Can an Architect be Penalized for Illegal Construction?

Aditya Pratap is a lawyer practicing in the Bombay High Court. He can be reached at aditya@adityapratap.com

Introduction to the concept of Architecture in relation to Illegal Construction

Architects in construction play an important role and they are responsible for the visual appearance of the buildings and structures before final structural design. An architect is a person appointed by the client, who develops a facility as per the design concept and the requirements specified by the client. The architects develop a design that is more creative in aesthetics.

The growth of population day by day has led to an increasing number of constructions, among them few are legal and a large number can be found to be illegal. These illegal constructions are made without any proper authority, nor they have any legal documents of the area to construct. To save their pockets they do not realize to go through all the necessary registration and hence go on making an illegal construction. Other main causes of illegal construction are poverty, urbanization, and excess need for housing demands.

The Bigger Question: Can an Architect be penalized for Illegal Construction?

Answering the core, Yes, an Architecture can be penalized for Illegal Construction. In the measure of illegal construction, the Supreme Court approved the Centre’s plan to punish the builder, contractor, and architect of an illegal property also by ‘blacklisting’ them. Till now, only departmental action was being taken against officials of civic agencies like the MCD and DDA who helped in erecting unauthorized constructions but henceforth they will also be criminally prosecuted. 

Presently, the legislation for the profession of architecture is applicable in the country in the form of the Architects Act 1973. Accordingly, the qualifications of architects, competence, and service conditions followed in the profession of architecture are in accordance with the provision of the said Act and the Rules made thereunder.

Provisions under Architects Act, 1973

The Provision of the Act follows when deemed building permit is applicable in cases where an architect registered with Council of Architecture under Architects Act, 1972 has designed the building on an individual plot and certifies that the building plans are within applicable building bye-laws and Master plan Regulations.

This will be applicable for Buildings up to 33 meters in height to be sanctioned under instant sanction, if it is certified by three architects, one structural engineer, and one service engineer, who are registered on a panel, maintained by the Local Body or Authority, that the plans have been prepared within the framework of provisions of the Master Plan.

Procedure for sanction: The application along with the building plans, documents, fees, and charges, etc to be submitted to the Local Body or Authority for their records and after submission of all the requisite charges and documents it will issue instant sanction and an Architect can start the construction as per this plan which will be considered under Deemed building clause.

The Local Body or Authority may examine plans and documents within a period of 45 days and in case observes any deficiency, the architect may be asked to rectify the same.

Suggestions for the supervision for Illegal Constructions by Architect

  • Supreme Court in Municipal Corporation of Greater V. M/S Sunbeam High Tech Developers Private Ltd. Mumbai & Ors. said that holding that Geopmapping is the answer to the issue of the illegal constructions, the bench of Deepak Gupta and Aniruddha Bose, JJ has made it obligatory for all Municipal Corporations in the State of Maharashtra where the population is 50 lakhs or more to get Geopmapping and geo­photography of the areas under their jurisdiction done within a period of one year. Geopmapping will also be done of an area of 10 km. from the boundary of such areas.
  • The Section 336, under which the Commissioner has the power to give sanction or permission to the construction under Delhi Municipal Corporation Act 1957 unless such construction contravenes any of provisions of sub-section 2 of section 336 or the provision of section 340 and if any person fails to follow the orders will result into severe consequences.
  • The Commissioner will then communicate the sanction to the person who has given the notice, and where he refuses sanction on any of the grounds specified in sub-section (2) or under section 340 then he will record a brief statement of his reasons for such refusal and communicate the refusal along with the reasons therefor to the person who has given the notice.
  • The municipal authority has a requisite mechanism for preventing illegal construction but is in the process to come up with such counter-attack plans for the people, that they find it hard to create an escape plan and neither can mislead any law by any unfair means and hence do their construction only by legal means.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

Cases argued by Aditya Pratap can be viewed here.

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