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2012 DIGILAW 166 (ORI)

Jagadish Prasad Naik v. State of Orissa

2012-03-27

B.P.DAS, S.K.MISHRA

body2012
JUDGMENT B.P. DAS, J. The Petitioners in this Writ Petition challenge the Order Dated 8.8.2011 passed in Appeal Case No. 17/2011 (Annexure-1) upholding the Order Dated 25.4.2011 passed in U.A.P. No. 339/2010 (Annexure-2) by the Authorities under the Orissa Development Authority Act, 1982 (in short, "the Act"), wherein the construction undertaken by the Petitioners over plot Nos. 195(P). 196(P) & 299 of Khata No. 412 of Mouza-Kalarahanga, Bhubaneswar, has been directed to be removed within fifteen days from the date of service of the order & in case of failure to do so, the said development would be removed by the Bhubaneswar Development Authority (in short, "B.D.A."). 2. According to the Petitioners, plot Nos.195(P), 196(P) & 299 of khat a No. 412 in Mouza-Kalaraganga, Bhubaneswar, belong to Petitioner No.2 & in order to construct multi-storied residential buildings over the said plots, Petitioner No. 2 prepared a building plan & got the technical approval from the Kalarahanga Gram Panchayat vide letter dated 4.2.2003 (Annexure-7). The said approved building plan was re-checked & technically approved by the Junior Engineer, Bhubaneswar Panchayat Samiti & was re-validated for a further period of five years from the date of conversion of the schedule land by Order Dated 5.8.2006, vide Annexure-8. Initially the said plots were agricultural land & the competent authority under Section 8(A) of the Orissa Land Reforms Act, 1960 (in short, O.L.R. Act) allowed conversion of the land from agriculture to homestead (Gharabari) with effect from 27.3.2007 & the premium was accordingly paid by Petitioner No. 2. When the construction was going on, Petitioner No. 2 entered into an agreement on 3.8.2009 with Petitioner No. 1 for development of the said plots & also executed an irrevocable power of attorney for effective execution of the construction project over the same. When the construction was at the advance stage, on 16.7.2010 the Petitioners received a notice dated 12.7.201 (Annexure-13) issued by the Joint Town Planner-1 of B.D.A. asking them to show cause within seven days as to why penal action would not be taken against them for undertaking the construction of S+8 storied building without permission under Section 16 of the O.D.A. Act. On 16.7.2010 the Petitioners also received another show cause notice dated 14.7.2010 (Annexure-15) issued under Section 91 (1) of the O.D.A. Act in U.A.P. No. 339/2010 as to why order shall not be passed directing removal of the roof level construction of S+3, S+4, S+1 storied & a plinth level construction of apartment building constructed unauthorisedly in violation of the approved plan & rules & regulations. On 16.7.2010, the Petitioners received an Order Dated 14.7.2010 passed under Section 92 (1) of the O.D.A. Act (Annexure-14) that the development undertaken by them was without permission, approval & sanction as required under Section 15 of the O.D.A. Act & Petitioner No.1 was directed to discontinue & stop the development from the date of service of the order under a written intimation. 3. The Petitioners challenging the aforesaid notice & the orders approached this Court in W.P.(C) No. 12104/2010, which was disposed of on 5.10.2010 after hearing both the parties & considering the counter affidavit filed by the B.D.A., with a direction to the Petitioners to approach the B.D.A. by filing a show cause reply taking all the points that were taken before this Court & till conclusion of the proceedings by the B.D.A., status quo as on the date of such order in respect of the property was directed to be maintained & no coercive action was to be taken against the Petitioners. According to the Petitioners, they have submitted their reply to the show cause notice taking various stands including the stand that though the Gazette Notification dated 24.3.2003 is purported to have been issued by the Housing & Urban Development Department in exercise of powers conferred under Sub-Section (2) of Section 3 of the O.D. A. Act, 1982 to include the additional areas of the revenue villages mentioned in the Notification In the Bhubaneswar Development area created with effect from the 1st day of September, 1983, the said Notification may be taken to have been issued in exercise of powers under Section 3(2) of the O.D.A. Act for the reason that the power to exclude or include is provided under Section 3(2) of the O.D.A. Act. The O.S.D.