Orissa High Court
Kiran Projects Pvt. Ltd vs Cuttack Development Authority & Others on 10 March, 2025
ORISSA HIGH COURT : CUTTACK
WP(C) No.30721 of 2023
An application under Articles 226 & 227 of the
Constitution of India.
***
Kiran Projects Pvt. Ltd, Dist-Cuttack
... Petitioner.
-VERSUS-
Cuttack Development Authority & Others
... Opposite Parties.
Counsel appeared for the parties:
For the Petitioner : Mr. G. Mukherji, Sr. Advocate
Assisted by Mr. S. Acharya, Adv.
For the Opposite Parties : Mr. D. Mohapatra, Sr. Advocate.
Assisted by Mr. P.K. Singhdeo, Adv.
(for Opposite Party Nos.1 & 2)
Mr. Soumyajyoti Biswal. Adv.
(for Opposite Party No.4)
An application under Articles 226 & 227 of the
Constitution of India.
***
The Kiran Parijatak Enclave Apartment Owner's
Welfare Society, District-Cuttack & Another
... Petitioners.
-VERSUS-
Cuttack Development Authority, District-Cuttack &
Others
... Opposite Parties.
Counsel appeared for the parties:
For the Petitioners : Mr. Soumyajyoti Biswal. Adv.
For the Opposite Parties : Mr. D. Mohapatra, Sr. Advocate.
Assisted by Mr. P.K. Singhdeo, Adv.
(for Opposite Party Nos.1 & 2)
Mr. G. Mukherji, Sr. Advocate
Assisted by Mr. S. Acharya, Adv.
(for Opposite Party No.5)
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERA
Date of Hearing: 24.02.2025 :: Date of Judgment: 10.03.2025
J UDGMENT
ANANDA CHANDRA BEHERA, J.--
1. Since both the writ petitions have been filed by the respective
petitioners thereof against each other relating to the matter
concerning same and one project i.e. Kiran Projects Private Limited,
then, both the writ petitions are taken up together analogously for
their final disposal through this common Judgment.
2. According to the petitioner in WPC No.30721 of 2023, the
petitioner being a private limited company i.e. M/s. Kiran Projects
Private Limited entered into a collaboration agreement with land
owners Sri Ananda Parija & Sri Goutam Parija as per Annexures-5
& 6 for development of two residential plots specifically indicated in
Para Nos.4 & 5 of the writ petition by constructing multi-
storeyed/high-rise building comprising of flats/units and after
construction, 37% of the built up area and proportionate built up
area of the flats would be allocated to the land owners and
remaining parts of the built up area would be held by the petitioner
for selling of the same to the interested flat buyers. On the basis of
such agreement and power of attorney, the petitioner approached
Cuttack Development Authority-Opposite Party No.1 (in short CDA)
seeking permission for construction of a B+S+4 storeyed residential
building and after accepting such request of the petitioner,
permission for construction was granted by the CDA (Opposite
Party No.1) on dated 13.08.2013 vide Letter No.20602/CDA, file
number.PLN-BDP-1480/11 (Annexure-7).
3. On the basis of such permission/authorization of the CDA-
Opposite Party No.1, the petitioner started construction of flats on
the said two plots since April 2014 and completed the same by
August 2016 and the respective flat buyers/owners were given
possession starting from October 2016 and the registration process
of the flats in favour of the flat buyers started since 31.03.2017. On
completion of the sale of the flats and allotment of parking areas to
the flat buyers, it was found that, some areas in the stilt floor was
available with the petitioner having commercial viability, because,
commercial establishments have mushroomed in the area of the
said building. When it is found that, some constructions have
already been made in deviation to the approved plan of the C.D.A.,
then, the petitioner as per letter dated 28.11.2018 submitted
drawings before the C.D.A. (Opposite Party No.1) under the scheme
for regularisation of the deviated constructions and also for using
the unused stilt floor for its commercial use. Then, after taking into
consideration to the application of the petitioner and on proper
verification of documents with spot verification, the Opposite Party
No.1 (C.D.A.) granted permission on dated 01.09.2021 as per
Annexure-8 to the petitioner for using 565.45m2 in the stilt floor for
commercial use on payment of required fees for its regularization
and allowed to use the said apartment for commercial-cum-
residential purpose.
