Orissa High Court
Z1 Resident'S Welfare Association vs State Of Odisha & Ors. .... Opposite ... on 19 April, 2022
Author: Biswanath Rath
Bench: Biswanath Rath
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.1215 of 2022
Z1 Resident's Welfare Association, .... Petitioner(s)
represented through its General
Secretary, BBSR
Mr. S.K. Dalai,
Advocate
-versus-
State of Odisha & Ors. .... Opposite Party(s)
Mr. R.P. Mohapatra,
AGA for O.P.1
Mr. D. Mohapatra,
Adv. For O.P.2
Mr. S.K. Padhi,
Sr. Adv. being assisted by
Mr. S.S. Mohanty,
Adv. For O.P.3
Mr. G. Mishra,
Sr. Adv. for interveners
Mr. B.P. Pradhan,
Advocate for the interveners
CORAM:
JUSTICE BISWANATH RATH
ORDER
19.04.2022 Order No.
13. 1. This is a writ petition at the instance of the Z1 Resident's Welfare Association involving the following prayer:
"In the light of the aforesaid facts and circumstances, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to issue Rule Nisi calling upon Opp. Parties to show cause as to why:Page 1 of 16
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a) The letter dated 15.12.2021 issued by the Opp.
Party BDA shall not be quashed being illegal, arbitrary, unilateral and unreasonable in the eyes of law;
b) The approval letters dated 20.06.2016 and subsequent approval letters granted by the Opp. Party BDA shall not be quashed being illegal, arbitrary, unreasonable in the eyes of law;
c) A direction shall not be issued to the Opp.
Party B.D.A for initiating appropriate proceedings against the Opp. Party Builder / promoter for carrying out unauthorized development and to immediately stop all the developments carried out unauthorized development and to immediately stop all the developments carried out by the builder for violation of the permission letters and the law;
d) And pass any other order(s) and/or direction(s) as this Hon'ble Court may deem fit and proper."
2. This Court though finds, prayer No.'a' in the writ petition involves a challenge to the order dated 15.12.202 issued by the Bhubaneswar Development Authority-opposite party no.2 however, on whole reading of the pleadings, this Court finds, the Petitioner intends to challenge 10.12.2021 (Annexure-8) involving a rejection order passed by the Development Authority, prayer No.'b' involving a challenge to Annmexure-5 and the prayer No. 'c' taken note hereinabove appears to be consequential. As per the pleadings involving the writ petition, this Court finds, the Association is a Society formed by the owners/ allottees of the apartments so far available, who have already been handed over with possession by the builder/promoter, the opposite party no.3 also alongwith common area use etc. upon execution of an agreement with the society and also executing individual agreement with occupiers presently the association comprises of 444 numbers of flat owners in first block who have all purchased flats/apartment from the promoter/builder Page 2 of 16 // 3 // based on opposite party no.3 floated a broacher along with plan layout. By now, there is already sale of an area measuring 836654 Sq.fts. claimed to be belonging to the existing members of the petitioner- association. It is claimed that on 26.11.2011 the opposite party no.2, Bhubaneswar Development Authority (hereinafter called as "the B.D.A.") granted permission to the promoter-opposite party no.3 under Regulation 10(1) read with Section 16 of the Odisha Development Authorities Act, 1982 (for short "the Act, 1982") for construction of residential and commercial apartments. In the year, 2011, permission was given for construction over a covered area of 2,43, 934.25 Sq.Mtrs. This letter finds place at Annexure-1. Petitioner demonstrating through the table marked as covered area and set back consisting therein three items in covered area and five items in set back in the plan approval 2011, claims, there has been execution of agreement by the builder/promoter with the allottees for the transfer of undivided impartible proportionate share along with transfer of a self- contained independent flat or unit by absolute sale in respect of the schedule land. It is claimed that the agreement between the parties clearly mentions of construction in accordance with the permission under Annexure-1. Petitioner claims for the condition in the agreement, the purchasers/ allottees/ owners shall be exclusive, absolute and indefeasible owners of the flat/space/units and owners will be entitled to use/enjoy all the common areas, facilities, corridors, passages, multipurpose common utility room. Petitioner in order to satisfy the above has filed one sample copy of the agreement at Annexure-2. Petitioner also claims in reference to the plan approval of the agreement with the builder/promoter has a clear mentioning of total area involved therein in the project is Ac.26.184 decimals and the society claimed by virtue of such agreement, the promoter has Page 3 of 16 // 4 // conferred all undivided