then, it is important that everyone also follow the urban planning standards. All this comes in handy while one is drafting or replying to a notice on illegal construction. We can say this for authorities and lawyers (dealing with this matter) combined.

How can one alert authorities for issuing a notice for illegal construction

If one notices there is an illegal construction, they can inform the concerned authorities to issue a notice for illegal construction. Mentioned below are some of the steps one can follow for alerting authorities to issue a notice.

Collecting proof

Well, the first and foremost thing one can do when it comes to alerting the authorities for an illegal construction is to actually make sure and collect evidence to support their claim of such construction. Here, evidence becomes very important as it helps ascertain the course of nature for illegal constructions and other such construction sites. One can further strengthen their case by attesting documents, witness statements and photographs in the notice/letter they send to the authorities responsible to look into that matter.

Identify the governing body

It is of quintessential importance that one finds the relevant body in charge to report such illegal constructions in that particular area. It could be anyone from the town planning commission to the local municipal corporation or even the development authority, depending on the authority responsible there.

Draft a notice

Now, this is crucial, so read properly! Drafting a proper notice is helpful, for it-

Helps in addressing the concerns in a clear way,
Acts as a legal ground if any legal action is needed,
Helps in carrying measures if there is any against illegal construction.

Now, you must discuss all this while doing so-

The site where the property is located,
The nature of the violation (is it a minor encroachment or a major building built illegally or another type of infringement).
The potential risks involved (it could be related to the environment, or pose a threat to the local public or be a legal violation, inter alia).
If possible, also cite down what further steps should be taken to rectify the matter.

Taking a follow up

One can also take regular follow ups from the authority to make sure that suitable action is being taken against the individuals behind the illegal construction.

Documents required for notice on illegal construction

List of documents the authorities would need to send a notice on illegal construction

In order to issue a notice against illegal construction, the authorities will need the following documents:

Details of the illegal construction

The details should, amongst other details, mention-

The name of the owner of the property (if known);
The exact location and address of the construction site;
The description of the unauthorised work;
Dates when such a construction started and when it was noticed by the authorities (if known).

Supporting evidence

The supporting evidence, amongst other details, must include:

Photographs of the illegal construction shot from various angles,
Witness statements (if available),
Video footage of the construction.

List of documents the complainant would need to send it to authorities so they can send a notice on illegal construction

The following details (not an exhaustive list) must be mentioned by the complainant:

Personal identification and information

Full name of the complainant;
Aadhar card number of the complainant;
Details of photo ID proof;
Residential address of the complainant;
Contact details of the complainant;
E-mail address of the complainant;
Passport of the complaint (not a mandate).

Details of the illegal construction

Name of the owner or the individual occupying the property or carrying out the illegal construction on;
Exact address of the construction site or location where there is an illegal construction being carried out;
Complete details of the unauthorised work like the nature of the work, the number of unauthorised floors or rooms (approx), the area of the land and the approx area of illegal construction, etc.;
Electoral ward in which complaint structure is located;
Relation of the owner or the individual occupying the land wherein illegal construction is carried on;
Dates when such a construction started and when it was noticed by the authorities (if known);
Reasons/proof/evidence on the grounds of which the said construction can be declared to be illegal or unauthorised;
An undertaking like-

‘I hereby declare/undertake that this Complaint/Petition/Subject matter is not sub-judice in any court’.

Supporting evidence

The supporting evidence, amongst other details, must include:

Photographs of the illegal construction shot from various angles;
Witness statements (if available);
Video footage of the construction.

List of documents the person to whom such a notice of illegal construction was sent would need

If someone has received a notice of illegal construction on their property, they must submit the following documents as a reply to the notice, amongst others, to the concerned authorities:

Personal identification and information

Full name of the individual receiving the notice on illegal construction;
Aadhar card number of the individual receiving the notice on illegal construction;
Details of photo ID proof;
Residential address of the individual receiving the notice on illegal construction;
Contact details of the individual receiving the notice on illegal construction;
E-mail address of the individual receiving the notice on illegal construction;
Passport of the individual receiving the notice on illegal construction (not a mandate).

