Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:06:29 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 11356 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Jitesh Sharma …. Petitioner(s) -versus- State of Odisha & Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) : Mr. S. P. Mishra, Sr. Adv. Along with Mr. S. Mishra, Adv. For Opposite Party (s) :
Legal Reasoning
Mr.Sonak Mishra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:- 04.10.2024 DATE OF JUDGMENT:- 29.10.2024 Dr. S.K. Panigrahi, J. 1. In this Writ Petition, the Petitioner, troubled by the damage to his building and concerned about a possible demolition due to nearby construction activities/ seeks the Court’s intervention. He requests an order to prevent any potential demolition, evaluate the extent of damage, and award compensation for the alleged unlawful harm caused by the authorities. Page 1 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:06:29 I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case are as follows: (i) The petitioner, a resident of Sambalpur, Odisha, is the owner of the property in question, located in Sambalpur Town. The property, comprising two Gharabari-I kissam plots, originally belonged to his father, Ganesh Shankar Sharma, and was transferred to the petitioner through a registered will executed in 2016. (ii) The petitioner alleges that the construction of a box-cell culvert over Dhobijore Nalla caused significant damage to his residential building. He claims that the District Administration, along with Opposite Party No.3, encroached upon his private land, excavated soil beneath his building, and destabilized its foundation, leaving the structure precariously supported by two bamboo props. (iii) The culvert construction project was undertaken to replace an old, narrow bridge near Big Bazaar, which had become dilapidated. This bridge served as a crucial connection between Sambalpur Town and the railway station. The reconstruction was initiated in the public interest to address traffic congestion and improve infrastructure. (iv) Opposite parties/ however/ deny the petitioner’s allegations. They contend that the construction activities were conducted within government land, following proper survey procedures and alignment plans. They refute claims of encroachment or illegal excavation on private property. (v) According to the opposite parties, during the excavation of the culvert foundation, soil from an adjacent, unused shop owned by the petitioner Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:06:29 inadvertently slid, causing cracks in the building wall. To ensure safety, steel props were installed, and the area was subsequently stabilized through backfilling. (vi) A survey conducted by the Revenue Department confirmed that the construction was confined to government land. The opposite parties also argue that the petitioner’s building does not comply with the Orissa Development Authorities (Planning & Building Standards) Rules/ which undermines the petitioner’s claims. (vii) The construction of the culvert bridge has since been completed, and it is now open to public traffic. The opposite parties assert that no damage was caused to either public or private property during or after the construction. (viii) Pursuant to the direction of this Court, two Engineer Commissioners were deputed to assess the alleged damage. The first Commissioner submitted a report on 20.02.2023, estimating the petitioner’s total loss at ₹20,26,252/-. A second report, submitted by another Commissioner on 02.07.2024, assessed the loss at ₹10,17,140/-. (ix) Aggrieved by the damage to his building and apprehensive that it may face demolition due to construction activities, the petitioner has filed this writ petition. He seeks a directive from the Court to halt any potential demolition, assess the damage, and award compensation for II. 3. the alleged unlawful damage caused by the authorities. SUBMISSIONS ON BEHALF OF THE PETITIONER: Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:06:29 (i) The petitioner submitted that the authorities encroached on his private land without any legal basis, causing damage to his residential building. (ii) He further submitted that the authorities are continuing with the demolition and construction work without following proper procedures, such as acquiring the land or offering compensation. (iii) The petitioner contended that the construction activities by the authorities have violated his property rights. Since the land has not been acquired or compensated for, the authorities have no legal right to damage or demolish the petitioner’s residential building. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. (i) The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: The opposite parties firmly deny the petitioner’s allegations of encroachment or excavation under the petitioner’s land. (ii) He further submitted that the cracks in the petitioner’s building resulted from accidental soil sliding, not from any fault in the construction process. As no work occurred on private land, they argue that there is no basis for land acquisition or compensation claims. (iii) It is contended that the project was undertaken as a public necessity to address traffic congestion and improve infrastructure, which outweighs individual grievances. (iv) He further contended that the petitioner’s property does not adhere to Orissa Development Authorities (Planning & Building Standards) Rules, weakening his claims for compensation or damages. Page 4 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:06:29 (v)
Decision
