Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO.2602 OF 2023 An application under Articles 226 & 227 of the Constitution of India. Koresa Bibi : Petitioner -Versus- Jajpur Municipal Council, Jajpur & Anr. : Opposite Parties For Petitioner For O.Ps. : Mr.S.K.Nayak, Adv. Mr.K.Jena, Adv. Mr.S.S.K. Nayak, Adv. Mr.M.Mohanty, Adv. : Mr.B.Nayak, Adv. Mr.S.Samantray, Adv. Mr.A.K.Patra, Adv. Mr.K.T.Muduli, Adv. J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 15.02.2023 1. This Writ Petition involves the following prayer:- that therefore prays the “The petitioner Honourable Court be pleased to admit this application and after hearing the petitioner’s advocate issue a writ in the nature of certiorari or any other suitable writ, quashing the order the Jajpur dated 18.01.2023 passed by Page 1 of 8 // 2 // Municipal Council in Appeal No.01/2022 conforming the order dated 04.07.2022 passed by the Executive Officer, Jajpur Municipality, Jajpur through a Letter No.2479/04.07.2022 vide Annexure-12 and Annexure-9; And/or pass any other order(s)/direction(s) as this Honourable Court thinks just and proper; And for this act of kindness the petitioners as in duty bound shall ever pray.” 2.
Legal Reasoning
This case has checkered background even in disposal of three earlier Writ Petitions vide W.P.(C) No.26995 of 2022, W.P.(C) No.18985 of 2022 and W.P.(C) No.11254 of 2022. This is in the fourth round of litigation. Undisputedly there has been a notice for taking out the un-authorized construction, however based on a response to the notice, there has been a decision by the Executive Officer, Jajpur Municipality in declining the request of the Petitioner, resulting filing of Appeal No.01 of 2022. In disposal of the Appeal in the involvement of the Petitioner finalizing the order at Annexure-12, Appeal No.1 of 2022 has
Decision
come to be rejected, giving rise to the filing of the Writ Petition. 3. Even though the Writ Petition involves several grounds, Mr.Nayak, learned counsel for the Petitioner however confines his submission that ultimately there is non-consideration of the case of the Petitioner made out through paragraphs-4, 5 and 6 of the memorandum of Appeal as well as grounds- b, c and d in giving out the result in the statutory Appeal. 4. Taking this Court to the pleadings through paragraphs-4 to 7 and the grounds-b to d, Mr.Nayak, learned counsel for the Petitioner reading together with the impugned order herein vide Annexure-12 contended that there has been no attending to such Page 2 of 8 // 3 // grounds at all by the Appellate Authority. Mr.Nayak, therefore seeks interference in the order and at least remitting the same for fresh disposal of the Writ Petition. 5. Mr.Nayak, learned counsel here also in reference to the last direction of this Court in disposal of W.P.(C) No.26995 of 2022 submitted that there was earlier remand of the Appeal proceeding on the reason find place in paragraph-6 of the disposed of Writ Petition. Further for there is pendency of a civil suit but not in the involvement of Municipality involved, Mr.Nayak, learned counsel submits for there is status quo order operating involving very same land being passed by a civil court, the Municipality is required to await final outcome in such proceeding. 6. Mr.Nayak, learned counsel appearing for the Jajpur Municipality however in his opposition attempted to justify the impugned order. In reading the Appeal order together with the direction of this Court in the earlier disposal of the Writ Petitions attempted to support the impugned order on the premises that there has been consideration of the entire case of the Petitioner also keeping in view the direction of this Court in the above discussed Writ Petition. However, on reading entire Appeal order, Mr.Nayak could not be able to demonstrate as to the Appellate Authority attending to the plea by the Petitioner in paragraphs-4 to 7 in the memorandum of Appeal. Mr. Nayak, also contends that for public interest involved, there is urgent need in taking possession of the disputed land and pendency of civil suit should not affect the public exigency. Page 3 of 8 // 4 // 7. Considering the rival contentions of the Parties and keeping in view the checkered career of the dispute involved herein, this Court finds, there has been already involvement of three Writ Petitions vide W.P.(C) No.26995 of 2022, W.P.(C) No.18985 of 2022 and W.P.(C) No.11254 of 2022. Lastly the Writ Petition came to this Court against the order of the Appellate Authority in deciding the Municipal Appeal No.01 of 2022 disposed of Writ Petition vide W.P.(C) No.26995 of 2022 with the following direction:- “This matter is taken up through Hybrid mode. 2. Heard Mr. S.S.K. Nayak, learned counsel appearing for the petitioner and Mr. B. Nayak, learned counsel appearing for opposite parties nos.1 & 2. 3. The petitioner has filed this writ petition seeking to quash the order dated 27.09.2022 passed by the Chairperson, Jajpur Municipality in Appeal No.01 of 2022 confirming the demolition order issued by the Executive Officer, jajpur Municipality, Jajpur on 04.07.2022 through letter no.2479 dated 04.07.2022. 