Details of the construction

Exact address of the construction site or location where there is an illegal construction being carried out;
Complete details of the construction work like the nature of the work, the number of authorised floors or rooms, the area of the land, the permissions given by the concerned authorities, etc.;
Electoral ward in which complaint structure is located;
Dates when such a construction started and when the notice was sent by the authorities;
Reasons/proof/evidence on the grounds of which the said construction can be declared to be legal or authorised;
An undertaking like-

‘I hereby declare/undertake that this Property is not sub-judice in any court’.

Supporting evidence

The supporting evidence, amongst other details, must include:

Photographs justifying that the construction is legal, to be shot from various angles;
Witness statements (if available);
Video footage of the construction justifying the construction to be regarded as legal.

Responding to a notice on illegal construction

Well, I understand (and so will you if you are facing this issue, which I hope not!) getting a notice that says one’s property is an illegal construction could top one’s nightmares list (One of my friends went through this IRL, it was bad). However, if you follow proper steps the damage could be minimized (at least to some extent, I’d say).

Now, if you have received a notice and you think it is unfair, you can choose to appeal for regularisation. Also, you can appeal for minor infractions in some cases (of course, when the officials allow the same, and they do this in exchange of a payment- not bribe, okay?! An official penalty it would be).

The following are some of the steps and legal remedies one should follow while receiving a notice for illegal construction:

Analyse the notice

If one receives a notice for illegal construction, it is really important to understand exactly what is contravened and under what violation the notice for such construction is referred to in order to respond properly. One can simply start by examining the exact violations referenced and the bylaws and provisions allegedly breached as per the notice. Further, one should be very careful with the time limit (if any mentioned, which usually will be the case) thus mentioned to respond in the notice. Failure to comply with the set rules and regulations or responding as per the limitation, may result in penalties and in worst case scenarios, the demolition of the whole property.

Now, if one must carefully look into the details of the notice to prepare a good reply. This can help you give a proper, appropriate response. To do so, you can discuss the issues and points which you think are unjust.

But, go talk to your lawyer also. This issue must not be taken lightly. If you think you need legal help, chances are high- you do! Let us look at other points.

Seek legal advice

One must also consider consulting a lawyer or advocate who has specialised in property laws and regulations related to construction. Seeking legal assistance will help the party who has received such a notice on understanding the concept of legal and illegal construction. Then, if you take legal help from your lawyer (I hope he/she knows about real estate laws), it will be of help in drafting the suit/reply. It will also be helpful to represent you and the property in question in the court, if the case goes to the court.

Taking action immediately

In accordance with the set deadline, one must write a formal response to the issuing authority. The following details, inter alia, have to be mentioned:

Your concerns;
What corrective actions you are planning to take to rectify the issue; and
A request for clarification of additional information, if needed, to ensure full compliance with legal requirements.

Did you know? In some places in India, say Ghaziabad- the Government has given its assent to a scheme wherein building owners who constructed a property on an illegal place can legalise it by paying a penalty or obtaining a regularisation certificate. Such a scheme provides relief to the residents and also helps the development authority in generating an additional income.

Appeal the violations

If possible, one must take the necessary steps and remedial actions to bring the structure to follow the compliances of the legal requirements. One can obtain prior approvals from the authorities for making changes in the property.

Filing a writ petition

Now, if one says/opines that a notice is not justifiable or if it violated the fundamental rights, they can file a grievance before the High Court. This could be through Article 226 of the Constitution of India. If one files this, they can request the court for a stay order or ‘status quo’ (more on this and its meaning in the next para). This order will be effective until the court has a final say to give (so, until the final verdict is out).

Please note: Here the term ‘status quo’ means an order that is passed from the court for maintaining the existing state of affairs. It is related to the situation or the property in question, that is yet to receive a final decision, a verdict or a judgement from the court. In simple words, we can say that no further actions like demolition, eviction or any other modification can be taken until the court has fully reviewed and ruled on the subject matter. Basically, a status quo order restricts a party from making changes or modifying the conditions or circumstances as they existed at the time the writ petition was filed, thereby, preserving the situation as it is on a temporary basis.

Filing an appeal

One may also go and appeal in front of the appellate body, put forth their views and situation and pray for relief if they opine that the notice is not just and fair.

