The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20535 of 2023 S Shantilata Mahakud Petitioner Mr. Biplaba P.B. Bahali, Advocate …. -Versus- State of Odisha & others …. Opposite Parties Mr. P.K. Rout, AGA for O.P.Nos.1,2,3 &6 Mr. Nirakar Behera, Advocate for O.P. No.4 Mr. S.B. Panda, Advocate for O.P. No.5 Mr. S.D. Das, Senior Advocate for O.P. No.7 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:22.04.2024 1. Instant writ petition is filed by the petitioner for a direction to opposite party Nos. 3 and 4 to demolish the illegal construction and encroachment made by opposite party No.7 over the schedule land morefully described therein within a stipulated period and to quash order dated 24th April, 2023 under Annexure-11 on the grounds stated. 2. The petitioner alleges that the unauthorized construction by opposite party No.7 is in deviation of the approved plan of the Dhenkanal Regional Improvement Trust (DRIT), as revealed after an inquiry held, in clear violation of the statutory provisions and instead of eviction and demolition of the same, opposite party No.5 by a cryptic order dated 24th April, 2023 under Annexure-11 declined to do so on the premise that the matter to be sub-judice before the court of learned Civil Judge (Junior Division), Dhenkanal in C.S. No.42 of 2022 instituted against the Dhenkanal CRLMC No. 20535 of 2023 Page 1 of 11 Municipality awaiting its disposal. Referring to the local inspection held on 18th March, 2021 at the instance of opposite party No.4 and officials of opposite party No.6 as a part of joint physical inquiry with a decision and intimation to opposite party No.5 for taking appropriate action by eviction and demolition of the unauthorized construction put up by opposite party No.7 and physical verification report of the R.I. (Sadar), Dhenkanal dated 8th April, 2021 and thereafter, issuance of eviction notice to opposite party No.7 on 23rd April, 2021 and subsequent developments and order of this Court under Annexure-7, the petitioner’s contention is that without taking any such action necessary to clear the encroachment or remove the unauthorized construction which has been taken up by opposite party No.7 in violation of the approved plan of DRIT, the decision of opposite party No.5 vide Annexure-11 is grossly unjust and a case of dereliction in duty and shifting of responsibility with an excuse about the litigation pending in C.S. No.42 of 2022. 3. Opposite party Nos.4 and 5 and also opposite party No.7 filed counter affidavits. According to opposite party No.4, any such action which is necessary, shall have to be at the behest of opposite party No.5 since in view of the order dated 26th April, 2022 (Annexure-E/4) of Government of Orissa in Housing and Urban Development Department, the authority of DRIT has been delegated to the Dhenkanal Municipality, whereby, the jurisdiction of the Regional Improvement Trusts and Special Planning Authorities stands transferred to the Urban Local bodies in exercise of powers under Section 153-A of the Odisha Town Planning and Improvement Trust (Amendment) Act, 2021 to deliver the planning functions, such as, regulation of land use, construction of building; issues related to building plan approvals; W.P.(C) No. 20535 of 2023 Page 2 of 11 layout/sub-divisional regulation approval cases and authority to
Legal Reasoning
deal with unauthorized constructions. The contention of opposite party No.4 is that opposite party No.5 is vested with the powers in view of the above Government order to take appropriate action and while dealing with the grievance of the petitioner, it
Decision
has disposed of the representation vide Annexure-11. 4. Opposite party No.5 pleaded on record that the decision under Annexure-11 needs no interference as the matter is pending consideration in the civil court involving disputed question of fact. It is contended that the petitioner may very well intervene in the suit if so advised or else file a separate suit seeking appropriate relief, inasmuch as, a civil dispute is involved between the parties, for which, the present writ petition is not maintainable. It is further pleaded that by a well reasoned order, opposite party No.5 disposed of the representation of the petitioner and in the best interest of the parties concerned and for the ends of justice, the Court may perhaps direct the civil court for early disposal of the suit. 5. Opposite party No.7 contends that the petitioner purchased the land and building appertaining to Plot No.20/250, Khata No.23/384 measuring an area of Ac.0.080 decimal under Mouza-Bankual, Tahasil-Dhenkanal in the District of Dhenkanal in the year 2015 through a Registered Sale Deed (Annexure-A/7). It is pleaded that the said plot was originally under Khata No.16 with Plot No.20 recorded in the name of one Basanta Mantrisamanta and out of the same, Ac.0.36 decimal of land was sold from the eastern side to one Pratap Das from whom opposite party No.7 acquired interest and from the eastern side land measuring Ac.0.10 decimal was sold to one Bharati Jena, W.P.