4. When on the basis of above authorization of the Opposite
Party No.1 (C.D.A) as per Annexure-8, the apartment was using by
the petitioner in WP(C) No.30721 of 2023 as commercial-cum-
residential purpose, the Opposite Party No.1 started issuing notices
to the petitioner in WP(C) No.30721 of 2023 one after another vide
letters dated 14.02.2022, 07.07.2022, 21.02.2023 & 23.08.2023
(Annexures-1 to 4) directing to stop commercial activity in that
building, even though, the petitioner in WP(C) No.30721 of 2023
was allowed to do the same through letter dated 01.09.2021
(Annexure-8) issued by the Opposite Party No.1 (C.D.A) in favour of
the petitioner.
5. In response to the said notices, the petitioner replied through
letters dated 14.03.2022, 26.07.2023 and 08.09.2023 (Annexure-
9,10 & 11) respectively indicating in detail therein that, when the
petitioner was allowed for commercial activities only in respect of
the limited stilt areas i.e.565.45m2 by the Opposite Party No.1 as
per letter dated 01.09.2021 (Annexure-8) according to the scheme,
later on the Opposite Party No.1 should not have issued notices for
stopping commercial use in the said permitted area of the stilt floor.
6. Thereafter, the Opposite Party No.1 along with the staffs of
Opposite Party No.3 (Cuttack Municipal Corporation) conducted a
joint spot inspection to the site in question and satisfied that, the
commercial use by the petitioner in WP(C) No.30721 of 2023 in the
permitted area of the stilt floor shall in no way cause any hardship
or inconvenience to the flat buyers/owners of that apartment. Even
after the said joint inspection by the Opposite Party Nos.1 and 3,
the Opposite Party No.1 (CDA) did not withdraw the notices
14.02.2022, 07.07.2022, 21.02.2023 & 23.08.2023 (Annexure-1 to
4) respectively, those were issued to the petitioner in WP(C)
No.30721 of 2023 directing to stop commercial use in the permitted
stilt area i.e. 565.45m2 of the stilt floor, then, without getting any
way, the petitioner approached this Hon'ble Courts by filing the writ
petition vide WP(C) No.30721 of 2023 praying for directing the
Opposite Party No.1 (CDA) to recall its letters dated 14.02.2022,
07.07.2022, 21.02.2023 & 23.08.2023 (Annexure-1 to 4)
respectively or in alternative to quash the said letters dated
14.02.2022, 07.07.2022, 21.02.2023 & 23.08.2023 (Annexure-1 to
4) of the Opposite Party No.1 (CDA) and to pass such
order/direction as the Court thinks fit taking into account the
averments and conditions in the sale deeds of the flat buyers of the
apartment.
7. After filing of the above writ petition No.30721 of 2023 by the
Kiran Projects Pvt. Ltd., Cuttack, the flat buyers association i.e.
Kiran Parijatak Enclave Apartment Owner's Welfare society along
with Mr. Reaz Ahmed Khan filed another writ petition against the
petitioner of WP(C) No.30721 of 2023 and others including CDA
vide WP(C) No.38997 of 2023 praying for quashing the written
permission dated 01.09.2021 (Annexure-5) issued by the Opposite
Party No.1 (CDA) in favour of the petitioner in WP(C) No.30721 of
2023 for commercial use of 565.45m2 area in the stilt floor on the
ground that, the said Annexure-5 is violative of scheme for
Regularization of Unauthorized Constructions and such permission
has been granted by the CDA without complying the principles of
natural justice i.e. without affording any opportunity of being heard
to the Petitioners in WP(C) No.38997 of 2023 by the C.D.A prior to
granting such permission and Kiran Parijatak Enclave Apartment is
exclusively meant for residential use. At any cost, the same can
never be changed/used from residential purpose to any commercial
purpose by the Opposite Party No.1 (CDA). Because, on being
allured by the published brochures of the Opposite Party No.5 for
the exclusive use of the said apartment as residential purpose, they
(flat buyers) were interested to purchase the flats in that apartment.
