Orissa High Court
Unknown vs Heard Miss. Deepali Mohapatra on 10 August, 2018
Author: Biswanath Rath
Bench: Biswanath Rath
W.P.(C) No.11866 of 2018
8. 10.08.2018 W.P.(C) No.11866 of 2018 &
W.P.(C) No.8356 of 2018
Heard Miss. Deepali Mohapatra, learned counsel for
the petitioners involving W.P.(C) No.11866/2018 and Shri
P.K. Chand, learned counsel for the petitioners involving
W.P.(C) No.8356/2018, Shri S.P. Mishra, learned Advocate
General being assisted by Shri A. Mishra, learned Additional
Government Advocate for the State-opposite parties, Shri S.
Swain, learned counsel for the Bhubaneswar Development
Authority, B. Dash, learned Advocate appearing on behalf of
the Bhubaneswar Municipal Corporation.
The writ petition bearing No.11866 of 2018 has been
filed with the following prayer:
"(i) directing the Opp. Parties to relocate the petitioner
No.1 deity as per decision taken vide Annexure-6
within such time as may be stipulated by this
Hon'ble Court.
(ii) Directing the Opp. Parties not to evict the petitioner-
deity and demolish the temple structures of the
petitioners till such relocation."
The writ petition bearing No.8356 of 2018 has been
filed with the following prayer:
"It is, therefore, prayed that in the facts and
circumstances stated above and in the interest of
justice, this Hon'ble Court may be graciously
pleased to issue appropriate writ(s)/direction(s)
directing the Opp. Parties not to evict the petitioner-
deity and demolish its structure without following
due process of law.
And, pass any such other order(s), issue such other
Writ(s)/direction(s) as this Hon'ble Court may deem
just and proper."
Both the writ petitions have been filed by the
same party and having almost a common fact involved as
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well as prayer there involving the dispute property but
however, involving slightly different reliefs sought for as
indicated hereinabove.
Reading of both the prayer, this Court finds, the
prayer no.ii in the first writ petition is almost same as in the
prayer involving W.P.(C) No.8356 of 2018 i.e. the second writ
petition. For the common argument and reliance of
documents involving both the matters by the respective
counsels, both the matters are decided together by this
common order.
Short background involved in this case is that the
petitioner no.1 is a temple having a deity Lord Biswakarma
Dev situated at Bidyut Marg Road, opposite to the New A.G.
Colony, Bhubaneswar, Dist.-Khurda and by the side of the
Kalinga Stadium. Fact reveals that facing a threat of
demolition of the temple premises and the petitioners'
approach to settle the land in the name of the deity before
the State Government not being considered, the petitioners
approached this Court in O.J.C. No.2981 of 1996, which writ
petition was disposed on 15.4.1996 directing the State
Authorities to consider the representation of the petitioner. It
is, while the matter stood thus, the competent authority
made another attempt to demolish the temple structure in
the year 2001, resulting therein the petitioner again
approached this Court in filing O.J.C. No.13459 of 2001 for
appropriate relief and this Court after hearing the parties
involved disposed of the aforesaid writ petition by order
dated 16.10.2001 inter alia directing therein not to evict or
causing demolition to the temple of Lord Biswakarma Dev
without adopting due process of law. Further facts disclose
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that in the meantime, the petitioners have also approached
the Civil Court in filing T.S. No.111/175 of 2002 for
declaration of right, title and interest of the petitioners
involving the disputed property. The suit is appearing to be
pending but however, during pendency of the suit on
disposal of the Misc. Case No.59/163 of 2002 the trial court
by order dated 23.6.2004 has already granted an order of
status quo till disposal of the suit. The suit is appearing to
be pending as of now. Consequently the status quo order is
also in operation. While the matter stood thus, basing on a
complaint, the Bhubaneswar Development Authority
initiated a proceeding under Section 91 of the O.D.A. Act,
1982 by registering the same as U.A.P. Case No.173/2004
involving the petitioner. The petitioners were noticed by the
order under Annexure-2 (series). On appearance of the
petitioners and filing objection, the proceeding vide U.A.P.
