Dolagovinda Sahoo vs (1) State Of Odisha Represented Through on 21 May, 2024

[Cites 8, Cited by 0]

Orissa High Court

Dolagovinda Sahoo vs (1) State Of Odisha Represented Through on 21 May, 2024

An order dated 04.01.2022 passed by a learned Single Judge of this Court in W.P.(C) No.23753 of 2013 is under challenge in the present intra-Court appeal whereby said writ petition filed on behalf of the appellant has been dismissed.

2. The appellant had challenged, in the aforesaid writ petition, an order dated 21.09.2013 passed by the Appellate Authority under Section 91 (2) of the Odisha Development Authorities Act, 1982 ("ODA Act", in short) whereby the appellate authority had confirmed an order dated 15.07.2008 passed by the Law Officer, Cuttack Development Authority (CDA) in U.C. Case No.895 of 2005.

W.A. No.71 of 2022 Page 2 of 10

3. The facts, relevant for the present decision, are not much in dispute. The appellant had constructed two pillars over Plots No.579 and 580 of Khata No.141 without any approval from the CDA as required under the provisions of ODA Act and Odisha Development Authorities Rules, 1983 ("ODA Rules", in short) framed under the said Act. This is also not in dispute that the land appertaining to Plots No.579 and 580 in Khata No.141 is recorded in the name of the appellant, but are in use as a common passage and the Municipal Corporation authority has constructed road and drain over the same. It is not the case of the appellant that the said two pillars existed prior to coming into force of Cuttack Development Authority (Planning & Building Standards) Regulation Act, 2001, which mandates prior approval for development/building operations.

4. It is also an admitted fact that the Cuttack Municipal Corporation has constructed a road and a drain over the land in question, being used as common passage. A civil dispute is pending between the appellant and respondent No.5 involving validity of sale deed executed in respect of the said land on 11.03.1983 in favour of respondent No.5. An order was passed by the CDA in U.C. Case No.895 of 2005 dated 29.04.2006 requiring demolition of the pillars standing over the said Plots. The said order dated 29.04.2006 was challenged before the Appellate Authority giving rise to Appeal No.74 of 2006. The appellate authority had remanded the matter back to the original authority by an order dated 19.01.2008 for re- examining the records and giving an opportunity of hearing to all the affected parties. The Law Officer, CDA passed an order afresh W.A. No.71 of 2022 Page 3 of 10 directing demolition of the structures which was again challenged before the appellate authority. The appellate authority dismissed the appeal preferred under Section 91 (2) of the ODA Act by an order dated 21.09.2013 confirming the order dated 15.07.2008 passed by the Law Officer, CDA which became the subject matter of challenge in the writ proceeding before the learned Single Judge.

5. In the writ proceeding, a plea was taken, inter alia, that a Civil Suit No.366 of 2005 was pending in the court of learned Civil Judge (Senior Division), Cuttack and an order of status quo in respect of the subject matter of the said suit was passed. Learned Single Judge has rejected the said stand of the appellant, in the impugned order, on the ground that the said suit was between the appellant and respondent No.5 in which the CDA was not a party and that the present dispute of construction without approval of the CDA had no nexus with the subject matter of the suit. Learned Single Judge has taken into account, in the impugned order, the fact that the said suit has been filed by the appellant against respondent No.5 and other private parties seeking a relief of declaration and consequential reliefs pertaining to Hal Plots No.580 and 581. Learned Single Judge has categorically recorded that the inter se dispute between the parties thereto is sought to be decided in the suit, having no reference to the issue involved in the present case.

6. We have heard Mr. Samir Kumar Mishra, learned Senior Counsel for the appellant; Mr. R.N. Mishra, learned Additional Government Advocate for the State and Mr. Goutam Mukherji, learned Senior Advocate for respondent No.5.

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7. Mr. Samir Kumar Mishra, learned Senior Counsel for the appellant has vehemently argued that the order passed by the Law Officer, CDA which was under challenge before the appellate authority was not only non-speaking, but also in violation of the direction given by the appellate authority while remanding the matter back to re-examine the records of the affected parties, the status of the road in question and regarding construction of pillars. Further, the Original Authority did not give adequate opportunity of hearing to all the parties. He has further submitted that the order passed by the appellate authority while dismissing the appeal to the effect that the two Plots were recorded as 'Jalasaya', and therefore, there could not have been any construction over the same, is erroneous. He has submitted that finding on the one hand that there is a common passage over plot and on the other that it was in the nature of 'Jalasaya' are mutually inconsistent. He has also argued that the appellate authority was not authorized to decide the right, title and interest of the parties, particularly when there was civil litigation pending in competent civil court. He has argued that learned Single Judge has not appreciated in correct perspective the issues which were raised by the appellant in the writ proceeding which requires interference by this Court.

8. It has been argued, on the other hand, by Mr. Dayananda Mohapatra, learned counsel appearing on behalf of the CDA (respondents No.2 to 4) that the order for demolition of the structures was passed by the Law Officer, CDA after giving the appellant and other parties due opportunity of hearing. The construction of two pillars was raised without obtaining the W.A. No.71 of 2022 Page 5 of 10 mandatory approval of the CDA which was made over a passage. A road has been constructed over a common passage and drain has also been attached to the said street by the Corporation. In such circumstance, the pillars were rightly directed to be demolished by the Law Officer, CDA by an order dated 15.07.2008. The said order has been rightly affirmed by the appellate authority, it being an admitted fact that the appellant had not obtained any approval for making such construction over the land.

