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2012 Supreme(Ori) 124
HIGH COURT OF ORISSA
B.P. DAS, J. & S.K. MISHRA, JJ.
Jagadish Prasad Naik & Anr. : Petitioners
Vrs
State of Orissa & Anr. : Opp. Parties
W.P.(C) No. 22357 of 2011,
Decided On : 27.3.2012
M/s. S.P. Singh. B.P. Mohanty, N. Paikray, R.P. Kar. A.N. Ray. K.K. Sahoo & P.K. Mishra for Petitioners
Mr. J.P. Pattnaik, Addl. Govt. Advocate, M/s. D. Mohapatra, M. Mohapatra, G.R. Mahapatra, M. Mohapatra & Miss L.X. Nanda for Opp. Parties
M/s. B. Baugh & S. Rath for intervenors
The O.D.A. Act, 1982, is not applicable to Gram Panchayat areas and the permission granted by the Gram Panchayat for construction is valid.
Headnote:
O.D.A. Act - Jurisdiction of Development Authority - 1, 3 - The court quashed the notification including the area of Kalarahanga Gram Panchayat under the O.D.A. Act, 1982, as it was contrary to the constitutional provision made in Article 243. The court held that the Act is not applicable to Gram Panchayat areas and set aside the orders passed by the Authorities under the Act. The court found no illegality in the permission granted by the Gram Panchayat for construction.
Fact of the Case:
The Petitioners challenged the order directing the removal of their construction over certain plots, contending that the construction was authorized as they had obtained permission from the Gram Panchayat.
Finding of the Court:
The court quashed the notification including the area of Kalarahanga Gram Panchayat under the O.D.A. Act, 1982, and set aside the orders passed by the Authorities under the Act. The court found no illegality in the permission granted by the Gram Panchayat for construction.
Issues: The main issues were the jurisdiction of the Development Authority under the O.D.A. Act, the applicability of the Act to Gram Panchayat areas, and the legality of the construction permission granted by the Gram Panchayat.
Ratio Decidendi: The court held that the Act is not applicable to Gram Panchayat areas and quashed the notification including the area of Kalarahanga Gram Panchayat under the Act. The court also found no illegality in the permission granted by the Gram Panchayat for construction.
Final Decision: The court set aside the orders passed by the Authorities under the O.D.A. Act, 1982, and held that there was no illegality in the permission granted by the Gram Panchayat for construction.
JUDGMENT
B.P. DAS, J.
The Petitioners in this Writ Petition challenge the Order Dated 8.8.2011 passed in Appeal Case No. 17/2011 (Annexure-1) upholding the Order Dated 25.4.2011 passed in U.A.P. No. 339/2010 (Annexure-2) by the Authorities under the Orissa Development Authority Act, 1982 (in short, "the Act"), wherein the construction undertaken by the Petitioners over plot Nos. 195(P). 196(P) & 299 of Khata No. 412 of Mouza-Kalarahanga, Bhubaneswar, has been directed to be removed within fifteen days from the date of service of the order & in case of failure to do so, the said development would be removed by the Bhubaneswar Development Authority (in short, "B.D.A.").
2. According to the Petitioners, plot Nos.195(P), 196(P) & 299 of khat a No. 412 in Mouza-Kalaraganga, Bhubaneswar, belong to Petitioner No.2 & in order to construct multi-storied residential buildings over the said plots, Petitioner No. 2 prepared a building plan & got the technical approval from the Kalarahanga Gram Panchayat vide letter dated 4.2.2003 (Annexure-7). The said approved building plan was re-checked & technically approved by the Junior Engineer, Bhubaneswar Panchayat Samiti & was re-validated for a further period of five years from the date of conversion of the schedule land by Order Dated 5.8.2006, vide Annexure-8. Initially the said plots were agricultural land & the competent authority under Section 8(A) of the Orissa Land Reforms Act, 1960 (in short, O.L.R. Act) allowed conversion of the land from agriculture to homestead (Gharabari) with effect from 27.3.2007 & the premium was accordingly paid by Petitioner No. 2. When the construction was going on, Petitioner No. 2 entered into an agreement on 3.8.2009 with Petitioner No. 1 for development of the said plots & also executed an irrevocable power of attorney for effective execution of the construction project over the same. When the construction was at the advance stage, on 16.7.2010 the Petitioners received a notice dated 12.7.201 (Annexure-13) issued by the Joint Town Planner-1 of B.D.A. asking them to show cause within seven days as to why penal action would not be taken against them for undertaking the construction of S+8 storied building without permission under Section 16 of the O.D.A. Act. On 16.7.2010 the Petitioners also received another show cause notice dated 14.7.2010 (Annexure-15) issued under Section 91 (1) of the O.D.A. Act in U.A.P. No. 339/2010 as to why order shall not be passed directing removal of the roof level construction of S+3, S+4, S+1 storied & a plinth level construction of apartment building constructed unauthorisedly in violation of the approved plan & rules & regulations.
On 16.7.2010, the Petitioners received an Order Dated 14.7.2010 passed under Section 92 (1) of the O.D.A. Act (Annexure-14) that the development undertaken by them was without permission, approval & sanction as required under Section 15 of the O.D.A. Act & Petitioner No.1 was directed to discontinue & stop the development from the date of service of the order under a written intimation.
3. The Petitioners challenging the aforesaid notice & the orders approached this Court in W.P.(C) No. 12104/2010, which was disposed of on 5.10.2010 after hearing both the parties & considering the counter affidavit filed by the B.D.A., with a direction to the Petitioners to approach the B.D.A. by filing a show cause reply taking all the points that were taken before this Court & till conclusion of the proceedings by the B.D.A., status quo as on the date of such order in respect of the property was directed to be maintained & no coercive action was to be taken against the Petitioners. According to the Petitioners, they have submitted their reply to the show cause notice taking various stands including the stand that though the Gazette Notification dated 24.3.2003 is purported to have been issued by the Housing & Urban Development Department in exercise of powers conferred under Sub-Section (2) of Section 3 of the O.D.
