Pradipta Ray, J.
1. Plot No. P/13 having an area of 5400 sqr.ft. (hereinafter referred to as the 'disputed plot') is situated in an area ear-marked as residential area in Rourkela. In 1990 Smt. Sushila Devi Rungta, the writ petitioner in O.J.C. No. 13,952 of 1 996 purchased the disputed plot from the original lessee with necessary permission and submitted a plan seeking permission for construction of a four storied residential building. In the said plan the petitioner proposed to construct over a plinth area of 2271 sqr. ft. with front set-back of 22'-8'. rear set-back of 9'-10', Eastern side set-back of 5'-10' and Western side set-back of 13'-3'. Rourkela Regional Improvement Trust found that the proposed plan was defective inasmuch as it did not provide for the required rear set-back of 15' and side set-back of 10'. On June 4, 1991 Smt. Rungta modified the earlier plan and submitted the same for approval/licence. After holding necessary site-verification Licence No. 204/RRIT dated October 23, 1991 was granted permitting Smt. Rungta to construct her proposed building with plinth area of 2277 sq.ft. and front set-back of 22'-8', rear set-back of 9'-10', left (West) set-back of 13', right (East) set-back of 6'. Although permission was obtained for constructing a residential house Smt. Rungta suddenly, without obtaining any permission deviated from the approved plan with the intention of setting up a modern hospital.
2. Shri Jagannath Das, writ petitioner in OJC No. 14266 of 1996 is the lessee of Plot No. P/12 to the contiguous west of disputed plot. When construction of building was almost complete up to the 2nd floor Shri Das, petitioner in OJC No. 14266 of 1996 and opp. party No. 5 in OJC No. 13952 of 1996, complained to the Rourkela Development Authority, which had in the meantime replaced the Rourkela Improvement Trust, about illegal and unauthorised construction by Smt. Rungta on the disputed Plot. On the basis of such complaint the Rourkela Development Authority (hereinafter referred to as the 'RDA') issued notice No. 198/RDA, Under Sections 31(3) and 33(1) of the Orissa Town Planning and Improvement Trust Act, 1956 asking her to stop further construction and to show cause within 7 days why the licence granted in her favour would not be revoked and why she would not be prosecuted for such unauthorised construction. In response to the said notice, Smt. Rungta submitted her show-cause and also a revised plan for approval in terms of Section 16, of the Orissa Development Authority Act, 1982. In the meantime, Shri Jagannath Das filed Title Suit No. 21 of 1996 in the Court of Civil Judge, Senior Division, Rourkela for a declaration that Smt. Rungta and/or her husband have/has no right to utilise the disputed plot for commercial purpose and for permanent injunction to that effect. In her reply Smt. Rungta claimed that the deviations were very minor in nature and the main objective of the approved plan was in tact. By letter dated March 29, 1996 a planning member of RDA informed Smt. Rungta that her revised plan was not considered as she had violated the earlier approved plan by raising constructions on set-back area of 798.36 sq. ft. and extending the construction by another 1 321.38 sq.ft. By the said letter Smt. Rungta was also directed to demolish the unauthorised portions at her cost and report compliance. Against the said direction Smt. Rungta moved the Vice-Chairman of the RDA Under Section 1 6(7). By letter dated August, 6. 1996 the R.D.A. rejected Smt. Rungta's application for permission to convert the residential building to hospital, and sent a notice directing her to demolish the unauthorised structures within 15 days from the date of receipt of that notice. An appeal was filed before the State Government. The Commissioner-cum-Secretary, Housing and Urban Development Department being the appellate authority disposed of Smt. Rungta's appeal by order dated October 16, 1996. The appellate authority passed the following order :
'It is evident from the joint inspection report that the land of the intervenor has not been encroached. Therefore, this ground is not valid. However, the set-back as approved by RDA has not been left in three sides of the plot. This violates approved plan of the RDA. As far as starting hospital in the residential area is concerned, there are many hospitals functioning in the residential area as reported by Planning Member, RDA. Therefore, there should not be any objection in establishing a hospital in the residential area in this case also. But by not leaving the proper set back as per the approved plan by the RDA, it is clear violation of ODA Act, 1982. RDA may take proper action as per ODA Act against the violation of approved plan.'
3. Smt. Rungta has filed OJC No. 13952 of 1996 for quashing the notice dated August 6, 1996 (Annexure-8) issued by the RDA. She, however, has not challenged the appellate order dated October 16, 1996. Shri Jagannath Das and opp. party No. 5 in OJC No. 13952 of 1996 have filed a separate writ application being OJC No. 14266 of 1996 challenging the part of the appellate order by which the appellate authority did not find any objection to permit Smt. Rungta to use the disputed plot and construction thereon, as a hospital.
