Holding

Deviations from sanctioned plans are condonable only as an exception; deliberate deviations by professional builders are not compoundable, and the matter must be heard in the High Court with directions for regularisation, demolition, and compensation.

Summary

The Friends Colony Development Committee (appellant) challenged unauthorized construction by Mis Modem Mechatech Housing Ltd. and its managing director, who built a five‑storey building exceeding the four‑storey plan sanctioned under the Orissa Development Authorities Act. The Development Authority ordered demolition of the fifth floor and illegal projections, allowing compounding of certain minor deviations for a fee. The builder appealed, continued construction despite a stay, and later filed a writ petition; the appellant sought impleadment, which the High Court denied. The Supreme Court held that deviations may be regularised only as an exception, deliberate deviations by professional builders are not compoundable, and the matter required a full public‑interest hearing rather than a mere reconsideration of revised plans. Accordingly, the appeal was allowed, the High Court’s order set aside, and the two writ petitions were directed to be heard together with specific directions on regularisation, demolition, compensation, and the applicability of pre‑2001 regulations.

Issues considered

Whether deviations from sanctioned building plans can be regularised by compounding and what criteria govern such compounding.
Whether the High Court erred in limiting the remedy to a reconsideration of revised building plans without a comprehensive inquiry.
Whether the builder’s continuation of construction after a stay order constitutes contempt.
Whether the appellant can be impleaded in the builder’s writ petition and have its public‑interest petition heard together.
Which version of the building regulations (pre‑2001 or post‑2001) should apply to the compounding of deviations.
Whether a multi‑membered high‑powered committee should decide applications for compounding of deviations.

Legislation cited

Subjects

unauthorised constructiondemolitioncompounding of deviationsbuilding regulationspublic interest litigationurban developmenthigh powered committeeOrissa Development Authorities Actstructural safety

Judgment

A FRIENDS COLONY DEVELOPMENT COMMITTEE
v.
ST A TE OF ORIS SA AND ORS.

NOVEMBER l, 2004

B [R.C. LAHOTI, CJ. AND ASHOK BHAN, J.]

Urban Development:

Unauthorised construction-Order for demolition of-Plea for
C regularization by compounding-Held: Deviations from sanctioned plan
permissible only as exception-Condonation and compounding of the
deviations is permissible only when it is bona fide or are attributable to some
misunderstanding and where the benefit gained by the demolition would be
far less than the disadvantage suffered-Deliberate deviations not
D compoundable-Deviations by professional builders can be assumed to be
deliberate-Compounding of deviations made by the builders should be
dealt with at a higher level by multi-membered High Powered Committee-
Staff strength to be suitably increased to keep constant and vigilant watch
on illegal and unauthorized construction-Orissa Development Authorities
Act.
E -..,
Respondent Nos. 2 and 3, (a company engaged in building activities and
its Managing Director) applied for construction of a multi-storeyed building
to the Development Authority. The Authority sanctioned construction of a four
storeyed building in accordance with the sanctioned building plans. The
building was constructed in excess of the sanctioned plan on all the floors
F and even a fifth floor was constructed. Authority initiated proceeding u/s 92
ofOrissa Development Authorities Act, against the builder for demolition of
the offending portions. Builder pleaded for compounding for the deviations.
Appellant, a society whose object was to oversee the development of residential
area in question made representation to the Authority, Municipality, Pollution
G Control Board and the State Government complaining of the offending
construction. Authority directed demolition of the fifth floor and the
unauthorized projections on each r.aor. It permitted compounding in respect
of certain deviations on payment of certain amourit by the builder. Builder
filed an appeal before Appellate Authority which granted interim stay of

H 818
FRIENDS COLONY DEVELOPMENT COMMITTEE v. STA TE OF ORISSA. 819
demolition but on condition of stopping further construction. The builder A
proceeded with building activity defying the condition. Appellant filed writ
Petition before High Court. It also sought its impleadment in the appeal filed
by the builder. Impleadment was allowed. Appellate Authority dismissed the
appeal of the builder and the builder challenged it by filing Writ Petition, but
without impleading the appellant. Appellant's application for impleadment in B
the Writ Petition filed by the builder was rejected by High Court It 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. Hence the appeal.

Allowing the appeal, and remitting the matter to High Court for hearing C
alongwith the Writ Petition filed by the appellant in the High Court, the Court

HELD: 1. In the facts and circumstances of the present case 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 D
submitted by the respondent builder. The matter needs a further probe and
hearing in public interest. (830-D]

2. 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 E
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. F
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 G
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 utilised
for compensating and rehabilitating such innocent or unwary buyers who are
displaced on account of demolition of illegal constructions.
[829-F-H; 830-A-B) H
820 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 3. 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 11}.anipulate. 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
B vigilant watch on illegal or unauthorized constructions. (830-B-C)

CVIL APPELLATE JURISDICTION: Civil Appeal No. 12984of1999.

