Allowed

M/S.Chitraka Eartmovers and Builders, Bbsr v. State of Odisha

Orissa HC22 Apr 2024WP(C)/34272/2022

Case brief

AI extract

What is this about?

The petitioner challenged an order demolishing unauthorized construction which was allegedly based on a prior rejection of a regularization plea. The Court found no final decision regarding the regularization application on record and allowed the petition, setting aside the impugned order.

What did the court decide?

The impugned order in U.C. Appeal No.22 of 2019 is set aside. The authority is directed to dispose of the regularization matter and the main appeal afresh within three months, ensuring an opportunity

M/S.Chitraka Eartmovers and Builders, Bbsr Vs State of… — 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.34272 of 2022

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M/s.Chitraka Earthmovers & Builders, …. Petitioner Chandrasekharpur, Bhubaneswar

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Mr. Aurovinda Mohanty, Advocate

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-Versus-

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State of Odisha and others

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State of Odisha and others …. Opposite Parties Mr. P.K. Routray, AGA Mr. D. Mohapatra, Advocate for O.P. Nos.4 & 5 Mr. S.K. Dash, Advocate for O.P. Nos.7 to 11 Mr. Niranjan Panda-1, Advocate for O.P. Nos.2, 3 & 6

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CORAM:

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JUSTICE R.K. PATTANAIK

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DATE OF JUDGMENT:22.04.2024

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1 . Instant writ petition is filed by the petitioner challenging the decision of opposite party No.1 under Annexure-15 in connection with a proceeding in U.C. Appeal No.22 of 2019 initiated under Section 91(2) of the Odisha Development Authorities Act, 1982 (hereinafter referred to as the ‘ODA Act’ ) on the grounds stated therein.

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2 . As per the pleading on record, the petitioner is the proprietor of M/s. Chitraka Earthmovers and Builders and the subject-matter in the dispute relates to Plot No.181, Drawing No.B/150 of Mouza-Chandrasekharpur, Bhubaneswar which was allotted in favour of the proforma opposite party No.12 on the basis of a lease deed dated 5^th January, 1990. According to the petitioner, after the lease agreement under Annexure-1, subsequent lease arrived on 16^th December, 1992 executed by the Director of Estate General, Government of Odisha. It is further

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stated that after the above paraphernalia, a conveyance deed dated 21^st December, 2001 was executed by the GA Department, Government of Odisha in favour of the proforma opposite party No.12 later to the conversion of leasehold land to freehold and accordingly, said opposite party became the owner of the land, who thereafter obtained Building Plan Approval from the Bhubaneswar Development Authority (BDA) on 29^th December, 2001 with permission for construction over Plot No.181. It is further pleaded that after execution of the Building Development Agreement, proforma opposite party No.12 executed a Power of Attorney (PoA) in his favour for construction of building in the name and style, ‘Kananshri Villa’ and on completion of such construction and by virtue of the said PoA, the petitioner sold the flats to different purchasers including opposite party Nos.7 to 11 as per the sale deeds executed in different point of time.

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3 . The grievance of the petitioner is that opposite party Nos.7 to 11 lodged a written complaint before opposite party No.5 on 20^th July, 2015 and 2^nd November, 2016 alleging deviation and unauthorized construction in the building, whereafter, opposite party No.2 initiated a proceeding in UAP Case No.217 of 2017 and by order dated 6^th April, 2018 directed demolition of the alleged construction within seven days from the date of service of the said order i.e. Annexure-3. It is claimed that the petitioner was never served with any notice in UAP Case No.217 of 2017 at any time before passing of the final order of demolition. It is pleaded that the BMC on 22^nd July, 2019 issued notice under Annexure-4 to the petitioner and proforma opposite party No.12 regarding eviction and demolition of unauthorized construction pursuant to the order dated 28^th March, 2019 passed in W.P.(C) No. 6865 of 2019. As stated further, without any such notice and