If there would have been any advertisement relating to any
commercial use of the said apartment, they would not have
purchased any flat in that apartment. Any use of the stilt floor of
the apartment for any commercial purpose shall cause much
inconvenience to the flat owners of such apartment. As such,
granting of permission as per letter dated 01.09.2021 (Annexure-5)
by the Opposite Party No.1 to the Opposite Party No.5 after
receiving the required amount as per the scheme towards deviation
fees by the Opposite Party No.1 (CDA) is purely illegal and contrary
to law. Therefore, the Annexure-5 cannot be sustainable under law.
That apart, the Opposite Party No.5 was trying to block the parking
place of the flat owners in the stilt floor installing shutters, to
which, the flat owners did not allow and for such protest and
disturbance, a case has been registered at Mangalabag P.S. against
the petitioner in WP(C) No.30721 of 2023.
8. When the above permission as per Annexure-5 has been
granted by the Opposite Party No.1 to the Opp. Party No.5 illegally
and unauthorizedly violating the settled position of law, then, the
petitioners approached this Court by filing the WP(C) No.38997 of
2023 praying for quashing the Annexure-5 and after quashing the
Annexure-5 to pass an order directing CDA (Opp. Party No.1) to give
opportunity of being heard to the petitioners in WP(C) No.38997 of
2023 by the Opposite Party No.1 to dispose of the application of the
Opp. Party No.5 for granting permission to use a portion of stilt
floor of the apartment for commercial purpose.
9. CDA and its Vice-Chairman filed a joint counter affidavit in
both the writ petitions taking their stands identically that, the
application of the petitioner in WP(C) No.30721 of 2023 for
regularization of the deviations made in the construction was
allowed on dated 01.09.2021 through its self-disclosure statements
and facts indicating that, the constructions of the concerned
commercial portion in question in the stilt floor had already been
made on the date of floating of the scheme. So, on the basis of the
said self-disclosure made by the petitioner in WP(C) No.30721 of
2023, letter dated 01.09.2021 was issued by the CDA to the
petitioner in WP(C) No.30721 of 2023 for using 565.45m2 area in
the stilt floor as commercial purpose.
10. In Para No.10 of the Notification No.231 dated 20.06.2018 of
the Housing & Urban Development Department scheme on the
basis of the Odisha Development Authorities Act, 1982, it has been
specifically indicated and clarified that,
"in the event of misrepresentation or
suppression of facts, the compounding fee shall
be forfeited and the permission for
regularization so issued shall be revoked and
the matter shall be reported to the Council of
Architecture, New Delhi for cancellation of the
license of the concerned Architect and Director
Town Planning for cancellation of registration in
case of technical persons."
In Para No.12 of the said notification, it has
been indicated that, "any person aggrieved by
the decision of the Development Authority may
prefer an appeal under the relevant sections of
the Act and the decision of the Appellate
Authority shall be final."
As, the permission for regularization as per letter dated
01.09.2021 was granted by the C.D.A. in favour of the petitioner in
WP(C) No.30721 of 2023 on self-disclosure statements, for which,
the letters dated 14.02.2022, 07.07.2022, 21.02.2023 &
23.08.2023 were issued by the C.D.A. to the petitioner in WP(C)
No.30721 of 2023 lawfully to stop any commercial activity in the
permitted stilt area and to file show cause for its appropriate
decision as per law to be taken by the CDA after hearing from the
applicant and flat owners, for which, the WP(C) No.30721 of 2023
filed by the petitioners is liable to be dismissed.
11. The Kiran Parijatak Enclave Apartment Owner's Welfare
Society & another (those are the petitioners in WP(C) No.38997 of
2023) filed their counter in WP(C) No.30721 of 2023 taking their
similar stands, those were taken in their petition in WP(C)
No.38997 of 2023.
The Opposite Party No.5 in WP(C) No.38997 of 2023 filed its
counter reiterating the grounds, those were taken by it in its
petition in WP(C) No.30721 of 2023.
12. I have already heard from the learned counsels of the
petitioners in both the writ petitions and the learned Sr. Counsel for
the CDA and its Chairman.
13. The crux of both the writ petitions filed by the respective
petitioners is same and one i.e.