impartible share to the petitioner over an area of Ac.26.184 decimals for the utilization of facilities exclusively by the members of the society. It is alleged that after completion of construction following the permission vide Annexure-1, the opposite party no.3, promoter executed sale deed with 444 flat owners over a period of time. For the conditions in the agreement with one of the members of the society at Annexure-2, there is allegation that the promoter had breached its own terms as it had agreed in Annexure-2 by showing the construction area to be Ac.4.193 decimals over Khata No.16 and 26 plots instead of undivided impartible interest on Ac.26.184 decimals, which is claimed to be clearly exhibited through the sale deed and certificate of encumbrance marked as Annexures-3 and 4. It is claimed that while the matter stood as above, the promoter, opposite party no.3 was granted another permission letter from the Bhubaneswar Development Authority on 20.06.2016 vide Annexure-5 on the proposed 589 numbers of dwelling units which is in addition to 444 flats not only already constructed but also allotted to the owners in the meantime. It is alleged that this approval is taken without consent of existing owners and the petitioner claims the owner already existing by this time had became the absolute title holder of the aforesaid units. Petitioner alleged that the action of the promoter-opposite party no.3 not only contrary to the Hon'ble "Apex Court judgment in the case of Supertech Ltd. Vs. Emerald Court Owners Resident Welfare Association & Ors. involving Civil Appeal No.5041 of 2021 but also remains contrary to the provision under Real Estate (Regulation & Development) Act, 2016 again also contravenes the promise already held by the builder through the agreement with individual owners and also the agreement with the society. It is on the alleged premises that the promoter is trying to proceed in contravention of their promise and Page 4 of 16 // 5 // the provision of law also involving the Regulation, 1958 of Orissa Development Authorities Act (Planning & Building Standards) Regulation, 2008 and in such attempt it is trying to interfere in the right of existing flat owners already promised & settled. An attempt is also made to demonstrate the above through occupancy certificate issued by the Bhubaneswar Development Authority and marked as Annexure-6. There is also allegation of violation of Regulation-30 of the Bhubaneswar Development Authorities (Planning & Building Standards) Regulation, 2008. It is finding no respite, petitioner claimed to have submitted a complain to the Development Authority on 31.8.2021 for cancellation of plan approval dated 20.06.2016 . The copy of complain appears to be filed as Annexure-7. Petitioner also alleged that in the meantime, petitioner preferred a writ petition bearing W.P.(C).No.39580 of 2021 and in the pendency of the said writ petition, they have been served with copy of rejection of their approaching by the Development Authority by their letter dated 10.12.2021 appearing at Annexure-8. The petitioner has attempted to challenge this order dated 10.12.2021 as clearly borne through the pleading and grounds taken in this writ petition but possibly inadvertently indicated as letter dated 15.12.2021 in prayer no. 'a'. Petitioner also discloses that pursuant to communication through Annexure-8 on its request coming to be rejected, the petitioner was constrained to withdraw the W.P.(C).No.39580 of 2021 and the withdrawal of the writ petition was permitted by this Court's by order dated 20.12.2021. The petitioner association has also given a clear declaration on the above in the cause title of this writ petition. Taking this Court to the ground taken in this writ petition and reading through first plan approval granted in the year, 2011, attention of this Court has been drawn that there has been clear violation of the conditions Page 5 of 16 // 6 // incorporated in the first plan approval. It is alleged that in spite of no mentioning of undertaking the development in a phase manner, there has been attempt to cover the lacunas under the pretext that all constructions undertaken in phase manner. There is allegation that in the second plan approval, there has been also some attempts to completely replace the conditions in the first plan approval. It is contended that the first plan approval dated 26.11.2011 involved 444 units, 20.06.2016 approval is an attempt to bring further 589 buildings. It is claimed that the validity of plan approval under Section 20 of the O.D.A. Act is 3 years. It is alleged that there has been grant of plan approval under the pretext of revised plan approval even after expiry of period. There is of course admission of the society that apart from other construction areas, the initial plan involved construction of 1500 dwelling units over the project area of Ac.26.184 decimsls again involving 26 towers.