Please note: In this context, the term ‘appellate body’ would refer to a higher authority or court which is entrusted with the power to review and potentially overturn or amend the decisions that were given by a lower authority or court. So, if someone does not agree with a notice and opines that it is unfair and unjust, they can file an appeal with such an appellate body. They can further present evidence and proof thereby justifying the disagreement, present their contentions and request a relief. This appellate body will then look into the facts of the case and examine other details to ascertain if the original decision was fair and legally correct. In case the appellate body opines otherwise, they can overturn the order/verdict.

Obtaining an injunction

If the court is satisfied that-

There is a prima facie case; and
Irreparable loss or injury would be caused if the injunction was not granted; and
The balance of convenience is in the favour of the applicant,

then it may grant an interim injunction.

Please note: Seeking injunction may take several weeks or months. Whereas, when it comes to urgent cases, the harm thus caused if imminent, may help one seek an interim injunction. Further, such a relief can be granted in a few days or at times within hours of filing the application.

Having said that, the court may take its own sweet time before it decides to pass a final order for a permanent injunction. You may wonder why? So, before giving its final say, the court will ensure it hears both the parties thus providing a just and fair chance to them to put forth their case, and then go about examining the evidence. All this, definitely, will need a considerable amount of time.

Case laws related to notice on illegal construction

Campa Cola Compound case

In 2013-2014, the resident residing at the Campa Cola compound received demolition notices related to illegal construction. Here, the Brihanmumbai Municipal Corporation (BMC) issued notice because there were 35 more floors built than upon which approval was granted. In this case [Campa Cola Residents Association and Anr. vs. State of Maharashtra and Ors. (2012)], BMC asked the residents to vacate the premises within 48 hours for which the case went to the Bombay High Court and then the residents approached the Supreme Court.

After prolonged legal battles and a lot of support from renowned personalities like the Ex-Chief Minister of Maharashtra- Ashok Chavan, and Raj Thackeray, and celebrities like Lata Mangeshkar and media attention, the Supreme Court issued an order for demolishing the illicit parts. This definitely portrays how grave the repercussions could be if any unauthorised construction is carried out.

Recent update: The Maharashtra Government, in 2021, informed the Supreme Court that it was inclined to grant relief to the residents of the Campa Cola society in Mumbai and was inclined to consider regularising the illegal flats in accordance with the law.

This case clearly highlights the importance of adhering to the already approved construction plans and ensuring they are released when needed, as any non-compliance may lead to severe legal repercussions and in worst cases, the demolition of the whole or part of the property.

Unauthorised colonies of Delhi case

The Delhi Government had sent numerous notices to the parties related to unauthorised colonies. Regularisation campaigns have also been started and allowed fulfilment. Even then, a major chunk of illegal structures are under the peril of being demolished. This case exemplifies the need for a robust urban planning system and the demand for carefully dealing with the large-scale proliferation of illegal construction, especially in rapidly growing cities, that would also require significant political will and thoughtful, sensitive approaches.

Pausing demolition

This is another case- Abdul Mateen Siddiqui vs. Union of India & Ors. (2024) you should learn. Please know, it is also known as the Haldwani demolition case). Also, it is known as Jamiat Ulama-I-Hind vs. North Delhi Municipal Corporation & Ors. 2024, which was commonly known as the Jahangirpuri demolition case. In here, the Supreme Court had passed an order to put a large-scale demolition on hold by citing humanitarian grounds, like:

Protecting human lives;
Right to housing, etc.

Well, even though all of these cases do not directly highlight the notices sent for illegal construction, they talk about the ability of the court to prioritise humanitarian concerns. This is so, even when the case is related to illegal construction and demolition. These cases act as a potential precedent for individuals to seek relief when an individual receives a notice on demolition.

