Disposed

Bijay Kumar Swain v. State of Odisha

Orissa HC9 Feb 2024WP(C)/26619/2023

Case brief

AI extract

What is this about?

This Court disposed of a writ petition challenging an eviction notice issued by the Odisha State Housing Board against a street vendor. The Court observed that street vendor identification does not depend solely on Municipal Corporation enlistment. It extended an interim stay on the eviction notice pending relocation under the Street Vendors Act, 2014.

What did the court decide?

Confirmed interim order staying eviction notice to protect petitioner till relocation under the Act of 2014 or BMC scheme.

Bijay Kumar Swain Vs State of Odisha — Landlord and Tenant | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.26619 of 2023

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Bijay Kumar Swain

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…. Petitioner

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-Versus-

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…. State of Odisha and others Opposite Parties

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Advocates appeared in this case:

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For Petitioner: Mr. S. Udgata, Advocate

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For Opposite Parties: Mr. A.K. Sharma, Addl. Govt. Advocate

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Mr. D.K. Pradhan, Advocate
(for O.P. no.3)
Mr. Niranjan Panda-1, Advocate
(for O.P. no.4)
Mr. D. Mohapatra, Advocate and
Mr. M.R. Pradhan, Advocate
(for O.P. no.5)
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE M.S. SAHOO

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J U D G M E N T

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-------------------------------------------------------------------------- Date of Hearing :28^th November, 2023, 19^th January, 2024 and 9^th February, 2024 Date of Judgment : 9^th February, 2024

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ARINDAM SINHA, J.

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1. The writ petition is at instance of a person, who claims

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to be street vendor. Impugned is eviction notice dated 18^th July,

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Page 1 of 7

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2023 issued by opposite party no.3, Odisha State Housing Board (OSHB). Challenge is against basis of the notice being allegation that petitioner is an encroacher.

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2. Mr. Udgata, learned advocate appears on behalf of petitioner. State is represented by Mr. Sharma, learned advocate, Additional Government Advocate. Mr. Pradhan, learned advocate appears on behalf of OSHB. Opposite party

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no.4, Bhubaneswar Municipal Corporation (BMC) is represented by Mr. Panda, learned advocate and opposite party no.5, Bhubaneswar Development Authority (BDA) by Mr. Mohapatra, assisted by Mr. M.R. Pradhan, learned advocates.

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3. The writ petition was heard on several dates as borne

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out by order sheet. It appears therefrom, on behalf of petitioner there was demonstration from disclosures in the petition that he

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had vending certificate issued on 26^th August, 2020, expired on 31^st March, 2021. The certificate is in respect of his vending business carried on also under license from BMC. Provisional certificate of trade license issued by the Corporation is valid till 31^st March, 2024. On behalf of opposite parties there was joint and several submissions made. Mr. Pradhan had submitted that

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the land belongs to his client and petitioner is encroacher. Mr.

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Page 2 of 7

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W.P.(C) no.26619 of 2023

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Panda had submitted, under section 48 of Orissa Housing Board Act, 1968 the eviction notice was appealable.

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4. Today Mr. Panda relies on order dated 20^th November, 2019 made by coordinate Bench, whereby there was direction upon Commissioner-cum-Secretary, Housing and Urban Development Department to enquire into the matter.

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Reproduced below is direction paragraph from said order.

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“In view of the above, we direct the opposite party no.1-Commissioner-cum-Secretary, Housing and Urban Development Department to enquire into the matter whether the petitioners are Street Vendors or not and if they are entitled to the relief as prayed for, the authority shall dispose of the grievances after giving opportunity of hearing to the petitioners within a period of four weeks and consequential steps thereafter shall be taken by the competent authority in accordance with law. The petitioner as well as opposite party no.2-Bhubaneswar Development Authority, opposite party No.4-Bhubaneswar Municipal Corporation, opposite party no.5- General Administration Department, Govt. of Odisha and opposite party no.6-Odisha State Housing Board shall be allowed to remain present in the said proceeding for appropriate adjudication.”

