TaxTMI 
TaxTMI 
2004 (11) TMI 562
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....t'. 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....
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...., 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 hav....
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....n 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 t....
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....rmation 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 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" ....
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....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 / compoun....
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....led 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 t....
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....nt 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 professi....
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.... 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 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 ....