Misc. Case No. 07 of 2009 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.9029 of 2013 Dilip Kumar Singh …. Petitioner Mr. Jaydeep Lal, Advocate -Versus- State of Odisha and others Opposite Parties …. Mr. D.K. Mohapatra, Advocate for O.P. No.3 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:13.05.2024 1. Instant writ petition is filed by the petitioner challenging the orders dated 10th November, 2009 (Annexure-3) and dated 19th January, 2013 (Annexure-7) vis-à-vis an action initiated against him in connection with Misc. Case No.07 of 2009 and confirmation of order in Appeal Case No.02 of 2010 passed by opposite party Nos.2 and 3 respectively under the Orissa Development Authorities Act, 1982 (hereinafter referred as to ‘the O.D.A. Act’) for alleged construction taken up over Plot No.AM/25, Mouza- Durgapur Area No.17, Rourkela with a direction to remove the deviation in setback area and to remove encroachments from Government and railway lands on the grounds inter alia that such action is not legally tenable and hence, therefore, the impugned decisions are liable to be set aside. 2. Bereft of unnecessary details, the brief facts of the case of the petitioner are as follows. According to the petitioner, opposite party No.3 issued notice on 29th April, 2009 to Page 1 of 16 W.P.(C) No.9029 of 2013 him to show cause in a proceeding under Section 91 of the O.D.A. Act alleging that he has made construction in deviation of the approved plan to the extent described therein with a direction to stop the same with a notice and pursuant to such notice received, with the appearance on record, show cause was filed and denied it with the plea that the plot in question was purchased by a registered sale deed dated 31st March, 2005 under a Composite Housing Scheme and later, an area of 3062 Sq.ft adjacent to the said plot was allotted to him by the Odisha State Housing Board vide letter No.24601 dated 7th November,1997. As per the show cause, the petitioner pleaded that the allotment of the land by the Odisha State Housing Board was to be finalized and the same was under process. With such other facts stated in the show cause, the petitioner denied the encroachment alleged by opposite party No.3. It was further pleaded in the show cause by the petitioner that the railway land behind the allotted plots is being used by the allottees of the houses (AM-1 to AM-24) and in so far as, the land in occupation by him is concerned, the same is only covered by tin sheds in order to protect own space from the encroachers, who are residing nearby in a Basti area with unauthorized constructions. It is alleged by the petitioner that opposite party No.3 passed an ex parte order dated 10th November, 2009 and directed him to remove the unauthorized development and encroachment within thirty days failing which action to follow. The said order (Annexure-3), as per the petitioner, was based on a report dated 22nd June, 2009 of the Planning Member, W.P.(C) No.9029 of 2013 Page 2 of 16
Legal Reasoning
Rourkela Development Authority and was challenged in appeal under Section 91(2) of the O.D.A. Act before opposite party No.2, who without considering the plea advanced and put on record dismissed it by the impugned order under Annexure-7 series. After the dismissal of appeal, according to the petitioner, opposite party No.3 directed him to remove the encroachment and development within seven days from then with a letter dated 2nd April, 2013 (Annexure-8). The contention of the petitioner is that the proceeding initiated under the O.D.A. Act by opposite party No.3 is without jurisdiction and the action in respect of the railway land and removal of encroachment therefrom has to be as per the provisions of the Odisha Public Premises (Eviction of Unauthorized Occupants) Act, inasmuch as, at no point of time the Railway Administration had issued any notice to him nor taken any steps for eviction and demolition in respect of the alleged possession over the same and therefore, any such eviction shall have to be following due procedure established by law with an action in terms of Section 122 of the O.D.A. Act. 3. Opposite party No.3 filed counter affidavit and justified the action against the petitioner. According to opposite party No.3, as pleaded on record, the petitioner has not only made unauthorized and illegal construction over the set back area of the approved plan but also covered the adjacent land of the Government and Railways and initially on receipt of a report (Annexure-9) dated 28th February, W.P.