The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.34003 of 2021 Jagadish Prasad Harit …. Petitioner M/s. S.K. Mishra, Senior Advocate & Associates -Versus- State of Odisha & Others …. Opposite Parties Mr. J.P. Patra, ASC Mr. P.K. Nayak, Advocate for O.P. No.3 Mr. A. Routray, Advocate for O.P. Nos.6 & 7 CORAM: MR. JUSTICE R.K. PATTANAIK Order No. ORDER 11.09.2023 15. 1.
Legal Reasoning
Heard Mr. Mishra, learned Senior Advocate appearing for the petitioner, Mr. Patra, learned ASC for the State-opposite party Nos. 1, 2, 4 and 5, Mr. Nayak, learned counsel for opposite party No.3 besides Mr. A. Routray, learned counsel appearing opposite party Nos. 6 and 7. 2. Instant writ petition is filed by the petitioner for quashment of the notice dated 27th October, 2021 under Annexure-2 issued by opposite party No.3 on the grounds stated therein. 3. Mr. Mishra, learned Senior Advocate appearing for the petitioner submits that the subject matter in question relates to a shop room situate over Revenue Plot No.483, Khata No. 486 of the Mouza in question in Rourkela Town in the district of Sundargarh measuring about 600 sq ft in area and the same was constructed in Page 1 of 6 the year 1956-57 and was let out to the uncle of the petitioner. It is further submitted that the petitioner also as a tenant has been in occupation of the plot in question but recently, opposite party No.3 has issued the impugned notice under Annexure-2 as per the provisions of Orissa Municipal Corporation Act, 2003 (hereinafter referred to as the ‘Act’) with a direction to vacate the building premises wherein the shop situate on the premise that the same is likely to fall and endangers the occupant and others besides the passerby. It is submitted by Mr. Mishra that there has been non- compliance of Section 459 of the Act, since because the inspection whatever has been held by opposite party No.3 was not in the presence of the petitioner nor the latter had any occasion to respond to it, more particularly when, there is a provision therein not only to pull down but also to repair the structure or any part of the building, which has not been complied with. Hence, it is submitted that notwithstanding any such inspection held by opposite party No.3, due to non-compliance of Section 459(1) of the Act, the issuance of impugned notice under Annexure-2 is not tenable in law and hence, liable to be interfered with and quashed. 4. Referring to the counter affidavit, Mr. Nayak, learned counsel for opposite party Nos. 3 and 4 would submit that the building was found unsafe as it was and has been in a dilapidated condition at present and at the request of opposite party Nos. 6 and 7, the impugned notice under Annexure-2 was issued which was preceded by inspection held by opposite party Nos.4 and 5 in the immediate presence of opposite party Nos. 6 and 7, the owners of the building in question. So therefore, according to Mr. Nayak, there has been due compliance of Section 459(1) of the Act. 5. Furthermore, Mr. Routray, learned counsel for opposite party Nos. 6 and 7 submits that the petitioner has also approached Page 2 of 6 the civil court in C.S. No. 64 of 2021 not to evict him at the behest of opposite party Nos. 6 and 7. It is submitted that the interim relief which was sought for by the petitioner therein was denied and according to Mr. Routray, learned counsel appearing for opposite party Nos. 6 and 7, though the said order has been challenged in F.A.O. Furthermore, Mr. Routray submits that the action vide Annexure-2 is in fact on a request being received from opposite party Nos. 6 and 7, the owners of the building and it has been on the basis of an inquiry and inspection held at the spot, so therefore, the same is perfectly justified. It is lastly submitted that if the building which has been found unsafe in a dilapidated condition is not pulled down, it is certain to endanger lives of others including the petitioner, hence, issuance of notice vide Annexure-2 with a direction to the petitioner to vacate the same calls for no interference. 6.
