Full Judgment Text
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CASE NO.:
Appeal (civil) 12984 of 1996
PETITIONER:
Friends Colony Development Committee
RESPONDENT:
State of Orissa & Ors.
DATE OF JUDGMENT: 01/11/2004
BENCH:
CJI R.C. Lahoti & Ashok Bhan
JUDGMENT:
J U D G M E N T
R.C. Lahoti, CJI
The Friends Colony Development Committee, the appellant
before us, is a society registered in the year 1982 under the
Societies Registration Act, 1860. One of its objects is to over-
see development of the residential area known as ’Friends
Colony’ in Cuttack city. M/s Modern Mechatech Housing Ltd.,
the respondent No. 2, is a company incorporated under the
Companies Act, and engaged in building activity. Pratap Kumar
Biswal, respondent No. 3, is its Managing Director. The other
parties impleaded in this appeal are \026 the State of Orissa,
through the Commissioner-cum-Secretary, Housing and Urban
Development Department, and Cuttack Development Authority
(hereinafter the ’Authority’ for short). The property involved in
this litigation is a six storeyed apartment situated in Friends
Colony and known as ’Kalyani Apartment’.
The background facts leading to the present appeal are
briefly stated hereinafter. The property belonged to one Abhiram
Panda. He gave a power of attorney to the builder (respondent
No. 2 and 3) for construction of a multi-storeyed apartment on
the said land. On an application made by the builder, the
Authority accorded sanction on 3.3.1993 for construction of a
four storeyed building in accordance with the building plans
sanctioned by the Authority. The construction commenced and
when the building came up it was found to have been built up
grossly in excess of the sanctioned plan on all the floors.
Though the sanction accorded by the Authority permitted only
four stories but even a fifth floor had also come up. On
7.2.1994, the Authority initiated proceedings under Section 92
of the Orissa Development Authorities Act (hereinafter referred
to as ’the Act’, for short) against the builder calling upon it to
show cause why the offending portions be not demolished. The
stand taken by the builder in its response was that the
deviations were very minor ones calling for a sympathetic view
and compounding of the deviations instead of being demolished.
On 25.9.1994 the appellant made a representation to the
Authority complaining of the offending construction and
submitting that the deviations from the sanctioned plan
damaged the environment and endangered life and safety of not
only the occupants of the building, but also of other inhabitants
of the locality. The representations by the appellant were made
not only to the Authority, but also to the Cuttack Municipality,
the Pollution Control Board and the State Government.
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By order dated 8.11.1994, the Authority directed 5th floor
of the building to be demolished as also the unauthorized
projections of 605 sq. ft. on each floor to be demolished. In
respect of certain deviations which were compoundable, the
Authority permitted compounding on payment of Rs. 2.09 lakhs
by the builder. A notice-cum-order for securing compliance of
the order dated 8.11.1994 of the Authority was issued on
30.11.1994 to the builder.
On 2.12.1994 the builder filed an appeal before the
appellate authority which granted interim stay of demolition as
directed by the Authority, but subject to the condition that the
builder shall stop all further constructions. However, the builder
proceeded with the building activity by defying the conditions
incorporated in the order of the stay granted by the appellate
authority. The appellant’s representations inviting attention of
the Authority did not serve any purpose.
On 5.12.1994 the appellant filed a writ petition in public
interest in the High Court of Orissa which was registered as OJC
No. 8128/94 laying challenge to the illegal, unauthorized and
dangerous construction in the building and seeking demolition to
the extent necessary. The appellant also sought for its
impleadment in the appeal filed by the builder which was
pending before the appellate authority. The impleadment was
allowed, though opposed by the builder.
By order dated 28.6.1995 the appellate authority directed
the builder’s appeal to be dismissed. The appellate authority
found inter alia that the offending construction was a threat to
the environment and, if not demolished, it would encourage
other builders to make similar violations much to the detriment
of the planned development of the city. Laying challenge to the
order of the appellate authority, the builder filed a writ petition
in the High Court which was registered as OJC No. 4995/95.