Issuance of guidelines related to show cause notice case

In the case of Sopan Maruti Thopte and Anr. vs. Pune Municipal Corporation (1996), the Bombay High Court after referring to several provisions of the law, put forth the following guidelines:

In all cases when a notice is issued under Section 351 of the Mumbai Municipal Corporation Act, 1888 (also known as the BMC Act as mentioned in the judgement), and Section 260 of the The Bombay Provincial Municipal Corporations Act, 1949, the party should be given a time of 15 days to submit their reply. After the party sends the reply along with the show cause notice and documents the Municipal Commissioner or Deputy Municipal Commissioner shall consider the reply. Further, if no sufficient cause is shown, a short reason for not accepting the contention of the affected party must be given.
The Commissioner has the power to demolish an illegal structure after 15 days from the order of the Commissioner or the Deputy Municipal Commissioner is sent to the party.
In case the staff of the corporation discovers that the building is built or rebuilt or an extension to it is made without seeking prior permission from the authorities, a short notice of 24 hours could be given. A panchnama has to be sent and also pictures that indicate the date when they were taken have to be clicked.
In case the demolished structure (the demolition being carried out by the municipality in compliance with the set rules and regulations) is being reconstructed, without seeking prior permission from the authorities within a span of 1 year, the corporation can demolish it by issuing a short notice of 24 hours.
If the corporation is assessing any building or extension for 2 years, a notice for a 15 days time period to show cause must be sent. If the Deputy Municipal Commissioner opines that there is a need to seek assistance from the party, an oral hearing can be given (this is not a mandatory process, but can be carried out at the direction of the said Commissioner) before passing the order.
In cases other than the one mentioned in pointers 1 to 4, the corporation shall provide a time period of 7 days to show cause.

Did you know? These guidelines were actually talked about in the case of Municipal Corporation of Greater Mumbai vs. M/S Sunbeam High Tech Developers (2019) by the Supreme Court.

Notice on unauthorised construction under the MRTP Act

In the case of Agricultural Produce Market Committee vs. The State Of Maharashtra and Ors. (2023), the Bombay High Court received a writ of mandamus (under Articles 226 and 227 of the Constitution of India) byAgricultural Produce Market Committee (APMC) against the authorities to remove encroachment and illegal construction site. Further, the writ petition requested that the ‘open space, parking space, public utilities and service road in the premises’ be restored.

The Bombay High Court via Justice S.G. Chapalgaonkar, passed an order directing the municipal corporation to take proper action to removal illegal, unauthorised construction and other such encroachments that were built in open areas (in pursuance of notices already served u/s 52, 53, 54 of the Maharashtra Regional and Town Planning Act (MRTP), 1966, read with section 260(1)(2) and 478 of the Maharashtra Municipal Corporations Act, 1949) and that serve a notice within 3 months. Further, the Court dismissed the petitions for regularising unauthorised construction. The Court further extended the interim protection granted to the lease holders for another period of 8 weeks enabling them to avail appropriate remedies.

Judgement issued by the Supreme Court on notice for illegal construction

In Mahendra Baburao Mahadik & Ors vs. Subhash Krishna Kanitkar (2005),the case was filed in the Bombay High Court. Then, it was moved to the Apex Court by way of writ petition. The Supreme Court upheld the following decision, inter alia, of the Bombay High Court-

If the interim order is vacated, the building has to be demolished within a period of 4 weeks from the date of the dismissal.
That if the building is going to be demolished, the municipal staff be provided proper police protection while carrying out the action.

Thus, the Supreme Court ordered the Bombay High Court’s decision be carried on on an immediate basis. It further ordered that a sum of ₹50,000/- be also deposited by the appellants with National Legal Services Authority (NLASA) within four weeks from date and deposit the receipt thereof in the registry of the court for misleading. All of these actions were taken after issuing popper notices related to the illegal construction under the provisions related to the MRTP, 1966.

How to prevent receiving a notice for illegal construction

The following actions can be taken to ensure all the key compliances are followed and one does not receive a notice for illegal construction:

By the authorities

Enlightening the public

Enlightening the citizens and general public to get proper approvals and follow building codes to avoid legal issues and be safe can play a crucial role in preventing illegal construction. The authorities can consider organising workshops, seminars and other such awareness programs on building construction sites in a legit manner. They can also keep the public informed about the procedures, zoning regulations and the repercussions of violating notices. Then, they can also encourage proper compliance, thereby ensuring that the construction projects remain lawful and secure.

