Orissa High Court
Sajjan Kumar Modi & Anr vs State Of Odisha And Ors. .... Opposite ... on 13 February, 2026
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 05-Mar-2026 16:21:48
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 26854 of 2025
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Sajjan Kumar Modi & Anr. .... Petitioner(s)
-versus-
State of Odisha and Ors. .... Opposite Party (s)
Advocates appeared in the case throughHybrid Mode:
For Petitioner(s) : Mr. Goutam Kumar Acharya, Sr. Adv.
along with
M/s. P. Panda, Adv.
For Opposite Party (s) : Mr. Sonak Mishra, ASC
Mr. P.K. Mohanty, Sr. Adv.
Along with Mr. P. Mohanty, Adv.
Mr. J. Pal, Adv.
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-02.12.2025
DATE OF JUDGMENT:-13.02.2026
Dr. Sanjeeb K Panigrahi, J.
1. In this Writ Petition, the petitioners seek a direction from this Court to restrain unauthorised commercial use and construction in Hemraj Lane and to compel statutory authorities to strictly enforce planning, traffic, parking, fire-safety, and environmental laws so as to protect their fundamental rights to free movement, safety, and dignified living.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
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Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 05-Mar-2026 16:21:48
(i) The petitioners are permanent residents of Hemraj Lane, Nayasadak,
Cuttack, a narrow public road of approximately 13 feet width connecting Nayasadak main road to Manik Ghosh Bazar, situated in a historically dense commercial-residential area of Cuttack city.
(ii) The writ petition has been filed under Articles 226 and 227 of the Constitution in the individual capacity of the petitioners, alleging violation of their fundamental rights due to unauthorised construction, traffic congestion, environmental degradation, and failure of statutory authorities to discharge their duties.
(iii) Opposite Party No.10 is the owner/occupant of plots situated at Mouza-
Cuttack Sahar Unit No.14, Ward No.21, Hemraj Lane, where a building described by the petitioners as an unauthorised G+6 with shed floors and commercial market complex has come up.
(iv) The petitioners allege that the structure is being used as a commercial market complex with approximately 50-60 shops and mixed residential use, without provision for parking, fire safety clearance, environmental clearance, or building plan approval.
(v) Multiple complaints were made by the petitioners to the Housing & Urban Development Department, Cuttack Municipal Corporation, police authorities, and other statutory bodies regarding traffic congestion, illegal parking, and unauthorised construction.
(vi) Traffic Police inquiries dated 16.01.2024 and 18.04.2024 acknowledged traffic congestion and parking issues in Hemraj Lane arising from commercial activity and lack of parking facilities.
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(vii) An unauthorised construction case (U.C. Case No. 94/2024) was initiated under the Orissa Development Authorities Act, 1982 and was disposed of on 20.12.2024 by the Deputy Commissioner (U.C. Court), recording that no new construction was found and treating the structure as an old building.
(viii) The petitioners did not file a statutory appeal against the said order under Section 91(2) of the ODA Act but approached this Court by way of the present writ petition.
(ix) Upon issuance of notice by this Court, police and municipal authorities undertook certain enforcement actions relating to traffic management and encroachment removal shortly before the listed date.
(x) The opposite parties have objected to the maintainability of the writ petition on grounds of availability of alternative remedy and alleged nature of the petition being in substance a Public Interest Litigation.
II. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
3. Learned counsel for the Petitioners earnestly made the following submissions in support of his contentions:
(i) The petitioners contend that the writ petition is maintainable as it has been filed in their individual capacity for enforcement of their fundamental rights under Articles 14, 19(1)(d), and 21, and not as a Public Interest Litigation.
(ii) It is asserted that the unauthorised construction by Opposite Party No.10 has fundamentally altered the residential character of Hemraj Lane into a high-density commercial zone, causing severe traffic Page 3 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Mar-2026 16:21:48 congestion, environmental degradation, and obstruction of emergency services.
(iii) The petitioners submit that freedom of movement and the right to live with dignity have been infringed due to systematic illegal parking, blockage of ingress and egress, and denial of access to basic municipal services.
(iv) The inaction and prolonged failure of CMC, CDA, police authorities, and the District Administration to enforce statutory provisions is alleged to amount to abdication of constitutional and statutory duties.
(v) The petitioners challenge the disposal of U.C. Case No. 94/2024 as perverse and suffering from non-application of mind, contending that the observation of "no new construction" is contrary to ground realities and documentary evidence.
(vi) It is contended that the existence of an appellate remedy does not bar writ jurisdiction where fundamental rights are violated and administrative authorities have failed repeatedly despite representations over several years.
(vii) The petitioners argue that even assuming demolition relief is not granted, this Court is fully empowered to issue writs for traffic regulation, enforcement of parking laws, fire safety compliance, and environmental safeguards.
