Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 852 (ORI)

Srimati Kamal Lenka v. State of Orissa

2016-09-22

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition is filed assailing the order under Annexures-4 and 5. Annexure-4, the impugned order, was passed by the Development Authority in exercise of power under Section 91 of the Orissa Development Authorities Act, 1982 directing the petitioner to remove the construction standing over the disputed plot and Annexure-5 is a consequential order rejecting the claim of the petitioner in appeal. 2. Assailing the impugned orders, learned counsel for the petitioner contended that the petitioner’s predecessor has got the right over the disputed property through one Sriman Bharat Samrat in the year 1935, by virtue of an agreement. In the year 1970, Ashok Kumar Lenka, the son of Ananta Lenka constructed Asbestos room by removing the thatched roof already standing thereon. It is contended that while the matter stood thus, based on a report of the Revenue Inspector, an O.P.P. Case was instituted against the present petitioner, the matter visited up to the level of appeal and was concluded with an order of dismissal on the premises that during settlement operation, the claim of the General Administration Department was wrongly recorded to be the owner of the said land and the petitioner was constrained to file revision petition registered as R.P. Case No.372 of 2004, claiming to be pending till disposal of the proceeding, vide Annexuire-5. It is alleged that, It was at this stage, the Bhubaneswar Development Authority initiated a proceeding under Section 91 (1) of the Orissa Development Authorities Act, 1982 and in final disposal of the said proceeding, there is a direction to the petitioner for removing the illegal construction claiming that the petitioner had constructed the house in the year 1970 prior to enactment of the Orissa Development Authorities Act, 1982, but without taking consent of the competent Authority, exercising power at the relevant point of time. Learned counsel for the petitioner contended that the provision of the Orissa Development Authorities Act had no application to the petitioner’s case. It is also further contended that the proceeding under Section 91 (1) of the Orissa Development Authorities Act has been concluded without affording reasonable opportunity to the petitioner. The appeal at the instance of the petitioner under the provision of Orissa Development Act was decided on contest and disposed of with an order of dismissal of the appeal. It is also further contended that the proceeding under Section 91 (1) of the Orissa Development Authorities Act has been concluded without affording reasonable opportunity to the petitioner. The appeal at the instance of the petitioner under the provision of Orissa Development Act was decided on contest and disposed of with an order of dismissal of the appeal. Assailing the impugned orders, reiterating the stand taken in the appeal and as indicated hereinabove, learned counsel appearing for the petitioner contended that the original owner of the land had right over the disputed property and the right of the present petitioner flowing through their predecessor who accrued their right through the original owner, consequently the petitioner had absolute right over the disputed property. It is alleged that the authorities decided the matter under Annexures-4 and 5 have all failed to appreciate above aspects involved the matter and further as a dispute involving the right, title and interest over the disputed property is pending vide R.P. Case No.372 of 2004, in the interest of justice, the Development Authority should have waited for the ultimate outcome in the R.P. Case. It is in these premises, learned counsel appearing for the petitioner submitted that the impugned orders are bad in law and should be set aside. 3. In his opposition, Sri Dayananda Mohapatra, learned counsel appearing for the Bhubaneswar Development Authority while strongly refuting to the submissions made by the learned counsel for the petitioner submitted that General Administration Department was the owner of the property. Aspect of petitioner’s right to continue over the disputed property was the issue in the O.P.P.(E) case instituted at the instance of the State. The O.P.P.(E) Case No. 25 of 2001 was dismissed accepting the ownership of the land with the State Government thereby rejecting the claim of the petitioner and the appeal at the instance of the petitioner vide O.P.P. Appeal No.217 of 2001 has also been dismissed. After losing the case in both Forums, the petitioner has in the meantime already initiated a Civil Suit ascertaining his right, title and interest over the disputed property, as clearly appears from paragraph 6 of the writ petition. Besides the petitioner has also a R.P. case pending. 4. After losing the case in both Forums, the petitioner has in the meantime already initiated a Civil Suit ascertaining his right, title and interest over the disputed property, as clearly appears from paragraph 6 of the writ petition. Besides the petitioner has also a R.P. case pending. 4. In bringing into notice of this Court, a document at Annexure-A, Sri Mohapatra, learned counsel appearing for the Bhubaneswar Development Authority submitted that the disputed land along with several other lands have already been handed over to the Development Authority for undertaking a development project over the land. For the obstruction by the petitioner and due to interim order passed by this Court in the present matter, the Bhubaneswar Development Authority is unable to complete the project work. In the above premises, Sri Mohapatra, learned counsel submitted that there is no merit in the writ petition and the writ petition should be dismissed facilitating the Development authority to complete its project, which was undertaken long since. 5. Sri K.K.Mishra, learned Additional Government Advocate while supporting the submissions of Sri Mohapatra, counsel appearing for the Bhubaneswar Development Authority contended that State, as the original owner of the disputed land, has handed over the same to the Development Authority for undertaking a Development Project, namely, Pokhariput Anantavihar-Phase-II Scheme and the Development Authority is unable to complete the construction work due to pending legal battle. 6. Heard learned counsel for the parties. There is no denial to the fact that the petitioner has an Asbestos room over the disputed property constructed in the year, 1970. There is also no denial to the fact that the land originally belongs to General Administration Department and in the meantime the same has been transferred to Bhubaneswar Development Authority for having a Housing Scheme, as indicated hereinabove. There is also no denial to the fact that involving the petitioner’s unauthorised occupation over the disputed property, the State Government initiated O.P.P. Case No. 25 of 2001 against the petitioner. Said proceeding has gone against the petitioner finding her an encroacher over a public property, appeal at the instance of the petitioner has also been dismissed. Concerning his right, title and interest, the petitioner has also filed a Civil Suit No.199 of 2007, which is claimed to be still pending. Similarly, petitioner has also filed a proceeding vide R.P. Case No.372 of 2004 also claims to be pending. Concerning his right, title and interest, the petitioner has also filed a Civil Suit No.199 of 2007, which is claimed to be still pending. Similarly, petitioner has also filed a proceeding vide R.P. Case No.372 of 2004 also claims to be pending. Learned counsel for the petitioner is unable to produce any document establishing the right of the petitioner over the disputed property. Be that as it may, since the dispute involved in Annexures-4 and 5, is in relation to existence of illegal and unauthorised construction over the disputed property, this Court is required to consider as to whether the petitioner has any illegal construction over the disputed property or not and the consequential grant of relief. 7. From the entire pleadings available on record and the submissions of the learned counsel appearing for the respective parties, this Court finds the petitioner though admitted that he had constructed Asbestos room over the disputed property in the year 1970 but unable to throw any light as to whether her predecessor or herself has obtained any permission for having the construction over the disputed property at any time from the Municipal Authority after the Municipal Act came into force, in absence of which the claim of the petitioner that the construction over the disputed property, which fact has been established in both the forums below, cannot be entertained. In the above premises, this Court finds no infirmity in the impugned orders either in Annexure-4 or in Annexure-5. 8. In view of the above, the writ petition stands dismissed. Interim order dated 9.9.2011 passed by this Court in Misc. Case No.13858 of 2011 stands vacated. However, parties are directed to bear their own cost.