Colony Development Committee Vs. State of Orissa & Ors  Insc 667 (1
CJI R.C. Lahoti & Ashok Bhan
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 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
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
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.
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
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
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- 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
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
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
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.
(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
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 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
(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
(8) There was no scope to check the actual foundation provided in the
(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
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 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 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.
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
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
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 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 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.
(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
(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 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 more stringent in nature, have come into force replacing the preceding
Regulations. We do not propose to decide the general question 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