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2016 DIGILAW 783 (ORI)

Debendra Kumar Hazra v. Patitapaban Panda

2016-09-12

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : B.R. SARANGI, J. This is an intra-Court appeal filed by appellant-opposite party no.5 against the order dated 24.06.2016 passed by the learned Single Judge in W.P.(C) No.17960 of 2015 by which direction has been given to Cuttack Development Authority to take a decision on the notices issued to the allottees, who have deviated the approved plan and the terms and conditions of the allotment order as expeditiously as possible, preferably within a period of two months from the date of production of the certified copy of the judgment after giving opportunity of hearing to the parties. 2. Mr. G.K. Acharya, learned Senior Counsel appearing for the appellant assails the judgment of the learned Single Judge mainly on two counts, namely, respondent no.1-petitioner filed the writ application in the nature of PIL and, further due to availability of alternative remedy under the Development Authorities Act, the learned Single Judge could not have passed the impugned order. Therefore, the appellant-opposite party no.5 seeks for interference of judgment of learned Single Judge in this appeal. To substantiate his case, he has relied upon the judgment of the apex Court in Anirudh Kumar v. Municipal Corporation of Delhi, 2015 (2) SUPREME 677 . 3. Respondent no.1-petitioner appearing in person stated that since he is a “person aggrieved”, he approached this Court by filing the writ application because the appellant-opposite party no.5, who is a next door neighbour of respondent no.1- petitioner, has allowed 30 students to use the residential house as a hostel which causes nuisance to him. By giving an instance, respondent no.1-petitioner further stated that not only he himself but also other residents in the locality are facing similar difficulties, thereby within the residential area, if the same is used for other purpose than the plan approved by the Cuttack Development Authority, then it violates the condition of the grant of approval of plan. Therefore, the learned Single Judge is justified in passing the impugned order giving reasons and directing Cuttack Development Authority to take a decision on the notices issued to the allottees, who have deviated the approved plan and the terms and conditions of the allotment order, and thereby she has acted well within her jurisdiction. So far as availability of alternative remedy is concerned, it is urged that there is no bar to invoke the power under Article 226 of the Constitution of India. 4. Mr. So far as availability of alternative remedy is concerned, it is urged that there is no bar to invoke the power under Article 226 of the Constitution of India. 4. Mr. D. Mohapatra, learned counsel appearing for the Cuttack Development Authority states that in view of the order passed by the learned Single Judge, action as deemed fit and proper in accordance with law is being taken by the authority concerned. 5. We have heard learned counsel for the parties and perused the records. So far as jurisdiction of the learned Single Judge on the basis of the writ petition filed by respondent no.1-petitioner ventilating his individual grievance is concerned, in paragraph 3 of the writ application it was specifically pleaded as follows: “3. That the petitioner respectfully submits that though the matter related to nuisance created by O.P. No. 5 confining to the petitioner but the other residents who are suffering similarly and complaining to the statutory authorities about nuisance created by the owner running of private hostel in a residential house/building amount to violation of the rule of law and affects the public interest. The present litigation initiated by the petitioner espouses cause of all the local residents, therefore, it is public interest litigation. Creating air, noise and water pollution is matter of public interest.” In the prayer of the writ application, the following relief was sought for: “The petitioner therefore, most humbly prays that your Lordship may be graciously pleased to issue Rule NISI to the Opp. Parties calling upon them as to why the private hostels running particularly in Plot No. 1498/C and Plot No. 1008/C, Sector-10 shall not be removed from the residential area, failing to show cause or show insufficient cause make the said rule absolute and further be pleased to direct the private hostels running in the residential area under C.D.A. shall be removed including Plot No.1498/C and Plot No. 1008/C, Sector-10 within a stipulated time.” 6. There is no dispute that the respondent no.1-petitioner is the owner of plot no.1499/C situated at Sector-10, CDA, Cuttack. There is also no dispute that appellant-opposite party no.5 is also owner of plot no.1498/C situated at Sector-10, CDA, Cuttack. Both the plots are situated adjacent to each other. There is no dispute also that the appellant-opposite party no.5 is running a hostel in his residential house. There is also no dispute that appellant-opposite party no.5 is also owner of plot no.1498/C situated at Sector-10, CDA, Cuttack. Both the plots are situated adjacent to each other. There is no dispute also that the appellant-opposite party no.5 is running a hostel in his residential house. When the matter was on the Board on 07.09.2016, the appellant-opposite party no.5 appeared in person and he undertakes that after the session is over in April, 2017 he will not put residential house in use as a hostel. On such undertaking being given, this Court on 07.09.2016 passed the following order: “Sri Debendra Kumar Hazra, the appellant, who appears in person, has submitted that about 30 students are residing in the residential house, which is converted as a hostel, and it being mid-session, it would be very inconvenient for the students, who are staying, to vacate the premises. He has submitted that he is prepared to give an undertaking that after the session is over in April, 2017, he will not put the residential house in use as a hostel. Let such an undertaking be given by the appellant in the form of an affidavit by the next date. List it on Monday (12.09.2016). Sd/-Vineet Saran, CJ. Sd/-Dr .B.R .Sarangi, J.” 7. Mr. G.K. Acharya, learned Senior Counsel for the appellant argued that the writ petition was filed in the nature of PIL. Therefore, the learned Single Judge had no jurisdiction to entertain the same. That itself is not justified in view of the fact that admittedly respondent no.1- petitioner is a “person aggrieved”, as his plot, which is used as residential house, is situated adjacent to plot of the appellant-opposite party no.5, in which he is running a hostel, which is meant for residential purpose. If any commercial activity is continuing in the locality, respondent no.1- petitioner being a “person aggrieved” has every right to approach this Court invoking the jurisdiction under Article 226 of the Constitution of India. The plea advanced, that the writ petition was in the nature of PIL, may be incidental to the main claim made by respondent no.1-petitioner, but that ipso facto cannot oust the jurisdiction of the learned Single Judge, when a substantial justice is being considered under law while ventilating his personal grievance. The plea advanced, that the writ petition was in the nature of PIL, may be incidental to the main claim made by respondent no.1-petitioner, but that ipso facto cannot oust the jurisdiction of the learned Single Judge, when a substantial justice is being considered under law while ventilating his personal grievance. The reliance placed on the judgment in Anirudh Kumar (supra) is a case decided on the basis of facts of the said case and is distinguished from the facts of the present case. 8. Above apart, the contention was raised that due to availability of alternative remedy respondent no.1-petitioner should have availed the same instead of filing writ application, but that itself cannot oust the extraordinary jurisdiction of this Court, when respondent no.1-petitioner is grossly aggrieved by inaction of the authority concerned. In any case, on perusal of the order impugned it reveals that the learned Single Judge has only directed Cuttack Development Authority to take a decision on the notices issued to the allottees, who have deviated the approved plan and the terms and conditions of the allotment order as expeditiously as possible, preferably within a period of two months from the date of production of certified copy of the judgment after giving opportunity of hearing to the parties. When the learned Single Judge has already directed Cuttack Development Authority to consider the grievance, even if respondent no.1-petitioner has not availed the alternative remedy, by virtue of the impugned order passed by the learned Single Judge the parties are to appear before the Cuttack Development Authority for adjudication. On perusal of the impugned order, this Court finds that the learned Single Judge has discussed the matter in details and directed Cuttack Development Authority to consider and take a decision on the notices issued to the allottees in the interest of justice, equity and fair play. Therefore, this Court is not inclined to interfere with the impugned order. 9. Accordingly, the writ appeal stands dismissed. No order as to cost.