Though the appellant was a party before the appellate authority,
it was not joined by the builder as a party in the writ petition
filed by him. However, the appellant moved for its
impleadment in the writ petition and filed a counter affidavit
controverting several averments made and pleas raised by the
builder. The appellant also prayed for the writ petition filed by it
in public interest being taken up for hearing along with the writ
petition filed by the builder so that all the issues relating to the
said building could be heard and decided together. However,
the writ petition filed by the builder was taken up for hearing,
while the writ petition filed in public interest by the appellant
remained pending.
By its judgment dated 16.4.1996 the Division Bench held
that the appellant had no right to participate in the hearing; it
was neither a necessary nor a proper party; it was not entitled
to be heard in the writ petition filed by the builder, and the
remedy, if any, of the appellant was to file a civil suit for
protection and enforcement of its rights, if any. Having said so,
the High Court proceeded to examine, on merits, the pleas urged
by the builder in his writ petition.
The plea of the builder was that in spite of the construction
having come up, it could yet move a fresh application and
submit revised plan for approval in respect of construction
already undertaken and then it will be for the Authority to
consider and approve or not to approve the same. It seems to
have been urged before the High Court by the learned counsel
for the builder, as noted in the judgment of the High Court, that
at different points of time the Planning Member and Vice-
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Chairman of the Authority had suggested certain courses of
action which would obviate difficulties of the builder while not
making any departure from the requirements of law and such
suggestions were, by and large, accepted by the builder.
However, from the records we find that this was only an oral
submission made, not supported by any documents, and the
judgment of the High Court also does not make reference to any
document or affidavit filed by or on behalf of the Authority or
any of its officials in support of the plea urged by the builder.
The High Court disposed of the writ petition by directing that if
the builder made a fresh application and/or submitted a revised
plan for approval in respect of construction already undertaken
by it, the Authority should deal with the same in accordance
with law. The learned counsel for the builder undertook before
the High Court to maintain status quo and not to make any
further construction till a decision was taken by the Authority on
re-submission of the application accompanied by plans for
sanction as permitted by the High Court. The High Court allowed
one month’s time from the date of its judgment for filing a
written undertaking by the builder incorporating the oral
undertaking given before the High Court and also for filing the
application and plan for sanction before the Authority. The High
Court left the question of deviations already made open for
consideration and to be dealt with in accordance with law after
the Authority had taken decisions on such application.
Feeling aggrieved by the judgment of the High Court this
appeal has been filed by special leave.
By order dated 7.10.1996 leave was granted and, at the
same time, this Court directed the operation of the impugned
judgment of the High Court to remain stayed. 30 occupants of
the apartment have sought for intervention at the hearing in this
Court. On 5.5.1997, in the presence of the parties, this Court
directed the order of stay made on 7.10.1997 to be confirmed
and clarified that no demolition of the construction already made
would be done during the pendency of this appeal, but the
unauthorized portion would not be permitted to be occupied and
no third party interest would be created therein in the meantime.
After 5.5.1997 the appeal came up for hearing before this Court
on 6.11.2003. Having noticed that it was a case of unauthorized
constructions made by a builder in a multi-storeyed building and
the High Court had permitted the possibility of regularization of
unauthorized constructions to be explored afresh as per law,
this Court made the following directions :-
(i) The respondents Nos. 5 and 6 shall have
a plan of the existing structure prepared
through their architects/engineers. The
authority shall consider in accordance with the
existing building bye-laws/regulations as to
how much of the unauthorized construction
can be regularized and if so then subject to
what terms and conditions. The Plan showing
in different colours, the sanctioned
construction, the unauthorized construction
and the construction to the extent to which it
can be regularized shall be filed.
(ii) The terms and conditions on which the
regularization can take place shall also be
filed.
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(iii) The status of the area which cannot be
regularized shall be stated, i.e., whether it is
occupied or unoccupied."
The compliance by the Authority was directed to be
reported within eight weeks along with plans and statement as
above being filed duly supported by affidavit.