(C) No.9029 of 2013 Page 3 of 16 2009 from the Senior Draughtsman, R.D.A., the proceeding under the O.D.A. Act in Misc. Case No.07 of 2009 was initiated against him. It is further pleaded that the hearing of the matter was taken up with prior notice (Annexure- B/3) but on the date fixed i.e. 7th August, 2009, he was absent. By citing the conduct of the petitioner on the subsequent dates, opposite party No.3 claims that the action under the O.D.A. Act is fully justified with adequate and sufficient opportunity being provided followed by the final order under Annexure-3. As per the counter, it is stated that opposite party No.3 has not been extended with jurisdiction to act as per Section 122 of the O.D.A. Act by way of any Government notification and hence, in exercise of powers conferred under the O.D.A. Act, action for the illegal construction and possession of Government and railway lands was initiated against the petitioner. 4. By filing the rejoinder, the petitioner has questioned the usurpation of power under the O.D.A. Act after Seventy- fourth amendment to the Constitution of India coming into force w.e.f. 1st June, 1993 which deals with the powers of Urban Local Bodies having been introduced with a concept of self-government. It is stated that opposite party No.3 does not have the jurisdiction to initiate any such action under the provisions of the O.D.A. Act as such power stands vested with the Rourkela Municipal Corporation. As per the petitioner and in view of the rejoinder affidavit referring to Annexure-11 thereto, which is an order dated 30th March, 2010 of the Government of Odisha in Housing W.P.(C) No.9029 of 2013 Page 4 of 16 and Urban Development Department duly notified in the Orissa Gazette, whereby, all the Development Authorities have been directed to consider delegation of the functions of urban planning etc.to the local bodies in exercise of Section 111 of the O.D.A. Act.
Legal Reasoning
5. Heard Mr. Pal, learned counsel for the petitioner, learned AGA for the State and Mr. Mohapatra, learned counsel for opposite party No.3. 6. Mr. Pal, learned counsel for the petitioner confines the challenge to the impugned orders under Annexure-3 and Annexure-7 on the premise that after the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, opposite party No.3 lost its jurisdiction and hence, the very initiation of the proceeding under the O.D.A. Act and confirmation of the order of eviction and demolition by opposite party No.2 in appeal is untenable and nonest in the eye of law and hence, liable to be quashed. Mr. Pal refers to Article 243-ZD and Article 243-ZE and also Article 243-ZF besides Article 243-W of the Constitution of India to contend that the Rourkela Municipal Corporation was to exercise the jurisdiction in case of any such encroachment of Government land. It is further contended that after insertion of Article 243-ZF, exercise of jurisdiction in matters listed in 12th Schedule introduced by Seventy-fourth amendment stands bestowed upon the Corporation and hence, the initiation of the proceeding under the O.D.A. Act at the behest of opposite party No.3 is without competence. While advancing such an argument, Mr. Pal W.P.(C) No.9029 of 2013 Page 5 of 16 refers to a decision of this Court in the case of Bijaya Krushna Das, President, Hotel Association of Puri Vrs. State of Odisha and others 2015(I) OLR 588 and contends that the action of opposite party No.3 cannot be sustained in law for being without jurisdiction as it could not have been exercised with the powers being exercisable by the Rourkela Municipal Corporation. 7. Mr. Mohapatra, learned counsel for opposite party No.3 submits that delegation of powers with regard to urban and town planning and functions to be looked after and managed by the Rourkela Municipal Corporation was underway. Referring to the affidavit of opposite party No.3 filed in compliance of the Court’s order dated 15th February, 2024 as a reply to the rejoinder affidavit of the petitioner dated 9th August, 2023, Mr. Mohapatra, would further submit that after the Government’s decision dated 30th March, 2010 vide Annexure-11 to the rejoinder, the State Government by order dated 19th January, 2015 (Annexure-C/3) of the said affidavit clarified that Rourkela Development Authority was required to delegate the powers to deal with unauthorized constructions, however, in that connection, a meeting was held on 9th July, 2018 in presence of the Commissioner, Rourkela Municipal Corporation as a Special Invitee to discuss with regard to delegation of functions vis-à-vis urban planning etc. but the Commissioner delegatee expressed inability to take over the responsibility due to shortage of planning staff. The minutes of the said proceeding in 14th Authority Meeting held on 9th W.P.