Shyam Sundar Agarwalla State of Odisha and others … v. …
Case Details
IN THE HIGH COURT OF ORISSA, AT CUTTACK W.P.(C) No. 12142 of 2024 Shyam Sundar Agarwalla State of Odisha and others ….. Vs. ….. Petitioner Mr. B.P. Das, Adv. Opposite Parties
Legal Reasoning
Mr. P.K. Muduli, AGA Mr. D. Mohapatra, Adv.[BDA] CORAM: DR. JUSTICE B.R. SARANGI MR. JUSTICE G. SATAPATHY
Decision
ORDER 14.05.2024 Order No. 01. This matter is taken up through hybrid mode. 2. Heard Mr. B.P. Das, learned counsel appearing for the petitioner; Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State-opposite parties and Mr. D. Mohapatra, learned counsel appearing for the opposite party-BDA. 3. The petitioner has filed this writ petition seeking to quash the order dated 19.04.2001 under Annexure-10, by which it has been directed that the unauthorized construction of RCC roof house of 2nd and 3rd floor along with total 11644 sqft. Deviation of coverage in all floors and 54’-6” deviation on rear setback and other side setback as shown in a statement beyond the approved plan over plot no.97 in Mouza-Kharvelanagar, Bhubaneswar be removed within seven days under Section 91 of the Orissa Development Authorities Act, 1982, and further seeks direction to the Bhubaneswar Development Authority to approve the building plan submitted by the petitioner in respect of Plot No.97, Kharvelnagar, Unit-III, Bhubaneswar by realizing the compounding fees from the petitioner, which he is ready and willing to Page 1 of 5 deposit, as per the deviation under Section 98 (1) (b) of the ODA Act, 1982, taking into consideration of Gurdayal Singh’s case. 4. Mr. B.P. Das, learned counsel appearing for the petitioner contended that so far as the ground floor and 1st floor is concerned, the petitioner raised construction over the plot in question by taking due approval, but due to urgency he could not take approval for construction of 3rd and 4th floor. Thereby, there was deviation of construction of 3rd and 4th floor, for which proceeding was initiated under Section 91 of the ODA Act. It is contended that the petitioner is willing to realize the compounding fees by deposing the requisite fees, as determined by the authority for regularization of the same. But the same was not accepted and, therefore, the petitioner had earlier approached this Court by filing OJC No. 4238 of 2002, which was disposed of vide order dated 25.01.2019 by setting aside the order of the appellate authority and remanded the matter back to the appellate authority for rehearing the appeal by giving due opportunity of further objection, if any further ground by the respective parties. It is contended that that said appeal bearing no.78 of 2001 is still pending for adjudication. It is further contended that when the matter was pending, an amnesty scheme was formulated by the BDA, pursuant to which the petitioner submitted his application for regularization of the unauthorized construction, which is subject matter of challenge before the appellate authority. But without considering the appeal of the petitioner, the order dated 11.03.2022 was passed vide Annexure-18 and, therefore, the petitioner has approached this Court by filing the present writ petition. 5. Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State-opposite parties contended that pursuant to the order dated 25.01.2019 passed by this Court in OJC No. 4238 of 2002, the appeal Page 2 of 5 case no.78 of 2001 is still pending. Therefore, direction may be given to dispose of the same in conformity with the provisions of law by affording opportunity of hearing to the parties. 6. Mr. D. Mohapatra, learned counsel appearing for the opposite party-BDA contended that when the appeal was pending before the authority, the petitioner filed application under the amnesty scheme, which was considered by passing the order impugned and, as such, the same is appealable. Therefore, the petitioner could have approached the appellate authority instead of filing the present writ petition. 7. Having heard learned counsel for the parties and after going through the records, this Court finds that the petitioner granted with approval for construction of ground and 1st floor, but due to urgency, the petitioner could not obtain approval so far as 2nd and 3rd floor is concerned and, therefore, there was deviation in constructing the said houses and, as such, for unauthorized construction of 2nd and 3rd floor, proceeding was initiated against the petitioner under Section 91 of the ODA Act for demolition of same. Thereafter, the petitioner preferred appeal, which was confirmed by the appellate authority. Therefore, the petitioner had earlier approached this Court by filing OJC No. 4238 of 2002, which was disposed of vide order dated 25.01.2019. The operative portion of the said order is extracted hereunder:- “Considering the rival contentions of the parties and taking note of specific plea of the petitioner as quoted and referred to hereinabove, this Court finds, the petitioner had specific plea and thus it was incumbent upon the appellate authority to deal with such plea and to render his final opinion after giving a finding on the same. For absence of which, this Court finds, the impugned order is not proper. As a consequence, this Court interfering in the appellate order at Annexure-11 sets aside the same and as the matter needs re- adjudication, this Court remits the matter mack to the appellate authority for rehearing of the appeal giving opportunity of further objection, if any further ground by Page 3 of 5 the respective parties and also giving opportunity of hearing. It is further, directed that the appeal will be disposed of within a period of three months from the date of appearance of the parties. This Court directs both the parties to appear before the appellate authority on 4th February, 2019 along with certified copy of this order along with their further evidence and grounds, if any.” 8. In compliance of the aforesaid order, the appeal case no.78 of 2001 has to be disposed of by the authority after giving due opportunity of hearing to the parties. But, in the meantime, Government has formulated an amnesty scheme, pursuant to which the petitioner applied for the same for regularization of unauthorized construction, which was rejected vide order dated 11.03.2022 under Annexure-18. Against the said order appeal lies under the scheme. Even though the petitioner has not preferred any appeal, however, since appeal no.78 of 2001 is pending, the statutory authority has to dispose of the appeal in accordance with law by giving due opportunity of hearing to the parties, in pursuance of the order passed by this Court. Needless to say, in similar circumstance in the case of Gurudayal Singh, the opposite party-authority made realization by compounding the fees for unauthorized construction. Therefore, there will no difficulties on the part of the authority to go for compounding the fees for unauthorized construction of 2nd and 3rd floor of the petitioner. 9. In such view of the matter, this writ petition stands disposed of directing the appellate authority to dispose of the appeal case no.78 of 2001 and pass appropriate order in accordance with law as expeditiously as possible, preferably within a period of two months from the date of passing of order by giving due opportunity of hearing to the parties. Needless to say, while considering the appeal of the petitioner, the appellate authority shall take into consideration all the above aspect in proper perspective so that appropriate order can be Page 4 of 5 passed and the relief sought by the petitioner can be extended to the petitioner in conformity with the provisions of law. (DR. B.R. SARANGI) JUDGE Ashok (G. SATAPATHY) JUDGE Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: HIGH COURT OF ORISSA Date: 15-May-2024 14:40:09 Page 5 of 5