(viii) The petitioners rely on constitutional jurisprudence emphasizing zero tolerance for unauthorised construction and the mandatory nature of municipal and planning duties.
Page 4 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Mar-2026 16:21:48 III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
(i) The opposite parties contend that the writ petition is not maintainable due to the availability of an alternative and efficacious statutory remedy under Section 91(2) of the ODA Act, which the petitioners have consciously bypassed.
(ii) It is submitted that the order dated 20.12.2024 in U.C. Case No. 94/2024 was passed after due inquiry and conclusively establishes that no new construction has been undertaken by Opposite Party No.10.
(iii) The opposite parties assert that the building in question is an old Ground + 5 dwelling house constructed in the 1970s, supported by municipal permission receipts, holding tax records, and electricity bills, and is therefore not amenable to proceedings under the ODA Act, 1982.
(iv) It is argued that the petitioners have suppressed material facts regarding the age and legality of the structure and are attempting to reopen concluded proceedings through writ jurisdiction.
(v) The opposite parties contend that the grievances raised pertain to general traffic congestion and parking inconvenience in a commercially dense area, which are matters of public interest and cannot be selectively attributed to Opposite Party No.10.
(vi) It is submitted that the writ petition is, in substance, a Public Interest Litigation filed in the guise of an individual writ, without complying with Rule 8 of the Orissa High Court (PIL) Rules, 2010.
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(vii) The opposite parties assert that no prior notice or representation as mandated under the PIL Rules was served, and the petition has been improperly filed before a Single Bench.
(viii) Reliance is placed on precedents to argue that writ jurisdiction cannot be invoked to bypass statutory appellate forums or revive stale claims arising from the petitioner's own inaction.
IV. JUDGMENT AND ANALYSIS:
5. Heard Learned Counsel for the parties and perused the documents placed before this Court.
6. The main question is whether the petitioners, as private residents, can invoke writ jurisdiction under Article 226 to challenge the situation on Hemraj Lane despite an alternate statutory appeal being available.
7. Multiple judicial precedents have repeatedly held that Article 226 confers a plenary discretion of High Courts, and the mere non-exercise of an alternate remedy does not automatically oust jurisdiction. In Godrej Sara Lee Ltd. v. Excise and Taxation Officer1the Supreme Court made it clear that a High Court should not mechanically dismiss a writ petition just because an appeal lay under a special statute. Rather, an alternate remedy is a matter of policy and convenience, not an absolute bar, especially when fundamental rights are asserted.
8. In this case the petitioners have framed their grievance as a violation of Articles 14, 19(1)(d) and 21, claiming their personal right of free movement and dignified living is impinged by the alleged unauthorized construction and related congestion. Since enforcement of fundamental 1 CIVIL APPEAL NO.5393 OF 2010.
Page 6 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Mar-2026 16:21:48 rights is one of the recognized exceptions to the rule of alternate remedy, the petition cannot be dismissed outright on that ground.
9. Moreover, the petitioners claim a direct private injury, obstruction of their own access, not a general public interest plea. Even assuming wider public issues are involved, the writ is styled as a private petition (filed in the petitioners' names) rather than a public interest litigation requiring separate compliance. Thus, this Court treats it as a private writ petition complaining of breach of duty by public authorities towards its own citizens. In these circumstances, the Court's jurisdiction under Article 226 is available, and the petition is maintainable, subject to the merits of the claim.
10. It is true that the Orissa Development Authorities Act, 1982 provides a specific appeal under Section 91(2) against the UC Court's order. Here the DC (Unauthorized Constructions Court) concluded on 20.12.2024 that "no new construction was found" and treated the structure as an old building. The petitioners did not avail of the statutory appeal from that order.
11. Ordinarily a writ court would be loath to substitute its view for that of the designated authority on a question of mixed fact and law. However, the Supreme Court's modern jurisprudence enjoins that the existence of an alternative remedy is not dispositive. As held in M/s Godrej Sara Lee Ltd. (Supra) an effective statutory remedy does not by itself oust the High Court's discretion under Article 226. The relevant excerpts of the judgment are produced below:
Page 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Mar-2026 16:21:48 "Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal."
12. The very existence of fundamental rights claims in the writ keeps this petition alive. The petitioners argue that here the authorities have "abdicated" their statutory duties and that repeated inaction has rendered the alternate remedy illusory. While the Court notes that the petitioners could have challenged the UC finding by appeal, that failure cannot bar relief if the petition otherwise merits interference. Accordingly, this Court will examine the substantive complaints on their merits, rather than dismissing the petition in limine.
13. The petitioners are immediate residents on the same narrow lane and have put forward specific grievances, gridlocked traffic, illegal parking Page 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Mar-2026 16:21:48 and potential safety hazards, that directly affect their own rights. Their cause is thus distinguishable from a mere abstract public interest. Courts have long held that High Courts are duty bound to issue mandamus when public authorities neglect clear statutory duties owed to citizens.
