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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 9210 of 2024 Pramodini Dash …. Petitioner Mr. Aurovinda Mohanty, Advocate -versus- The State of Odisha and others …. Opposite Parties Mr. Debakanta Mohanty, Additional Government Advocate CORAM: THE CHIEF JUSTICE MR. JUSTICE MURAHARI SRI RAMAN Order No. ORDER 14.05.2024 01. This matter is taken up through Hybrid mode. 2. Section 124 of the Orissa Development Authorities Act, 1982 (hereinafter referred to as ‘the Act’) confers power upon the Orissa Development Authority to frame regulations, with the previous approval of the State Government, not inconsistent with the provisions of the Act or the rules made thereunder for carrying out all or any of the purposes of the Act and, particularly, in regard to all matters expressly required or allowed by the said Act or the rules, to be regulated by the authority. 3. Section 125 of the Act lays down the procedure for making regulations under Section 124 of the Act thereof, which reads as under:” “125. Procedure for making rules and regulations-(1) In making rules or regulations under Section 123 or Page 1 of 6 124, a draft of the same shall be published in the Gazette. (2) There shall be published with the draft a notice specifying a date, being not earlier than fifteen days, on into or after which consideration. the draft shall be taken (3) The State government or the Authority, as the case may be, shall consider any objection or suggestion, if any, that may be received before the specified date and make such alterations or modifications as it may deem fit. (4) All rules and regulations so made shall be published in the Gazette and shall come into force on the date of such publication.” 4. The Bhubaneswar Development Authority (BDA), in exercise of the said powers conferred by Section 124 of the Act, has notified Bhubaneswar Development Authority Property (Management and Allotment) Regulations, 2023 (hereinafter referred to as ‘the regulations’) on 14.11.2023, which came to be published in the Official Gazette on 07.12.2023. Further, an office order has been issued by the BDA on 13.12.2023 to the effect that the said regulations shall come into force with effect from 07.12.2023, i.e. from the date of its publication in the official gazzette. 5. The present writ petition has been filed under Article 226 of the Constitution of India assailing the legality of the aforesaid Gazette notification dated 07.12.2023 notifying the regulations and the subsequent office order dated 13.12.2023 issued by the Secretary, BDA to the effect that the regulations shall come into force with effect from 07.12.2023. Page 2 of 6 6. It is worthwhile noticing that complying with the requirement of publication of draft notice inviting objections contemplated under Section 125 of the Act, objections were invited through a notification, published in the official gazette from all persons likely to be affected thereby, for consideration of the authority for framing of the regulations. 7. The petitioner had earlier approached this Court by filing a writ petition registered as W.P.(C) No.35722 of 2023 for consideration of his objection to the proposed regulations, which
Decision
was disposed of by an order of this Court dated 17.11.2023 with a direction to the opposite party no.1 of the said writ petition to consider the petitioner’s objection by passing appropriate order. 8. Later, apparently after issuance of the gazette notification dated 07.12.2023 and the subsequent office order dated 13.12.2023 as noted above, the petitioner filed another writ petition before this Court giving rise to W.P.(C) No.42097 of 2023 alleging disobedience of the earlier order of this Court dated 17.11.2023 passed in W.P.(C) No.35722 of 2023. The said writ petition came to be dismissed as not maintainable by a coordinate Bench of this Court by an order dated 06.02.2024 with a liberty to the petitioner to pursue her remedy before the appropriate forum in accordance with law. The following was the relief sought by the petitioner in W.P.(C) No.42097 of 2023 is as under: “It is therefore, most respectfully prayed that let this Hon’ble Court may be graciously be pleased to allow this writ petition and issue writ of mandamus or any other appropriate writ/writs in form of certiorari to the Gazette notification dated quash/ set aside Page 3 of 6 07.12.2023 under Annexure-11 as some of the clauses deliberately incorporated by opposite party no.3 in manipulating/ tampering the decision of the BDA Authority dated 10.02.2023 under Annexure-3. And further be pleased to declare that the action of the opposite party no.3- Secretary, BDA in issuing office order dated 13.12.2023 under Annexure-12 is also not in consonance with law; and violating the order of this Hon’ble Court dated 17.11.2023 passed in W.P.(C) No.35722 of 2023 thereby all consequential actions be declare as illegal and without jurisdiction in terms of section 125(3) of the ODA Act, 1982.” 9. The petitioner has again questioned the validity of the same Gazette notification dated 07.12.2023 and subsequent office order dated 13.12.2023 in the present writ petition. It is the petitioner’s case that the provisions of the regulations as notified, deviate from the authority’s resolution dated 10.02.2023 passed in the Agenda Item No.29/145. It is also the petitioner’s case that despite this Court’s order, the petitioner’s objection was not considered as stipulated under Section 125 of the Act, and without considering the objections, the regulations have been notified. On the said grounds, the petitioner wants this Court to declare the regulations ultra vires Section 125 of the Act. 10. We have heard Mr. Aurovinda Mohanty, learned counsel appearing on behalf of the petitioner and Mr. Debakanta Mohanty, learned Additional Government Advocate (AGA) for the opposite parties-State. 11. Mr. Aurovinda Mohanty, learned counsel for the petitioner has vehemently argued that it was incumbent upon the authority to consider the objections and suggestions made by the petitioner and Page 4 of 6 that having not been done, the regulations are ultra vires the said provision. He has also drawn our attention to the resolution of the BDA dated 10.02.2023 passed in Agenda Item No.29/145 concerning framing of the regulations and submitted that some of the provisions in the regulations are different from that which were decided by the resolution dated 10.02.2023. This is another ground on which he has challenged the validity of the regulations. 12. In our opinion, challenge made by the petitioner to the regulations on both the grounds as noted above, are wholly untenable. Notably, it is not the case of the petitioner that the said regulations, which have been notified with the approval of the State Government are either contrary to or defeat any purpose of the Act. It is also not the petitioner’s case that any provision under the regulations is beyond the regulations making power of the authority under Section 124 of the Act. 13. It is an admitted fact that by the notification dated 09.06.2023 objections/suggestions were invited by the Development Authority for framing of the regulations in accordance with Sub-section 2 of Section 125 of the Act which was published in the Official Gazette. The impugned notification published on 07.12.2023 clearly mentions that the objections and suggestions before the expiry of the period specified in the said draft had duly been considered by the BDA. The petitioner’s contention that there ought to have been some order passed on his objection by the State Government or the authority to comply with the requirement of Section 125(2) of the Act is wholly misconceived. The apparent requirement of publication of draft notice before finalizing the regulations under Page 5 of 6 Section 125(2) of the Act is to make aware the public in general about the intention of the authority/ the State Government about proposed provisions to be incorporated in the regulations and to seek their opinion/suggestions for alteration/improvement, if so required, after consideration. In the Court’s opinion, an authority/State is not expected to pass separate orders on the suggestions/objections received by the public in general in response to the statutory draft notice inviting such suggestions/objections. 14. Secondly, the petitioner’s case that the provisions under the regulations are different from the resolution of the authority dated 10.02.2023 and, therefore, they are unsustainable has no merit at all. It is not the petitioner’s case that the regulations as notified by the authority were not approved by the BDA. 15. In such view of the matter, we do not find any merit in this writ petition, which is accordingly dismissed. No orders as to costs. Chief Justice (Chakradhari Sharan Singh) (M.S. Raman) Judge S. Behera Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-May-2024 15:58:07 Page 6 of 6