Whether the permission granted by the CDA as
per letter dated 01.09.2021 in favour of the
petitioner in WP(C) No.30721 of 2023 for
regularization of the deviations in the constructions
of the Kiran Parijatak Enclave Apartment after
receiving required fees for the same as per scheme
by the Opposite Party No.1 (CDA) permitting for
using the said apartment as residential-cum-
commercial and to use 565.45m2 in the stilt floor of
the apartment for commercial purpose is illegal and
unauthorized and;
Whether the said letter dated 01.09.2021 is
liable to be quashed (set aside/recalled) and after
quashing the same, opportunity of being heard is
required to be given by the CDA to the petitioners
in both the writ petitions by the CDA for the
disposal of the application for permission and
whether the letters dated 14.02.2022, 07.07.2022,
21.02.2023 & 23.08.2023 (Annexure-1 to 4 in WPC
No.30721 of 2023) issued by the CDA to stop any
commercial activity in the permitted stilt floor
granted as per letter No.01.09.2021 are liable to be
quashed/set aside?
14. Now, it will be seen, whether CDA (Opposite Party No.1) had
authority or jurisdiction under law for regularization of any
deviation in the construction and to allow the petitioner in WP(C)
No.30721 of 2023 for using the apartment as residential-cum-
commercial purpose giving permission for using 565.45m2 in the
stilt area for commercial purpose.
All the parties are relying upon the scheme prepared by the
Housing & Urban Development Department as per Notification
No.231 dated 20.06.2018 on the basis of the Odisha Deveopment
Authorities Act, 1982.
"The preamble of the said notification clarifies that,
the said notification was made in order to give one time
opportunity for regularising the unauthorized
constructions within the frame work of standards
prescribed in the scheme.
Para No.3 of the said notification provides that, the
Scheme intends to give an opportunity to every person for
regularizing unauthorized constructions undertaken
within the Development area, prior to the date of the
commencement of the Scheme, by way of compounding
on payment of fee at the rate prescribed in the scheme
and the Scheme is applicable only to such unauthorized
constructions that are structurally safe and do not affect
any public interest or safety or interfere with any public
activity.
Para No.10 (2) of that Scheme clarifies that, in the
event of misrepresentation or suppression of facts, the
compounding fee shall be forfeited and the permission for
regularization so issued shall be revoked and the matter
shall be reported to the Council of Architecture, New Delhi
for cancellation of the license of the concerned Architect
and Director Town Planning for cancellation of
registration in case of technical persons.
Para No.12 of that Scheme also clarifies that, Any
person aggrieved by the decision of the Development
Authority may prefer an appeal under the relevant
sections of the Act and the decision of the Appellate
Authority shall be final."
15. It is the undisputed case of the parties that, as per letter dated
01.09.2021, CDA has granted permission to the petitioner in WP(C)
No.30721 of 2023 after receiving the required fees/amounts as per
the Scheme for using 565.45m2 of the stilt floor as commercial
purpose and to use the apartment as commercial-cum-residential.
Thereafter, CDA issued letters dated 14.02.2022, 07.07.2022,
21.02.2023 & 23.08.2023 respectively to the petitioner in WP(C)
No.30721 of 2023 to stop any commercial activity in the aforesaid
permitted 565.45m2 area in the stilt floor in respect of which,
previously permission was granted as per letter dated 01.09.2021.
The flat buyers of the apartment are bound by the contents of
their respective purchase deeds (sale deeds) as per Annexure-13, on
the basis of which, they have stepped their shoes into the
apartment. So, the sale deeds of the respective flat buyers are their
source/basis of entry into the apartment.
It has been specifically indicated in page No.7 of Annexure-13
(sale deed) that,
"The construction is in consonance with the
specific stipulations that spelt out in the agreement for
sale, full satisfaction with regard to the quality of
construction of the flat, workmanship, the facilities
and amenities provided both in the flats as well as in
the apartment/complex. The vendee further explicitly
states that, there is no deficiency in service by the
builder and have no claim/demand in respect of any
additional construction in the top floor and in the stilt
floor and also have no claim for any portion of stilt
floor or for any other allotment."