14. For example, in Hari Krishna Mandir Trust v. State of Maharashtra2, the Supreme Court emphasized that if a government agency has failed or wrongly exercised its discretion, the Court may itself pass an order or give directions which the Government or public authorities should have passed. The Court held as under:
"In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion."
15. The petitioners allege exactly such failure, repeated complaints to the Cuttack Municipal Corporation, police and planners went unheeded, resulting in an obstruction of the public road that injures their Article 19(1)(d) right of movement and Article 21 right to safety and dignity. It is well established that reasonable access to public roads and a healthy local environment are facets of the right to life. In view of these principles, the petitioners have a sufficient stake to invoke writ relief.
16. On the merits, the principal dispute is whether Opp.10's building is indeed an unauthorized construction warranting demolition or other remedy. According to the official inquiry (U.C. Case No.94/2024), no new addition beyond the old approved structure was found, and thus legally no unauthorized building existed.
22020 SCC OnLine SC 631.
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17. The petitioners challenge this conclusion as perverse, but as they acknowledge, they did not pursue the statutory appeal to test the finding. It is not appropriate for a writ court to lightly overturn a detailed inquiry when the statute provides an appeal channel. In short, if the building is, as held, an old house from the 1970's, then the petitioners cannot secure its demolition on the theory of new illegal floors. Thus, the dramatic relief of voiding or tearing down Opp.10's building is not attainable under the facts.
18. On the other hand, the petitioners' other complaints, of traffic congestion, illegal parking and related hazards, raise issues of public nuisance and enforcement rather than private title. They allege that Opp.10's commercial use of the structure (apparently as a market) lacks proper licensing and infrastructure (no parking, fire or environmental clearances). It is beyond doubt that state authorities have the duty to enforce local planning and safety laws in such a situation.
19. The judicial precedents have repeatedly declared a zero tolerance policy for unauthorized construction. In Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad3, for example, the Court insisted that any construction contravening the approved plan has to be curtailed and warned that delay or laxity by authorities cannot be used as a shield to justify illegality. The relevant excerpts are produced below:
"In the ultimate analysis, we are of the opinion that construction(s) put up in violation of or deviation from the building plan approved by the local authority and the constructions which are audaciously put up without any 3 2024 INSC 990 Page 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Mar-2026 16:21:48 building planning approval, cannot be encouraged. Each and every construction must be made scrupulously following and strictly adhering to the Rules. In the event of any violation being brought to the notice of the Courts, it has to be curtailed with iron hands and any lenience afforded to them would amount to showing misplaced sympathy. Delay in directing rectification of illegalities, administrative failure, regulatory inefficiency, cost of construction and investment, negligence and laxity on the part of the authorities concerned in performing their obligation(s) under the Act, cannot be used as a shield to defend action taken against the illegal/unauthorized constructions."
20. Although this Court accepts the DC's finding that no fresh construction occurred, the underlying concern remains: the authorities must enforce applicable law without sympathy for non-compliance.
21. Furthermore, the petitioners contend that even absent demolition, the court can and should direct steps to alleviate the problems caused by the disputed building's operation. This falls squarely within the writ powers. In Hari Krishna Mandir Trust (Supra) the Court held that High Courts may issue mandamus to enforce any clear legal duty of a public authority.
22. Here, the respondents have statutory obligations to keep public roads clear, regulate parking, and ensure buildings meet safety norms. Such duties lie as much on the state as private citizens; neglect of them can trigger writ relief. It is clear that the petitioners' complaints are not academic. Hemraj Lane, being only 13 feet wide, cannot serve an upmarket of 50-60 shops without causing genuine obstruction. The Page 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Mar-2026 16:21:48 petitioners describe repeated illegal parking on the road, which even the Traffic Police have acknowledged causes congestion. Such factual inaction, if borne out, impairs the residents' rights to unobstructed passage and public order.
23. This Court is of the view that in dense urban localities, public roads constitute a finite civic resource held in trust for equal use by all residents. When the operational footprint of a private commercial activity routinely spills onto such public space, whether through parking, loading, crowd accumulation or service traffic, it results in a functional appropriation of the street without lawful sanction. Even in the absence of fresh structural illegality, such systematic externalization of private business costs onto public infrastructure cannot be allowed. The State is under a constitutional obligation to make sure that no private establishment effectively converts a common access road into an auxiliary facility for its enterprise. Persistent tolerance of such conditions amounts to a failure of regulatory supervision and invites judicial correction.
24. In sum, while the petitioners cannot succeed in invalidating Opp.10's building on the merits, their fundamental-rights grievances and the demonstrated statutory dereliction of duty by officials entitle them to appropriate directions. The case is thus not one where the writ must be rejected as an exercise of discretion. On the contrary, the record justifies interference to compel proper enforcement of law.