3. Taking this Court to the agreement, taking through the conditions in 2011 plan approval, the agreement with individual flat owners and the conditions/promises in the agreement with the association, Mr.Dalai, learned counsel appearing for the petitioner makes an attempt further reading through the impugned order at Annexure-8 that there has been absolutely no consideration of any of the allegations of the petitioner. The impugned order even does not find any discussion on the complain of the petitioner society nor even consideration of the plea of the promoter-opposite party no.3. It is in the above documents, Mr.Dalai, learned counsel appearing for the Society also attempted to take support of the judgment in the case of Supertech Limited Vs. Emerald Court Owner Resident Welfare Association & Others and other batch of cases involving Civil Appeal No.5041 of 2021 disposed of by judgment dated 31.8.2021, the Page 6 of 16 // 7 // judgment in the case of Pioneer Urban Land & Infrastructure Ltd. Vs. Govinda Raghaban involving Civil Appeal No.12238 of 2018, disposed of vide judgment dated 01.04.2019, in the case of K.Ramadas Shenoy Vs. Chief Officer, Town Municipal Council, (1974) 2 SCC 120 and also a decision in the case of Friends Colony Development Committee Vs. State of Orissa, 2004(8) SCC 733. In the above premises. Mr.Dalai, learned counsel made an attempt to satisfy the Court that there has been serious infractions and violations and there is absolute non-consideration of any of the stake raised by the petitioner association in the impugned order and in the circumstance, the Petitioner-Association pressed hard for interference of this Court in both the 20.06.2016 plan approval at Annexure-5 as well as rejection order dated 10.12.2021 at Annexure-8.
4. In its response, seriously objecting to each claim of the petitioner, Mr.Padhi, learned senior counsel at the outset submitted that from the beginning of the project on submission of application for plan approval, there is consideration of plan approval in the year 2011. The developer stood on certain construction taken note by the Development Authority and interest of all 1500 dwelling house owners were kept in mind. The plan approval in the year 2011 was given only in respect of 444 flats and the common area use facilities and the promise to the society members with regard to enjoyment of the common areas, facilities, corridor, passages, multipurpose common utility room, as clearly disclosed in the agreement between the promoter and each new flat owners, simultaneously also involving an agreement in between the promoter and the society. Sri Padhi, learned senior counsel contended that the promoter not only taken note and care of all such promises at every stage, there is also clear intention of the promoter in protecting the above benefits already Page 7 of 16 // 8 // promised to the society members in all its future plan approval applications and there should not be any doubt in implementing such promises. Mr. Padhi, learned senior counsel further also in his opposition to the claim of Mr.Dalai, learned counsel for the petitioner contended that as a matter of fact, initially plan approval was obtained in respect of phase-1 involving 444 flats with a hope to give development to the further plan in future phases and in the process only after completion of 444 units and common area facility already approved vide the 1st approval, possession was handed over to 444 dwelling owners. Mr. Padhi, learned Senior Counsel here contended that the common area and use facility already completed in terms of 1st approval and handed over for use of Society members is to include members up to 1500 dwelling houses and the Petitioner-Society possibly understands, such use only in respect of 444 house owner is misnomer. Mr. Padhi, learned Senior Counsel further contended that the promoter obtained plan approval of phase-2 construction involving 589 units and the construction of these units is in clear terms of the initial intention of the promoter and with clear knowledge of not only the Society but also with each individual owners by now. Mr.Padhi, learned senior counsel also while answering to the complaint raised by the petitioner vide Annexure-7, attempting to satisfy this Court each of the complain made therein at the instance of the society not only remains false but also submitted that each of the complaint remains contrary to the factual scenario. Mr.Padhi, learned senior counsel at this stage of the matter answering to the allegation in respect of the impugned order at Annexure-8 involving rejection of the complain of the petitioner society, however, disapproved the manner of disposal of complain at the instance of the society decided by a statutory authority. At the same time Mr.Padhi, learned senior counsel Page 8 of 16 // 9 // further also contended that if this Court takes up each of the allegation raised by the Society alongwith the detail counter affidavit and the material support therein will be satisfying that each of the complain raised herein are false and the complain of the petitioner is otherwise liable to be rejected. It is, in this view of the matter, Mr.Padhi, learned senior counsel while not challenging to the claim of the petitioner for remand of the matter for appropriate consideration of the complain, complain of the petitioner being disposed of in an unlawful manner, also continued in his attempt to satisfy this Court that the writ petition in fact involves no merit and can be dismissed here also. Mr.Padhi, learned senior counsel further also opposes the applicability of each of the decision relied on by Mr.Dalai, learned counsel for the petitioner for clear difference in the facts and circumstances involving each such cases.