(O.D.A. Act) by Order Dated 5.4.2011 (Annexure-A/2 to the counter of the B.D.A.) rejected the show cause reply of the Petitioners holding that the construction undertaken by them without approval from the competent authority over plot Nos.195(P), 196(P) & 299 of khata No. 412 of mouza-Kalarahanga was unauthorized & liable to be removed. Ultimately, they issued the order of demolition directing the Petitioners to remove j demolish the constructions within fifteen days from the date of receipt of the order, failing which action under Section 91 (1) of the O.D.A. Act, 1982, would be taken by the Enforcement Squad of B.D.A. The Petitioners against the Order Dated 5.4.2011 filed an appeal being U.A.P. Appeal No. 17/2011 under Section 91 (2) of the , O.D.A. Act & as the Appellate authority did not take any step for disposal of the Appeal, the Petitioners filed a Writ Petition before this Court bearing W.P.(C) No.13169/2011, which was disposed of on 11.5.2011 directing the Petitioners to appear before the Appellate authority on 17.5.2011 & on their appearance, the Appellate authority would fix a date of hearing & conclude the appeal by 15.6.2011 & till that date the construction would not be demolished. Ultimately, the appeal was disposed of on 8.8.2011 & the Appellate authority upheld the Orders Dated 5.4.2011 & 25.4.2011, which are under challenge in the present proceeding. 4. The Petitioners advanced three propositions in challenging the impugned orders. No.1- With the introduction of Part-IX in the Constitution by the Constitution (Seventy Third) Amendment Act, 1992 with effect from 24.4.1993 & consequent amendment of the Orissa Gram Panchayat Act, 1964, the provisions of O.D.A. Act, 1982 are not applicable to the areas/territories under the jurisdiction of a Gram Panchayat. No.2- The O.D.A. Act, 1982 has no application to agricultural land & therefore, any order or notification under the provisions of the said Act bringing agricultural land within the purview of the O.D.A. Act or including the said land in the Development areas declared under the O.D.A. Act is illegal. No.2- The O.D.A. Act, 1982 has no application to agricultural land & therefore, any order or notification under the provisions of the said Act bringing agricultural land within the purview of the O.D.A. Act or including the said land in the Development areas declared under the O.D.A. Act is illegal. No.3- Without prejudice to proposition Nos.(1) & (2), the Petitioners advanced their argument that inclusion of an area within the development area by a notification in exercise of powers under the O.D.A. Act ipso facto or per se shall not give authority, power and/or jurisdiction to a Development Authority unless there is a notification under the provisions of the O.D.A. Act constituting the Development Authority specifically for the area so included in the existing Development Area. 5. Counter affidavit has been filed by O.P.2-B.D.A. in objecting to the points raised by the Petitioners. But no counter affidavit has been filed by the State. 6. Before going to deal, with the propositions, as set forth herein above, let us go through the orders impugned in this proceeding. On perusal of the impugned orders, we found that two main grounds have been taken before the Appellate authority that the B.D.A. has no jurisdiction to insist for permission, when the permission was granted by the Sarpanch of Kalarahanga Gram Panchayat & the Sarapanch has the authority to issue approval of the construction of the building when the area in question is alleged to have been covered under the jurisdiction of the B.D.A. These are the two vital questions out of five points raised before the Appellate authority. In answering these two questions, the Appellate authority held as follows :- "It reveals from the records available & presented before this Court that the mouza Kalarahanga was included under the jurisdiction of Bhubaneswar Development Authority vide Gazette Notification dt.24.3.2003. Hence as per the Orissa Development Authorities Act, 1982, no construction should be made without approval of the Bhubaneswar Development Authority with effect from 24.3.2003. It also reveals from appeal petition that the Appellants have produced approval of building plan over the plot in question obtained on 4.2.2003 revalidating the previous plan conditionally subject to change of Kisam to Gharabadi before starting construction. It also reveals from appeal petition that the Appellants have produced approval of building plan over the plot in question obtained on 4.2.2003 revalidating