9911796707
TMI Blog2004 (11) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... ap 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lia 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 hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eling 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/engi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the deviations ? compoundable and noncompoundable, 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 ₹ 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility 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 except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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