(C) No. 20535 of 2023 Page 3 of 11 whose share has been purchased by the petitioner. It is further pleaded that said Pratap Das mortgaged his land to the extent of Ac.0.36 decimal with Odisha State Financial Corporation (OSFC) while availing loan and on account of default in repayment, it was sold through a public auction under Section 29 of the OSFC Act, pursuant to which, one Dhanurdhar Sahu purchased it and thereafter, he sold the same to one Dibakar Behera (vendor of opposite party Nos.7 and others) to an extent of Ac.0.34.3 decimal and left balance measuring Ac.0.1.7 decimal which is lying vacant and used as a road. Apart from the sale deed i.e. Annexure-A/7, it is stated by opposite party No.7 that from said Bharati Jena, the petitioner had purchased a plot in the year 2008 vide Annexure-B/7 and while stating so, it is claimed that there is no public road in between land of the petitioner and the land owned by him and conceding for a moment but not admitting that there is encroachment, the dispute is purely private in nature and only remedy is to approach the civil court, but the petitioner has moved opposite party No.4 for action and under the above circumstances, opposite party No.5 on the advice of the GP passed the order under Annexure-11. 6. Heard Mr. Bahali, learned counsel for the petitioner, Mr. Behera, learned counsel for opposite party No.4, Mr. Panda, learned counsel for opposite party No.5 and Mr. Das, learned Senior Advocate for opposite party No.7. 7. Mr. Bahali, learned counsel for the petitioner would submit that opposite party No.5 in a cavalier fashion relying on the report of the GP without applying judicial mind and in clear violation of the Court’s order under Annexure-7 held that the road/common path was never transferred to the Government or W.P.(C) No. 20535 of 2023 Page 4 of 11 to the Municipality and hence, he has no authority to initiate the action to demolish the unauthorized construction and also concluded that there is a civil dispute involved and hence, the court of learned Civil Judge (Junior Division), Dhenkanal is competent to adjudicate it, however, with an observation that any construction in violation of the approved plan may be demolished by the authority concerned. 8. It is alleged by the petitioner that opposite party Nos.4 and 5 failed to discharge respective duties and responsibilities in order to remove the encroachment and unauthorized construction despite joint inquiry and verification held which revealed such excess committed by opposite party No.7. Referring to Section 34, 36 and other connected provisions of the Odisha Town Planning and Improvement Trust Act and Odisha Town Planning and Improvement Trust (Planning and Building Standards) Rules, 2021, Mr. Bahali finally submits that the authorities concerned failed to take necessary action in accordance with law. 9. Mr. Panda, learned counsel for opposite party No.5 submits that there has been no wrong or any such error committed while dealing with the grievance of the petitioner and hence, order under Annexure-11, while disposing of the representation filed by him, cannot be faulted with and furthermore, when the matter is pending before the civil court. 10. Mr. Behera, learned counsel for opposite party No.4 referring to the transfer of powers to the Dhenkanal Municipality in view of the Government order under Annexure-E/4 contended that the decision lies with the local body which has considered the representation of the petitioner followed by a decision under Annexure-11 and as there has been a dispute inter se the petitioner W.P.(C) No. 20535 of 2023 Page 5 of 11 and opposite party No.7 to be private in nature, it can only be taken cognizance of by the civil court which is competent to decide the same. Mr. Das, learned Senior Advocate appearing for opposite party No.7 supported the contention of opposite party No.5 and contends that the dispute needs adjudication by the civil court and rightly, the representation was disposed of vide Annexure-11 as the petitioner could appear and contest the suit filed against the Dhenkanal Municipality. 11. Opposite party No.7 had knocked the doors of this Court in W.P.