On 14.1.2004 another two week’s time was sought for by
the Authority for reporting compliance with the order dated
6.11.2003. However, the learned counsel, who is appearing in
this court for the builder, pointed out that his client, that is the
builder, was not responding to his communications. The notices
of hearing issued by the Registry of this Court to the builder
company and its Managing Director were returned with postal
remarks ’refused’.
Later, on 10.2.2004 the Managing Director of the builder
company was present in Court on having been served and
pointed out that during the pendency of these proceedings he
has shifted his residence to Bangalore. The Court directed him
to remain present in person on all the dates of hearing unless
otherwise permitted by this Court and also to keep his counsel
and this Court informed of his address and his availability
thereat.
On behalf of the Authority affidavit in compliance with the
order dated 6.11.2003 was filed. Shri S.M. Patnaik, the
Planning Member in the Authority was also present in person.
The plan filed by the Authority showed the authorized and
unauthorized constructions and also the extent of unauthorized
constructions which could be regularized subject to terms. This
Court directed as under :-
"The Cuttack Development Authority
shall file an additional affidavit pointing out
how much of the unauthorized construction
though not available for regularization as per
the existing law can still be tolerated without
any loss of public interest and how much
unauthorized construction must necessarily go
in public interest. The Authority shall also
state and suggest the terms on which the
builder should be placed for the purpose of
regularization of the permissible unauthorized
construction and the terms on which the
builder should be placed for tolerating the
extent of unauthorized construction though not
available for regularization.
Compliance in six weeks."
The builder was also allowed the liberty of filing a
statement on affidavit incorporating such relevant facts and
information as would enable the Court to arrive at a just and
equitable decision. That further affidavit has been filed.
According to the Stability Report submitted by the
Structural Analysis & Design Cell to the Planning Member of the
Authority the following facts have been reported about the
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Kalyani Apartment :-
"(1) It is a framed structure building having
partial parking area in the ground floor and
five floors above it along with the access to the
terrace with the load of overhead water tanks
and headrooms.
(2) There is a 5 feet width Cantilever used as
living areas such as toilet, Kitchen & bedrooms
projected to all sides in each floors.
(3) The peripheral walls are of 10" width K.B.
brick masonry wall and all internal walls are 5"
width.
(4) 1" thick mosaic tiles are laid in all floors as
flooring materials.
(5) Average width of building is 41’-8" feet
and average height of building is 58 feet.
(6) Soil condition is sandy loamy type.
(7) There was no sign of any sinking of
foundation in the static load at present.
(8) There was no scope to check the actual
foundation provided in the building.
(9) Size of all existing column are 10" x 15"
where as the size is 12" x 24" in the drawing
approved in CDA.
(10) I have considered the column ’C 5’
(Column Lay-out drawing is attached) for
example, to calculate all the loads in it to
check the stability of the said column. The
detail calculation of the column ’C 5’ is as
follows."
Calculations and analysis data and documents have been
made available. In Calculations it is stated as under :-
"As per the above Calculations and
observations it is observed that this building is
unsafe for the ground plus five floors along
with cantilever in all sides because the section
of column is not adequate. It is also noticed
that during the structural design of this
building the wind load calculation has not
taken into consideration. Also the seismic
load consideration has not been included in it
though this area comes under seismic zone-III.
To make the building structurally stable
the load in the building should be reduced.
The load can be reduced by removing the fifth
floor in total. The load can also be reduced by
removing the cantilever portion in all sides of
each floor. A strong impact load may affect
the main building during the breaking of
cantilevers but if we break the top floor no
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such impact load may not affect the structure
in the lower floors."
In the subsequent affidavits filed the builder has pointed
out and relied on certain changes in the regulations framed by
the Authority in support of his plea that all deviations in the
building are compoundable. The builder has also sought to
contend that there are several other buildings with more or less
similar deviations which have either been compounded or not
proceeded against. On such averments the builder has sought
for the deviations being condoned and regularized.
On the other hand, the affidavit sworn in by Shri
Gupteshwar Acharya, Law Officer of the Authority, filed on
2.2.2004 with the plan of the building specifically and separately
setting out the deviations ? compoundable and non-
compoundable, as also the calculation sheets have been filed.