9. Similar submissions have been made on behalf of respondent No.5.

10. Before we address of the facts of the case and the merits of the contention raised on behalf of the parties as noted above, it would be pertinent to note that this matter was earlier taken up by a Coordinate Bench of this Court on 01.02.2022 when the following order was passed:

"2. Mr. Mishra, learned Senior Advocate appearing for the Appellant states on instructions that the Appellant is ready to demolish the two pillars in order to provide a free common passage. He points out that a notice has been sent to the Appellant by the Cuttack Development Authority (CDA) on 24th January 2022 requiring the Appellant not only to demolish the two pillars, but "other temporary structures over the common passage.". The Appellant states that he is unaware of what the "other temporary structures"

are and this has been suddenly brought up without any prior notice to the Appellant.

3. Issue notice. Mr. Debakanta Mohanty, learned Additional Government Advocate accepts notice on behalf of the State-Respondent No.1. Learned counsel W.A. No.71 of 2022 Page 6 of 10 for the Appellant shall serve extra copy of the writ appeal on him within three days.

4. Notice to Respondent Nos.2 to 5 be issued by Speed/Registered Post with A.D. making it returnable before the next date. Requisites be filed within three days. Accept one set of process fee. The tracking report be placed on record before the next date.

5. List on 14th February 2022 before the roster Bench. In the meanwhile, the Appellant, consistent with the statement made today, will remove the two pillars. The CDA will inform the Court on the next date with reference to a layout/plan/ sketch what the "other temporary structures" that required to be removed are. Till then subject to the Appellant adhering to the above statement and removing the two pillars within the time stipulated, no further coercive steps be taken against the Appellant pursuant to the notice dated 24th January, 2022."

11. We find no force in the submission advanced on behalf of the appellant that the order passed by the Law Officer, CDA directing demolition of the structure raised without approval suffers from any legal infirmity because of pendency of the suit between the appellant and respondent No. concerning dispute of right, title and interest between them.

12. In the present proceeding before the CDA, the only question which was to be determined was as to whether the structures in the nature of two pillars over the passage were legal or not. Further, the decision to direct demolition of the structures was taken after giving the parties adequate opportunity of hearing. We further find that there has been no violation of principles of natural justice. This is not in dispute that no approval was obtained before construction of W.A. No.71 of 2022 Page 7 of 10 the said two pillars, by the competent authority under the provisions of the ODA Act and the rules/regulations framed thereunder.

13. Further, the appellant's contention that the passage in question is a private street is not acceptable to this Court in view of the definition of "private street" under Section 2 (xxvii) of the ODA Act which reads as under:

"2. Definitions- In this Act, unless the context otherwise requires-

xxx xxx xxx (xxvii) "private street" means any street, road, square, court, alley, passage or riding-path, which is not a public street but does not include a pathway made by the owner of premises on his own land to secure access to or for the convenient use of such premises;"

14. Definition of "public street" figures in Section 2 (xxxi) of the ODA Act which reads as under:

"2. Definitions- In this Act, unless the context otherwise requires-

xxx xxx xxx (xxxi) "public street" means any street, road, square, court, alley, passage or riding path over which the public have a right of way, whether a thoroughfare or not, and includes-

(a) the roadway over any public bridge or causeway,

(b) the footway attached to any such street, public bridge or causeway, and

(c) the drains attached to any such street, public bridge or causeway and the land, whether covered or W.A. No.71 of 2022 Page 8 of 10 not by any pavement, verandah or other structure, which lies on either side of the roadway up to the boundaries of the adjacent property whether that property is private property or property belonging to the Central or any State Government;"

(Highlighted for emphasis)

15. Apparently thus, the drains attached to any street which lie on either side of the roadway upto the boundaries of the adjacent property whether that property is a private property, falls within the definition of "public street". Section 15 of the ODA Act prohibits any development without permission of the concerned Development Authority except for the exceptions provided therein. Section 91 of the ODA Act states that where any development plan has commenced or is being carried out in contravention of the development plan or without the permission, approval or sanction, the authority empowered in that behalf may make an order directing that such development plan shall be removed by demolition.

16. It being an admitted fact in the present case that there was no prior approval obtained for construction of the said two pillars, we see no illegality in the order passed by the learned Single Judge dated 04.01.2022 in W.P.(C) No.23753 of 2013 whereby learned Single Judge has declined to interfere with the order passed by the appellate authority under Section 91 (2) of the ODA Act affirming the order passed by the competent authority under Section 91 (1) of the Act.

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17. We are of the considered view that if a construction is made in absolute and flagrant violation of the statutory provisions under the Development Authorities Act/Rules/Regulations, the necessary consequence is to order its demolition. An affidavit has been filed in this case by respondent No.5 referring to this Court's order dated 01.02.2022 passed in this case wherein the appellant's undertaking to demolish the two pillars has been recorded. It has been stated in the said affidavit that only 80% pillars have been removed, keeping its base intact and has made the dismantled pillars block the free access of respondent No.5 over his land.

18. In the present intra-Court appeal, we do not intend to enter into such controversy which should be looked into by the competent authorities under the ODA Act, in accordance with law.

19. This appeal is accordingly dismissed, but without costs.





                                                                          (Chakradhari Sharan Singh)
                                                                                 Chief Justice

                     Mr. M.S. Raman, J.                  I agree.

                                                                                 (M.S. Raman)
                                                                                    Judge


                     S.K. Guin/P.A.


Signature Not Verified
Digitally Signed
Signed by: SUBASH KUMAR GUIN
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 23-May-2024 16:46:12
                                          W.A. No.71 of 2022                                   Page 10 of 10

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