Case No.173/2004 was concluded by the order vide
Annexure-2(series) with an observation that there is
unauthorized construction of the temple on Government plot
bearing Plot No.645(P). An appeal was preferred registered as
T.P. Appeal No.23/2006. During course of hearing of the
appeal, it was brought to the notice of the appellate
authority by the Bhubaneswar Development Authority that
the Section 91 proceeding has been initiated involving a
wrong plot and in fact, the proceeding should have been
initiated involving the Sabik Plot No.118, Hal Plot No.702(P)
and 706(P) of the Hal Khata No.3293. It is, on the above
premises, the appellate authority in disposal of the appeal
accepting the statement of the Development Authority that
the proceeding was initiated involving wrong plots, closed
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the appeal directing for initiation of a fresh 91 proceeding
involving proper plots.
Shri Swain, learned counsel for the Bhubaneswar
Development Authority submitted that even though the
U.A.P. Case No.173/2004 is already treated to be a
proceeding taking up an issue involving Sabik Plot No.118,
Hal Plot No.702(P) and 706(P) of the Hal Khata No.3293, but
no notice as of now could be issued to the petitioners for the
pendency of the writ petition.
Be that as it may, when the matter stood as such, the
petitioners was issued with a notice dated 30.11.2017 issued
by the Bhubaneswar Development Authority to attend a
meeting to be held on 7.12.2017 regarding removal of the
alleged encroachment made by the Temple Authority.
Though no decision has been taken but the petitioners on
rejection of their grievance regarding settlement of the land
was threatened with action of eviction as well as demolition.
Miss. Mohapatra here taking resort to the direction of this
Court involving disposal of the O.J.C. No.2981 of 1996 and
O.J.C. No.13459 of 2001 and further for the continuance of
the status quo order by the trial court involving the T.S.
No.111/175 of 2002 and for the development involving the
proceeding under the O.D.A. Act, submitted that the
petitioners were compelled to file the writ petition vide
W.P.(C) No.8356 of 2018 seeking a direction for preventing
the opposite parties from evicting or demolishing the temple
structure and the subsequent writ petition i.e. W.P.(C)
No.11866 of 2018 for the direction to the opposite parties to
relocate the petitioners before the eviction and demolition of
the temple structure is taking place.
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Miss Mohapatra, learned counsel for the petitioners
further taking this Court to the documents available
involving both the writ petitions submitted that for the
development in the previous writ petitions, further for the
decision involving the title suit for maintenance of the status
quo involving both the parties, further, for the appellate
authorities under the O.D.A. Act observing that the Section
91 proceeding already initiated becomes bad for inclusion of
wrong plot numbers and for no notice involving any fresh
proceeding under Section 91 of the O.D.A. Act in the
meantime, contended that the action for eviction or
demolition of the temple structure becomes absolutely bad.
Miss Mohapatra further taking this Court to the other
developments taking place through the decision in the
proceeding involving the 4th Executive Committee Meeting
held under the Chairmanship of the Chief Secretary for
organization of the Men's Hockey World Cup, 2018,
particularly taking this Court to the conditions imposed at
Clause 3.6 to relocate the slum as well as the temple of Lord
Biswakarma Dev contended that unless the temple is given
with a relocation plot, there should not have been any
demolition of the temple in any event, more particularly
keeping in view the undertaking of a 91 proceeding under
the O.D.A. Act for selfsame reason.
Shri S.P. Mishra, learned Advocate General being
assisted by Shri A.K. Mishra, learned Additional Government
Advocate supporting the steps for demolition and eviction
submitted that there is urgency involving removal of
structure over the disputed plot for the Men's Hockey World
Cup, 2018 to be taking place at Bhubaneswar in this year.
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Further, taking this Court to the decision taken in the 4th
Executive Committee meeting particularly taking this Court
to the condition contained in clause 3.6 submitted that for
the conditions attached therein, removal of temple of Lord
Biswakarma Dev by the particular date has nothing to do
with the relocation of the temple. Both are different actions
and further relocation of temple of Lord Biswakarma Dev
has nothing to do with the State Government. It is, for the
petitioners to relocate the temple at its own place. Further
resisting the move of the petitioners in both the writ
petitions Shri Mishra, learned Advocate General contended
that the petitioners are encroachers and have no right to
stay over the disputed property and accordingly, Shri Mishra
prayed this Court for not entertaining this writ petition.
