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2012 DIGILAW 512 (ORI)

Surendra Ojha v. State of Orissa

2012-11-16

B.K.MISRA, V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. : In all these writ petitions, the petitioners have questioned the legality and validity of the order dated 21.8.2010 passed by the appellate authority, namely, Secretary to the Government of Odisha, Housing and Urban Development Department-opposite party No.2 herein, in Appeal Case Nos.213, 206, 208, 207, 210, 209 and 211 of 2006, urging various facts and legal contentions. All these cases are listed together and since learned counsel for the petitioners and opposite parties are same, at their request, these cases were heard together and are disposed of by passing the following common order. 2.This is the third round of litigation filed by the petitioners in these writ petitions. Opposite party No.3 issued a show cause notice on 24.3.2005 under Sub-section (1) of Section 91 of the Odisha Development Authorities Act, 1982, hereinafter to be referred to as “the Act”, to all these petitioners calling upon them to show cause by 11.4.2005 as to why an order directing them to remove the structures constructed unauthorisedly violating the approved plan and rules and regulations would not be passed. In the said show cause notice, it was also mentioned that if no reply is received from the petitioners by the said date, it will be presumed that they have nothing to say in the matter. In all these show cause notices, the authorities have mentioned the respective plot numbers and unauthorized constructions of either A.C. sheet/thatched roofed houses by the petitioners in mouza Bhimpur under Khorda district. Though the petitioners submitted their respective show cause replies, the authorities without considering the same, in exercise of the powers conferred under Sub-section (1) of Section 91 of the Act by order dated 3.5.2005 observed that the petitioners have taken up/completed development in respect of the premises as mentioned in the respective schedule of the order without obtaining prior permission from the Bhubaneswar Development Authority as required under Section 15 of the Act and therefore, they should remove the unauthorized constructions within seven days from the date of service of the order. That order was challenged by the petitioners in respective writ petitions, bearing W.P.(C) Nos.6318, 6321, 6322, 6324, 6325, 6327, 6328 and 6329 of 2005 and the said writ petitions were disposed of by this Court vide order dated 7.11.2006 giving liberty to the petitioners to file appeal, since alternative remedy is available to the petitioners to challenge the said order of eviction before opposite party No.2. Accordingly, appeals were filed. The matters were heard and disposed of vide order dated 27.3.2010. The said order was subject matter of the second round litigation in W.P.(C) No.7950 of 2010 and other connected writ petitions. The said writ petitions came to be disposed of by order dated 30.4.2010, wherein this Court set aside the orders passed by the appellate authority on the ground that the appeals were disposed of without assigning any reasons and remanded the Appeals to the appellate authority to dispose of the same in accordance with law. After remand, the opposite party No.2 reconsidered the same and passed the impugned order dated 21.8.2010 rejecting the appeals filed by each one of the petitioners. 3.Mr. Pal, learned counsel appearing for the petitioners vehemently argued that the constructions made upon the plot of the petitioners are neither buildings nor structures in terms of Sub-section (5) of Section 2 of the Odisha Development Authorities Act, 1982, hereinafter to be called as “the Act” and Section 15 of the said Act is not attracted for obtaining permission in respect of the structures erected by the petitioners. Therefore, the proceedings initiated by the authorities under Section 91(1) of the Act are not maintainable as the same amount to deprivation of their right of residence. Hence, the impugned orders are bad in law and are liable to be set aside. Further, he contended that the reason assigned by the appellate authority that the plots in question are affected under the proposed alignment of 2000 ft. wide development plan road, amounts to taking away their right of residence in the guise of passing the impugned orders for demolishing the constructions made by the petitioners, which have been in their physical possession since long. Therefore, Mr. wide development plan road, amounts to taking away their right of residence in the guise of passing the impugned orders for demolishing the constructions made by the petitioners, which have been in their physical possession since long. Therefore, Mr. Pal, learned counsel for the petitioners contended that the development authority has no power to evict the petitioners from their respective flats, which are in their possession for long time in the guise of exercise of power under Section 91(1) of the Act for the reason that they have constructed unauthorized buildings/structures, which is factually not correct and therefore, the settled position has been unsettled by passing the impugned order and thus, the said order is arbitrary, unreasonable and violative of the fundamental rights as guaranteed under Articles 14, 19 (1) (e) and 21 of the Constitution of India. It is contended by the petitioners that the opposite party No.3, Secretary, Bhubaneswar Development Authority has assumed the jurisdiction, which is not conferred upon him under Section 91(1) of the Act, for removal of unauthorized development made in contravention of the development plan or without permission or approval as required under Section 15 of the Act, which provides for prohibition of development without permission. Mr. Pal further drew our attention to Section 15 of the Act and submitted that the said Section provides for prohibition of development in respect of building and not thatched houses. It is