From the Judgment and Order dated 16.4.96 of the Orissa High Court
in O.J.C. No. 4995 of 1995.
c
Vinoo Bhagat for the Appellant.

Shiv Sagar Tiwari (NP) for Intervenor.

Raj Kumar Mehta and Bikash Mohanty for the Respondent Nos 2-3.
D
Jana Kalyan Das for the Respondent Nos. 5-6.

The Judgment of the Court was delivered by

R.C. LAHOTI, CJ. The Friends Colony Development Committee, the
E 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. Mis Modem
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
F in this appeal are the State ofOrissa, 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'.
G The background facts leading to the present appeal are briefly stated
hereinafter. The property l?elonged 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
H building in accordance with the building plans sanctioned by the Authority.
-
FRIENDS COLONY DEVELOPMENT COMMITTEE v. STATE OF ORISSA. [LAHOTI, CJ.] 821
The construction commenced and when the building came up it was found A
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 B
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 . C
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 D
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.l l.1994 of the Authority was issued on 30.l l.1994 to the builder.
E
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 p
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 G
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 H
822 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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
B 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
C 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
D 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
E writ petition.

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 n9t to approve the same. It seems
F 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
G 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 builder. The High
Court disposed of the writ petition by directing that if the builder made a fre.sh
H application and/or submitted a revised plan for approval in respect of
FRIENDS COLONY DEVELOPMENT COMMITTEE v. STATE OF ORISSA. [LAHOTI, CJ.] 823
construction already undertaken by it, the Authority should deal with the A
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 B
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 dc.viations
already made open for consideration and to be dealt with in accordance with
law after the Authority had taken decisions on such application.

Feeling aggrieved by the judgment of the High Court this appeal has
c
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 D
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
clarifiecl 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 E
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 :-
F
(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 G
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. H
824 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A (iit) 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.
B
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
C and its Managing Director were returned with postal remarks 'refused'.

Later, on I0.2.2004 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.
D 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
E 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 tenns. This Court directed
as under :-

"The Cuttack Development Authority shall file an additional
F 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
G 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."

H The builder was also allowed the liberty of filing a statement on affidavit
FRIENDS COLONY DEVELOPMENT COMMITTEE v. STATE OF ORISSA. [LAHOTI, CJ.] 825
incorporating such relevant facts and information as would enable the Court A
to arrive at a just and equitable decision. That further affidavit has been filed.

According to the Stability Report submitted by the Structural Analysis
and Design Cell to the Planning Member of the Authority the following facts
have been reported about the Kalyani Apartment :-
B
"Wis 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 and bedrooms projected to all sides in each floors. C

(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 D
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. E
(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" in the drawing approved in CDA.
F
(I 0) 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. G
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. H
826 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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
B should be reduced. 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."
c
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
D 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
E specifically and separately setting out the deviations-compoundable and
non-compou.ndable, as also the calculation sheets have been filed. It is stated
inter a/ia:-

{I) 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
F 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 are_a 4009.5 sq. ft. was beyond
the permissible norms for regularization I compounding and hence the
same has to be demolished. On account of operation of stay order
G 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
H
FRIENDS COLONY DEVELOPMENT COMMIITEE v. STATE OF ORISSA. [LAHOTI, CJ.] 827
absence of the said amount being deposited the said compounding A
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 and Building Standard) Regulation, 200 I has come into
force. Under the said 200 I Regulation more stringent condition in
respect of highrise building pertaining to setbacks etc. have been laid B
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 I compounding had already
been made under the regulation then applicable the Authority can C
consider compounding I 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 D
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 E
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 F
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 G
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 H . .
828 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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,
B 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
C 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 h.e 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
D 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
E 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.
p 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
G 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
H provide for regulations as to floor area, the number of floors, the extent of
FRIENDS COLONY DEVELOPMENT COMMITTEE v. STATE OF ORISSA. [LAHOTI, CJ.] 829
height rise and the nature of use to which a built-up property may be A
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 B
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 C
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 D
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 E
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 F
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 fid~ 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 G
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 lJ
830 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A 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.
B
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
C 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
D 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

E
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
F 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
G
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
H
FRIENDS COLONY DEVELOPMENT COMMITTEE v. STATE OF ORISSA. [LAHOTI, CJ.] 831

to be taken up in consideration at the hearing of the writ petitions :- A
(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
B
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. c

.. (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 D
Authority, respondent No. 6 herein with copy of the structural stability
certificate, copies Qf 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 of2003. E

(vii) The Stability Report submitted by the Structural Analysis and
Design Cell to the Planning Member, Cuttack Development Authority
on 18.3.2003.

Photocopies of the documents transmitted to the High Court shall be F
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 G
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 H
832 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A 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.
B (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
c told that new Regulations of the year 200 I-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
D 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, 200 I.
E ......
(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 accountability.
F
K.K.T. Appeal allowed.