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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.