(C) NO.15885 of 2021 which was disposed of on 21st June, 2021 with a conclusion that verification was held and hence, no scope remains in interfering with the action of the competent authority, however, since under a bonafide impression the land was occupied, for the contents of the sale deed, it may be open for him to take appropriate action against the vendor. From Annexure-2, the Court finds that opposite party No.5 had correspondence with the Dhenkanal Municipality, which is later to the receipt of complaint from the petitioner revealing the fact about the joint verification conducted by an Investigator and Amin along with the staff of the Municipality on 3rd of March, 2021. The said letter dated 18th March, 2021 (Annexure-2) also revealed that the building plan was in respect of the plot in question approved by DRIT in the name of one Dibakar Behera (vendor of opposite party Nos.7 and others) in 2008 and as per the site verification report, opposite party No.7 was found not to have constructed the building as per the Building Plan and has encroached the entire road and a 5’ space which had to be left vacant for the road widening from his own land, hence, therefore, to take appropriate steps as per law in evicting the encroached public road. The above correspondence after having W.P.(C) No. 20535 of 2023 Page 6 of 11 been received, as it is made to understand, was acted upon by opposite party No.5. In fact, the site verification report, sketch map and other materials (Annexures-2 and 5 series) revealed the alleged encroachment and unauthorized construction with a request to opposite party No.5 to take suitable action on the same. Thereafter, opposite party No.7 challenging the decision of the Dhenkanal Municipality approached this Court in W.P.(C) No.15885 of 2021 and as earlier stated, he was not successful, rather, it was left open for him to take action against the vendor since such possession of the land by him was under a bonafide impression and with reference to the sale deed executed. The Court finds that later to certain development, the petitioner having approached this Court in W.P.(C) No.32658 and further course of action followed and after the order in W.P.(C) PIL No.26413 of 2022, opposite party No.5 finally disposed of the representation vide Annexure-11 declining to take any such action on the ground that the existence of the road is neither shown in the settlement map nor recorded in the name of Dhenkanal Municipality and that apart, the dispute is pending before the civil court in C.S. No.42 of 2022. Referring to the rejoinder affidavits, besides other grounds, it is claimed by the petitioner that while the vendor of opposite party No.7 had applied for conversion of the land from agricultural to homestead in connection with RMC No.25 of 2009, opposite party No.4 submitted a report with a condition stipulated for the purpose of conversion about existence of approach road in front of the plots with a minimum width of 20 feet having been handed over to the Municipality for its development and maintenance. 12. Having regard to the above facts and in view of the action initiated against opposite party No.7 earlier when the eviction W.P.(C) No. 20535 of 2023 Page 7 of 11 notice was issued to him and he was unsuccessful in knocking it down as this Court declined to intervene by order under Annexure-7 and materials on record to suggest that necessary steps were taken with a request for deployment, it is quite unusual on the part of opposite party No.5 to take a plea that the dispute is civil in nature. If any such construction has taken place in respect of the building of opposite party No.7 which is not in consonance with the provisions of the Act and Rules, opposite party No.5 does have the power to take action by virtue of Annexure-E/4. Any such unauthorized construction not in accordance with the building plan approved or any such encroachment of the passage/road shown to have been existing at the time of conversion in favour of the vendor of opposite party No.7, it is not understood how and why opposite party No.5 pleaded lack of authority. With so much of development having been taken place and issuance of eviction notice and request for deployment of an Executive Magistrate for eviction and demolition, which did not materialize, it is not expected from opposite party No.5, rather, unfortunate for him to show helplessness in taking measures. Rather, the Court considers it to be a glaring example of shirking responsibility. It is apparent from Annexure-E/4 that opposite party No.5 has been conferred with the powers to deal with the subject. Opposite party No.5 should have made a sincere effort to examine the grievance of the petitioner instead of taking plea that the common path, if any, was never transferred to the Government or Municipality and hence, he has no authority to initiate any such action to remove the alleged encroachment therefrom. If at the time of conversion of the land in favour of the vendor of opposite party No.7 and thereafter, at the time of approval of the building plan, a W.P.