4. As both the writ petitions arise out of the same set of facts and involve similar questions of fact and law, those were heard analogously and are being disposed of by this composite judgment.
5. Deviations from the approved plan and unauthorised construction have been committed. However, on behalf of Smt. Rungta, it has been submitted by Mr. Mukherjee, learned Advocate that the deviations and the unauthorised constructions complained of are of such nature as are capable of being condoned/compounded upon realisation of necessary fine or penalty. Mr. Mukherjee has also questioned the locus standi of the owner of the adjacent plot to raise objections regarding deviation from plan or unauthorised construction. It has also been contended that the RDA having permitted setting up of hospitals in residential area, there is no acceptable reason to refuse such permission to Smt. Rungta particularly when such permission is legally permissible. Smt. Rungta, the petitioner in OJC No. 13952 of 1996, however, has disputed the measurement of the constructed plinth area and the extent of construction on set-back areas shown in the original plan.
6. Deviations from approved plan may be of different kinds. First, deviations may be of such nature as do not violate the mandatory requirements of Building Rules or Regulations and if those were included in the plan the authorities would have granted permission; second, the deviations may be of a nature which do not directly violate the mandatory provisions of Building Regulation, but deviations have weakened the strength of a construction that it would be risky to permit such deviated construction. Third, the deviations may violate the mandatory provisions of Building Regulation and could not have been permitted even if those were included in the original plan. Where the deviation is of first kind, as mentioned hereinabove, it is open to the authorities to condone or compound such deviation and to accept a revised plan upon realisation of permissible compounding charge or penalty. Where the deviations are of the second kind, the authorities cannot compound such deviation, unless original strength is restored. In case of third kind of deviation, the authorities cannot condone/ compound such deviations unless those are very insignificant. For example, if there is only one inch encroachment on the side space, it may be compounded. Thus, it is necessary to examine the nature and extent of deviations and whether the deviations violated the mandatory provisions of Building Rules or Regulations.
7. Admittedly, the Bhubaneswar Development Authority (Planning and Building Standard) Regulations. 1993 have been adopted by the RDA and those regulations govern the construction of building in the civil township of Rourkela. The said regulations provide for open space (set-backs) for different kinds of building relatable to the total area of the concerned plot. Hospital is included within institutional buildings. Table 8 is the relevant table regarding open space requirement:
'OPEN SPACE REQUIREMENT FOR INSTITUTIONAL (INCLUDING RELIGIOUS, EDUCATIONAL AND ASSEMBLY BUILDINGS) (UP TO 10 METRE IN HEIGHT)
TABLE - 8
Sl. Area of the plot in Minimum open space F. A.R. MaximumNo. square metre requirement CoverageFront Rearside(1) (2) (3) (4) (5) (6) (7)1. Up to 50 6M 3M 3 M 1.50 40%2. 500-1000 9M 3M 3 M 1.50 35%3. above 10 12 M 3M 3 M 1.75 30%
N. B. - Another 5 per cent coverage on the ground floor may be allowed for covered garage for cars and cycle parking. The area for parking on the ground floor will not be taken into consideration for calculating FAR.
(2) For buildings above 10 metre in height or part thereof, the open space shall be increased at the rate of 10 metre for every 3.0 metres of further height.' The allotted area of disputed plot No. P/13 is 501 sq. metre. If it is so then serial No. 2 of Table No. 8 will be applicable. Smt. Rungta. however, has alleged that because of encroachment of Sri Jagannath Das, the actual area available is 497 sq. metre and accordingly, the serial No. 1 is applicable. She has also disputed the area of deviated constructions by slating that the deviations extend the plinth area only by 84.7 sq. ft. and total plinth area of the construction made is 2361.7 sq. ft. and not 4455 sq.ft. as alleged by the RDA.
8. Mr. Mukherjee has submitted that the construction on Plot No. P/12 having a portico on the side set-back extending up to the fringe of Plot No. P/13, the two buildings of adjacent Plots P/l 2 and P/13 are to be treated as semi-detached buildings and Regulation 75 should be made applicable. The semi-detached building has been defined under Regulation 2 (73) as 'a building detached on 3 sides, front. rear and side with open spaces as specified under Regulations 33 to 36. Clauses 1, 2 and 3 of the Regulation 75 are quoted below :
'75. Row housing and semi-detached house - (1) Owners of adjacent similar dimension plot abutting a road may be permitted to construct row or semi-detached buildings.
(2) The orientation of the row or semi-detached building shall preferably be such that the prevailing south-west summer breeze can be availed by each dwelling unit.
(3) For semi-detached buildings over two adjacent plots, the coverage, set-backs, the height and the F.A.R. shall be regulated by treating both the lots as one and in accordance with the requirements contained in Table 3 and Table 4 given in Regulations 33 and 34 of these Regulations.'