5. This Court here finds, there has been two sets of Intervention Applications vide I.A.Nos.3798, 3799, 3800, 3801, 3803, 4151, 4152, 4153 and 4154 all of 2022. One set being filed by the Advocate Sri B.P. Pradhan, Advocate and other set is being filed by Sri Gautam Mishra, learned Senior Advocate. Both applications appear to be involving prospective buyers over the dwelling houses involved herein constructed in the meantime. Both sets of interveners contesting the matter challenged the claim of the petitioner-Society only to support the stand of the promoter.
6. Mr.Goutam Mishra, learned senior counsel taking the lead on behalf of the interveners particularly at the instance of the prospective dwellers waiting to come in respect of building came up under the 2nd plan approval, 2016, on reiteration of the stand taken by Mr.Padhi, learned senior counsel submitted that in fact the first plan approval was in response to an application for first phase construction though Page 9 of 16 // 10 // included development on common area use and the impugned plan approval, 2016 involved herein involves second phase approval involving 589 new dwelling houses, which is a part of all total 1500 unit/dwelling houses to come in in the entire project area. Mr.Mishra, learned senior counsel while taking this Court to the prayer and the documents filed, however made an attempt on the first prayer involved therein that there is no such letter available either in pleading nor in document side. Mr.Mishra, learned senior counsel also taking this Court to the Arbitration Clause available in the agreement between the parties in contest in the writ petition on the premises that there is available of Arbitration Clause, further, for there is availability of Forums undertaking such exercise even including RERA Authority, the writ petition in the present form is not maintainable. Mr. Mishra, learned senior counsel also brought to the notice of this Court that the petitioner is making self same attempts in variety of Forums involving self same allegation in almost all such Forums and thus contended that petitioner has to choose only one Forum not that it will be agitating same issues in all such Forums. Mr.Mishra, learned senior counsel however did not object to the agreement of the parties for remitting the matter to the Development Authority for it being decided in bad and un-cleared manner for an appropriate order.
Mr.B.P. Pradhan, learned counsel papering for the other set of interveners also in reiteration of the submission raised by Mr.Padhi, learned senior counsel and Mr.Mishra, learned senior counsel finally objected the entertainability of the writ petition.
7. Sri D.Mohapatra, learned counsel appearing for the Bhubaneswar Development Authority-opposite party No.2 however while attempting to support the 2nd plan approval as well as the decision of the authority vide Annexure-8, on production of material Page 10 of 16 // 11 // through records involved therein attempted to justify the approvals as well as the rejection order involved herein. Sri Mohapatra, learned Counsel honestly did not approve the manner of disposal of the complaint vide Annexure-8 by the authority functioning under the O.D.A. Act. Sri Mohapatra, learned counsel, however, taking this Court to the records attempted to satisfy that the complaint has no merit.
8. This Court here takes serious note of stand of all the opposite parties by now that in fact there is no appropriate consideration of the issue even for the opposite parties and attention that there is no sustainable claim, this Court observes, there cannot be approval of the impugned order in the eye of law at the outset. For disposing of an application on the basis of an opinion, this Court finds, for the matter is required to be remitted back to the Development Authority for its re-disposal in exercise power under Section 17 of the O.D.A. Act, it is not proper for this Court to deal with either the complain or the response of the opposite parties at this stage except leaving it open for consideration of the competent authority in fresh disposal of the complain of the petitioner at Annexure-7 herein.
