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2003 DIGILAW 39 (ORI)

Raj Kishore Agarwal v. State of Orissa

2003-01-17

B.P.DAS

body2003
JUDGMENT P. K. BALASUBRAMANYAN, CJ. — The petitioners, co-owner purchasers of a plot of land, applied for approval of a building plan in the said plot in terms of the Orissa Development Authori¬ties Act. An approved plan was sanctioned. The petitions, in terms of the said Act and the relevant Rules, were allowed to construct a building in terms of the approved plan. But, the petitioners clearly violating the approved plan, started the construction. They did not leave any set back in the rear portion as per the approved plan. In that situation, the Cuttack Develop¬ment Authority, issued a notice calling upon the petitioners to stop the construction. Defying the direction to stop construction in violation of the approved plan, the petitioners went ahead with the construction. Proceedings were initiated against the petitioners for making the construction in violation of the approved plan and in violation of the relevant provisions of the Orissa Development Authorities Act (hereinafter referred to as the ‘Act’). The petitioners could not seriously dispute the factum of violation and the serious departures from the approved plan. But, they contended that under Regulation 35 (iii) of the Cuttack Development Authority (Planning and Building Standards) Regula¬tion, 2001, they would be justified in not leaving any set back on one side of the property, provided they had left a set back of one metre on the other side. The original authority, the Secre¬tary, Cuttack Development Authority, found that there were delib¬erate violations of the approved plan and that the conduct of the petitioners was also reprehensible in having continued the con¬struction in spite of an order directing them to desist from making the construction in violation of the approved plan. He found that there was no provision which would permit the regu¬larisation of such a violation and it was not a case where any concession can be shown to the builder who had violated the approved plan, had refused to obey the order to stop construction in violation and who had not conformed to the requirements of the Orissa Development Authorities Act. The authority therefore directed the petitioners to demolish the deviation within one month of his order. The authority therefore directed the petitioners to demolish the deviation within one month of his order. We notice here that a neighbouring owner had in fact made a complaint that his right to light and air has been seriously impaired by the construction made by the petitioners in violation of the provisions of the Act and the approved plan. 2. Feeling aggrieved by the decision of the original authority, the petitioners filed appeal under Section 91(2) of the Act. The appellate authority, after a consideration of all the relevant aspects including the conduct of the petitioners in making the construction in spite of the order prohibiting such construction, held that the original authority was fully justi¬fied in ordering the demolition. 3. On going through the orders of the authorities below, we find that this is a case where the petitioners after obtaining an approved plan for construction in a plot purchased by them, pro¬ceeded to put up a construction clearly in violation of the approved plan. This conduct, in our view, dissentitles the peti¬tioners to any reliefs from the Court by invoking its discretion¬ary jurisdiction under Article 226 of the Constitution of India. What is worse, the petitioners continued the unauthorised con¬struction in defiance of a valid order issued by the competent authority under the Act and well within his jurisdiction. Even after the proceedings were initiated, the construction was con¬tinued in defiance of the relevant provisions of the Act, the Rules and the prohibitory orders issued. This conduct of the petitioners, in our view, totally disentitles the petitioners to any relief from this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. A person who thinks that he can get away with a violation and who continues the violation notwithstanding the direction to stop the violation validly issued by an authority, who had the jurisdiction to do so, in our view, should not be granted any relief by this Court while exercising jurisdiction under Article 226 of the Constitu¬tion of India. The jurisdiction though wide, is one that should be exercised by this Court with care and always with reference to the conduct of the party who has come for reliefs. The jurisdiction though wide, is one that should be exercised by this Court with care and always with reference to the conduct of the party who has come for reliefs. In a case of this nature, where a clear cause of defiance of the law has been adopted by the petitioners, it is clearly a case where this Court should refuse to come to their aid. On that short ground alone, this writ petition deserves to be dismissed. 4. Now coming to the merits of the case, it is seen that after getting the approved plan, the petitioners went ahead with the construction clearly in violation of that approved plan. The report of the Amin indicates this. Taking note of the same, the original authority and the appellate authority have found that the constructions are in violation of the approved plan and against the terms of the Act. This finding of fact based on relevant evidence could not be successfully challenged by the petitioners. In that situation, on the basis of the clear finding of the fact rendered by the authorities below, we are of the view that they were justified in directing the petitioners to demolish the illegal and unauthorised construction. There can only be one answer to the question posed and that answer is in the affirma¬tive that the authorities below were justified in directing demolition of the illegal construction. In fact, they had the statutory duty to get the illegal construction demolished. It cannot, therefore, be said that the decisions of the authorities suffer from any error apparent on the face of the record justify¬ing our interference in this proceeding. 5. Learned counsel for petitioners placed reliance on Regulation 35 (iii) of Cuttack Development Authority (Planning and Building Standards) Regulations, 2001. It is brought to our notice by the learned counsel for the Cuttack Development Author¬ity and the learned counsel for the intervenor, that the area in question is not a Basti area to which alone Regulation 35 would apply. It is also pointed out that the Amnesty Scheme relied on by the petitioners has not been brought into force. Counsel for the petitioners also could not produce before us any notification indicating that the area had been notified as a Basti or that an Amnesty Scheme has been adopted. Therefore, the argument that Regulation 35 has application cannot be sustained. Counsel for the petitioners also could not produce before us any notification indicating that the area had been notified as a Basti or that an Amnesty Scheme has been adopted. Therefore, the argument that Regulation 35 has application cannot be sustained. Whether the Government can bring into force a Scheme considering all viola¬tions with the area of the Cuttack Development Authority defeat¬ing the very purpose of the Act is altogether another question. But here, we are not called upon to go into that aspect since the scheme has not been notified. We think that the Government would be better advised to consider whether such a scheme annihilative of planned development and to protect lawless conduct should be approved at all. 6. Thus, on an anxious consideration of the relevant aspects brought to our notice, we are satisfied that the order directing demolition of the illegal construction is justified. We feel that persons should not have an impression that they can violate with impunity any rule of law or Regulation and then subsequently get it regularised, legalised or overlooked by using means fair and foul. The creation of such an impression in the mind of the people at large would result in the rule of law being jettisoned and the object of planned development of the town being lost and seriously retarding the development of the town. We dismiss the writ petition. Copy of this judgment be handed over to Mr. S. K. Nayak (I), Government Advocate. The authorities under the Act are expected to implement the order forthwith since the interim order granted stands vacated in view of this judgment. They will report the implementation to this Court within one month. Petition dismissed.