Shri Swain, learned counsel for the Bhubaneswar
Development Authority however, taking this Court to the
development noted hereinabove involving the Section 91
proceeding made a fair statement that the authority is not in
a position to proceed with the Section 91 proceeding for the
pendency of the writ petition and in the meantime order
passed against the petitioners involving a Section 91
proceeding under the O.D.A. Act rendered useless for the
involvement of wrong plots.
Shri B. Dash, learned counsel for the Bhubaneswar
Municipal Corporation in both the writ petitions however,
taking resort to the provision contained in Section 407 of the
Orissa Municipal Act contended that the Corporation has
absolute right to evict or demolish the unauthorized
structures in exercise of power under Section 407 of the
Orissa Municipal Act and therefore, Shri Dash, thus
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requested this Court for not entertaining the writ petitions.
Considering the rival contentions of the parties, this
Court finds, the admitted position involving both the writ
petitions is that the temple of Lord Biswakarma Dev is
standing over a Government land, may be for little more
than 4 decades and there is requirement of additional land
near Kalinga Stadium for hosting of the Men's Hockey World
Cup, 2018. Further, admittedly, there has been previous
writ petitions to this Court vide O.J.C. No.2981 of 1996
disposed of by this Court by its order dated 15.4.1996 with a
direction to the State Government to consider the case of the
petitioners for settlement of the land over which the temple
situates. It appears, there is no development to the same as
yet. Again on moving a writ petition vide O.J.C. No.13459 of
2001, it appears, this writ petition was disposed of by this
Court by the order dated 16.10.2001 passing the following
order:
"The simple grievance of the petitioner
is that without initiating any proceeding and
without according any opportunity to the
petitioner, the Opp.Parties are trying to
demolish the temple of Lord Biswakarma
situated over plot no.118 of Mouza Nayapalli
adjoining to Kalinga Stadium. It is also alleged
that Opp.Parties are taking law into their own
hands.
All the Opp.Parties are respectable
statutory authorities. I do not accept the
allegation leveled against the said Officers and I
am therefore not inclined to entertain this writ
application and dispose of the same with a
direction that the Opp.Parties shall not evict or
cause demolition to the Biswakarma Temple
without adopting due proceeding of law.
With the aforesaid observation, the writ
application is disposed of."
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Above order discloses no eviction/demolition involving
the petitioners should be taking place without following due
process of law. There is no doubt that the Orissa
Development Authorities Act empowers the Development
authority to take a decision on such matters in exercise of
power under Section 91 of the O.D.A. Act. The materials
clearly establish that admittedly a Section 91 proceeding
under the O.D.A. Act has been initiated and reached up to
the level of appeal and for the unfortunate inclusion of the
wrong plot number, the Development authority itself was to
request the appellate authority for withdrawal of the
proceeding for their intention to go for a fresh proceeding,
which leads to facilitate the Development Authority to
proceed with a fresh proceeding under Section 91 of the
O.D.A. Act involving the correct plot number. It, therefore,
appears that there is no order for demolition or eviction
following due process of law as of now. This Court here
observes, rule of law must prevail. For the submission of
Shri Swain, learned Counsel for the Bhubaneswar
Development Authority that even no notice in the freshly
instituted proceeding has been issued to the petitioners as of
now, it is at this stage of the matter, looking to the
submission of Shri Mishra, learned Advocate General
regarding development through the proceeding involving 4th
Executive Committee Meeting held under the Chairmanship
of the Chief Secretary for organization of the Men's Hockey
World Cup, 2018 particularly looking to the decision at
clause 3.6, this Court finds the following decision are
available in clause 3.6:
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3.6. Encroachments Discussions
alongside the
. As per the existing policy, Rs.13.2
boundary of
Crores will be required by MBC for
Kalinga Stadium
relocation of around 250
(between Gate
households of the slum at Gate
No.4 and 5) and
No.9.
facing NH(exit
. Further it has been requested for
point at Gate
GA Deptt. To provide Ac. 2.00 of
No.9)
land for relocation.
. A meeting has been taken by
BMC with the managing committee
of the temple to sort out issue of
shifting of the temple.
. Negotiated settlement to be
worked out with temple
management for early shifting of
the temple
Decisions
. In-principle approval of the
proposal for slum relocation given.
. Rs.4.34 Crores to be placed in
Sports & YS Budget for payment to
BMC for immediate shifting.
. Remaining amount of Rs.7.73
Crores for permanent
rehabilitation will be borne by
BMC.
