The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13195 of 2023 Saroj Ranjan Bharati Petitioner Ms. Deepali Mahapatra, Advocate …. -Versus- State of Odisha & others Opposite Parties Mr. P. K. Mohanty, Senior Advocate for O.P.Nos. 4, 5 & 7 Mr. Manoj Mishra, Senior Advocate for O.P. No.6 Mr. Dayananda Mohapatra, Advocate for O.P. No.3 …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:20.02.2024 1. Instant writ petition is filed by the petitioner for quashment of the impugned order dated 14th March, 2023 under Annexure-11 passed in U.C. Case No.13 of 2022 by opposite party No.5 on the ground inter alia that the same is without authority and hence, liable to be interfered with and set aside. 2. The case of the petitioner is that he purchased the land situate over Plot No.155/670, Hal Khata No.465 measuring an area of Ac.0.040 decimal along with a building in a dilapidated condition through a sale deed (Annexure-1) recorded in his name with the RoR (Annexure-2) published and has been in possession since then. The petitioner submits that opposite party No.6 purchased the adjacent land from the same vendor and a construction violating the approved plan issued by opposite party No.3 was made, which caused immense inconvenience to him, for which, a complaint was lodged being registered as U.C. Case No.123 of 2017 followed by an W.P.(C) No.13195 of 2023 Page 1 of 6 order dated 14th August, 2018 i.e. Annexure-3 and in the meantime, being agitated of the demolition order (Annexure-3) passed therein, opposite party No.6, as according to the petitioner, U.C. Case No.74 of 2018 was registered, wherein, he received a notice (Annexure-4) and while the above proceedings were pending, Government notification under Annexure-5 was issued transferring the jurisdiction to the local bodies. It is alleged that on the complaint of opposite party No.6, U.C. Case No.13 of 2022 was registered when for the self-same dispute, proceeding in U.C. Case No.74 of 2018 was pending and in the latter proceeding, notices vide Annexures-6 and 7 series were issued. The petitioner would submit that jurisdiction of opposite party No.5 was questioned on the aforesaid ground but with an ulterior motive, the application filed in that behalf was rejected by order dated 4th November,
Legal Reasoning
2022 which has been challenged in W.P.(C) No.7666 of 2023. Furthermore, the authority of opposite party No.5 besides mala fide has been alleged by the petitioner against the opposite party No.5 for the latter having no jurisdiction to deal with U.C. Case No.13 of 2022 and to pass impugned order under Annexure-11.
Legal Reasoning
3. Heard Ms. Mahapatra, learned counsel for the petitioner, Mr. Mohanty, learned Senior Advocate for CMC, namely, opposite party Nos.4 and 5, Mr. Mishra, learned Senior Advocate for opposite party No.6 and Mr. Mohapatra, learned counsel for opposite party No.3 besides learned counsel for State. 4. The counter affidavit is filed by opposite party Nos.4, 5 & 7 denying the contention of the petitioner by stating that the impugned order under Annexure-11 is appealable in nature W.P.(C) No.13195 of 2023 Page 2 of 6 under Section 91(2) the Odisha Development Authorities Act and hence, the writ petition is not maintainable and furthermore, for the same cause of action, W.P.(C) No.7666 of 2023 vis-à-vis U.C. Case No.13 of 2022 is filed. The contention of opposite party Nos.4, 5 & 7 is that the jurisdiction stood vested on the local body in view of 74th amendment to the Constitution of India with the insertion of Part-IXA, hence, therefore, opposite party No.5 assumed the jurisdiction. In so far as, earlier UC proceeding is concerned, it is contended that there is no bar for opposite party No.5 to entertain U.C. Case No.13 of 2022 as there has been no final order by the CDA Authority. With regard to the allegation of malice, it is stated that the same is wholly misconceived and that apart, opposite party No.5 has had the authority to take up hearing of U.C. cases and competent to pass order under Annexure-11 and in so far as the office order under Annexure-12 is concerned, it stood modified by order dated 6th March, 2023 (Annexure-A/5) which is prior to the date of order under challenge, hence, therefore, the impugned decision is justified. 5. Ms. Mahapatra, learned counsel for the petitioner contends that U.C. Case No.74 of 2018 is pending disposal, however, in the meantime, the proceeding in U.C. Case No.13 of 2022 was initiated with the order dated 4th November, 2022 passed by opposite party No.5. The said order has been challenged in W.P.