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hearing in UAP Case No.217 of 2017 in the presence of the petitioner or proforma opposite party No.12, such eviction was directed. It is also claimed that there was no any occasion for the petitioner or for that matter, proforma opposite party No.12 with a hearing at the time of disposal of W.P.(C) No.6865 of 2019. The petitioner would claim that against the order under Annexure-3, appeal was filed on 25th July, 2019 before opposite party No.1 for a decision in accordance with law by stating the fact regarding regularization of unauthorized construction applied under Sarba Kshyama Scheme with required amount deposited on 30^th June, 2008 in the shape of a Bank Draft dated 27^th June, 2008. It is alleged that the said plea for regularization of unauthorized construction has not been attended to or any such decision thereon was never intimated to the petitioner, which is revealed from the relevant extracts of the Note Sheets as at Annexure-11 obtained under the Right to Information Act (RTI). According to the petitioner, such request for regularization under the Scheme was applied for with all relevant documents including NOCs with intimation about the same through Annexure-7, a letter dated 30^th July, 2011, which was in compliance of the correspondence dated 31^st May, 2011 of the BDA. It is also alleged that pending decision in U.C. Appeal No.22 of 22 of 2019, action was initiated by the BDA on 6^th April, 2022 with a request to the Commissionarate of Police to provide APR Force in connection with a joint eviction drive carried out at the behest of the Central Enforcement Monitoring Committee (CEMC). It is further pleaded that the appeal was not disposed of within the time and without any opportunity of hearing to the petitioner therein, since the date of hearing was fixed to 13^th October, 2022 by order of opposite party No.1 dated 26^th September, 2022, notice of which was received on 15^th October, 2022, the proceeding was disposed

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of on 13^th October, 2022 itself vide Annexure-15 and on the premise that the request for regularization of unauthorized construction under the Amnesty Scheme had already been rejected. Thus, the contention is that there has been no opportunity of hearing to the petitioner at the time of disposal of the proceeding in U.C. Appeal No. 22 of 2018 and that apart, notwithstanding the claim of rejection, further request for regularization of unauthorized construction has been entertained without a final decision thereon as yet.

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4 . As per opposite party Nos.7 to 11, the petitioner does not have the locus standi to maintain the present action, he being the PoA. It is further pleaded by opposite Nos. 7 to 11 that the petitioner has created obstacles in the free enjoinment of the flats and in so far as the deviation is concerned, the unauthorized construction has been made on the top of the 4^th Floor and also converting garage, two shop rooms and blocked open space inside the boundary causing hindrance in the smooth enjoyment thereof, hence, therefore, on a complaint received, opposite party No.2 initiated the proceeding in UAP Case No.217 of 2017 with a decision therein stood confirmed by opposite party No.1, while disposing of the appeal by order under Annexure-15 and in the meantime, this Court in W.P.(C) No.6865 of 2019 disposed of vide order dated 28^th March, 2019 with a direction to opposite party No.1 to work out the order of opposite party No.2 within a month from the date of its communication followed by a direction in CONTC No.2593 of 2019 by order dated 15^th January, 2021 and directions in CONTC No.6885 of 2019 and CONTC No.3107 of 2022. It is further pleaded by opposite party Nos.7 to 11 that the petitioner filed W.P.(C) No.9673 of 2022, which was disposed of by order dated 28^th July, 2022 with a

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direction to opposite party No.1 to dispose of the proceeding in U.C. Appeal No.22 of 2019 within three months, later to which, on 13^th October, 2022, the impugned order under Annexure-15 was passed considering the reports of BMC and of the Amin and Architect confirming the finding regarding the unauthorized construction and rejection of the request for its regularization under the Amnesty Scheme.

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5 . Opposite Party Nos.4 and 5 justify the action with a claim that the regularization of the unauthorized construction was rejected long back in the year 2010, hence, therefore, opposite party No.1 did not commit any error or wrong in confirming the decision of opposite party No.2. It is pleaded that the petitioner claimed such regularization as per the BDA (P & BS) Regulation, 2001 under a One Time Scheme (OTS) which could not have been allowed since the alleged construction was undertaken on and after the Scheme came into force and furthermore, when said Scheme does not permit any such regularization and hence, no benefit as per the Rule 90 of the Odisha Development Authority Rules, 2020 can be extended.