Semi-detached buildings can be constructed on two adjacent plots of similar dimension only when the owners of the two plots are same persons or where owners of the two adjacent plots enter into any such agreement or arrangement and jointly apply to the concerned authority for construction of semi-detached buildings. It is not open to the owner of one of the adjacent plots to raise a semi-detached building without the express agreement or consent of the adjacent owner. In the present case, there is no consent or agreement with the owner of P/12. Smt. Rungta did not also seek licence for construction of a semi-detached building. We are not able to accept that the construction on Plot No. P/l 3 should be treated as a semi-detached building. Accordingly, Smt. Rungta cannot take advantage of Regulation 75, Sub-regulation (3). In the present writ application we are not concerned whether Jagannath Das raised his construction in violation of Building Regulations. It is open to Smt. Rungta to initiate any appropriate legal action against Shri Jagannath Das for violation of Building Regulations. Thus, if the construction on Plot No. P/13 is treated to be a residential building any construction beyond permissible areas under Table 4 and if it is to be treated as a hospital building constructions beyond the permissible parameter of Table-8 will be illegal and cannot be compounded or condoned by the R.D.A.
9. The disputed building is situated within a residential area. The original plan was submitted for constructing a residential house. Subsequently, permission was sought for conversion of the residential building into an institutional building for running a hospital. It appears that in residential areas hospitals have been permitted to be set up by the R.D.A. and several hospitals are running in the residential areas. Mr. Mukherjee has drawn the attention of this Court to Table No. 18 under which Hotels, Hospitals and Sanatoria not treating contagious diseases and mental patients can be permitted on a special consideration recording reasons in writing if set-back and coverage of plots do not constitute nuisance to the residential area. It appears that on special consideration setting-up of Hospitals may be permitted within residential use zone, but each application for special permission is required to be considered on its individual merit and permission cannot be granted merely because other hospitals have been permitted to be set up. Ordinarily, hospitals cannot be set up in residential area. An applicant for setting up a hospital must establish existence of special reasons and that it would not constitute nuisance to the residential area. We are not able to accept the view taken by the State Government being the appellate authority that as several hospitals are running in the residential area in Rourkela township. Smt. Rungta is entitled to such permission. Application of Smt. Rungta is to be considered on its own merit on the basis of the parameters as contained in Table No. 18 and while considering such application appropriate notice should be given to the owners or inhabitants of neighbouring plots inviting objections. If any neighbouring owners or inhabitants submit any objection, such objection is also required to be duly considered before taking a final decision on the application for permission.
10. Mr. Mukherjee has questioned the competence of Shri Jagannath Das to raise objection and has also raised the plea of estoppel against him. The Building Regulations are framed for the general benefit, to keep sufficient space between two constructions for free passage of light and air and to ensure proper safeguard against environmental dislocation. Provisions for vacant spaces, side or back or front, definitely confer a benefit on the adjacent owners. Not to speak of any adjacent owner, any inhabitant of the town or locality can lodge bona fide complaint against any violation of Building Rules or Regulations. Concept of affectation has grown wider and a person aggrieved need not always be directly affected. In the present case, however, there is no doubt that Sri Das is directly affected by the alleged violation and deviation. If the violations/deviations were of the first kind, it might not have been open to Sri Das to maintain a proceeding. In the facts and circumstances of the present case, Sri Jagannath Das has locus standi to lodge complaint and pursue his complaint in any permissible forum.
11. In support of his plea of estoppel Mr. Mukherjee has submitted that Sri Das being owner and a resident of the adjacent building was witnessing the progress of construction from the beginning but kept silent without raising any murmur or protest. When the alleged deviated construction was near completion spending a huge amount Sri Das lodged his complaint with deliberate mala fide motive to inflict unbearable financial loss on Smt. Rungta. Plea of estoppel cannot be availed of to perpetrate an illegal and unauthorised act. There is no estoppel against a statute. Building Regulations are admittedly statutory regulations. Moreover, the R.D.A. is under a statutory obligation to prevent any construction in violation of the Building Regulations. On the basis of the complaint lodged by Sri Das, the R.D.A. acted to enforce compliance with its Regulations. Smt. Rungta herself took the risk of raising unauthorised constructions without obtaining necessary permission and in alleged violation of Building Regulations. Shri Das submitted the revised plan only after Sri Das raised objection. A person, who chooses to violate law consciously and deliberately should not be permitted to raise plea of estoppel. In the facts and circumstances of the present case we are unable to accept that Shri Das is estopped from complaining about violation of Building Regulations or from pursuing his complaint in appropriate forums.