Strict enforcement and stringent penalties

Authorities must enforce regulations and penalties in a stringent manner. They must also promptly react to any infringements, thus having a deterrent effect on illegal activities.

Simplified approval processes

Simplifying the approval process when it comes to construction projects is of quintessential importance for it will help in reduction of illegal construction. Streamlined and transport processes would make sure that the builders adhere to the legal compliances and the process would become more efficient and less burdensome. Moreover, by making the approvals simple and easy to obtain, the builders will feel at ease to comply with the regulations and not bypass the set regulations and procedures.

Regular inspections

Having regular inspection on the sites where construction is ongoing will easily reveal non-compliance against the already approved plans. Besides, one can also keep an eye on the violations at their early stages, thus, saving adverse legal actions in the future after the construction is complete.

Strengthening regulatory bodies

One way to prevent illegal construction or receiving a notice for the same is to strengthen the existing regulatory bodies like the municipal corporations and development authorities. Such bodies must be well-equipped with resources and manpower so as to efficiently oversee and enforce building and construction rules and regulations.

Using technology

The authorities and regulatory bodies can make use of advanced technology to detect and prevent illegal construction, thereby not having the need to send the notice for the same. Further, the implementation of an online building permit system can reorganise, ease and simplify the approval process and help in reducing the scope for corruption.

By owners and builders

Obtaining proper approvals and permits

Obtaining proper approvals and permits before beginning the construction can help mitigate the chances of receiving a notice for illegal construction which may also lead to legal disputes.

Proper documentation

Before carrying out any construction, one must thoroughly review the documentation of that property and must keep an eye if there are any restrictions imposed on the plot.

Ensuring that the aforementioned steps are followed will make sure that most of the compliances are followed, thus reducing the chances of receiving a notice for illegal construction from the requisite authorities.

Role of technology in solving the issue of illegal construction

I think, we all know how important the role of technology is these days [I am writing this article from the comfort of my home, on my laptop at 8 am, thanks to technology and WFH opportunities :)] Now, coming back to the topic at hand, technology also plays a major role in looking at the issue of constructing illegal properties. These days there are so many tools like satellite imagery, something called as GIS (geographic information systems), drones (you must have seen they come with cameras now), etc. All of these tech-savvy equipments help to trace such construction. Then, then, what’s more? They are better than humans and have shown promising outcomes. So, efficient, fast and everything else? WOW! Plus, these tech-savvy gadgets provide real time data and HD picture quality. This makes the work easier for everyone. They have proved to be very useful to trace these properties and rectify the infringement with little effort and not much of hard work (so ease and comfort, too).

Then, digital platforms help develop approval and tracking systems. This promotes transparency and efficiency. It also helps reduce the chance of noncompliance when it comes to constructing a property/land. Also, building online approval systems helps in decreasing illegal activities related to illegal construction.

So, from this I can say, making use of technology and these tech-savvy gadgets in urban planning will help the community as a whole. If you think why, read this- It is because such a technology will help monitor the constructions and lands with ease. Also, it would help enforce the laws. This will obviously help in mitigating the chances of receiving and sending notices related to illegal construction.

Format of notice for illegal construction

Now that we have learned the basics, let me take a step forward and teach you this advanced level sort of pointer. Ready?

So, the governing authority (and you while replying) have to include the following details (some may be applicable, some may not, so research, research before taking a step)-

The date when the notice was sent,
The name of the person who is owning the property (it could be a public property or a private property, make amends according to the land),
The proper address of the property (include pin code, area, etc.),
The description of what exactly was breached (if it is a small portion or a huge land, everything be mentioned in detail),
Compliance notice,
Consequences if one does not follow the details/guidelines/instructions (include legal warnings and steps if you are an authority), and
The contact details of the authority.

Reply to notice for illegal construction

One may wonder what can be done or how to reply when a notice for illegal construction is sent to them. Well, mentioned below are some specimens of reply to notice for illegal construction along with some tips to be kept in mind.

Now, to explain it better, I am going to use some characters. Let us say, Mr. Golu is a official who has sent a notice to Mr. Dholu for building a 4 storey bungalow when the permission was for only 2 ½ storey (basically terrace after the second floor).