4. Mr. S.S.K. Nayak, learned counsel appearing for the petitioner contended that the order of demolition dated 04.07.2022 passed by the Executive Officer, Jajpur Municipality, Jajpur, being appealable, the petitioner preferred Appeal No.01. of 2022 under Section 274 of Odisha Municipal Act, 1950. But, instead of Municipal Council, the Chairperson, Jajpur Municipality, Jajpur, vide order dated 27.09.2022, dismissed the appeal under Annexure-8, which is without jurisdiction. To substantiate his contentions, he has relied upon the judgment of this Court in Susanta Kumar Rout v. keonjhar Municipality, represented through the Executive officer, 2016(II) CLR 1167, wherein this Court observed that a Municipality used to be comprises of a Council having Councilors and Chairperson and a Page 4 of 8 // 5 // vice-Chairperson, and therefore, an appeal under Section 274 of the Orissa Municipal Act being an appeal to the Municipality, the same ought to have been addressed to the Municipal Council and ought to have been decided by Municipal Council itself. By so observing, this Court set aside the order impugned the Chairperson, as has been done in the present case. therein which was passed by 5. Mr. B. Nayak, learned counsel appearing for the opposite parties very fairly contended that the order the Chairperson, Jajpur impugned passed by Municipality, Jajpur, cannot be construed to be the order of the Municipal Counsel, which is required to be done under the statute. 6. Considering the contentions raised by learned counsel for the parties and after going through the records, since the order impugned dated 27.09.2022 passed by the Chairperson, Jajpur Municipality, Jajpur in Appeal No.01 of 2022 cannot be construed to be the order passed by the Municipal Counsel in conformity with the provisions contained under Section 274 of the Odisha Municipal Act, 1950, therefore, in view of the ratio decided by this Court in Susanta Kumar Rout (supra), the order impugned dated 27.09.2022 passed by the Chairperson, Jajpur Municipality, Jajpur in Appeal No.01 of 2022 cannot be sustained in the eye of law. Accordingly, the same is liable to be quashed and is hereby quashed. Thereby, the matter is remitted back to the Municipal Council fresh adjudication by affording opportunity of hearing to the petitioner as expeditiously as possible, preferably within a period of of from communication/production of this order. weeks date the for six 7. With the above observation and direction, the writ petition stands disposed of. 8. Issue urgent certified copy as per rules”. Page 5 of 8 // 6 // It is here keeping in view the allegation of the learned counsel for the Petitioner, this Court takes note on the plea in the memorandum of Appeal through paragraphs-4 to 7 at part Annexure-10 commencing from page-32 of the brief observes, even though there was earlier interference in the Appeal order by this Court in disposal of the above Writ Petition but however, there is remand of the matter to the Appellate Authority for giving a fresh disposal. 8. For the opinion of this Court once hearing of statutory Appeal is undertaken and being the last resort for a party involved therein, the Appellate Authority ought to have been careful in attending to each of the submission and the grounds raised therein. This Court is also of the opinion that statutory Appeal cannot be formally disposed of. 9. Considering the serious issue involved herein, the Appellate Authority should have been more careful in disposing such type of Appeal at least as the finality of such dispute, the person is likely to be suffering from losing the valuable right of residence and also landing in loss of huge spending. It is keeping in view of the above and the grounds raised in the memorandum of Appeal further also direction in disposal of W.P.(C) No.26995 of 2022 and reading the whole Appeal order, this Court nowhere find there is any discussion on the pleadings as well as on the grounds raised in the disposal of the Appeal. 10. Looking to the development through the civil court involving the selfsame property, this Court records the submission of both counsel that admittedly there is status quo operating in Page 6 of 8 // 7 // respect of the disputed property being passed by the competent court of law. While undertaking the Appeal exercise, the Municipal Authority shall also keep in view the operation of status quo involving the selfsame property by the competent court of law. 11. Considering the submission of Mr.B.Nayak, learned counsel for the Jajpur Municipality that Municipal Council is not a party to the civil proceeding however the civil suit involving the same property, it may be open to Municipal Council if properly advised to undertake appropriate exercise attempting modification or vacation of the interim order before proceeding further in the statutory Appeal, as for the opinion of this Court the outcome, if any, against the Petitioner in the disposed of the Appeal cannot be executed in the remaining of the status quo order in the civil suit. It is made clear that in the event there is status quo in respect of the property of land involved herein by the competent court of law, the Municipal Council will remain bound by such order until such order is taken away by the competent court of law. 12. In the circumstance this Court finds, the Appeal order should be interfered and the proceeding is remitted back to the Appellate Authority for fresh disposal of Appeal. Petitioner is directed to appear before the Appellate Authority along with copy of this order on 01.03.2023. Petitioner may be provided date of hearing and the Appeal is also directed to be disposed of at least within a period of three months from the date of appearance and production of copy of order by the Petitioner. For there is fresh disposal, there will be also opportunity of hearing of the Petitioner. Page 7 of 8 // 8 // 13. The Writ Petition succeeds but however with an order of remand. No costs. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 15th February, 2023 /Swarna, Junior Stenographer Page 8 of 8