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Page 3 of 7

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W.P.(C) no.26619 of 2023

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He then draws attention to joint enquiry report dated 29^th

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September, 2021, text of which is reproduced below.

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“As per the letter no.2784 dated 22.09.2021 of Zonal Deputy Commissioner (North), Bhubaneswar Municipal Corporation, a joint enquiry is conducted on 29.09.2021 at 11.00 am at Kanan Vihar, Phase-I, Housing scheme of Odisha State Housing Board by the officials and filed staff of BMC and OSHB. The officials of OSHB shown the location and verification have been made in respect of the list enclosed at Annexure-I.

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It is found that none of the encroachers are enlisted as street vendors in the list of BMC hence

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are not entitled for any relief.”

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(emphasis supplied)

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5. Mr. Sharma and Mr. Mohapatra adopt submissions

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made on behalf of OSHB and BMC.

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6. Mr. Pradhan submits, there was eviction proceeding initiated by his client and notice issued on 20^th January, 2015 issued to petitioner. Petitioner had challenged the notice by W.P.(C) no.164 of 2020, disposed of by order dated 4^th February, 2020. The writ petition was disposed of on

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Page 4 of 7

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W.P.(C) no.26619 of 2023

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redirecting the claim to BMC and till disposal of the redirected claim, protection. Though his client had issued the notice, the writ petition was disposed of without direction for issuance of notice upon it. The purported claim of petitioner stood redirected to BMC. He further submits, by reason of petitioner brandishing documents issued by BMC, including the redirection order, his client is suffering.

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7. In reply Mr. Udgata submits, his client was not party to W.P.(C) no.24473 of 2014 ( Golakh Bihari Swain and others

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vrs. State of Odisha and others ) , in which said order dated 20^th November, 2019 was made and hence, he cannot deal with the joint enquiry report. His client was and is unaware of the enquiry. He submits further, his client is vending grocery on the boundary, adjacent to the road. His client has not encroached any built-up structure. Clauses (k) and (l) of definitions section 2 in Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 clearly includes his client. He is entitled to protection under sub-section (3) in section 3. Furthermore, under section 18(l) in the Orissa Housing Board Act, 1968 among matters to be provided for by housing

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Page 5 of 7

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W.P.(C) no.26619 of 2023

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schemes is included reservation of lands for markets. Hence, his client is entitled to relocation.

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8. In our view nothing turns on petitioner having had challenged initial notice issued by OSHB. This is because petitioner’s claim was redirected by said order dated 4^th February, 2020 on mention of the Act of 2014, in it. Therefore, the redirection was to BMC. At present State, OSHB and BMC are together opposing this writ petition. Aforesaid order dated 20^th November, 2020 directing enquiry resulted in relied upon enquiry report dated 29^th September, 2021. It will appear from the report that negative finding against those who were found to be encroachers, as not street vendors, was on basis of them not having been enlisted by BMC and therefore not entitled to any relief. Notwithstanding petitioner was neither party to the writ petition nor participated in the enquiry, as would appear from initials appearing in the report, the matter of identification of street vendors cannot depend on their enlistment with the Municipal Corporation. Provisions in the Act of 2014 give several definitions including subsequent provision for conducting survey to identify street vendors.

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Page 6 of 7

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W.P.(C) no.26619 of 2023

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9. We have before us a provisional certificate issued in favour of petitioner regarding his vending business, valid up to 31^st March, 2024. This certificate cannot be seen in isolation as

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it obviously stood issued on back of initial street vending certificate and other documents mentioned above petitioner has disclosed before us. In the circumstances, we confirm interim order dated 18^th August, 2023 staying impugned notice, to

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protect petitioner till there is relocation made in terms of the Act of 2014 or the scheme of BMC made pursuant thereto.

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