.As requested by BMC, Ac.2.00 to
be provided by GA Deptt. For
temporary accommodation.
. Removal of BIswakarma Temple
to be completed by 15th May'
2018.
. Relocation of Slum at Gate No.9
and Biswakarma Temple to be
completed by June/July ' 2018.
Reading of the observations made in the discussions
taken note hereinabove, this Court finds, the last
observation involves two aspects. One for removal of the
Biswakarma temple by 15th May, 2018 and second for
relocation of the slum at Gate No.9 and Biswakarma temple
to be completed by June/July, 2018. This proceeding is
however, not disclosed to have been conducted in presence
or participation of the petitioners. Though from page no.34 it
appears, there is indication of the names of the participants
in the 4th Executive Committee Meeting indicated
hereinabove, the petitioners' name do not find place there.
The proceeding even nowhere discloses, as to whether the
petitioners were involved in the said meeting or not. Be that
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as it may, for the decision taken at the level of the Chief
Secretary in the Executive Committee Meeting, this Court
observes, for the decision taken therein, relocation of Lord
Biswakarma Dev temple should have been done prior to
removal of the Lord Biswakarma Dev temple. In the worse at
least there should have been an arrangement for alternate
plot for Lord Biswakarma Dev temple before any steps for
removal or demolition is taken place. It is, at this stage of
the matter, taking into account the order passed in the
disposed of writ petition indicated hereinabove and for no
statement is coming-forth from the State side as to whether
any decision on the settlement of the land in favour of the
petitioners is taken or not, it also appears that there is no
dispute that the suit between the parties is still pending and
for the order of status quo in respect of the disputed
property. Further, there is no dispute that the order of this
Court not to involve in any demolition or eviction involving
the petitioners without following due process of law also still
in existence. Further, for the clear picture that the
Bhubaneswar Development Authority is contemplating to
initiate a fresh proceeding under Section 91 of the O.D.A.
Act involving the actual plot in respect of the petitioners, no
action for demolition or eviction should be taken at least till
disposal of the proceeding under Section 91 of the O.D.A.
Act. Until the 91 proceeding under the O.D.A. Act gets
disposed finally, this Court finds, the action for demolition or
eviction involving the petitioners if any, is bad. This Court
here observes that even assuming that the petitioners are
encroachers over Government Land, Law involving the rank
encroachers is well settled holding that even in the case of
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rank encroachers, due process of law will have to be followed
before evicting or demolishing their structures. Keeping in
view the contemplation of a proceeding under Section 91 of
the O.D.A. Act by the Bhubaneswar Development Authority,
this Court restricts the parties involved herein from entering
into any demolition or eviction attempt till at least the order
of the trial court is modified and a final decision is taken by
the Bhubaneswar Development Authority in exercise of
power under Section 91 of the O.D.A. Act. Keeping in view
the urgency shown by the State involving this matter, this
Court directs the Bhubaneswar Development Authority to
take up the proceeding under Section 91 of the O.D.A. Act
with due notice to the petitioners involving both the writ
petitions within ten days hence fixing therein the date of
appearance and filing of objection within seven days
thereafter at the maximum. Petitioners also undertake to
co-operate the Bhubaneswar Development Authority
involving any such proceeding. The Bhubaneswar
Development Authority is also directed to conclude the
proceeding under Section 91 of the O.D.A. Act within a
month thereafter, but however, giving opportunity of hearing
to the petitioners. The appeal, if any, at the instance of
either of the party will also be concluded within a period of
one & half months thereafter. All the parties are directed to
maintain status quo involving the disputed property till such
period. This order will however, not stand on the way of the
State Government to proceed in the matter of relocation by
allotment of suitable land and in the alternate to take a
decision to allow the temple structure to continue upon their
surrendering a portion of the land in their possession facing
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towards road. Decision, if any, be taken however, involving
the Temple authority and keeping adherence to the decision
of the High Level Committee at Clause 3.6 of the Annexure-6
herein.
It is further directed that till either of the decisions
indicated hereinabove are taken involving the matter, there
shall be status quo in respect of the disputed property to be
maintained by all the parties concerned.
The writ petitions stand disposed of with the above
direction.
Issue urgent certified copy on proper application.
............................
(Biswanath Rath, J.) Ayas