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19. On the above backdrop the facts in issue are to be considered. The construction of basement of 2nd floor and 3rd floors made by the 3rd respondent were unauthorised. The 3rd respondent did not even file an application to CMDA for planning permission prior to such constructions. Such constructions cannot be considered to be one of any deviation, as such the constructions are totally illegal and in contravention of the Development Control Rules. The illegal constructions cannot be regularised compared to construction with minor deviation.

22. Mr. AR.L. Sundaresan, learned senior counsel however, submitted that as the respondent had issued notice requiring the 3rd respondent to remove the unauthorised development under Section 56 of the Act, in terms of Sub-section (3) of Section 56, he is entitled to make an application under Section 49 for retention of the land or any buildings or works or for the continuance of any use of the land or building to which the notice relates, by invoking the said Rule, the respondent had made an application under Section 49 of the Act and the order rejecting the said application is amenable for appeal under Section 79 of the Act which the 3rd respondent had invoked. Hence, the Government should be directed to dispose of the said appeal. Admittedly, from the above as to the deviation, it is seen that as against the minimum, of 3 meter set back, the petitioner had left in front side only 2.51 meter, on rear side set back one meter and rear side set back 0.91 meter, side set back eastern side the 3rd respondent had left no space as against 1.50 meter, as against 1.50 meter the 3rd respondent had left only 1.18 meter. On the side of side set back west, as against 3 meters the 3rd respondent had left only 0.91 meters and again on the side set back west, the petitioner had left only 0.60 meters as against 3 meters. That apart, the length of the building as per the approved plan is 21.14 meters but the construction made was 23.24 meters. Likewise, the breadth of the building as per the approved plan was 16.54 meters but the building was constructed to the extent of 18.59 meters on one Page 2635 side and on another side, the breadth of the building was 20.12 meters as against 16.54 meters. These deviations cannot be regularised. Equally, there is no question of revision of plan under Section 49 as such the revision would amount to contravention of the very regulation itself. Hence, we are of the view that the application made by the 3rd respondent before the CMDA under Section 49 has no bearing as it would only be an empty formality. Nevertheless, the said application was rejected and the appeal said to have been preferred by the 3rd respondent to the Government, also cannot be considered as it would only be an empty formality and futile exercise.

Though the municipal laws permit deviations from sanctioned constructions being regularised 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 the rule. Only such deviations deserve to be condoned as are bona fide or any attributable to some misunderstanding 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

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25. In MD Army Welfare Housing Organisation v. the Supreme Court has observed as follows:

In ordinary course the builder could not have carried out construction activities in anticipation that such violations/deviations might be regularised.

If admittedly the constructions are not in terms of the rules, the question of getting them sanctioned by statutory authority would not arise.

No builder acquires any legal right in respect of even the plan until it is sanctioned in his favour.