further contended that the petitioners have constructed very small A.C. sheet structures or thatched houses after their houses were ransacked during the super cyclone in the year 1999 with the financial aid of the Government and as such, the aid structures of the petitioners do not come within the purview of Section 15 of the Act and therefore, initiation of the proceedings under Section 91(1) of the Act is misconceived and without jurisdiction. The further contention urged is regarding the scope of Section 91(1) of the Act for removal of unauthroized construction. He further vehemently argued that the purpose of passing the impugned order is for removing the petitioners from the unauthorized occupation of the flats in question by proposing to construct a road over their property, which is outside the scope and purview of Section 91(1) of the Act. He further vehemently argued that the purpose of passing the impugned order is for removing the petitioners from the unauthorized occupation of the flats in question by proposing to construct a road over their property, which is outside the scope and purview of Section 91(1) of the Act. As such, the opposite party No.4 has exceeded his jurisdiction in issuing the show cause notice and passing the order of demolition of the A.C. sheet structures/thatched roof structures. It is urged that the opposite party No.4 has not given a finding as to how the petitioners’ houses are in contravention of Section 15 of the Act, but on the other hand, he has given a valid reason that 200 ft. road proposed by the Authority is going over the petitioners’ plot and the structures of the petitioners are unauthorized, which is not legally correct. The further contention urged is that the opposite party No.4 cannot construct a road on the property of the petitioners since as per section 11 of the Act, the Development Authority has to obtain prior approval from the State Government, but in the present case, the opposite party No.3 has not obtained any prior approval from the State Government for the proposed alignment of 200 ft. wide development plan road and thus, the impugned orders passed by the opposite parties 2 and 4 are without jurisdiction and the order of eviction passed by the opposite party No.4 is also not sustainable. He further contended that the aforesaid aspects of the matter have not been considered by the appellate authority. Therefore, the appeals filed by the petitioners have not been decided with reference to the factual and legal contentions urged and hence, the common order of the appellate authority is vitiated in law. Further, the finding recorded by the appellate authority, opposite party No.2 in the impugned order passed against the petitioners that they have not produced any R.O.R. in respect of the lands in question before him, is a finding which is contrary to the UAP proceedings under Section 91 of the Act before opposite party No.4. He further submitted that the record of right is a part of the proceedings under Section 91 of the Act available in the file before opposite party No.4 and that has not been taken into consideration by the appellate authority. Therefore, the impugned order is liable to be quashed. Mr. He further submitted that the record of right is a part of the proceedings under Section 91 of the Act available in the file before opposite party No.4 and that has not been taken into consideration by the appellate authority. Therefore, the impugned order is liable to be quashed. Mr. Pal, learned counsel for the petitioners referring to Article 243ZF of the Constitution of India, which was inserted in Part-IXA of the Constitution and came into coperation with effect from 1.6.1993, submits that the Act ceases to exist being over-ruled in view of Article 254 of the Constitution of India and any order passed pursuant to the Act should be declared null and void. Apart from the said legal contentions, it is further urged that the opposite party Nos.3 and 4 have no business to make a road on the land of the petitioners and such intention of the opposite parties is apparent from the impugned show cause notice issued to the petitioners. Therefore, the action of the opposite parties 2 to 4 are liable to be quashed. 4.The aforesaid contentions have been rebutted in the counter affidavit filed by the opposite parties 1 and 2 shown to by Surendranath Mallick, Under Secretary to Government, Housing and Urban Development Department being wholly untenable in law. In paragraph 4 of the counter affidavit, it is stated that the petitioners failed to give evidence of permission of construction of any residential or commercial house. It is further stated that the petitioners have shown the Xerox copy of the ration card, voter card, electricity bill and R.O.R. not final and in the proceedings under Section 91(1) of the Act, the petitioners have admitted that they have neither any authenticated title in respect of the lands in their favour nor have they obtained any approval from the Authority for construction of structure and therefore, the appellate authority after giving opportunity to the petitioners and discussing the facts and legal contentions has passed a well reasoned order and the same cannot be vitiated on erroneous reasons. In paragraph 5, the opposite parties 1 and 2 while answering to paragraph 1 of the writ petition, stated that appeals were filed under Section 91(2) of the Act against the orders dated 24.3.2005 and 3.5.2005 passed by opposite party No.3 in respective UAP cases registered against the petitioners and the appellate authority on the basis of the earlier order dated 30.4.2010 has reconsidered the matter and disposed of the appeals answering all the legal contentions holding that the A.C. roof/thatched houses come within the purview of the definition of ‘building’ and that the petitioners have not obtained any permission or approval from opposite party No.3 as required under Section 15 of the Act. That apart, it is further stated that the petitioners failed to produce any record in respect of their title over the lands in question. Therefore, the opposite parties 1 and 2 urge that the writ petitions filed by the petitioners do not call for any interference by this Court in exercise of the judicial review power as the orders of eviction have been affirmed by the appellate authority. Mr. Danayanda Mohapatra, learned counsel appearing for opposite party No.3 reiterated the aforesaid contentions made by the opposite parties 1 and 2 and prayed for dismissal of the writ petitions. 