the previous plan conditionally subject to change of Kisam to Gharabadi before starting construction. Hence, it fairly can be assessed that till the year 2006 no such construction has been started so also the Appellant are failed to justify their grounds on the basis of the letter of Sarpanch as to whether the scheduled land has been converted to homestead land. The law is well settled that permission for construction of building can only be given by the Competent Authority after the land is converted to homestead land. But in the instant case the Sarpanch who has no authority to sit over the issue has issued two letters in favour of the Appellants granting approval for construction of building prior to change the kisam of land which is not permissible in any law. Further letter dt. 5.8.2006 of the concerned Sarpanch has no legs to stand after issuance of Gazette Notification dt.24.3.2003. So far the point No. 2 is concerned, the Appellants are under obligation to obtain permission from the Bhubaneswar Development Authority for construction of building in view of Gazette Notification dt.24.3.2003 in as much as construction was started after the year 2006. The claim of the Learned advocate for the Appellants is that the Appellants have obtained the permission from Gram panchayat concerned as per the Orissa Gram panchayat Act, 1964, which is not sustainable in eyes of law, when Bhubaneswar Development Authority is the appropriate authority to issue such approval after 24.3.2003. Hence, the Appellants are under obligation to obtain approval of Bhubaneswar Development Authority before starting the construction." The fact that Kalarahanga Gram Panchayat was included in the B.D.A. at a later stage by virtue of the Notification dated 24.3.2003 is not disputed. Taking into consideration the factual matrix of the case revolving round the appeal, it would be proper to deal with proposition Nos.1 & 3 first. Proposition No.1- The Constitution of India has been amended to insert Part-IX providing for "The Panchayats" by the Constitution (Seventy, Third) Amendment Act, 1992 with effect from 24.4.1993. The Hon'ble Supreme Court in the case of Bhanumati vrs. Proposition No.1- The Constitution of India has been amended to insert Part-IX providing for "The Panchayats" by the Constitution (Seventy, Third) Amendment Act, 1992 with effect from 24.4.1993. The Hon'ble Supreme Court in the case of Bhanumati vrs. State of Uttar Pradesh, (2010) 12 SCC 1 , considered the provisions of the said amendment & called it an "epoch-making" & "a turning' point in the history of local self-governance with sweeping, consequences in view of decentralization, grass-root democracy, people's participation, gender equality & social justice". It was further held that the changes introduced by the Seventy-third Amendment of the Constitution have given Panchayati Raj institutions a constitutional status as a result of which it has become permanent in the Indian political system as a third Government & further held that the composition of the Panchayat, its function, its election & various other aspects of its administration are now provided in great detail under the Constitution with provisions enabling the State Legislature to enact laws to implement the constitutional mandate. Thus, formation of panchayat & its functioning is now a vital part of the constitutional scheme under Part-IX of the Constitution. In view of such extension the O.D.A. Act to the Gram Panchayat without giving the Panchayats full liberty for formation of their own modalities giving permission for construction of building etc. is contrary to the scheme of the Constitution. Hence, this Act is not applicable & provisions of such cannot be extended & applied to the territories of Gram Panchayat. Further comparing the Entries in the XIth Schedule read with Article 243-G & Entries of Lists II & III of the 7th Schedule to the Constitution, it was submitted that many of the Entries have been overlapped. Learned Counsel for the Petitioners relies upon the principle of harmonious construction for interpretation of such overlapping Entries as laid down by the Hon'ble 'Supreme Court in the case of Calcutta Gas Co. vrs. State of West Bengal, AIR 1962 SC 1044 : 1962 Supp. (3) SCR 1. In that case, Calcutta Gas Co. was appointed as Manager of Oriental Gas Co. under an agreement. Subsequently, the Oriental Gas Co. was taken over by the West Bengal Government under the provisions of a law enacted by the Legislature of the State of West Bengal, namely, Oriental Gas Company Act, 