(C) No.9029 of 2013 Page 6 of 16 July, 2015 (Annexure-D/3), as according to Mr. Mohapatra, was dully communicated to the Government for approval of the proposal for transfer of urban planning functions to the Rourkela Municipal Corporation from Rourkela Development Authority by letter dated 31st December, 2015 (Annexure-E/3), whereafter, a reminder was issued on 26th April, 2016 (Annexure-F/3) later to which the State Government was pleased to ensure delegation of powers of building plan approvals, lay out/sub-divisional approvals and dealing with unauthorized constructions to Rourkela Municipal Corporation duly communicated vide Annexure- G/3 dated 17th August, 2019 as per which, such transfer of the planning functions to the Corporation was to take place by 30th August, 2019 keeping in view the mandate of Seventy-fourth amendment to the Constitution of India. In such view of the matter, Mr. Mohapatra lastly submits that since the transfer of power was pending consideration of the Government and the same could be processed in 2019, till such time, opposite party No.3 continued to exercise jurisdiction dealing with unauthorized and illegal constructions. In reply and response to the above, Mr. Pal, learned counsel for the petitioner submits that irrespective of the above exercise, with the introduction of the Constitution (Seventy-fourth Amendment) Act, 1992, proceeding initiated under the O.D.A. Act by opposite party No.3 is beyond jurisdiction. 8. As per the contention of Mr. Pal, learned counsel for the petitioner, exercise of power under Section 91 of the W.P.(C) No.9029 of 2013 Page 7 of 16 O.D.A. Act at the instance of opposite party No.3 is void ab initio with the insertion of Constitutional amendment and introduction of Part IX-A in the Constitution of India after Seventy-fourth amendment. For a better appreciation, Article 243-W of the Constitution of India is extracted hereunder: “243-W. Powers, authority and responsibilities of Municipalities, etc.- Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow- (a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to— (i) the preparation of plans for economic development and social justice; (ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule; (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.” As per the above, the Municipalities have been conferred with the powers and authority to deal with subjects listed in the 12th Schedule. 9. The action for encroachment of the Government land and of the Railways has been initiated against the petitioner W.P.(C) No.9029 of 2013 Page 8 of 16 in the year 2009. In view of the affidavit filed by opposite party No.3 and the stand taken referring to Annexures-C/3 to G/3, the State Government considered delegation of power to the Rourkela Municipal Corporation in 2019. Then the question is, whether, till such time pending delegation of power, the Rourkela Development Authority continued to possess the jurisdiction with respect to matters of urban and town planning and functions under the O.D.A. Act? 10. A preliminary point is to be considered, whether, the jurisdiction to initiate the action by opposite party No. 3 can be agitated before this Court? Such a question was not earlier raised by the petitioner. According to Mr. Pal, learned counsel for the petitioner, the challenge to the jurisdiction may be raised at any stage and as such, there lies no bar. It is contended by Mr. Pal that if the petitioner is said to have surrendered to the jurisdiction of opposite party No.3, it can not be assumed by any such concession with respect to the matters under 12th Schedule of the Constitution of India. It is further contended that consent of parties cannot clothe the Rourkela Development Authority with the jurisdiction. The above contention may be countered on the ground that a question on jurisdiction is not to be entertained at this stage when the petitioner never raised it earlier. It is well settled law that lack of inherent jurisdiction of a court or authority may be challenged at any stage even if not raised before since it goes to the very root of the matter. In the case of Pioneer W.P.