Orissa High Court
Banalata Dash vs ) Tata Power Central Odisha ..... ... on 7 April, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.6705 of 2025
Banalata Dash ..... Petitioner
Represented By Adv. -
Mohit Agarwal
-versus-
1) Tata Power Central Odisha ..... Opposite Parties
Distribution Ltd, Bbsr
2) Sub-divisional Officer (electrical) , Represented By Adv. -
Tpcodl, Khandagiri Electrical Sub- Mr.L.K.Moharana.
division, Bcdd-ii
3) Dhruti Construction And
Development Pvt. Ltd., Represented
By Its Director, Bbsr
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
07.04.2025 Order No.
02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
2. Heard learned counsel for the Petitioner as well as the learned counsel for the Opposite Parties-Electricity Company. Perused the Writ Petition as well as the documents annexed thereto.
3. The present Writ Petition has been filed at the instance of the Petitioner with a prayer for a direction to Opposite Party Nos. 1 & 2 to ensure compliance of the proviso to Rule 18(1) of the Odisha Development Authorities (Planning and Building Standards) Rules, 2020 and the erstwhile Regulation 66(2) of the BDA (Planning and Building Standards) Regulations 2008 and Page 1 of 6. ensure immediate disconnection of domestic electric supply to the apartment " Sai Sudha Enclave". She has also prayed for a direction to the Opposite Party no.1 to initiate appropriate disciplinary action against Opposite Party No.2 in compliance of the judgment of Hon'ble Supreme Court in the case of Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad (Civil Appeal No.14604 of 2024 decided on 17.12.2024.
4. Learned counsel for the Petitioner at the outset contended that the Petitioner is one of the purchaser of the flat in the aforesaid apartment. He further contended that although the Petitioner had paid the entire money to purchase a flat, however possession of the said flat has not been handed over to the Petitioner. It was also contended by the learned counsel for the Petitioner that no occupancy certificate has been issued by the Bhubaneswar Development Authority under whose jurisdiction the apartment is situated. As a result, no sale deed has been executed in favour of the purchaser by the builder. While this was the position, the BDA officials visited the apartment and found that the construction work including STP work for Block C has not been completed and a show cause notice was issued to the builder. In the Writ Petition, it has also been contended that due to service of NOC from Bhubaneswar Municipal Corporation and in absence of any building plan, the BDA has refused to regularise the unauthorised construction. Further, it appears that earlier the Petitioner had approached this Court, in W.P.(C) No.28581 of 2023. A coordinate Bench of this Court, vide order dated 13.10.2023, disposed of the Writ Petition by directing the Bhubaneswar Development Authority to consider the grievance of the Petitioner. The learned coordinate bench has further Page 2 of 6. specifically granted liberty to the Petitioner to pursue the remedy available to her before the BDA. Accordingly, the learned coordinate bench, without expressing any merits on the matter, disposed of the Writ Petition by granting liberty to the Petitioner to pursue the remedy before the BDA.
5. Learned counsel for the Petitioner further contended that after disposal of the earlier Writ Petition, the Petitioner approached the Bhubaneswar Development Authority, however the BDA transferred the representation of the Petitioner to the Bhubaneswar Municipal Corporation. He further contended that the representation of the Petitioner has been disposed of vide letter dated 02.02.2024. On perusal of the letter 02.02.2024, it appears that the objection of the Petitioner was disposed of by holding that since no occupancy certificate has been issued as per Rule 18(8) of ODA (P&BS) Rules, 2020, the said building is unsafe for occupation and the construction shall be treated as unauthorised development. Further, a request has been made to the BDA to take necessary steps for initiation of unauthorised construction case against the abovementioned residential apartment building as per Section 90 & 91 of ODA Act, 1982.
6. So far the present Writ Petition is concerned, the specific grievance of the Petitioner in the present Writ Petition is with regard to electricity connection granted to some of the occupier of the building. He further contended that the Opposite Party Distribution Company be directed to disconnect the electricity connection granted to such occupier of the building, which has been declared unsafe by the Bhubaneswar Municipal Corporation.
7. Learned counsel for the Distribution Company on the other Page 3 of 6. hand contended that although the Petitioner has prayed for disconnection of the electricity connection, however the parties, who are likely to be affected have not been impleaded as Opposite Parties. In such view of the matter, learned counsel for the Opposite Parties contended that the Writ Petition is liable to be dismissed in limine. He further contended that a remedy is available to the Petitioner under the ODA Act and Rules framed thereunder. Further referring to the Rules, 2020, learned counsel for the Opposite Parties contended that Rule 17 of the aforesaid Rule deals with the liability for defective construction and Rule 22 of the Rules, 2020 provides demolition of the building. Further, referring to Rule-22, learned counsel for the Opposite Parties contended that once the demolition process is commenced, appropriate notice shall be given for disconnection of water, electricity, gas, sewer and other connections provided by different agencies to disconnect such connection so as to facilitate the demolition. Since no such notice has been issued to the electricity company, and in absence of the parties who are likely to be affected, any order passed by this Court in the present Writ Petition, at the instance of the Petitioner, is not maintainable. Accordingly, the Writ Petition is devoid of merit and liable to be dismissed.
8. At this point, the learned counsel for the Petitioner referred to the judgment of the Hon'ble Supreme Court in Rajendra Kumar Barjatya and another (supra). Drawing attention of this Court to paragraph-21 of the aforesaid judgment, the learned counsel for the Petitioner submitted that a direction was given in the said judgment by the Hon'ble Supreme Court and the same has been directed to be circulated to the Chief Secretaries of all Page 4 of 6. the States. On perusal of the judgment of the Hon'ble Supreme Court in Rajendra Kumar Barjatya & another (supra) this Court found that the issue which is involved in the said case is with regard to the execution of demolition order passed by the competent authority which was not being given effect to. In the case in hand, the factual scenario is different and no such demolition order has been passed by any competent authority. Moreover, in the event it is found that the residential apartment is unsafe for occupation, then remedy lies elsewhere, not before this Court. In such view of the matter, this Court is of the view that the direction given in Paragraph-21 of the said judgment can only be implemented by the competent authority, if the Petitioner approaches the competent forum for implementation of such direction.
9. Having heard learned counsels for the respective parties, on careful analysis of the factual background, this Court observes that the present Writ Petition has been filed essentially with a prayer to direct the opposite Parties to disconnect the electricity connection given to the residential apartment. On a bare examination of the Writ Petition, it appears that although a prayer for disconnection has been made, however, the parties, who are likely to be affected and occupying the building have not been impleaded as Opposite Parties. Moreover, it is open to the Petitioner to approach the Bhubaneswar Development Authority under the Orissa Development Authorities Act and Rules as the RERA under ORERA Act for redressal of grievance of the Petitioner. In the aforesaid factual backdrop, this Court is of the considered view that the present Writ Petition, with the relief as prayed for, is not maintainable. Accordingly, the Writ Petition is Page 5 of 6. disposed of by granting liberty to the Petitioner to approach the competent authority including the RERA for redressal of his grievance.
10. With the aforesaid observation/direction the Writ Petition is disposed of.
Issue urgent certified copy of this order as per Rules.
( A.K. Mohapatra ) Judge RKS Signature Not Verified Page 6 of 6. Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: AR-CUM-Senior Secretary Reason: Authentication Location: OHC Date: 08-Apr-2025 15:00:50