5.With reference to the aforesaid rival legal contentions, the following points emerge for consideration this Court. (i)Whether the impugned order passed by the appellate authority warrants interference by this Court in exercise of judicial review power and whether the impugned order is vitiated either on account of erroneous finding or error of law ? (ii)To what order ? 6.This Court is required to answer the aforesaid points against the petitioners and in favour of the opposite parties by recording the following reasons. 7.It is an undisputed fact that the petitioners have not produced any title deeds to show their occupation of the property/land, which have been earmarked for the proposed alignment of 200 ft. wide development plan road in the development area. The documents, such as, ration card, voter identity card, electricity bill R.O.R. (not final) do not show that they have constructed A.C. sheet structures/thatched houses mentioned in each one of the show cause notices prior to the operationalisation of the Act. Further the said documents are title documents and therefore right is acquired by the petitioners upon the property in question. Further the said documents are title documents and therefore right is acquired by the petitioners upon the property in question. It is also not in dispute that they have not obtained permission/approval for construction of either thatched house or A.C. shet roof upon the lands, which are mentioned in the show cause notices. Therefore, existence of all the structures/buildings over the lands of the petitioners in terms of the definition of ‘building’ as per section 2(v) of the Act is a finding of fact recorded in the impugned order dated 3.5.2005 passed by opposite party No.4 after considering the reply to the show cause notices and interpreting the statutory provisions of Sub-section (5) of Section 2 of the Act. The said finding of fact, has been considered by the appellate authority with reference to the legal contentions urged regarding Section 15 of the Act by the learned counsel for the petitioners that the petitioners constructed thatched/ A.C. sheet roof structures with the financial assistance received by them from the State Government in the year 1999 during super cyclone, which affected Bhubaneswar City. Therefore, contention is urged by learned counsel for the petitioners that the structures made over the plots in question are authorized constructions, which is wholly untenable both in facts and law and liable to be rejected. As per section 16 of the Act, every person including the department of the Central Government or a State Government or a local authority or a body corporate constituted under any law intending to carry out any development or any building in or over any land, is required to obtain permission from the authorities constituted under the Act. The show cause notices were issued to the petitioners, who have put up unauthorized structures over the lands in question within the jurisdiction of the Authority calling upon them to show cause as to why those structures shall not be demolished in exercise of the power under Section 91(1) of the Act. As they did not submit any reply to the show cause, order was passed directing the petitioners to remove the unauthorized constructions within seven days from the date of receipt of the order. The petitioners approached this Court challenging the said order in W.P.(C) Nos.18135, 18173, 18365, 18174, 18176, 18364 of 2009 and this Court directed the petitioners to avail the alternative remedy by filing appeal before the competent appellate authority. The petitioners approached this Court challenging the said order in W.P.(C) Nos.18135, 18173, 18365, 18174, 18176, 18364 of 2009 and this Court directed the petitioners to avail the alternative remedy by filing appeal before the competent appellate authority. Since the appellate authority did not give adequate reasons while dismissing the appeals filed by the petitioners, again the petitioners approached this Court in W.P.(C) Nos.7950, 7982, 7981, 7974, 7978, 7977, 7976 of 2010 and this Court remanded the matters to the appellate authority to dispose of the appeals by giving reasons. On careful examination of the facts and legal contentions urged on behalf of the petitioners, the appellate authority upheld the orders of demolition and eviction of the petitioners from the lands in question, which is based on finding of facts and therefore, the petitioners have no right to challenge the order of demolition/eviction which was passed by the opposite party No.3 and affirmed by the appellate authority, opposite party No.4 holding that the construction of A.C. roof/thatched houses are unauthorized and they have no right to occupy the lands, which are earmarked for proposed 200 ft. road alignment. As regards the contention of the petitioner that the Act ceased to exist being over-ruled in view of Article 243ZF read with Article 254 of the Constitution of India and order passed pursuant to the Act be declared null and void, we are of the view that the same need not be examined in this proceeding at the instance of the petitioners since they have unauthorisedly undertaken the construction without permission of the Authority. 8.In view of the foregoing reasons since the petitioners have not made out a case for our interference the writ petitions are devoid of merit, and hence the same are dismissed, but without costs. B.K. MISHRA, J.I agree. Petition dismissed.