9. Considering the rival contentions of the parties, this Court here on scan of the complain at Annexure-7, the rejection order at Annexure-8, finds though the competent authority deciding the issue vide Annexure-8 taken note of the complain of the complainant- society vide Annexure-7 however straight way turning to its conclusion simply taking note of the opinion provided by their adviser. For better appreciation of the matter, this Court here reflects the whole Annexure-8 which reads as follows :-
"No.40899/ BDA, Bhubaneswar, Dated:10.12.2021 To, Page 11 of 16 // 12 // Sri. B. Nayak General Secretary, Z1 Resident's Welfare Association Ground Floor, Tower-3, Z One (Advait) Kalarahanga, Bhubaneswar Sub: Complain received from Z1 Resident's Welfare Association regarding flouting of terms and conditions of BDA permission.
Whereas, permission for building plan was earlier issued vide no. 7398/BP/BDA dated 26.04.2011 and subsequently permission was issued for regularization and addition/ alteration vide letter no. 17230/BDA dated 20.06.2016 with addition of area; and part Occupancy Certificate was issued vide no. 24944/BDA, dated 27.08.2016;
And whereas, permission was further issued for regularization of existing construction and approval of proposed construction vide letter no. 24018/BDA dated 09.07.2021 with additional land area;
And whereas, grievance petitions were received from you vide your letter dated 18.08.2021 and 31.08.2021 in respect of following grievances.-
1. Member / Owners of 1stt phase RWA are land owners of 4.193 acres of project land (undivided impartiable proportionate title) before approval of plan.
2. Additions/alternations made in approved sanctioned plans, layout plans and specifications of buildings and common areas without written consent of atleast tow third of the allotees.
3. Fraudulent act on the part of the Developers by selling excess area over and above the approved covered area including all Common amenities and facilities.
4. Non handing over of community hall/club to the RWA.
5. No agreement with the association of apartment owners as required under Clause 31 of the letter dated 26.04.2011, by which the building plan of the Phase-I project was approved.
6. Unlawful attempt to alter the sanctioned layout plan, specifically the approved means of access/ road to the existing residential area within the approved project.
7. Legal due diligence of project land.
8. No definite time frame for completion of the 2nd Phase of the Project originally sanctioned by BDA.
And whereas, show cause notice was issued to the developer on dt. 07.09.2021, as to why the permission granted vide letter no. 17230/ BDA dated 20.06.2016 and vide letter no. 24018/ BDA dated 09.07.2021 shall not be reviewed for revocation of permission and directing to stop development of project;
And whereas, the developer has submitted response to the show cause notice on dated, 13.09.2021 and subsequent letter dt.4.10.2021 and 5.10.2021; and BDA after due examination of the reply, sought for the views of learned Advocate General, Odisha on the petition and the reply submitted by the Developer on the show cause notice;
The Learned AG, Odisha has given the opinion in respect of the following queries.-Page 12 of 16
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1. Whether the Developer was mandate to disclose the fact that the members of the RWA had right, title and interest over 4.193 acres of land (Phase-I Project) in its application filed on 15.02.2014 before the BDA for approval of the plan for the Phase-II project?
2. Whether a written consent of two-thirds of the members of RWA is required before any changes or alterations are sought for the approved sanctioned layout plans and specifications of the buildings of Phase-II project?
3. Whether the developer has committed any irregularity by selling Super-built up area in excess of the approved covered area including all common amenities and facilities?
4. Whether, under Regulation 58 of the BDA (Planning and Building Standards) Regulations, 2008, the Developer is required to hand over the existing community hall/ Club Prana to the RWA?
5. Whether the Developer is contractually bound to execute an Agreement with the RWA as provided under Clause 31 of the letter dated 26.04.2011 approving the building plan of the Phase-I project?
6. Whether the Developer now can alter the approved means of access way to the existing residential area of the Phase-I project as provided in approved building plan without the consent of RWA?
7. Whether the claim of the RWA for a due diligence with respect to the title of the developer over the Phase-I project land is justified?
8. Whether the Developer is required to adhere to any timeline for completing the construction of the Block-II project? The learned Advocate General, Odisha has opined that the issues at point no.1, 3, 7 and 8 primarily being an inter party dispute, the BDA is not required to decide the same. The issues at point number 2, 4, 5 and 6, the allegations of the RWA does not merit any consideration on the part of the BDA. Further, the notice to stop development to the developer was in violation of principle of natural justice.
