The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.4496 of 2024 Ashok Sawadia @ Agrawal …. Petitioner Mr. A.K. Panda, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4566 of 2024 Suresh Kumar Kataruka …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4568 of 2024 Suresh Kumar Kataruka …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others …. Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality Page 1 of 17 W.P.(C) No.4570 of 2024 Deepak Agrawal Petitioner …. Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4580 of 2024 Ashok Kumar Mittal ….
Legal Reasoning
Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4582 of 2024 Baijanath Agrawal …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. Page 2 of 17 W.P.(C) No.4583 of 2024 Ghanshyam Agrawal …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4584 of 2024 Rajeswari Gupta …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C). No.4587 of 2024 Banwari Lal Kataruka …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. Page 3 of 17 W.P.(C) No.4683 of 2024 Shree Gopal Goshala, Bargarh …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4726 of 2024 Bajranglal Agrawal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4728 of 2024 Manoj Kumar Lath …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. Page 4 of 17 W.P.(C) No.4742 of 2024 Niraj Kumar Kansal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipal Council, Bargarh …. Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality W.P.(C) No.4750 of 2024 Sarita Beriwal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipal Council, Bargarh …. Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality W.P.(C) No.4751 of 2024 Gobind Kumar Agrawal @ Gobind Ram Agrawal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipal Council, Bargarh …. Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality Page 5 of 17 W.P.(C) No.4752 of 2024 Sanjay Swadia …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipal Council, Bargarh …. Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality W.P.(C) No.4753 of 2024 Hari Prasad Agrawal Petitioner …. Mr. A.P. Bose, Advocate -Versus- Bargarh Municipal Council, Bargarh …. Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality W.P.(C) No.4755 of 2024 Shyamlal Agrawal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipal Council, Bargarh …. Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality Page 6 of 17 W.P.(C) No.4756 of 2024 Bijay Kumar Agrawal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4758 of 2024 Mohanlal Agrawal Petitioner …. Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4759 of 2024 Prem Chand Agrawal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. Page 7 of 17 W.P.(C) No.4760 of 2024 Prem Chand Agrawal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4771 of 2024 Bibek Agrawal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4772 of 2024 Bibek Agrawal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. Page 8 of 17 W.P.(C) No.4782 of 2024 Suresh Kumar Kejriwal …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4784 of 2024 Manjari Devi Agrawal …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4795 of 2024 Govind Prasad Chhapadia Petitioner …. Mr. S. Mishra, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mishra, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. Page 9 of 17 W.P.(C) No.4799 of 2024 Govind Prasad Chhapadia …. Petitioner Mr. S. Mishra, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4800 of 2024 Shree Gopal Goshala, Bargarh Petitioner …. Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4810 of 2024 Bishnu Prasad Dhanuka …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. Page 10 of 17 W.P.(C) No.4811 of 2024 Sahil Dhanuka …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4812 of 2024 Ramesh Kumar Dhanuka …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4938 of 2024 Radhabai Agrawal …. Petitioner Mr. A.P. Bose, Advocate -Versus- Bargarh Municipality, Bargarh Opposite Party Mr. J.K. Panda, Advocate for Bargarh Municipality …. Page 11 of 17 W.P.(C) No.4939 of 2024 Umesh Agrawal …. Petitioner Mr. A.K. Panda, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4943 of 2024 Bijay Kumar Agrawal …. Petitioner Mr. A.K. Panda, Advocate -Versus- State of Orissa and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. W.P.(C) No.4930 of 2024 Pradeep Kumar Agrawal …. Petitioner Mr. S. Das, Advocate -Versus- State of Odisha and Others Opposite Parties Mr. I. Mohanty, ASC Mr. J.K. Panda, Advocate for Bargarh Municipality …. CORAM: JUSTICE R.K. PATTANAIK DATE OF ORDER:04.03.2024
Decision
1. All the writ petitions are clubbed together for disposal by the following order since a common cause of action is involved. Page 12 of 17 2. Instant writ petitions filed by the petitioners relate to the action of the Executive Officer, Bargarh Municipality with issuance of impugned notices dated 20th February, 2024 on the ground that the same is not in accordance with law and in compliance of the direction issued by the Court in W.P.(C) No.24066 of 2023 (Akash Kumar Agrawal and Another Vrs. State of Odisha and others)and batch of matters disposed of on 1st February, 2024. 3. Heard learned counsel for the respective parties. 4. It is contended by the learned counsels for the petitioners that the Municipality issued the notice under challenge with intimation to the petitioners to vacate the public road with the encroachment within fifteen days from 20th February, 2024 failing which action for removal of the same shall be taken without any further notice. It is alleged that the Municipality did not follow the due procedure and direction of the Court, which means, action pursuant to the notice shall be without considering grievances of the petitioners. It is further contended that such action would be bad in law since notice to vacate or remove the encroachment has been straight away issued without calling upon the petitioners to respond. It is claimed that the Municipality should provide further time to the petitioners to reply back as some of them did not do so after receiving the notice under the impression that the action is out rightly illegal. 5. On the other hand, Mr. Panda, learned counsel appearing for the Executive Officer, Bargarh Municipality would submit that no illegality has been committed since complying the direction of the Court, notices were issued with clear fifteen days to remove encroachment/obstruction by the petitioners from the public road in consonance with Section 254 of the Odisha Municipality Act (hereinafter referred to as ‘the Act’) read with Rule 206 of the Page 13 of 17 Odisha Municipality Rules. It is also submitted that grievances from some of the occupants have been received by the authority concerned and while it would be considered in due course, such action with the notices has been initiated to remove the encroachment from road which is causing immense inconvenience to the general public, hence, not to be interfered with. 6. A judgment dated 21st February, 2024 in W.P.