1960, (W.B. Act 15 of 1960). (3) SCR 1. In that case, Calcutta Gas Co. was appointed as Manager of Oriental Gas Co. under an agreement. Subsequently, the Oriental Gas Co. was taken over by the West Bengal Government under the provisions of a law enacted by the Legislature of the State of West Bengal, namely, Oriental Gas Company Act, 1960, (W.B. Act 15 of 1960). The validity of such Act was challenged by the Calcutta Gas Co., inter alia, on the ground that the said Act was beyond the legislative competence of the State Legislature as the legislative field was already covered by the Parliamentary legislation, namely, Industries (Development & Regulation) Act, 1951 enacted under Entries 7 & 52 of List I & Entry 24 of List II was subject of Entries 7 & 52. The Hon'ble Supreme Court held that the impugned Act was validly enacted under Entry 25 of List II, which stood carved out of Entry 24 of List II. On the analogy of the aforesaid case, Learned Counsel for the Petitioner submitted that overlapping Entries of XIth Schedule stood carved out of the respective Entries of the Lists II & III of the 7th Schedule & therefore, any law or any provision thereof made by the State Legislature in its plenary power to legislate under Article 246 in respect of fields of legislation covered by the Entries in Lists II & III of 7th Schedule insofar as they are in derogation of or in deviation of or are contrary to any law or any provision thereof made by the State Legislature in respect of the Entries in XIth Schedule read with Article 243-G, would be ineffective & inconsequential in its application to areas/territories of Gram Panchayat. In view of the decision rendered in Calcutta Gas (supra), we are of the view that there is substantial force in the proposition advanced by the Learned Counsel for the Petitioners; the reason being various Entries in Lists II & III of the 7th Schedule to the Constitution must be given a restricted scope so as not to cover the fields of legislation under Article 243-G read with Entries of Schedule XI to the Constitution. In other words, any law enacted by the State Legislature of a State in its plenary legislative power insofar as it trenches upon the "powers, authority & responsibilities of Panchayats" would be ineffective & inapplicable. In other words, any law enacted by the State Legislature of a State in its plenary legislative power insofar as it trenches upon the "powers, authority & responsibilities of Panchayats" would be ineffective & inapplicable. In the case at hand, apart from Part-IX of the Constitution, Chapter-VI of the said Gram Panchayat Act provides for powers, duties & functions of Gram Panchayats. Therefore, O.D.A. Act, 1982 can have no application to Gram Panchayat areas at all as that would amount to taking away the power, duties, functions & authority of the Gram Panchayat by the Development Authority. Further the provisions of Part-IX of the Constitution & more particularly, Articles 243-ZD & 243-W of Part IXA providing for the constitution of a committee to be known as "District Planning committee" for consolidating the plans prepared by the Panchayats in terms of Article 243-G & the Municipalities in terms of Article 243-W, there can be no second opinion that the entire field being covered, no legislation including the Act would be made applicable to Grama Panchayat territories. Clause-2 of Article 243-ZD enables the Legislature of a State to make laws in respect of the composition & functions of the said District Planning committee. Clause-3 of the said Article provides for matters to be taken into consideration while preparing a Draft Development Plan. Similarly Article 243-ZE makes provision for Metropolitan Planning committee. Under the scheme of this provision, the development plan would be final only after it is accepted by the State Government. Therefore, the entire subject matter of the O.D.A. Act is covered by the provisions of Articles 243-ZD, 243-ZE & 243-G read with XIth Schedule & O.D.A. Act not being a law under Article 243-ZD cannot be made applicable to Gram Panchayat areas/territories. We would have ended here declaring inclusion of Kalarahanga Gram Panchayat into B.D.A. is not permissible under Article 243-ZD but we are inclined to examine the third proposition advanced by the Petitioners though it has now become academic. Proposition No.3-It is submitted that the notification dated 24.3.2003 is purported to have been issued in exercise of powers conferred by Sub-Section (3) of Section 1 of the O.D.A. Act, 1982 to modify the existing "Bhubaneswar