It is argued that the writ petition involves disputed facts that cannot be resolved through judicial intervention and is thus devoid of merit. They seek the dismissal of the petition in limine. IV. COURT’S REASONING AND ANALYSIS: 5. Heard learned counsel for the parties and carefully examined the documents placed on record. At the very outset, it becomes evident that the construction of the box culvert triggered soil displacement, which caused subsidence in the adjacent shop and, consequently, led to the development of structural cracks in the petitioner’s building. Given the facts and circumstances of the case, coupled with the findings of the two Court Commissioners, it becomes unequivocally clear that the activities carried out by the opposite parties are directly responsible for the damage sustained by the petitioner’s property. The evidence presented leaves little scope to challenge their causal role in the harm inflicted. 6. It is a well-established principle that/ a person’s right to property cannot be infringed except via manifest provisions of law. Arbitrary actions that bypass statutory processes are unlawful, and in such circumstances the owner of a property is entitled to due compensation and legal recourse. To this effect, Andhra Pradesh High Court in the case of Manga Madhavilatha v. Rajahmundry Municipality1, while addressing the arbitrary demolition by municipal authorities, laid down the guidelines for public authorities to follow. In para 4, the Court held as follow: 1 2001 SCC OnLine AP 74. Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:06:29 “4..(5) In case of demolition of private property/ the authorities concerned shall determine the loss caused to the occupants on the basis of the assessment to be made by the Engineer of R & B Department and on such assessment of damages, the concerned authorities shall take appropriate steps to disburse the amount quantified forthwith. (6) If there is any claim for grant/assessment of the property, the concerned authorities shall consider the same in accordance with law taking into consideration the eligibility and the entitlement of occupants, after making enquiry and till such claim is decided, there shall be status quo obtaining as on to-day regarding the structures.” 7. The evolving jurisprudence surrounding property rights reflects a broader recognition of their significance, transcending traditional legal frameworks. In fact, the Supreme Court in the case of Tukaram Kana Joshi v. MIDC2 while outlining the importance of Right to Property has held as follows: “The right to property is now considered to be/ not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi is considered, very much to be a part of such new dimension.” faceted dimension. The right to property 8. It is essential to recognize that the petitioner’s right to property is a constitutional right enshrined under Article 300-A of the Constitution of 2 AIR 2013 SUPREME COURT 565. Page 6 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:06:29 India. This right cannot be curtailed or taken away except through due process of law. In the present case/ although the petitioner’s property was not demolished outright, it has nonetheless sustained substantial damage as a direct consequence of the construction activities undertaken on the adjoining premises. Such interference, even if unintentional, cannot be justified without legal sanction or appropriate remedial measures. 9. Now, the pivotal question before this Court is the determination of the appropriate quantum of compensation to be awarded to the petitioner in light of the damages sustained to his property. In its order dated 12.03.2024/ this Court/ after examining the Engineer Commissioner’s report dated 02.02.2023, observed that the report lacked clarity in establishing a causal link between the petitioner’s property damage and the construction of the bridge. Subsequently, another Commissioner was appointed, and in the report dated 02.07.2024, the cost of repairing the damaged building structure was estimated at ₹10,17,140/-, inclusive of GST. However, factoring in depreciation, considering the building’s construction year of 1997, the depreciated value is assessed at ₹5,89,501/-. 10. In determining the appropriate compensation, this Court has carefully considered the findings of both reports/ the petitioner’s claims/ and the factual matrix surrounding the alleged damage. The second report demonstrates enhanced clarity and precision, establishing it as a dependable basis for adjudication. It further underscores the necessity Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:06:29 of accounting for both the actual costs of repair and the depreciated value of the building, as articulated in its findings. 11. Considering the nature and extent of the damage, the timeline of the petitioner’s grievance/ and the impact of the activities undertaken by the Opposite Parties, this Court is of the view that a compensation amount of ₹7,00,000/- would adequately address the petitioner’s losses. However, in light of the prolonged litigation spanning over three years and the incidental legal expenses incurred by the petitioner, it is deemed equitable and just to enhance the compensation to ₹10,00,000/-. This amount represents a fair and reasonable resolution, balancing the petitioner’s entitlement to redress against the principles of proportionality and equity. 12. 13. Accordingly, this Writ Petition is allowed, and the relevant authorities are directed to disburse the specified amount to the Petitioner within two months from the date of publication of this judgment. Interim order, if any, passed earlier stands vacated. (Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 29th October, 2024/ Page 8 of 8