Orissa High Court
Sakuntala Garabadu And Ors. vs State Of Orissa And Ors. on 6 May, 1986
Equivalent citations: 1986(I)OLR631
Author: R.C. Patnaik
Bench: R.C. Patnaik
JUDGMENT R.C. Patnaik, J.
1. This is an application under Article 226 of the Constitution of India impugning the orders dated 8.2.1984 (Annexure-10 series) passed by the Bhubaneswar Development Authority under Section 91 (1) of the Orissa Development Authorities Act, 1962 directing removal of certain constructions alleged to have been made unauthorisedly and the order dated 30.4.1984 (Annexure-II) in appeal confirming the original orders.
2. The land over Which the unauthorised constructions are alleged to have been made was purchased by the petitioners by sale deeds dated 24-6-1983. It is averred by the petitioners that their predecessor-in-interest had submitted plan for approval of the Executive Officer, Notified Area Council, Bhubaneswar and the plan had been sanctioned. Renewal had been obtained by their predecessors-in-interest year after year. The Orissa Development Authorities Act came into force with effect from 1.9.1983. The alleged unauthorised constructions had been completed prior, to the coming into force of the Act. Notices, however, were issued by the opposite party No. 3 under Section 91(1) of the Orissa Development Authorities Act (for short, 'the Act'), vide Annexure-8. alleging that the development had been undertaken in respect of the premises described in the schedule appended to the notice without obtaining prior permission or approval of the prescribed authority under the Act and thereby, there has been contravention of the provisions of the Act. Opposite party No.3 called upon the petitioners to show cause why removal of the unauthorised development should not be directed. Show cause was filed as per Annexure-9 controverting the allegations and categorically asserting that construction-had been raised or development made after the Act came into force. Hence, the question, of obtaining prior permission of approval ¦ or sanction did not arise. No provision of law had been violated. It was positively asserted in the following terms:
"I respectfully submit that let an enquiry be held to the above effect and I may be given an opportunity to take part in the enquiry by myself or through my authorised representative, where I would like to adduce evidence to show that there has been no violation of the Act and/or I may be given an opportunity of hearing in person/through my authorised representative to take part in the hearing over the above show cause."
The petitioners have alleged that after the show cause was filed no further enquiry was made and the impugned orders as per Annexure-10 series were passed under Section 91(1) of the Act directing removal of the alleged unauthorised development. It has been averred that the appellate authority has failed to appreciate the questions involved and the prejudice that his been caused to the petitioners by dental of an enquiry.
3. Opposite parties 2 and 3 in their return have alleged that there was unauthorised developments even after the Act came into force. Hence, action was taken by issuing notice calling upon the persons infringing the law to show cause and final order was passed after taking into consideration the cause shown, They have also averred that even if the constructions had been completed before 1.9.1983, those being not authorised, the Bhubaneswar Development Authority was within its jurisdiction to direct their removal.
4. Having regard to the contentions raised in the writ application, the short question that arise for consideration is if the petitioners were prejudiced by denial of an enquiry which they specifically sought and prayed for? The petitioners had categorically made the assertions in paragraph 3(m) of the writ application that despite their specific and clear prayer for an enquiry having regard to the contentious issues in the show cause as per Annexure-9, no opportunity was afforded to them for taking part in the hearing. No enquiry was made to ascertain whether there had ever been any violation of the Act. Had an opportunity been given to them, they could have satisfied the prescribed authority that no infringement had been made and no action was called for. There is no traverse of the aforesaid allegations in the return submitted by the opposite parties 2 and 3. In the return the opposite parties have asserted that there were constructions by the petitioners even after the Act came into force. The question is if before an order was passed to the prejudice of the petitioners, they should have been given reasonable opportunity.
Proviso to Section 91(1) of the Act obligates the development authority to give reasonable opportunity to the owner or person concerned to show cause. It reads as under:
"91(1).
"Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made."
It is not disputed that the petitioners were called upon to show cause and' show causes were filed. But were the petitioners entitled to personal hearing was the authority obligated to hold an enquiry? No hard and fast rule can be laid down. It would depend on facts and circumstances of each case. But the touch-stone is that the opportunity should be real and reasonable and the owner or person concerned should be dealt with in a manner just and fair In particular case after show cause is filed further enquiry may not be necessary, namely, for example when allegations are admitted. Where the owner or the person concerned has refuted the allegations that any unauthorised development/construction had been done by him as alleged and where disputed questions of fact are Involved upon resolution of Which would turn the decision, it is imperative That such contentious issues, disputed questions are resolved by an enquiry into the questions involved at which the owner or person concerned is given an opportunity to disprove the al| questions or to establish his case. It is not enough that an opportunity to show cause, is given and show cause is filed. Where facts and circumstances, cry aloud for any enquiry for (resolution of disputed and contentious, issues of fact, absence of enquiry at the original stage would not be just and fair. Even though the provision does not specifically enjoin an enquiry, depending upon the facts and circumstances, opportunity of hearing at an enquiry would be read into the provision. It should be kept in mind that an order under Section 91(1) has serious consequences for the owner or person concerned.
5. When such is the consequence for the owner or person concerned, the impugned orders as per Annexure-10 series show the mechanical and slipshod way the orders have been issued. It would go to indicate that mind has not been applied to the facts of the case and the contention raised; See the following except therefrom :
"Whereas the undersigned is satisfied that you Smt. Puspalata Carabadu, W/o. Umakanta Catabadu, Carabadu Sahi, Bhuneshwar, have commenced/carried out/completed development in respect of the premises described in the schedule below in contravention of the development plan or without obtaining prior permission/approval / sanction from the Bhubaneswar Development Authority as required under Section 15 of the Orissa Development Authorises Act, 1982 or from the erstwhile planning Authority under the Orissa Town Planning and Improvement Trust Act, 1956 or the Bhubaneswar Municipality under the Orissa Municipal, Act, 1951 and hereby:
a) You have commenced/carried out/completed development on the said premises in contravention of development plan.
b) You have commenced/carried out/completed development without l obtaining prior permission / sanction approval as required under the provisions of Section 15 of the Orisia Development Authorities Act, 1982..."
It is clear that the authority has. not come to a decision as to which of the alternatives is relevant and applicable to the petitioners. There are tick marks against the expression 'completed development' in Clauses (a) and (b). The latter part therefore, contradicts the former part of the notice. Besides, the order does not deal with the questions raised by the petitioners. Mind has not been applied to the specific averments made in the cause shown. In our opinion, therefore, the impugned orders as per Annexure-10 series are violative of the principles of natural justice and are unjust and unfair. The appellate order confirming the same fails with the infected original orders. We, therefore, quash Annexure-10 series and Annexure-11.
6. In the result, the writ application is allowed. There would be no order as to costs.
S.C. Mohapatra, J.
7. I agree.