Development Authority area" by including the additional areas of the revenue villages mentioned therein & the power in respect of which is provided under Sub-Section (2) of Section 3 of the O.D.A. Act. Drawing our attention to the provision of Sub-Section (3) of Section of the O.D.A. Act, Mr. S.P. Singh, Learned Counsel for the Petitioners, submitted that under the scheme of the provisions of the Act, it is mandatory that after bringing an area under the purview of the Act, by a separate notification the area has to be declared to be a development area "for the purpose of proper development of such area" & a name has to be assigned to such area. Since the development area/areas of the development authority so constituted under Sections 3(3) & (5) is fixed & limited, the authority cannot have jurisdiction & power over any areal areas beyond the areal areas notified as development area/areas under the notifications under Sections 1 (3) & 3(1) of the O.D.A. Act. Therefore, the newly included area/areas under Section 3(2) of the O.D.A. Act is/are beyond the jurisdiction & power of the Development Authority constituted for a particular development areal areas & by a separate notification, a Development Authority has to be constituted for such a development areal areas which has/have been declared as such by inclusion under Section 3(2) or otherwise. According to Mr. Singh, In the present case no Development Authority has been constituted for the villages newly included by the Notification dated 24.3.2003 & therefore, the B.D.A. having been constituted for the Bhubaneswar Development area "comprised in the Master Plan areas of Bhubaneswar, Khurda & Jatni" has no authority or power or jurisdiction to deal with the Kalarhanga Panchayat areas included In the Bhubaneswar Development area by the Notification dated 24.3.2003 under Section 3(2) of the O.D.A. Act. 7. Learned Counsel for the Petitioners placed reliance on the decision of Chairman, Indore Vikas Pradhikaran vrs. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705 , fact of which was that on or about 13.2.1974 the State Government had issued a notification under Sub-Section (1) of Section 13 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam (No.23 of 1973) (in short, the M.P. Act) constituting Indore Planning Area consisting of only 37 villages, the limits whereof were defined in the schedule appended thereto. The villages, namely, Bicholi & Kanadia, with which the case was concerned, were not included therein. It is indicated that Section 13(1) empowers the State Government to constitute planning areas for the purpose of the said Act & define the limits thereof. The villages, namely, Bicholi & Kanadia, with which the case was concerned, were not included therein. It is indicated that Section 13(1) empowers the State Government to constitute planning areas for the purpose of the said Act & define the limits thereof. Sub-Section (2) of Section 13 empowers the State Government by notification, inter alia, to alter the limits of the planning area so as to include therein or exclude there from such areas, as may be specified in the notification, to amalgamate two or more planning areas so as to constitute one planning area, to divide any planning area into two more planning areas & to declare that the whole or part thereof. The State of Madhya Pradesh in terms of Section 38 of the said M.P. Act issued a notification establishing the Authority, namely, "Indore Vikas pradhikaran". The State Government delegated its power under Sections 13 & 47 A of the Act in favour of the District Planning Committee who in exercise of the said delegated power by a Notification dated 13.11.2000 amended the planning area by adding 115 villages therein which included the said villages, namely, Bicholi & Kanadia. In Paragraph-101 of the aforesaid Judgment, the Apex Court held thus :- "101. Admittedly, the villages in question had been included by the State in its notification issued on 28.10.2005. Prior thereto, the said villages having not been included within the area of operation of the Appellate authority, any action taken either by way of its intention to frame a town planning scheme or otherwise shall be wholly illegal & without jurisdiction. It would render its act in relation to the said villages a nullity." Referring to this Judgment, Learned Counsel for the Petitioners submitted that as per the scheme of the O.D.A. Act, the State Government has to enforce the said Act in the areal areas with effect from an appointed date by a notification under Sub-Section (3) of Section 1. This has the effect of fixing the areal areas where the O.D.A. Act has been enforced & the date on & from which the Act would apply. This has the effect of fixing the areal areas where the O.D.A. Act has been enforced & the date on & from which the Act would apply. Thereafter, the Government is empowered to declare such an areal areas, i.e. the area/areas fixed under Section 1 (3) Notification to be a development area & assign a name to it under Sub-Section (1) of Section 3, Section 3(2) enables the State Government to exclude from or include in any development area any other area by notification. According to the Learned Counsel for the Petitioners, these provisions are mandatory as is evident from the use of word "shall". Therefore, under the scheme of the provisions of the Act, it is mandatory that after bringing an area under the purview of the Act, by a separate notification, the area has to be declared to be a development area "for the purpose of proper development of such area" & a name has to be assigned to such area. Thereafter, an Authority has to be constituted for the said named development area or areas. The sum & substance of the argument of the Learned Counsel for the Petitioners is that the Notification of the Government dated 24.3.2003 is totally defective & in contravention of the provisions of the O.D.A. Act. Hence, the same is illegal & could not have included Kalarahanga Gram Panchayat, under which jurisdiction the Petitioners were making construction after obtaining permission from the Panchayat. 8. Mr. D. Mohapatra, Learned Counsel for the B.D.A., relied upon the provision of Sections 1 (3) & 3(2) of the O.D.A. Act read with Rule-3 of the O.D.A. Rules, 1983. According to him, the argument advanced by the Learned Counsel for the Petitioners that constitution of the authority comprises of the members from the urban areas is fallacious. But the O.D.A. Act provided to constitute the authority in the manner prescribed under the Act itself. Even otherwise non inclusion of the members from the Panchayat is of no consequence in view of the fact, that the Act deals with the areas in the form "mouza". Mr. Mohapatra also took the example of Kalinga Nagar Development Authority area, vide Notification No. 33044 dated 28.7.1992, which does not cover any urban local bodies. The Government constituted the Kalinga Nagar Development Authority consisting of members which does not include members either from the urban local bodies or panchayats. Mr. Mohapatra also took the example of Kalinga Nagar Development Authority area, vide Notification No. 33044 dated 28.7.1992, which does not cover any urban local bodies. The Government constituted the Kalinga Nagar Development Authority consisting of members which does not include members either from the urban local bodies or panchayats. To sum up, the argument of Mr. D. Mohapatra is that permission has not been obtained in the present case as required under the O.D.A. Act & in such cases, proceedings under Section 91 of the O.D.A. Act is maintainable, for which order of demolition can be passed. It is further argued by Mr. Mohapatra that as the Notification impugned does not cover the entire Panchayats & already includes some villages from the Kalarahanga Gram Panchayat, representation of the Gram Panchayat is not necessary. In other words, the representation of the Gram Panchayat would have been necessitated, had the entire Gram Panchayat been brought within the purview of the B.D.A. 9. The stand taken by the Learned Additional Government Advocate for the State is similar to the argument advanced by Mr. D. Mohapatra, Learned Counsel for the B.D.A. From the argument of Mr. B. Baugh, Learned Counsel for the intervenors, it can be summarised that the intervenors have certain claim over the portion of the land, which has been treated as a road by the Petitioners & the same is also the subject matter of the civil suit, which we shall deal with. 10. B. Baugh, Learned Counsel for the intervenors, it can be summarised that the intervenors have certain claim over the portion of the land, which has been treated as a road by the Petitioners & the same is also the subject matter of the civil suit, which we shall deal with. 10. In order to examine the contentions of the parties, we may first refer to Notification No. 37675 dated 31.8.1983, which is extracted hereunder: "In exercise of the powers conferred by Sub-Section (3) of Section 1 of the Orissa Development Authorities Act, 1982 (Orissa Act 14 of 1982), the State Government do hereby appoint the 