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6 . Opposite Party Nos.2, 3 and 6 justified the action and claimed that the request for regulation under the Amnesty Scheme by the petitioner was rejected and that apart, the order dated 22^nd July, 2019 in UAP Case No.217 of 2017 was upheld in appeal vide Annexure-15.

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7 . Heard Mr. Mohanty, learned counsel for the petitioner, Mr. Panda, learned counsel for opposite party Nos.2, 3 and 6, Mr. Mohapatra, learned Counsel for opposite party Nos.4 and 5 and Mr. Dash, learned counsel for opposite party Nos.7 to 11.

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8 . Referring to Annexure-11, Mr. Mohanty, learned counsel for the petitioner claims that the request for regularization is still pending consideration and for the said purpose, necessary compliance has been made so revealed from Annexure-7. It is contended by Mr. Mohanty that such request for regularization was entertained later to any such decision dated 6^th December, 2010 with an observation that the case may be scrutinized again in detail with any such compliance being duly intimated and to show cause for rejection by an official order dated 1^st September, 2014, hence, therefore, the claim of opposite party Nos.4 and 5 regarding rejection of the same is incorrect. Furthermore, referring to Annexure-18, a copy of the Scheme read with the provisions of BDA (P&BS) Regulation 2001, Mr. Mohanty would submit that the regularization of the unauthorized construction was required to be duly examined as per Clause 3(ix) thereof. The contention is that since such regularization is permissible under the Scheme, the request of the petitioner was entertained by opposite party No.2 and decision thereto still not arrived at.

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9 . Referring to affidavits on record, Mr. Dash, learned counsel for opposite party Nos.7 to 11 submits that there is no infirmity in the impugned decision of opposite party No.1, all the more when, request for regularization was rejected, the fact which was well within the knowledge of the petitioner, he having been informed in 2010 itself. The details of the decision of the flat owners including opposite party Nos.7 to 11 and the manner and extent of the alleged unauthorized construction or deviation by the petitioner described in the affidavits have been brought to the notice of the Court.

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10 . Mr. Mohapatra, learned counsel for opposite party Nos.4 & 5 reiterated the plea that the unauthorized construction and its regularization was examined by the authority concerned and it was declined. As the construction is in relation to a multi-storied building and claimed to be not permissible as per the BDA (P & BS) Regulation, 2021, to examine the matter, considering the request of the Court, Mr. Mohapatra, learned counsel for opposite party Nos.4 and 5, during and in course of hearing, produced the original file bearing No. R/BP2A-0963/2008 for its perusal and the same is kept in record.

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11 . On perusal of the concerned file produced in Court, it is made to reveal that the application for regularization of existing S+4 and part of 5^th floor constructed over Plot No.181 by the petitioner was rejected in 2010. It is also made to suggest that such order of rejection was intimated to the petitioner, receipt of which, was acknowledged by him on 10^th December, 2010. It is further made to reveal from the file that while entertaining an application under the RTI Act,, a grievance petition was shown to have been received through mail for BDA Adalat to be held on 16^th April, 2013, later to which, Annexure-11 was referred to, since necessary compliance was awaited with a foot note ‘no reminder has been sent’ and “we may scrutiny again in detail and write for any compliances by Registered Post or show cause notice for any rejection or closure’. Interestingly, thereafter, again the rejection was reiterated with a decision on 9^th July, 2014 followed by an observation ‘put up show cause for rejection mentioning the reason’ apparently to intimate such reason behind the rejection for a reply to be invited from the petitioner. Even thereafter, the file reveals that the same was once again put up before the Planning Member with an office note that the petitioner may be