Decision
A copy of the plaint is at Annexure-1 to the writ petition. It is admitted that the petitioner has approached the civil court in C.S. No. 64 of 2021. It is not denied by the petitioner that there is no interim order passed by the civil court in C.S. No. 64 of 2021, even though, denial of the same is under challenge in F.A.O. In fact, opposite party Nos. 6 and 7 also filed counter affidavit and justified the action under Annexure-2 pleading that the shop and the structure is required to be pulled down being in a dilapidated condition and more than 60 years old by now. 7. Mr. Mishra, learned Senior Advocate attributed malafide against opposite party Nos. 6 and 7 by claiming that eviction is contemplated and therefore, with the connivance of opposite party No.3, impugned notice under Annexure-2 was issued. In any view of the matter, irrespective of the source of complaint or any role played by opposite party Nos.6 and 7 in the issuance of the notice Page 3 of 6 i.e. Annexure-2, the Court is to confine its decision as to if there has been due compliance of Section 459(1) of the Act while demanding the petitioner to vacate the premises on the ground that it is likely to fall and pose danger to him and others. 8. Section 459 of the Act relates to removal of unsafe structures and it has been stipulated therein that the Commissioner if it appears to him that any such building or structure of a building described therein or any such projection appertaining thereto is in a dilapidated condition and is likely to fall or is in any way pose danger to any person in occupation of such building or passerby who shall by a written notice require the owner or occupier for such building or structure either to pull down or repair it or any part thereof as he may deem fit in order to prevent all cause of danger emanating therefrom. 9. Mr. Mishra, learned Senior Advocate appearing for the petitioner submits that since there is a provision for repair of the structure or any part thereof as occurring in Section 459(1) of the Act, the same should have been resorted to by opposite party No.3 instead of a direction to vacate the building premises. It is further submitted that the petitioner was not summoned by opposite party No. 3 before issuance of Annexure-2. In reply, Mr. Routray, learned counsel for opposite party Nos. 6 and 7 and Mr. Nayak, learned counsel for opposite party No.3 submit that the owners, namely, opposite party Nos.6 and 7 have been a part of the inspection since the request for pulling down of the building premises was at the latter’s instance and while claiming so, Annexure-A/3 is referred to. The necessary correspondences made thereafter later to Annexure- A/3 are also placed reliance on, such as, Annexure-B/3 and C/3. It is contended that after proper inspection with a spot visit, such a conclusion has been reached at whereafter Annexure-2 was issued. Page 4 of 6 10. Having regard to the above facts and submissions of learned counsel for the respective parties and referring to Section 459 of the Act which is with regard to removal of unsafe structures and recording the objection of Mr. Mishra, learned Senior Advocate to the effect that the impugned action was not preceded with any such procedure as contemplated instead power under Section 464 of the Act has been invoked, it is made to appear that opposite party No.3 on a request and requisition received from opposite party Nos. 6 and 7 held the spot visit with an inspection as revealed from Annexures-B/3 and C/3 and ultimately, a conclusion was arrived at that the building to be unsafe followed by Annexure-2. By looking at Section 459(1) of the Act, the Court finds that such notice is required to be served on the owner or the occupier in question. At present, in the case at hand, opposite party Nos. 6 and 7 are the joint owners of the building premises in respect of which Annexure- 2 was issued. Since it is at the requisition of opposite party Nos. 6 and 7 that the action was followed and the impugned notice under Annexure-2 was issued which is in accordance with Section 464 of the Act, the Court is of the considered view that there is due compliance of Section 459(1) thereof. That apart, the Court cannot examine as to if the building is safe or otherwise when a subjective satisfaction has been reached at by opposite party No.3 with a spot inspection. Since it is disputed question of fact instead of directing opposite party Nos. 3 and 4 to explain as to what inquiry was made to which the conclusion so drawn regarding the dilapidated condition or unsafe of the building, the Court is of the humble view that since inspection has been held and there is due compliance of Section 459(1) of the Act, the impugned notice under Annexure-2 is in accordance with law and hence, it suffers from no serious legal infirmity. 11. Accordingly, it is ordered. Page 5 of 6 12. In the result, the writ petition stands dismissed for the reasons discussed hereinabove. 13. Interim order passed by this Court earlier stands vacated as a result. 14. Urgent copy of this order be issued as per rules. Judge (R.K. Pattanaik) Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Sep-2023 10:52:26 Page 6 of 6