1st day of September, 1983 to be the date on which the said Act shall come into force in the areas comprised in the Master Plan areas of Bhubaneswar, Khurda & Jatni to which the provisions of Orissa Town Planning & Improvement Trust Act, 1956 (Orissa Act 10 of 1957) were extended in the notification of the Government of Orissa in the erstwhile Health (L.S.G.) & Urban Development Department No. 603-L.S.G. dated the 18.1.1964, No. 761-U.D., dated the 11.1.1968, No. 26841-U. D., dated 23rd August, 1978, No. 19602-U.D., dated the 30.7.1975, NO.8379-U.D., dated the 8.3.1978 & No. 21425-U.D., dated the 11.8.1972." Notification No. 37626 dated 31.8.1983, which is also relevant, is extracted hereunder:- "In exercise of the powers conferred by Sub-Section (1) of Section 3 of the Orissa Development Authorities. Act, 1982 (Orissa Act 14 of 1982) the State Government do hereby declare that the areas in which the said Act has been enforced by notification of the Government of Orissa in Housing & Urban Development No. 37675-H.U.D. dated the 31.8.1983, shall be a Development Area for the purposes of the said Act & shall be assigned the name "The Bhubaneswar Development Area with effect from the 1st day of September, 1983." So the B.D.A. was constituted statutorily for a limited area of operation over the Master Plan area of Bhubaneswar, Khurda & Jatni. There is a specific provision in Section 3(1) of the Act that upon enforcement of this Act in any areal areas under Sub-Section (3) of Section 1 of the Act, the State Government shall for the purpose of proper development of such area or areas, by notification, declare such area or areas to be a development area for the purposes of this Act & shall assign a name to such area. So the conclusion would be that the jurisdiction of such Authority would be limited to the area, for which it has been constituted under the provisions of the Act. Admittedly, in the present case, no Development Authority has been constituted for villages newly included by Notification dated 24.3.2003. Mr. D. Mohapatra, Learned Counsel for the B.D.A., further argued that a cumulative reading of Sub-Section (2) of Section 3 of the O.D.A. Act read with Rule-3 of the O.D.A. Rules would reveal that the Government has authority to include & exclude such areal areas (not necessarily Panchayat) within & from the B.D.A. jurisdiction in exercise of power conferred under Section 3(2) of O.D.A. Act & the B.D.A. shall have the authority in respect of the included areas with effect from the date of its publication in the gazette. 11. Let us have a look at the scheme of the O.D.A. Act. Sub-Section 5(h) of Section-3 of the O.D.A. Act reads as follows :- "3. Declaration of development areas & constitution of Development Authority. (5) The "Authority" shall consist of the following members, namely, (h) The Chairman of urban local bodies comprised within the development area, member, ex officio." From this provision, it is crystal clear that if any urban or local area is brought within a development area, the Chairman of the Urban Local Bodies comprised within the development area shall be the member of the Authority. Rightly, it has been done as per the Notification dated 31.8.1983, by which the Development Authority was constituted for Bhubaneswar development area comprising of the area of Khurda Notified Area Council & Jatni Notified Area Council including their Chairmen as members of the Authority. The argument of Mr. D. Mohapatra, Learned Counsel for the B.D.A., that as the entire Panchayat has not been included within the B.D.A. area, some mouzas/villages have been included with reference to the original Notification & the inclusion or exclusion is part of the original Notification, there is no requirement of giving the name of the Authority in respect of the newly included area. The newly included area forms a part of the area of the original Authority, for which there is no requirement of inclusion of Sarapanch of the Gram Panchayat as a Member of the Authority. We are unable to accept the argument of Mr. The newly included area forms a part of the area of the original Authority, for which there is no requirement of inclusion of Sarapanch of the Gram Panchayat as a Member of the Authority. We are unable to accept the argument of Mr. Mohapatra because acceptance of his view would lead to a wrong interpretation of the provision. The reason being the scheme of Sub-Section 5(h) of Section 3 of the O.D.A. Act clearly provides that the Chairman of the Urban Local Bodies should represent the Authority. So the