(C) No.3385 of 2024 (Trinath Panda Vrs. Commissioner-cum-Secretary, Heath & Family Welfare Department, Government of Odisha and others) is cited at the Bar advancing an argument that objections of the petitioners are to be considered before the action by the Municipality. Another citation in the case of Ratnakar Sahani and others Vrs. State of Orissa and others AIR 1987 Ori 194 is placed reliance on to contend that the grievances of the petitioners shall have to be attended to when action is initiated in exercise of powers conferred under Section 254 of the Act. A decision in in the case of Prakash Chandra Padhi and others Vrs. State of Orissa and others 2006 (I) OLR 419 is also referred to with the contention that for removal of encroachment under Section 254 of the Act, decision on show cause upon hearing the owner or occupier is necessary. 7. In Trinath Panda (supra), this Court dealing with a PIL matter, discussed Section 133 Cr.P.C., an exercise which is undertaken by a Magistrate while dealing with cases of nuisance and held that due process is to be followed. Similarly, in Ratnakar Sahani (supra), the Court had occasion to discuss the powers exercisable under Section 254 of the Act. Likewise, in Prakash Chandra Padhi (supra), the Court held and concluded that the authority concerned in an action under Section 254 of the Act is required consider the show cause and upon hearing the owner or the occupier, to pass order on removal of encroachment or Page 14 of 17 obstruction in or over any road. Since an action is initiated under the Act on the premise that there is encroachment or obstruction of a public road which was challenged earlier followed by direction issued, the Court reiterates its view that before removal of the same, the response of the petitioners shall have to be considered. The Court is not to once again discuss the procedure to be followed by the Municipality as it was exhaustively dealt with while disposing of all the matters by a common judgment in Akash Kumar Agrawal (supra). To clear any such doubt if at all entertained, the Court is inclined to issue further directions which are needed in the facts and circumstances of the case. 8. The State is to follow due process which cannot be dispensed with. If directions have been issued by the Court, the same shall have to be properly understood and scrupulously followed and observed with all sincerity. By adopting a course which is not in accordance with the statutory compliance is likely to frustrate the action initiated. At times, it is experienced that in cases of encroachment/obstruction, due diligence is not exercised by the State to remove the same at the earliest which allows the occupants to settle down and long after, action is taken for removal of the same. Of course, any such delay in removal of encroachment and for having not shown the diligence at the earliest possible time is not an excuse to restrain the local authorities from taking action but it complicates situation since everything settles down over a period of time. The urgency to remove encroachment does not mean that there shall be disregard to the rules of procedure. The authority in action cannot be allowed to obviate due process of law while taking action for removal of encroachment. In fact, encroachments despite undue delay are to be attended under compelling circumstances but such action shall be by statutory compliance and not otherwise. Page 15 of 17 9. Section 254 of the Act contemplates consideration of grievance upon hearing the occupants. If any such grievances are received and not instantly dealt with keeping the same pending with the authority concerned and at same time, action initiated to remove the encroachment is reprehensible. If such conduct is shown, what is intended is clear and apparent and would suggest that the authority taking action follows a procedure as a lip service but is more interested for the end result, which it has desired to achieve. Any such notice issued under Section 254 of the Act with the responses received shall have to be attended to by a decision whether any such satisfactory or acceptable explanations have been offered in order to avoid demolition. In the stance case, since the action has been initiated under the Act, it is expected that the same shall be followed by a response and a counter response within a week or so. Of course, with the direction received, the Executive Officer, Bargarh Municipality issued notice with fifteen days time to remove the encroachment but at the same time, bounden duty lies with it to consider the show cause of the petitioners with immediate decision thereon instead of keeping the matters pending with the authority concerned and simultaneously proceeding for eviction and demolition. The Municipality, as it appears, is under an impression that the duty is over with the notices issued and the action may perhaps be continued without dealing with the objections of the occupants. The Court instead of elaborating further would conclude by saying ‘don’t hurry up things, let the process take its own course; at times, undue haste spoils even an action initiated and backed by law’. With the above conclusion reached at, the Court directs that any of the petitioners still not responded to the notice may reply and offer explanation or instead submit a copy of writ petition with all the annexures to be treated as a response since the stipulated period of fifteen days is to expire soon and Page 16 of 17 thereafter, upon a decision and intimation on the show cause/objection, further course of action shall follow suit. For giving effect to the aforesaid direction, it is expected that the Executive Officer, Bargarh Municipality shall act accordingly within reasonable time, may be in a week or two, after disposal of the grievances received as a breathing space for all the occupants, who, during such time, may avail other remedy allowed by this Court in Akash Kumar Agrawal (supra). 10. Hence, it is ordered. 11. In the result, the writ petitions stand disposed of with the observations made herein above and directions issued. 12. The order be uploaded at once in the Courts’ website in the lead case i.e. W.P(C) No. 4496 of 2024 for the sake of convenience and benefit of all the petitioners. (R.K. Pattanaik) Judge Tudu Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 04-Mar-2024 11:18:14 Page 17 of 17