It is stated inter alia:-
(1) that the floorwise coverage and deviation
are set out in detail in the chart annexed to the
present affidavit. From a perusal of the said
chart it is submitted that as per draft CDA
regulations dated 29.12.1994 the case was
considered for regularization etc. After
detailed examination it was found that the
entire 5th floor which was constructed without
prior permission covering the area 4009.5 sq.
ft. was beyond the permissible norms for
regularization / compounding and hence the
same has to be demolished. On account of
operation of stay order from this Hon’ble Court
the demolition work could not be carried out.
(2) that from the remaining unauthorized
construction area a total area of 5735.5 sq. ft.
could be compounded upon payment of Rs.
2,09,160/- as per the then prevailing fee. It is
relevant to mention that the said amount till
date has not been deposited and therefore in
the absence of the said amount being
deposited the said compounding also has not
been carried out and the area is liable for
demolition.
(3) that with effect from 13.12.2001 the
Cuttack Development Authority (Planning &
Building Standard) Regulation, 2001 has come
into force. Under the said 2001 Regulation
more stringent condition in respect of highrise
building pertaining to setbacks etc. have been
laid down. Applying the standards laid down in
the Regulation, 2001 the permissible
compounding area of unauthorized
construction would be far less than what was
offered under the earlier draft regulation.
(4) that since the offer for regularization /
compounding had already been made under
the regulation then applicable the Authority
can consider compounding / regularization of
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an area of 5735.5 sq. ft. subject to payment of
Rs. 2,09,160/- with interest as deemed fit and
proper by this Hon’ble Court.
(5) that upon site inspection and personal
visit carried out by the Planning Member and
the technical staff it is noticed that all the
floors are in occupation."
The pleadings, documents and other material brought on
record disclose a very sorry and sordid state of affairs prevailing
in the matter of illegal and unauthorized constructions in the city
of Cuttack. Builders violate with impunity the sanctioned
building plans and indulge deviations much to the prejudice of
the planned development of the city and at the peril of the
occupants of the premises constructed or of the inhabitants of
the city at large. Serious threat is posed to ecology and
environment and, at the same time, the infrastructure consisting
of water supply, sewerage and traffic movement facilities suffer
unbearable burden and are often thrown out of gear. Unwary
purchasers in search of roof over their heads and purchasing
flats/apartments from builders, find themselves having fallen
prey and become victims to the design of unscrupulous builders.
The builder conveniently walks away having pocketed the money
leaving behind the unfortunate occupants to face the music in
the event of unauthorized constructions being detected or
exposed and threatened with demolition. Though the local
authorities have the staff consisting of engineers and inspectors
whose duty is to keep a watch on building activities and to
promptly stop the illegal constructions or deviations coming up,
they often fail in discharging their duty. Either they don’t act or
do not act promptly or do connive at such activities apparently
for illegitimate considerations. If such activities are to stop,
some stringent actions are required to be taken by ruthlessly
demolishing the illegal constructions and non-compoundable
deviations. The unwary purchasers who shall be the sufferers
must be adequately compensated by the builder. The arms of
the law must stretch to catch hold of such unscrupulous
builders. At the same time, in order to secure vigilant
performance of duties, responsibility should be fixed on the
officials whose duty it was to prevent unauthorized
constructions, but who failed in doing so either by negligence or
by connivance.
The conduct of the builder in the present case deserves to
be noticed. He knew it fully well what was the permissible
construction as per the sanctioned building plans and yet he not
only constructed additional built up area on each floor but also
added an additional fifth floor on the building, and such a floor
was totally unauthorized. In spite of the disputes and litigation
pending he parted with his interest in the property and inducted
occupants on all the floors, including the additional one.
Probably he was under the impression that he would be able to
either escape the clutches of the law or twist the arm of the law
by some manipulation. This impression must prove to be
wrong.
In all developed and developing countries there is
emphasis on planned development of cities which is sought to
be achieved by zoning, planning and regulating building
construction activity. Such planning, though highly complex, is
a matter based on scientific research, study and experience
leading to rationalization of laws by way of legislative
enactments and rules and regulations framed thereunder.
