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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.