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1998 Supreme(Ori) 51
High Court Of Orissa
ARIJIT PASAYAT, S. C. DATTA
MANINDRA KUMAR RAY - Appellant
Versus
BHUBANESHWAR DEVELOPMENT AUTHORITY - Respondent
O. J. C. 14518 Of 1997
Decided On : 02/11/1998
A.S.Naidu, B.K.NAYAK, D.MAHAPATRA, G.K.Bohera, G.K.Nayak, L.MOHAPATRA
The provisions of Section 16 of the Orissa Development Authorities Act, 1982, apply to multi-storied buildings, and the BDA's failure to communicate its decision on a building plan within the prescribed time results in deemed approval.
Headnote:
ORISSA DEVELOPMENT AUTHORITIES ACT, 1982 - SECTION 16 - APPROVAL OF BUILDING PLANS - DEEMED APPROVAL - INTERPRETATION OF STATUTORY PROVISIONS - LEGAL PRINCIPLES.
Fact of the Case:
Petitioners applied for permission to develop land by constructing buildings under the Orissa Development Authorities Act, 1982. The Building and Planning Committee recommended approval, but the Bhubaneswar Development Authority (BDA) sought additional information and issued a notice under Section 16(7) of the Act. The petitioners claimed deemed approval due to the BDA's failure to communicate a decision within the prescribed time.
Finding of the Court:
The court held that the provisions of Section 16(3), (7), and (8) of the Act, when read together, provide a mechanism for deemed approval if the BDA fails to communicate its decision within the prescribed time. The court clarified that the time limits apply to multi-storied buildings and that the notice under Section 16(7) was effectively served on the Vice-Chairman of the BDA.
Issues: 1. Whether the provisions of Section 16 of the Orissa Development Authorities Act, 1982, apply to multi-storied buildings. 2. Whether the BDA's failure to communicate its decision within the prescribed time resulted in deemed approval of the building plans.
Ratio Decidendi: 1. The court interpreted the definition of 'building' in Section 2(v) of the Act and Regulation 2(12) of the Bhubaneswar Development Authority (Planning and Building Standards) Regulations, 1993, and concluded that there is no exception carved out for multi-storied buildings. Therefore, Section 16 applies to multi-storied buildings. 2. The court held that the time limits prescribed in Section 16(7) and (8) clearly apply to the facts of the case and that the notice under Section 16(7) was effectively served on the Vice-Chairman of the BDA. As the BDA failed to communicate its decision within the prescribed time, the court held that there was deemed approval of the building plans.
Final Decision: The court directed the petitioners to appear before the Vice-Chairman of the BDA to finalize the decision on the building plans within three months. The court also clarified that if any statutory prescription prohibits construction, it must be taken into account at the relevant time.
PASAYAT, J.
( 1 ) THESE four writ applications are inter-linked and are disposed of by this common judgment. Petitioner in each case had applied for permission in terms of the Orissa Development Authorities Act, 1982 (in short, the 'act') for development of the land by construction of building.
( 2 ) FACTUAL position so far as undisputed is as follows :application was filed for approval of plan along with requisite fees. The same was taken up for consideration by the Building and Planning Committee, and the Committee recommended for issuance of permission for construction of apartments. Subsequently the opposite parties asked for furnishing certain information. These were furnished. Notice under sub-section (7) of Section 16 was given by registered post.
( 3 ) THE controversy revolves round the question whether there was approval of the plan by operation of the deeming provision contained in the proviso to sub-section (3) of Section 16 of the Act, and by operation of sub-sections (7) and (8) of said Section.
( 4 ) ACCORDING to the petitioners, as the authorities did not take steps as were mandated in law, by operation of the deeming provision, the plans are deemed to have been approved, and any subsequent communication is of no consequences. The stand of Bhubaneshwar Development Authority (in short, 'bda') is to the effect that Section 16 has no operation to multi-stories buildings, and in any event the notice purported to have been given under sub-section (7) of Section 16 of the Act had not been placed before the Vice-Chairman, and the erring members of the staff have been taken to task for not having done so. It was pointed that the Regulations as referred to in Section 16 of the Act have been made by the B. D. A. with previous approval of the State Government and the said Regulations are called the Bhubaneswar Development Authority (Planning and Building Standards) Regulations, 1993 (in short, the 'regulations' ). With reference to the counter-affidavit filed, it is stated that there has been really no refusal of approval of the plan, and the Zonal Development Plan is in the process of finalisation and construction of multistoried building in the heritage zone may not be permissible. With reference to Regulation 34, it has been stated that the area and height limitation for residential buildings have been prescribed in the Regulations and in no case there can be any variation of the limitations. It is, however, accepted that the Zonal Development Plan has not yet been brought into effect, and is under consideration of the State Government.
( 5 ) A deeming provision is made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail but in each case it would be a question as to with what object the legislature has made such a deeming provision. Whenever the word 'deemed' is used in a statute in relation to a person or thing, it implies that the legislature, after due consideration, exercised its judgment in conferring that statute or attribute to a person of thing. Where a thing is to be deemed something else, it is to be treated as that something else with the attendant consequences, but it is not that something else (per Cave, J. In R. v. Norfolk Co. , 60 LRE 380 ). Lord Asquoth in Fast End Dwellion Co. v. Finsbury Co. , 1952 AC 109 observed,"if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine, as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably had flowed from or accompanied it. . . . . . . The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit you imagination to boggle when it comes to the inevitable corollaries of that state of affairs. "'deemed' is a word which as Lord Redcliffe said in St. Auby