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Zoning and planning do result in hardship to individual property
owners as their freedom to use their property in the way they
like, is subjected to regulation and control. The private owners
are to some extent prevented from making the most profitable
use of their property. But for this reason alone the controlling
regulations cannot be termed as arbitrary or unreasonable. The
private interest stands subordinated to the public good. It can
be stated in a way that power to plan development of city and to
regulate the building activity therein flows from the police power
of the state. The exercise of such governmental power is
justified on account of its being reasonably necessary for the
public health, safety, morals or general welfare and ecological
considerations; though an unnecessary or unreasonable inter-
meddling with the private ownership of the property may not be
justified.
The municipal laws regulating the building construction
activity may provide for regulations as to floor area, the number
of floors, the extent of height rise and the nature of use to which
a built-up property may be subjected in any particular area.
The individuals as property owners have to pay some price for
securing peace, good order, dignity, protection and comfort and
safety of the community. Not only filth, stench and unhealthy
places have to be eliminated, but the layout helps in achieving
family values, youth values, seclusion and clean air to make the
locality a better place to live. Building regulations also help in
reduction or elimination of fire hazards, the avoidance of traffic
dangers and the lessening of prevention of traffic congestion in
the streets and roads. Zoning and building regulations are also
legitimized from the point of view of the control of community
development, the prevention of over-crowding of land, the
furnishing of recreational facilities like parks and playgrounds
and the availability of adequate water, sewerage and other
governmental or utility services.
Structural and lot-area regulations authorize the municipal
authorities to regulate and restrict the height, number of stories
and other structures; the percentage of a plot that may be
occupied; the size of yards, courts, and open spaces; the
density of population; and the location and use of buildings and
structures. All these have in view and do achieve the larger
purpose of the public health, safety or general welfare. So are
front setback provisions, average alignments and structural
alterations. Any violation of zoning and regulation laws takes
the toll in terms of public welfare and convenience being
sacrificed apart from the risk, inconvenience and hardship which
is posed to the occupants of the building. [For a detailed
discussion reference may be had to the chapter on Zoning and
Planning in American Jurisprudence, 2d, Vol.82.]
Though the municipal laws permit deviations from
sanctioned constructions being regularized by compounding but
that is by way of exception. Unfortunately, the exception, with
the lapse of time and frequent exercise of the discretionary
power conferred by such exception, has become the rule. Only
such deviations deserve to be condoned as are bona fide or are
attributable to some mis-understanding or are such deviations
as where the benefit gained by demolition would be far less than
the disadvantage suffered. Other than these, deliberate
deviations do not deserve to be condoned and compounded.
Compounding of deviations ought to be kept at a bare minimum.
The cases of professional builders stand on a different footing
from an individual constructing his own building. A professional
builder is supposed to understand the laws better and deviations
by such builders can safely be assumed to be deliberate and
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done with the intention of earning profits and hence deserve to
be dealt with sternly so as to act as a deterrent for future. It is
common knowledge that the builders enter into under hand
dealings. Be that as it may, the State Governments should
think of levying heavy penalties on such builders and therefrom
develop a welfare fund which can be utilized for compensating
and rehabilitating such innocent or unwary buyers who are
displaced on account of demolition of illegal constructions.
The application for compounding the deviations made by
the builders should always be dealt with at a higher level by
multi-membered High Powered Committee so that the builders
cannot manipulate. The officials who have connived at
unauthorized or illegal constructions should not be spared. In
developing cities the strength of staff which is supposed to keep
a watch on building activities should be suitably increased in the
interest of constant and vigilant watch on illegal or unauthorized
constructions.
In the facts and circumstances of the present case, we are
of the opinion that the controversy should not have been
brought to an end by the High Court merely by directing
reconsideration of the application of revised building plans
submitted by the respondent builder. The matter needs a further
probe and hearing in public interest.
