RAJ KISHORE AGARWAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) 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 Authorities Act. An approved plan was sanctioned. The petitioners, 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 Development 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) Regulations, 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 Secretary, Cuttack Development Authority, found that there were deliberate violations of the approved plan and that the conduct of the petitioners was also reprehensible in having continued the construction 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 regularisation of such a violation and it was not a casewhere 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.

(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 justified in ordering the demolition.

(3.) NOW coming to the merits of the case, it is seen that after getting the approved plan, the petitioners went ahead with theconstruction 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 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.