Hence, in view of the above, Bhubaneswar Development Authority has no action to take on your submitted petition and the petition is hereby disposed of on merit.
Yours faithfully, PLANNING MEMBER, BDA"
10. Considering the input in the impugned order herein this Court finds, such disposal is unknown to the eye of law. Further for the opinion of this Court, the opinion of a counsel/adviser of a party is a privilege document and there is no place for either disclosing the matter of opinion or the person providing such opinion, for which the impugned order has no place in the eye of law, which ought to be set aside and the matter needs to be remitted back to the Planning Page 13 of 16 // 14 // Member, Bhubaneswar Development Authority for re-disposal of the complain of the petitioner by undertaking a fresh exercise. Looking to the complaint and the counter of respective parties, this Court likes mention herein that the society in its complain vide Annexure-7 has raised certain issues. For the opinion of this Court, the society being a welfare association and included 444 residents as it's member, keeping the prospect of enlargement of such society by increasing it's member as and when the other phases of construction gets completed and new members come to reside over the development area i.e. the project area and such society is certainly interested and has a right to protect the interest of it's members. In the process this Court on scan of Annexure-1 finds, there has been clear disclosures of the whole area in use, the construction came up by grant of such approval and also the approval conditions indicated therein right through clause-I of clause- IV at running page 24 to 26 of the brief. Similarly from the agreement for transfer in between the developer / promoter Z Estates (P) Ltd., Sri Pramod Chandra Mishra vide Annexure-2 this Court again finds, the promoter has also particular promises in entering into such agreement. Here on scrutiny of further documents, the deed of sale between the promoter and one of the buyer Sri Pramod Chandra Mishra vide Annexure-3 again finds, there has been certain promises to the buyer. The agreement with the society also has several promises in the matter of common area facilities and common use etc. this Court here also observes, while the Planning member re-determine the issue on the remand of the proceeding should take care all the promises already granted to the individual buyer as well as the Society involved, in protecting the promises already held and to see that there is no infringement of same in the guise of further phase approvals at least Page 14 of 16 // 15 // not to keep any doubt in the mind of the ultimate users over the project area.
11. Concluding the proceeding, this Court records its appreciation with each of Counsel participated in argument for they all agreed that the impugned order for its nature and manner of disposal has no survival under the law and the Competent Authority must express its own view on the subject involved while exercising its power under Section 17 of Orissa Development Authority Act in disposal of complain involved here. This Court thus finds, the impugned order under Annexure 8 since has no support to stand in anyway must go. Thus while setting aside the impugned order vide Annexure-8, this Court remits the matter to the Planning Member for re-disposal of the complaint of the Society at Annexure-7 being submitted by the Petitioner Society and needs to be disposed of in accordance with law and with involvement of both the Developer, i.e Z Infrastructure Ltd. and the Petitioner Society. It will also be open to the Promoter to like its detail response in the remand proceeding. Site visit and enquiry, if any likely to be undertaken, must also involve both Petitioner and the Opposite Party No.3 with proper notice. Entire exercise since required to be completed within two months from the date of receipt of copy of order, this Court directs for appearance and production of copy of this order along with response of the promoter, if any, as against Annexure-7 on Opposite Party No.2 by both Petitioner and the Developer through its agent/representative on 25.04.2022.
Till the disposal of complaint of the petitioner this Court directs, it becomes the responsibility of the Developer/the Builder, Opposite Party No.1 to ensure its promise in the matter of common area use and each such facility ensured through the agreements and sale deeds indicated hereinabove. None of the conditions in common Page 15 of 16 // 16 // use area are violated. For the matter remitted back for a fresh decision of Competent Authority in exercise of power under Section 17 of the ODA Act, it shall be open to each participant, if they are so advised, to supplement their further support to their respective claim at least within one week of their appearance and/or receipt of such documents but with supply of copy to the other side at least before filing of the same.
While parting away, this Court observes, observations and/ or directions herein above are prima facie observations and has nothing to do with the fresh outcome on the complaint of the petitioner.
12. The Writ Petition thus stands disposed of.
(Biswanath Rath) Judge Sks Page 16 of 16