The appeal is allowed. The impugned judgment of the
High Court is set aside. The writ petition filed by respondents
Nos. 2 and 3 herein shall stand restored on the file of the High
Court to be taken up for hearing along with the writ petition filed
by the appellant. The present status of the writ petition filed by
the Friends Colony Development Committee \026 the appellant
before us, is not known as to whether it is pending or has been
disposed of and, if so, with what result. Be that as it may, even
if the writ petition filed by the appellant has been disposed of,
the hearing therein shall be reopened and the hearing in the two
petitions shall proceed in the High Court in such manner as the
High Court may deem fit but keeping in view the following
directions :
(1) Both the petitions, that is, the writ petition filed
by respondents No. 2 and 3 herein registered as OJC
No. 4995 of 1995 and the writ petition filed by the
appellant herein registered as OJC No. 8128 of 1994
shall be taken up for hearing together.
(2) The following documents which have come up on
the record of this Court during the course of hearing
and pursuant to directions issued from time to time
by this Court shall be sent to the High Court to be
taken up in consideration at the hearing of the writ
petitions :-
(i) Affidavit of compliance on behalf of
Cuttack Development Authority and Planning
Member dated 2.2.2004 along with
enclosures.
(ii) Additional affidavit of compliance on
behalf of the Planning Member, Cuttack
Development Authority, respondent No. 6
herein filed on 5.4.2004.
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(iii) Further affidavit on behalf of respondent
Nos. 2 and 3 herein dated 25.3.2004 along
with enclosures.
(iv) Copy of the report submitted by the
Planning Member, Cuttack Development
Authority.
(v) Reply to the further/additional affidavit
dated 6.4.2003 filed on behalf of respondent
Nos. 2 and 3.
(vi) Reply on behalf of respondent Nos. 2 and
3 to the additional affidavit dated 5.4.2004
filed on behalf of the Cuttack Development
Authority, respondent No. 6 herein with copy
of the structural stability certificate, copies of
photographs of the site, copy of sketch map
showing the main storm water channel, copy
of letter issued by the Project Engineer,
Orissa Water Supply and Sewerage Board
and copy of the order dated 17.4.2003
passed by the High Court, Orissa in Writ
Petition (c) No. 3310 of 2003.
(vii) The Stability Report submitted by the
Structural Analysis & Design Cell to the
Planning Member, Cuttack Development
Authority on 18.3.2003.
Photocopies of the documents transmitted to
the High Court shall be retained on the record of this
Court.
(3) The High Court shall find out and determine
how much deviation can be regularized and subject
to what terms. If any part of the construction found
to be illegal has to be demolished and/or any of the
occupants are liable to be displaced, the High Court
shall take appropriate steps for their rehabilitation
and compensation at the cost of the builder.
(4) Present address at which respondent No. 3 is
available, as furnished by him to this Court, shall
also be sent to the High Court. During the course of
hearing respondent No. 3 shall remain personally
present in the High Court unless exempted from
personal appearance.
(5) Any non-compliance of the orders of the Court
by respondent Nos. 2 and 3 shall be construed as
contempt of the orders of the Court and they shall be
liable for the legal consequences.
(6) The builder must deposit the compounding fee
of Rs. 2,09,160/- within such time as the High Court
may allow in this behalf. This deposit shall be treated
as a provisional payment of compounding fee subject
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to adjustment against such amount as the High
Court may ultimately arrive at. During the pendency
of these proceedings, we are told that new
Regulations of the year 2001 \026 more stringent in
nature, have come into force replacing the preceding
Regulations. We do not propose to decide the
general question \026 whether in the matter of
determining and compounding deviations it is the
law as on the date of such decision which would
apply or the one as was prevailing on the date of
commission of the illegal act would apply. Leaving
that question open, in the facts and circumstances of
the present case, we direct that the present case
shall be determined by reference to the regulations
as were prevailing prior to the coming into force of
the Cuttack Development Authority (Planning and
Building Standard) Regulations, 2001.
(7) The High Court, if it feels that
illegal/unauthorized building activities in Cuttack are
so rampant as to be noticed judicially, may suo
motu register a public interest litigation and
commence monitoring the same by issuing directions
so as to curb such tendency and fixing liability and
accountability.