Tips while replying to notice for illegal construction

Be concise

Mr. Dholu, while replying to notice for illegal construction, must ensure that only the necessary details are added, no beating around the bush.

Do not add anything that is emotional or sentimental, keep it formal, factual and professional

Mr. Dholu should not go all ‘It is my grandfather’s property and I have saved every penny to build it’. Instead, he should talk about the facts and address them properly to Mr. Golu.

Do not use defensive language

Mr. Dholu should avoid using defensive language. Doing so may give the impression that Mr. Dholu did this deliberately (so he is guilty). This may worsen the situation further. So, instead of Dholu saying ‘You authorities are completely wrong in sending such a notice. This is so unfair!’ Dholu should maintain a calm and persuasive tone. He can say something like ‘The said property was constructed by seeking prior approval from the concerned authority. I have hereby attached the documents and copies of permissions of the said property for your kind perusal’.

Attaching the right documents

Now, Dholu should also attach whatever docs Mr. Golu has asked him to submit properly. This is a very important step. It will help strengthen Dholu’s case.

Be cooperative, yet assertive

Dholu has to be cooperative with Mr. Golu. Dholu can talk about his concerns, but it should be decent and firmly put. Dholu should not use threat, violence or unkind language.

Specimens related to notice for illegal construction

P. S. These specimens are for general guidance only. The laws related to illegal construction may vary from state-to-state and depend solely on the jurisdiction, legal procedures, and other local regulations. If one is dealing with any sort of illegal construction or planning to issue or respond to any of the notice thus received, it is advisable to seek legal professional help to make sure everything is in accordance with the applicable laws and for receiving proper legal advice depending on the facts of the situation.

P. P. S. For your ease and for better formatting, I am adding images of the specimens.

Specimen of notice from a citizen to the regulating body regarding illegal construction

Specimen 1: Specific format

Specimen 2 : General format

Specimen of notice from the regulatory body regarding illegal construction

Specimen of notice from the regulating body regarding vacating an illegal construction

Specimen of notice related to illegal construction from a neighbour to another neighbour

Specimen of reply to notice for illegal construction: official notice

Specimen of reply to notice for illegal construction from neighbourhood, coresident, etc.

Please note: These notices are written from the perspective of the owner or the individual residing on the property. If you are a legal professional sending a reply to such a notice, please mould the specimens as per your needs. Basically, you, as a legal representative will have to add statements like “My client does not believe the contentions to be true” or something like “The arguments and pointers mentioned in the notice dated ____ are false, wrong and frivolous”.

Career opportunities related to illegal construction for legal professionals

Let me help you understand the career opportunities with the help of a character. Let us call him Mr. Ram Kapoor. So, Mr. Kapoor is a real estate agent for 10 years now. He was working in a corporate firm (looking after real estate compliances) for 8 years and then he decided to start his own practice. So, Mr. Kapoor has been successful in corporate and practice in courts when it comes to real estate laws.

So, basically, what I am trying to say here is, there is a huge demand for real estate lawyers who are well-versed in construction laws who can navigate the intricate landscape of zoning regulations, compliance issues, and property rights. Legal, experienced professionals like Mr. Kapoor can provide legal assistance and advice to their clients on how they (the clients) can adhere to the local construction and zoning laws and how they can prevent illegal construction. Mr. Kapoor will do three important things by giving advice-

Protect his clients and their precious land/property,
Safeguard community standards,
Build his own repute as he is giving proper, trustworthy, researched advice/guidance in a competitive job market.

So, it’s a win-win for all! Then, Mr. Kapoor can also represent his clients in the court, if the case is filed by the authorities/other party. Then, Mr. Kapoor can also ask for halting the illegal construction (if the client’s property is being used like this) by an injunction. Furthermore, Mr. Kapoor can enhance his career by way of mediation and conciliation. He can resolve disputes related to illegal construction amicably without having the need to go to the court (and follow the tedious litigation process).

Conclusion

Well, now that we have seen what Mr. Ram Kapoor (a real estate lawyer) can do to reach heights of success, let us talk about the concluding remarks here. To conclude, we can surely say illegal construction is a serious matter. If you receive a notice do not think it is nothing, please take it seriously! Reading about the basics helps a lot. Also, talking to a lawyer can help in resolving the matter (I hope, you find one as good as Mr. Ram Kapoor).