(C) No.9029 of 2013 Page 9 of 16 Traders Vrs. Chief Controller of Imports and Exports AIR 1963 SC 734, it is observed that where an authority, whether, judicial or non-judicial has in law no jurisdiction to make an order, the omission to raise before that authority, the relevant facts for deciding the question cannot confer it with jurisdiction, In Cantonment Board, Ambala Vrs. Pyare Lal AIR 1966 SC 108, it is held and concluded that a question of jurisdiction not depending on facts to be investigated, can be allowed to be raised at any stage though in the said case, the Apex Court was not inclined to entertain it. On the other hand, it is equally an acceptable principle that if one has elected to argue a case on its merits before a court or authority, he must not be allowed afterwards to seek to repudiate by applying for a writ of certiorari. In Rex Vrs. Williams (1914) 1 KB 608, a classical decision on the point, it is observed that a party may by his conduct preclude himself from claiming the writ ex debito justitiae no matter whether the proceedings which he seeks to quash are void or voidable; if such proceedings are void, it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Courts act in granting or refusing the writ of certiorari; this special remedy will not be granted ex debito justitiae to a person, who fails to state the evidence on moving for the rule nisi at the time of the proceedings impugned that he was unaware of the facts on which he relied to impugn them. The above are the legal principles in precise to take cognizance of while deciding a question of jurisdiction. W.P.(C) No.9029 of 2013 Page 10 of 16 11. There is no denial to the fact that such a question vis-à- vis jurisdiction of opposite was not raised at the inception. The proceedings sought to be impugned have apparently been disposed without a real contest and to an extent, for the default of the petitioner. In fact, there was no any challenge to the jurisdiction when it could have been agitated. Yet, a patent lack of jurisdiction is alleged in the case at hand. Such an aspect, in the considered view of the Court, is needed to be examined keeping in view the settled legal position discussed. As earlier stated, the subjects in 12th Schedule of the Constitution of India stand to be taken over and earmarked for the Local Bodies after Seventy-fourth amendment to it. It does mean, such powers to be exercised as per the Municipal law and rules framed thereunder. In view of Article 243-W of the Constitution of India, powers and authority to be exercised by the Local Bodies. The powers relate to the matters listed in 12th Schedule of the Constitution of India. In other words, in view of introduction of Part IX-A to the Constitution of India, the matters pertaining to the urban and town planning shall have to be dealt with as per the law of the Local Bodies and not by invoking the provisions of the O.D.A. Act. The scheme of the thing envisioned with introduction of the Constitution (Seventy-fourth Amendment) Act w.e.f. 1st June, 1993 is to clothe the Local Bodies, the role and responsibility to manage and exercise powers with respect to the matters listed in 12th Schedule. So therefore, it would not be incorrect to hold that W.P.(C) No.9029 of 2013 Page 11 of 16 opposite party No.3 was required to deal with the action initiated as per the Municipal law instead of the O.D.A. Act. 12. In so far as delegation of power with the exercise undertaken by the Government in view of Section 111 of the O.D.A. Act is concerned, which on a bare reading, it would suggest that the Development Authority may by a notification direct that any power exercisable thereunder, except the power to make regulations, may also be exercised by such other officials or authorities, in such cases and subject to such conditions as may be specified therein, which means, the authority is exercisable within the confines of the said Act, whereas, the subjects listed in 12th Schedule of the Constitution of India are related to the matters to be taken care of and looked after as per the Municipal law. It can further be said that the Development Authority is allowed to share the jurisdiction in view of Section 111 of the O.D.A. Act but such power is exercisable as per the aforesaid Act. Since the subject of urban and town planning post-amendment lies within the folds of the Local Bodies, exercise of power to initiate action, in the humble view of the Court, has to be as per the Municipal law. For better understanding and appreciation, the 12th Schedule of the Constitution of India is reproduced herein below: TWELFTH SCHEDULE (Article 243-W) 1. Urban planning including town planning. W.P.(C) No.9029 of 2013 Page 12 of 16 2. Regulation of land-use and construction of buildings. 