12. Mr. Mukherjee has further submitted that the revised plan was submitted on February 16, 1996. But the R.D.A. neither accepted nor rejected the same within the prescribed period and as such the revised plan should be deemed to have been accepted by the R.D.A. The said submission cannot be accepted as the Planning Member of R.D.A. intimated Smt. Rungta by his letter March 29, 1996 that in view of violation of the eailier approved plan revised plan was not being considered Smt. Rungta also submitted an appeal before the Vice-Chairman-cum-District Magistrate and Collector, Sundargarh against the decision of the planning member .Mr. Mukherjee submitted that the words is not considered' did not amount to 'rejection'. After going through the letter we are of the view that this was in fact rejection of her revised plan on the ground that it was not entertainment because of violations mentioned therein.
13. Mr. Sanjit Mohanty appearing lor Sri Jagannath Das has urged that Smt. Rungta, the petitioner in OJC No. 13952/96 has not challenged the appellate order dated October 16, 1996 and the order dated August 6, 1996 of the R.D.A. having merged with the appellate order she cannot challenge the original order which has no independent legal existence. It appears that Smt. Rungta by her letter dated November 22, 1996 expressly accepted the order of the appellate authority and practically invited the R.D.A. to take proper action in accordance with the provisions of Development Act, 1982 (Annexure - K/3) to the counter affidavit of opp. parties 3 and 4. In the said letter dated November 22, 1996 Smt. Rungta proceeded as if the R.D.A. was only objecting to extension of the portico towards the western side of her plot. We have perused the joint inspection report dated October 9. 1995. the notice dated August 6, 1 996, joint inspection report of Planning Member in pursuance of the order of the appellate authority dated August 13, 1996 and the order passed by the appellate authority. In all those documents, the objection extends to all deviations and constructions on the set-back areas of north, south and west side. The plea of Smt. Rungta that the R.D.A. was proceeding only against deviation on the western side is not correct. However, it appears to us that Smt. Rungta accepted the appellate order on the basis of some misconception or incorrect advice. Accordingly, although there is some force in the contention of Mr. Mohanty, we are not inclined to reject Smt. Rungta's writ application merely on such technical ground particularly when we have taken into consideration all aspects of the dispute.
14. Mr. Mohanty has further submitted that the appellate authority did not apply its mind to the relevant considerations before expressing its opinion that there should not be any objection to establish a hospital in the residential area. We have already pointed out that permission for conversion cannot be granted merely because some other hospitals have been permitted in residential area. The authorities must consider whether the constructions required for running a hospital under the Building Regulations are possible and/or have been in fact made accordingly. No permission can be granted unless the construction conforms to the restrictions contained in the Building Regulations for construction of an 'institutional building'. The authorities also are required to consider whether the proposed hospital will cause any nuisance to the neighborhood in the process of taking decision, the authorities in to invite objections from the public of the area and if any objection is filed they are to consider such objection before taking final decision The expression of opinion by the appellate authorities is mechanical and vitiated by non-consideration of vital and relevant factors. Accordingly we have no hesitation to set aside that part of the appellate authority's order dated October 16, 1996.
15. In her writ application Smt. Rungta has raised several factual disputes regarding the nature of the deviation, the extent of plinth area constructed by her, the actual size of the plot etc. It is not possible for us in this writ-jurisdiction to resolve said factual disputes. As we are directing the R.D. A. to consider the question of granting permission to establish a hospital on the plot and as the question of unauthorised construction and/or deviations are also connected with such consideration, we think it fit and proper to give an opportunity to Smt. Rungta to place her case before the Rourkela Development Authority.
16. For the foregoing reasons we set aside the order dated October 16, 1996 passed by the appellate authority and direct to keep the notice dated August 6, 1996 in abeyance till the question of deviation and violation of Building Regulations are reconsidered in the light of our observations. We direct the Rourkela Development Authorities to re-determine the dispute after giving Smt. Rungta and Sri Das opportunities of hearing. If necessary, the R.D.A. will cause joint measurement of the Plot No. P/13 and the construction raised thereon to find out the nature and extent of deviation. For the purpose of considering the question of permission for establishment of a hospital, the authorities will issue public notice inviting objections from the public of the neighbourhood and will consider objections, if any, filed within the prescribed time. While determining the question/objections and before taking final decision the authorities will keep in mind the position of law in accordance with the observations made in this judgment. Such decision is to be taken within three months from the date of communication of this order. Till such determination is finally made, Smt. Sushila Devi Rungta, petitioner in OJC No. 13952 of 1996 or any person claiming under or through her is restrained from raising any further construction or from using any part of the construction for any purpose other than residential purpose.
17. Both the writ applications are disposed of accordingly.
R.K. Patra, J.
18. I agree.