Then, if the matter is under judicial review, for any violation or breach, it is important you take timely legal remedies like filing a writ petition, asking for an injunction or stay order, can help in halting the proceedings on a temporary basis. Then, making use of technology for transparency and compliance can help make sure that the construction activities remain lawful and compliant with regards to the regulations. Again, an experienced legal professional like Mr. Ram Kapoor can help here.

Besides, seeking approval from the authorities beforehand is better than facing all the legal drama, so chop chop before you chop the trees on the land (if any) to carry on the construction. Talking about cutting trees, I hope you know there are local set laws, zoning laws and other regulations that you should look into before taking any step.

Also, I hope you have looked at the specimens and formats above. They will act as a guide on effectively drafting a notice or reply. Also, if you are a lawyer or a law student, being a real estate lawyer/attorney can be useful. You can reread the heading highlighting ‘Career opportunities related to illegal construction for legal professionals’.

Frequently Asked Questions (FAQs)

What is considered illegal construction?

Illegal construction can be referred to any building, construction site or structure that is constructed without seeking the requisite approvals or permissions. This can include:

Buildings that are not in compliance with the guidelines of the local constitution in that particular state/city;
Construction on public property without having the permission to do so;
Construction on private property without being in the power to do so;
Adding additional floors to an existing building without seeking approval;
Building walls or fences that encroach on neighbourhood property;
Extending parts of the building or property into shared or private areas without seeking permission from the concerned authority.

What can be a solution for illegal construction?

The simple solution for preventing illegal construction includes strict enforcement of building regulations and proactive measures by the concerned authorities.

What to do when you receive a notice for illegal construction in India? Are there any steps you can follow after receiving such a notice?

Well, firstly, one should not panic! But they should take the notice quite seriously as ignoring the notice may lead to demolition of one’s property or may lead to paying hefty fines or a legal action be taken w.r.t. the property. One should identify the specific violations from the notice.

Further, one can seek legal assistance from an advocate or lawyer who is expert in that field. What happens is, these lawyers basically go through these issues day in and out. So, they (some of them) are kinda a pro in handling these issues. They will help in sending a response and defend you if the case goes to the court. They will help you take corrective actions (if needed) and modify the structure as per the approved plan and everything else. Then, if nothing is working (and all the other options have been tried-tested-not successful), they can also help you appeal the case. So, go talk to your lawyer!

What are the venues of appeal for receiving the notice for illegal construction?

Yes, one can seek regularisations of petty violations, file a writ petition if any unreasonable notice is served, and also for injunctions to avert property from being demolished.

What are the repercussions of building an illegal construction?

Usually, a notice for taking the necessary steps is issued to the builder, promoter or owner related to illegal construction, failure to comply the same may attract fines, demolition orders and legal penalties. The same is discussed in detail under the heading ‘Repercussion of neglecting a notice on illegal construction’.

How can one avoid an unauthorised construction?

There are several measures one can take for avoid unauthorised/illegal construction, like:

Being vigilant about the building codes,
Having proper knowledge about the approval processes in pre-construction, and
Creating pressure for increased implementation of rules and regulations and for fast-track approval processes.

What is the method to file an online complaint on illegal construction?

For filing an online complaint, go visit the official website of the corporation. Every municipal corporation of every state has its own website. You will have to fill in the important details accordingly.

Let me show you Mumbai’s website. Basically, you would have to visit the BMC complaint registration website. Click here to access it. Then select the preferable language and the nature of complaint. Then you will be prompted to fill in other necessary details. Hit send afterwards.

Please refer to this image to see what the site looks like:

Which authorities are responsible for illegal construction in India?

Well, there are several authorities who look after illegal construction in India. Some of them are-

Local municipalities authorities,
Urban planning department, and
Other such regulatory bodies.

These authorities usually help prevent illegal construction.

How to get a stay order on illegal construction?

For getting a stay order on illegal construction, you can file a writ petition in court. After that, the aggrieved party can request for a stay order or ‘status quo’. This stay order will be effective until the court has a final decision.