The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Apr-2024 21:42:16 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 857 OF 2012 Sanatana Sahu …. Petitioner Ms. Deepali Mahapatra, Advocate -versus- State of Odisha and others …. Opp. Parties
Legal Reasoning
Mr. Amiya Kumar Mishra, Additional Government Advocate (For Opp. Party Nos.1 & 3) None (For Opp. Party No.2) CORAM: JUSTICE K.R. MOHAPATRA Order No. 4. 1.
Decision
ORDER 10.04.2024 This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to restrain the Municipal Commissioner, Berhampur Municipal Corporation, Berhampur-Opposite Party No.2 from evicting him from Stall No.5 situated at Ramalingam Tank Road near Goutam Cinema, Berhampur Town and also to set aside the cancellation of allotment order dated 16th December, 2011 (Annexure-5). 3. Ms. Mahapatra, learned counsel submits that the Petitioner was allotted with a shop room and was running his business. In due course, he was issued with license to open a F.L. ‘OFF’ Shop in the said stall. In view of the above, the Berhampur Municipal Corporation-Opposite Party No.2 alleging that that the Petitioner is violating the terms of order of allotment of the shop room, issued the order of cancellation vide Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Apr-2024 21:42:16 // 2 // Annexure-5. The license for opening of the F.L. ‘OFF’ Shop was also cancelled on the same day. 4. It is submitted that no opportunity of hearing was given to the Petitioner before cancelling the order of allotment. Since the Petitioner has acquired a right by virtue of the allotment, an opportunity should have been given to him before issuing the order of cancellation under Annexure-5. Hence, being aggrieved by the order of cancellation, this writ petition has been filed for the aforesaid relief. 5. None appears for the Opposite Party No.2-Municipal Commissioner, Berhampur Municipal Corporation, Berhampur at the time of call although it is represented through learned counsel. 6. Counter affidavit has been filed by Opposite Party No.2 justifying the action of cancellation of allotment of shop room made in favour of the Petitioner. It is indicated therein that in view of Section 618(3) of the Odisha Municipal Corporation Act, 2003, the writ petition is not maintainable as an appeal is provided against cancellation of allotment. It is also indicated therein that the Petitioner has violated the terms and conditions of order of allotment dated 15th January, 1994 by opening a F.L. ‘OFF’ Shop in the said stall without taking prior permission of Berhampur Municipal Corporation. The Petitioner had also not renewed the deed of agreement and has remodeled the shop without permission. He was also not paying the rent regularly. The Municipal Commissioner, Berhampur Municipal Corporation, who issued the allotment order, is also competent Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Apr-2024 21:42:16 // 3 // to withdraw or cancel the order of allotment when terms and conditions of such allotment are violated. On perusal of the counter affidavit, this Court does not find that an opportunity of hearing was afforded to the Petitioner before cancellation of allotment. 7. Mr. Mishra, learned Additional Government Advocate submits that it is a dispute inter se the Petitioner and Berhampur Municipal Corporation. However, the counter affidavit filed by the Opposite Party No.2 indicates that the Petitioner had violated the terms and conditions of the allotment order and agreement. He, however, submits that considering the counter affidavit filed by Opposite Party No.2, necessary order may be passed. 8. Taking note of the submissions made by learned counsel for the parties and on perusal of the pleadings available, this Court finds that no opportunity of hearing was afforded to the Petitioner before cancelling the allotment made in his favour. Since the Petitioner has acquired a valuable right of running his business and to earn his livelihood by allotment of such shop room, an opportunity of hearing should have been given to the Petitioner before any action for cancellation of such allotment is taken. It further appears that although an allegation is made that the Petitioner was not paying the rent regularly, but there is no material available on record in support of the same. If it is assumed that the Petitioner was not paying the rent regularly, then a notice should have been issued to the Petitioner to regularize payment of rent before taking any coercive action. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Apr-2024 21:42:16 // 4 // 9. It appears from the record that vide order dated 16th January, 2012 passed in Misc. Case No.720 of 2012, this Court while issuing notice in the matter directed that status quo as on that date in respect of Stall No.5 situated at R.L. Tank Road near Goutam Cinema in Berhampur Town shall be maintained by the parties till 10th March, 2012 subject to the Petitioner paying the arrear amount, if any, as well as the current rent. Ms. Mahapatra, learned counsel for the Petitioner submits that interim order dated 16th January, 2012 has been complied with and the Petitioner is in occupation of the said shop room till date. 10. In that view of the matter, this Court is of the considered opinion that the order under Annexure-5 is not sustainable and is accordingly set aside. The Municipal Commissioner, Berhampur Municipal Corporation, Berhampur-Opposite Party No.2 if wishes to take an action for any irregularities or illegalities committed by the Petitioner, an opportunity of hearing should be given to him by issuing a notice to show cause and providing him an opportunity of hearing. 11. With the aforesaid observation and direction, the writ petition is disposed of. 12. Interim order dated 16th January, 2012 passed in Misc. Case No.720 of 2012 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4