16. The aforesaid contents in Page No.7 of the purchase deed
(sale deed, Annexure-13) of the flat owners are clearly and
unambiguously going to show that, they (flat buyers) have no
claim/demand in respect of any additional construction in the top
floor & in the stilt floor and also have no claim for any portion of the
stilt floor or for any other allotment by the builder.
17. The above binding effect of the contents in the respective sale
deeds upon the respective flat buyers indirectly authorizing the
builder i.e. petitioner in WP(C) No.30721 of 2023 for making
additional construction in the stilt floor, in which, they (flat buyers)
will have no claim/objection.
When the notification No.231 dated 20.06.2018 has
authorized the CDA for regularization of any unauthorized
construction deviated from the original plan after receiving the
required fees and when the CDA has granted permission as per
letter dated 01.09.2021 to the petitioner in WP(C) No.30721 of 2023
for using the apartment as residential-cum-commercial by the
builder in order to use 565.45m2 in the stilt floor for commercial
purpose and when the flat buyers have indirectly authorized the
builder in their respective sale deeds for making additional
construction in the stilt area, in which, they will have no objection,
then, at this juncture, it cannot be held that, the permission
granted by the CDA through letter No.01.09.2021 to the petitioner
in WP(C) No.30721 of 2023 for using 565.45 M2 in the stilt area for
commercial purpose after receiving the required fees from the
builder as per the scheme is illegal, unauthorized and without
jurisdiction.
18. CDA is a model litigant being a statutory authority. As per law,
always, all fairness is to be expected from the CDA. When the CDA
had permitted the builder (petitioner in WP(C) No.30721 of 2023)
after accepting its letter on the basis of the requirements under the
scheme vide Notification No.231 dated 20.06.2018 and on
verification of reports and plans submitted by the empanelled
registered architect of the CDA for the use of 565.45m2 in the stilt
floor of the apartment as commercial purpose after receiving more
than forty lakhs rupees towards its fee as per the scheme then,
later on, the CDA should not have issued letters vide 14.02.2022,
07.07.2022, 21.02.2023 & 23.08.2023 to the builder (petitioner in
in WP(C) No.30721 of 2023) to stop any commercial activity within
the said permitted area of the stilt floor indirectly
recalling/withdrawing its earlier permission dated 01.09.2021.
Because, the CDA is estopped under law to recall/withdraw its
permission indirectly by issuing the above letters to the builder,
because, CDA is not permitted to "blow hot and cold", "fast and
loose" or "approbate and reprobate" at the same time.
19. On analysis of the facts and circumstances of the writ
petitions, as per the discussions and observations made above, it is
held that, CDA should not have issued the letters dated
14.02.2022, 07.07.2022, 21.02.2023 & 23.08.2023 to the petitioner
in WP(C) No.30721 of 2023. For which, the said letters are required
to be quashed allowing the WP(C) No.30721 of 2023 filed by its
petitioner.
When, it is held that, the WP(C) No.30721 of 2023 filed by the
petitioner is to be allowed, then, the WP(C) No.38997 of 2023 filed
by the petitioners to quash the letter dated 01.09.2021 cannot be
allowed, as, the petitioners in WP(C) No.38897 of 2023 instead of
challenging the letter dated 01.09.2021 of the CDA preferring an
appeal as per law, they have filed WP(C) No.38997 of 2023 to
challenge the same.
20. In the result, the writ petition No.30721 of 2023 filed by the
petitioner is allowed on contest.
The letters dated 14.02.2022, 07.07.2022, 21.02.2023 &
23.08.2023 issued by the CDA to the petitioner in WPC No.30721 of
2023 are quashed.
21. The writ petition No.38997 of 2023 filed by the petitioners is
dismissed.
22. Accordingly, both the writ petitions are disposed of finally on
contest.
23. Pending application(s), if any, in both the writ petitions, shall
stand disposed of due to the final disposal of the writ petitions.
(ANANDA CHANDRA BEHERA)
JUDGE
High Court of Orissa, Cuttack
The 10 .03. 2025// Rati Ranjan Nayak
Sr. Stenographer
Location: High Court of Orissa, Cuttack, India.