(C) No.7666 of 2023. In fact, the petitioner raised a preliminary objection vis-a-vis authority of opposite party No.5 due to the pendency of U.C. Case No.74 of 2018. In view of the transfer of authority, as made to appear from order dated 4th November, 2022 and as there has been no final order in U.C. Case No.74 of 2018, opposite party No.5 held the W.P.(C) No.13195 of 2023 Page 3 of 6 proceeding in U.C. Case No.13 of 2022 to be maintainable and rejected such objection. 6. Ms. Mohapatra, learned counsel for the petitioner would submit that such exercise of authority by opposite party No.5 is beyond jurisdiction. However, having regard to the reply and response of opposite party Nos.4, 5 & 7 and as in the meanwhile, jurisdiction to consider matter relating to unauthorized constructions stood transferred, notwithstanding pendency of U.C. Case No.74 of 2018, it was well within the powers of opposite party No.5 to receive complaint in connection with U.C. Case No.13 of 2022. As it is made to understand, in view of the complaint lodged before opposite party No.5 against the petitioner, the proceeding in connection with U.C. Case No.74 of 2018 was left unattended. In any case, the conclusion of the Court is that the proceeding in U.C. Case No.13 of 2022 since was maintainable, opposite party No.5 rightly exercised the jurisdiction under the Odisha Development Authorities Act and rejected the preliminary objection raised by the petitioner and finally, it resulted in passing of the impugned order under Annexure-11. 7. Against the impugned order under Annexure-11, appeal lies under Section 91(2) of the Odisha Development Authorities Act. Instead of availing the alternate remedy, the petitioner approached this Court and filed the writ petition. Ms. Mahapatra, learned counsel for the petitioner sincerely made an attempt to justify the action on the ground that the writ petition is maintainable notwithstanding existence of any such remedy by way of an appeal under the Odisha Development Authorities Act since a question of jurisdiction is involved and when, malafide is alleged against opposite party No.7. W.P.(C) No.13195 of 2023 Page 4 of 6 8. The settled legal position is that a writ jurisdiction is not ousted merely for the reason that an alternate remedy is available. Such exclusion of jurisdiction is not to be ready inferred. If any such question of jurisdiction and absence of it with the authority is involved, extra-ordinary writ jurisdiction may be exercised even when statutory remedies are in place. In the case at hand, the authority to deal with such matter was transferred after the amendment to the Constitution of India and in so far as the jurisdiction of opposite party No.5 to pass the impugned order under Annexure-11 is concerned, it is justified by Annexure-A/5, an office order which allowed him to do so with modification of the earlier order dated 3rd February, 2023 of opposite party No.4. In such view of the matter, when it is held that jurisdiction under the provisions of the Odisha Development Authorities Act is available and opposite party No.5 was having the authority to deal with the proceeding in U.C. Case No.13 of 2022, the contention of Ms. Mahapatra, learned counsel for the petitioner seeking indulgence of the Court is not entertainable. The officer order under Annexure-A/5 clarified that opposite party No.5 did have the authority to hold UC court on the date when impugned order under Annexure-11 was passed. Having found such jurisdiction of opposite party No.5, the Court is of the humble view that the allegation of malice or malafide against him would not be just and proper rather appears to be inappropriate. In order to substantiate any such personal bias, nothing has been brought on record to show that opposite party No.5 had any axe to grind against the petitioner. In other words, such allegation by the petitioner against the conduct of opposite party No.5 has not been substantiated by any specific instances, hence, therefore, same has to be outrightly rejected. W.P.(C) No.13195 of 2023 Page 5 of 6 Having reached at such a conclusion, the Court is of the humble view that order under Annexure-11 passed by opposite party No.5 since appealable in nature, without expressing anything on merits of the case, it should be left open for the petitioner to challenge the same for a decision in accordance with law. 9. Hence, it is ordered.
Decision
10. In the result, the writ petition stands dismissed. (R.K. Pattanaik) Judge Tudu Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 26-Feb-2024 20:12:23 W.P.(C) No.13195 of 2023 Page 6 of 6