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25. This Court therefore issues the following directions as the equitable relief appropriate to vindicate the petitioners' rights and the public interest:
I. Traffic Regulation and Parking Enforcement:
(a) The Commissioner of Police, Cuttack, shall forthwith ensure strict and continuous policing of Hemraj Lane, keeping in view its narrow width and residential character.
a) No unauthorized vehicle, whether private or commercial, shall be permitted to park or halt on Hemraj Lane under any circumstances.
b) All vehicles found illegally parked or causing obstruction shall be removed immediately, including by towing or impounding, without prior notice.
c) Mandatory parking restrictions, including but not limited to "No Parking / No Stopping" signage, shall be installed and enforced rigorously.
d) The police authorities shall ensure free, unhindered ingress and egress for residents at all times, with special emphasis on access for emergency services such as ambulances and fire tenders.
e) A compliance report detailing the steps taken shall be placed before this Court within 8 weeks from the date of this Judgment.
II. Building Regulation and Safety Compliance:
a) The Cuttack Municipal Corporation and the Housing & Urban Development authorities shall conduct a comprehensive verification of the structure standing on the plot of Opposite Party No. 10.
b) The verification shall specifically ascertain the existence and validity of:
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(i) a duly sanctioned building plan,
(ii) a completion and/or occupancy certificate,
(iii) a valid fire safety No-Objection Certificate, and
(iv) all statutory environmental clearances, wherever applicable.
c) If any portion of the building is found to be unauthorized, deviated from the sanctioned plan, or lacking statutory approvals, the CMC shall immediately initiate proceedings in accordance with law, including:
(i) demolition of the unauthorized portion, or
(ii) compounding, strictly where permissible, under the relevant provisions of the ODA Act and applicable Building Rules.
d) No completion certificate, occupancy certificate, trade license, or business permission shall be issued for any part of the structure not in conformity with law.
e) It is reiterated that no authority shall permit the conduct of any business or trade in an unauthorized building, as repeatedly emphasized by constitutional courts.
f) In the event the structure is claimed to be an old residential house, the authorities shall nevertheless ensure that no commercial activity is carried on in violation of zoning regulations or without fresh statutory approval.
III. Environmental and Civic Safeguards:
(i) The Cuttack Municipal Corporation shall take immediate steps to restore and maintain civic hygiene on Hemraj Lane.
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(ii) Garbage, sewage, and solid waste found on the road or in drains shall be cleared forthwith, and mechanisms shall be put in place to prevent recurrence.
(iii) The drainage and development infrastructure of the lane shall be maintained in a manner that prevents waterlogging, stagnation, or unhygienic conditions.
(iv) Illegal dumping, polluting activities, or obstruction of drains shall be strictly prohibited and dealt with in accordance with law.
26. It is clarified that the above directions are not intended to be exhaustive in nature. They constitute a broad regulatory framework to ensure lawful civic managementand statutory compliance in the facts of the present case. The concerned authorities are at liberty, and indeed under a duty, to adopt any additional lawful measures that may be necessary to effectively prevent public nuisance, traffic congestion, safety hazards, or unauthorized commercial exploitation of public infrastructure.
27. Further, the principles embodied in these directions are of general application and may be treated as guiding standards for similarly situated establishments within the city of Cuttack and elsewhere, so that narrow public roads are not rendered dysfunctional by unchecked commercial activity. The obligation of the State to secure orderly urban governance and prevent obstruction of public streets extends beyond the present dispute and must be uniformly enforced.
28. The aforesaid directions are mandatory and binding on all the authorities concerned and shall be implemented in letter and spirit within the stipulated timelines. Any inaction, delay, or selective Page 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Mar-2026 16:21:48 compliance shall be viewed seriously, as the directions are issued to secure adherence to the rule of law and prevent continuing infringement of the rights recognised herein. The authorities shall remain answerable for due and faithful compliance, failing which appropriate proceedings in accordance with law shall follow.
29. A compliance report shall be filed by them in this Court within 12 weeks of the publication of this judgment, and further action will be taken as necessary to ensure that the petitioners' rights are protected. V. CONCLUSION:
30. In view of the foregoing, the Writ Petition is allowed in part. The petitioners are granted the relief of mandamus as set out above directing the respondents to enforce the law on traffic, parking, building safety and public health in Hemraj Lane. No order of demolition or structural alteration of Opposite Party No.10's building is made, given the finding of no new unauthorized construction.
31. Interim order, if any, passed earlier stands vacated.
32. A copy of this judgment be served on the Commissioner-cum- Secretary, Department of Housing and Urban Development, Government of Odisha and the Commissioner, Cuttack Municipal Corporation through their respective counsels.
(Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 13th February, 2026/ Page 16