representation of the urban local bodies in the Authority is a must. There is no provision under the O.D.A. Act for inclusion of a representative of the Gram Panchayat in the "Authority" under Sub-Section (5) of Section 3 of the Act, which provides for inclusion of the Chairman of "Urban local bodies comprised within the development area", as specified in Section 2(xi) of the Act. Under Section 2 (xli) of the O.D.A. Act, "urban local body" means a municipal council' or a notified area council constituted under the Orissa Municipal Act, 1950. Plain & simple this Act is meant for the urban area development. From the Act itself, it is clear that the O.D.A. Act cannot be extended to the rural areas covered by the Panchayat Samiti. 12. In this regard we may also refer to Section 15(1)(i) of the O.D.A. Act, which provides that after the constitution of an Authority for any development area under Sub-Section (2) of Section 3, no person including a department of the Central or a State Government or a local authority or a body corporate constituted under any law shall within the development area subdivide any land for utilizing, selling, leasing out or otherwise disposing it of unless he, after obtaining written permission from the Authority, lays down & makes a street or streets giving access & right of way to all the plots into which he intends to subdivide the land so as to connect them with an existing public or private street & also provides amenities, if any, specified by the development plan in operation or regulations pertaining to planning or building standards made in this behalf; Section 15 starting with a non-obstante clause would apply only "after the constitution of an authority" for the newly included area under Section 3(2) of the Act. Here the case is that as no authority has been constituted after the notification dated 24.3.2003, Section 15 is not applicable in the present case. In other words, every time if any other area is included in the development area as provided in Sub-Section (2) of Section3 of the O.D.A. Act in the existing development area of the Authority, it is the requirement of the Act to constitute an Authority to exercise its jurisdiction under the Act in respect of the area so included. So far as the argument of the Learned Counsel for the Petitioners to the extent that the O.D.A. Act is not applicable to the Gram Panchyat areas, its needs no further elaboration, as we have already answered it in the foregoing paragraphs. The B.D.A. having been constituted for the area comprising Master Plan area of Bhubaneswar, Khurda & Jatni has no authority or power or jurisdiction to include the villages of Kalarahanga Gram Panchayat by Notification dated 24.3.2003 under Section 3(2) of the Act without creating any Development Authority. So the Notification dated 24.3.2003 is also contrary to the provisions of Sub-Section (1) of Section 3 of the O.D.A. Act. In view of our above finding, proposition No. 2 does not require any examination. 13. Resultantly, the Notification dated 24.3.2003 including the area of Kalarahanga Gram Panchayat is contrary to the constitutional provision made in Article 243 & as the O.D.A. Act is not being a law under Article 243-ZD, we quash the said Notification dated 24.3.2003 & set aside the Order Dated 8.8.2011 passed in Appeal Case No.17/2011 (Annexure-1) & the Order Dated 25.4.2011 passed in U.A.P. No. 339/2010 (Annexure-2) by the Authorities under the Orissa Development Authority Act, 1982. We hold that there was no illegality attached to the permission granted by the Kalarahanga Gram Panchayat to construct the building. The O.Ps. are given three months time to take appropriate steps in terms of Clause 2 of Article 243-ZD. In view of the aforesaid finding, the other points raised by the Petitioners require no answer. 14. The contention of the intervenors is that the land utilized by the Petitioners as a road belongs to the intervenors but not to the Petitioners. As it is stated, the parties are in litigating terms in a civil proceeding being C.S.No.687/2011 pending in the Court of Civil Judge (Sr. 14. The contention of the intervenors is that the land utilized by the Petitioners as a road belongs to the intervenors but not to the Petitioners. As it is stated, the parties are in litigating terms in a civil proceeding being C.S.No.687/2011 pending in the Court of Civil Judge (Sr. Divn.), Bhubaneswar, we are not inclined to express any opinion on the aforesaid contention but the same shall be guided by the decision in C.S.No.687/2011. S.K.MISHRA, J. I agree.