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2004(8) Supreme 256
SUPREME COURT OF INDIA
(From Orissa High Court)
R.C. Lahoti, CJI & Ashok Bhan, J.
Friends Colony Development Committee -Appellant
versus
State of Orissa & Ors. -Respondents
Civil Appeal No. 12984 of 1996
Decided on 1-11-2004
Counsel for the Parties :
For the Appellant : Vinoo Bhagat, Advocate.
For the Intervenor : Shiv Sagar Tiwari, Advocate (NP).
For the Respondent Nos. 2-3 : Raj Kumar Mehta and Bikash Mohanty, Advocates.
For the Respondent Nos. 5-6 : Jana Kalyan Das, Advocate.
Held : 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. (Paras 20 and 21)
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. (Para 23)
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. (Paras 25 and 26)
JUDGMENT
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 oversee 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 Kalyani Apartment .
2. 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 builder 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.
3. 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.
4. 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.
5. 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.
6. By order dated 28.6.1995 the appellate authority directed the builder s appeal to be dismissed. The appellate a
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