3. Planning development. for economic and social 4. Roads and bridges. 5. Water supply for domestic, industrial and commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services. forestry, protection of 8. Urban the environment and promotion of ecological aspects. 9. Safeguarding the sections handicapped and mentally retarded. interests of weaker the including society, of 10. Slum improvement and upgradation. 11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens, play-grounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials and burial grounds; cremations, cremation electric crematoriums. grounds; and 15. Cattle pounds; prevention of cruelty to animals. 16. Vital statistics including registration of births and deaths. W.P.(C) No.9029 of 2013 Page 13 of 16 17. Public amenities including street lighting, parking and public conveniences. lots, bus stops 18. Regulation of slaughter houses and tanneries. 13. With the insertion of the amendment to the Constitution of India including 12th Schedule, the matters relating to the urban and town planning have become a subject under the Municipal law. Furthermore, the jurisdiction of the Municipalities is derived from Section 374-A of the Odisha Municipal Act under Chapter- XXV-A introduced vide Odisha Act No.11 of 1994 w.e.f. 31st May, 1994 purportedly after the Seventy-fourth amendment to the Constitution of India. Hence, therefore, the Court is of the conclusion that all such matters pertaining to urban and town planning and powers exercisable shall have to be as per the Municipal law. In fact, it is the domain of the Local Bodies to deal with such urban planning and if any such authority is to be exercised, the same is necessarily as per the Municipal law. In the instant case, opposite party No.3 exercised the authority under the O.D.A. Act which ought to have been as per the Municipal Act and Rules. The said conclusion receives concurrence from the decision in Bijaya Krushna Das, President, Hotel Association of Puri (supra), wherein, construction activities were prevented by the Puri- Konark Development Authority with action undertaken as per the provisions of the O.D.A. Act when the purpose of urban planning and actions needed to be accomplished following the Municipal Act and Rules and the same was sought to be impugned and upheld referring to the W.P.(C) No.9029 of 2013 Page 14 of 16 Seventy-fourth amendment to the Constitution of India with a conclusion that after such amendment, for the purposes such planning, the laws of the Local Bodies stand to rule and prevail. 14. Finally to sum up, the Court is to conclude that in view of the amendment to the Constitution and insertion of Part IX-A, since the jurisdiction is exercisable under the Municipal Law in respect of urban and town planning, opposite party No.3 can therefore be said to have erroneously exercised the authority under the O.D.A. Act and not by following the provisions of the Municipal law. Since the manner of exercise of the authority is not in accordance with law and such usurpation of power is under the O.D.A. Act, notwithstanding any such exercise to delegate the power thereunder, it is to be held that the very initiation of the action against the petitioner never had the sanction of law. It is reiterated that exercise of authority under the Municipal law is in distinction from delegation of power under Section 111 of the O.D.A. Act. With the discussions as aforesaid, the irresistible conclusion of the Court is that the proceeding vis-à-vis the petitioner under the O.D.A. Act is liable to be interfered with as it stands on the pedestal lacking competence and jurisdiction. 15. Hence, it is ordered. 16. In the result, the writ petition is allowed. As a logical sequitur, the impugned orders under Annexures-3 and 7 are hereby set aside leaving it open for an action against the W.P.(C) No.9029 of 2013 Page 15 of 16 petitioner by such Authority for the alleged encroachment as per and in accordance with law, an exercise which is expected to be commenced and accomplished at the earliest preferably within next three months since such encroachment covers and includes large extent of area of the Government and Railways. It is observed that the plea of the petitioner regarding allotment of land by the State Government adjoining the plot owned by him shall also examined while considering action according to law. In circumstances, however, there is no order as to the costs. (R.K. Pattanaik) Judge Rojina/Balaram Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 15-May-2024 15:53:28 W.P.(C) No.9029 of 2013 Page 16 of 16