(C) No. 20535 of 2023 Page 8 of 11 common path was left for use with the plea that the same was not transferred to the Municipality, it was not right and justified for opposite party No.5 to remain a mute spectator. In fact, there has been allegation of unauthorized construction in deviation of the approved plan. Any such deviation, if it has been alleged, opposite party No.5 having been conferred with the power was required to take action to neutralize it. Apart from the alleged encroachment over the common path with the schedule land alleged to have been encroached upon and in occupation of opposite party No.7, it was for opposite party No.5 not only to take suitable steps to clear the same but also to ensure that any such unauthorized construction beyond the approved plan was also removed instead of an excuse that the same shall have to be taken care of by the competent authority. 13. Though opposite party No.7 approached the civil court with a suit, wherein, the petitioner is not a party as one of the defendants, an exercise which is primarily against the Dhenkanal Municipality, it would be a fallacy to claim that the petitioner may have to participate therein if at all he has any grievance, all the more when, there has been so much of developments having taken place earlier and particularly, after the Court’s order under Annexure-7. The Court is of the considered view that for opposite party No.5 having failed in its duties to take judicial notice of the alleged encroachment and unauthorized construction, the petitioner cannot be forced to be a party in the suit. If there is a common path earmarked since such was necessary for the purpose of a building plan to be approved, it was the absolute lookout of opposite party No.5 to address the grievance of the petitioner. For such a dispute, the parties cannot be subjected to litigation before a civil court. In fact, the provisions of the Act and W.P.(C) No. 20535 of 2023 Page 9 of 11 Rules applicable clearly demarcate and identify the powers of the authority concerned. If there is any encroachment or unauthorized construction of building and issues related to plan approval etc., the Act confers and vests the jurisdiction exercisable by opposite party No.5, which was earlier with opposite party No.4. With rounds of litigations between the parties and now to drive the petitioner to approach the civil court when the Act and Rules provide the measures to deal with the unauthorized construction and encroachment would really be a mockery of justice. So to say, opposite party No.5 cannot wriggle out and take an excuse at this distant point of time with an unusual plea that no such common path was transferred to the Government or Municipality earlier and the matter to be sub-judice before the civil court instead of attending the grievance of the petitioner. 14. When action was initiated by the Dhenkanal Municipality and challenging the same, opposite party No.7 filed a suit, it is made to understand that later to the disposal of W.P.(C) No. 32658 of 2021, the opinion of the GP was obtained, which was to the effect that no such common path was transferred to the Government, hence, the Dhenkanal Municipality has no authority to initiate demolition. In such a situation, the Court wonders what relief could possibly be granted in suit with a direction against the Municipality. Irrespective of any such lame excuse or plea that the proposed common path was transferred or otherwise, the powers having been vested with opposite party No.5, with all such statutory compliances, which would have been insisted upon by DRIT in case of any such violation with respect to building plan and encroachment of a path to be commonly used, prompt action was required to be taken to rectify the same instead of shutting the door and blindly accepting W.P.(C) No. 20535 of 2023 Page 10 of 11 the suggestion of learned GP leaving the warring parties for a fresh round of litigation before the civil court with unending misery. 15. Hence it is ordered. 16. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order dated 24th April, 2023 under Annexure-11 is hereby set aside with the matter remitted back for a final decision by opposite party No.5 vis-(cid:224)-vis the alleged deviation from building plan and encroachment at the behest of opposite party No.7 as per and in accordance with law at the earliest preferably within a period of eight weeks from the date of receipt of a copy of the judgment after providing an opportunity of hearing to all the parties involved. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Apr-2024 10:36:08 W.P.(C) No. 20535 of 2023 Page 11 of 11