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called for with respect to the regularization under the Amnesty Scheme, 2008. The file does not reveal as to if any such decision and regularization of the unauthorized construction was finally taken by the authority concerned. Of course, once in 2010 and later in 2014, the case of the petitioner was considered and it was found not to be permissible for regularization of the alleged construction still in the year 2023, the file was once again put up for a hearing with a notice to the petitioner for a decision under the Amnesty Scheme. So to say, the Court does not find any final decision in view of the development taking place in 2014 and again in 2023. Though notings were made with suggestions that regularization of the construction cannot be allowed initially in 2010 and then in 2014 but on perusal of the file, it is made to understand that the case of the petitioner was once again taken up after receipt of a request via mail in 2013 and by placing the matter before the Planning Member of BDA in the month of April, 2022 with the above suggestion. In absence of any response/show cause invited from the petitioner and final orders on regularization of unauthorized construction though suggestions received against it, the Court is of the view that such a decision is required to be taken as per the Scheme in force read with the provisions of BDA (P&BS) Regulation, 2001, particularly, in view of the plea that Clause 3(ix) of the Scheme allowed it with NOCS obtained from the BMC and Fire Services and on submission of Structural Stability Certificate in the prescribed format. Whether such a provision is a onetime measure or regularization of the unauthorized construction at the behest of the petitioner is permissible as per the Scheme in consonance with the BDA (P&BS) Regulation, 2001 is needed to be examined since the decision thereon is yet to arrive.

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12 . Mr. Mohanty refers to Regulation 10 of the BDA (P&BS) Regulation, 2001 while claiming that compounding of the unauthorized construction is permissible with necessary NOCs furnished in compliance of Clause-3(ix) of the Scheme and with such compliance as per Annexure-7, it was to be considered. Even assuming that there has been decision by the concerned authority duly intimated to the petitioner in 2010 the fact which is stoutly denied by Mr. Mohanty, learned counsel for the petitioner but such request for regularization was again entertained in 2013-14 and it was most recently in 2023. When referring to the relevant clause of the Scheme, it is contended by Mr. Mohanty that the regularization may have to be allowed, the Court is of the view that a decision on the same is necessary to bring the dispute to an end for once and all. In fact, the counter affidavit of opposite party Nos. 4 and 5, with all fairness, acknowledge fresh engagement entertaining plea of the petitioner with reference to the application for regularization. Taking into account the above facts, the case of the petitioner should be examined unfailingly with a response from him. The impugned decision under Annexure-15 is on the premise that the application of the petitioner under the Amnesty Scheme was rejected perhaps being oblivious of the aforesaid developments having taken place. To reiterate, with the evidence received in connection with UAP Case No.217 of 2017, which is with regard to the alleged construction by the petitioner with deviation, whether it is compoundable or otherwise should be directed since it has not been finally examined leading to the disposal of UC Appeal No. 22 of 2019 on the premise of being rejected earlier. As The above is the conclusion of the Court in view of the peculiar facts and circumstances of the case when once rejection was suggested but again entertained in 2013 which resurfaced in 2019 and

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furthermore, on account of the fact that the same is to be examined with reference to the rules and regulation in place with an exercise by the authority concerned within a stipulated period.

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13 . Hence, it is ordered.

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14 . In the result, the writ petition stands allowed. As a necessary corollary, the impugned order under Annexure-15 passed in U.C. Appeal No.22 of 2019 by opposite party No.1 is hereby set aside with a direction to ensure its disposal afresh within next three months subject to decision on the request of the petitioner on regularization to be taken forthwith. It is made clear that any such decision in appeal shall be on merit and in accordance with law providing opportunity of hearing to the parties involved and without being influenced by any observations made herein above.

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15 . The original file bearing No. R/BP2A-0963/2008 produced during the hearing and retained by the Court be immediately returned to Mr. Mohapatra, learned Counsel for opposite party Nos.4 and 5 with an endorsement in record.

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(R.K. Pattanaik) Judge

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Balaram

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Signature Not Verified

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Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 24-Apr-2024 10:36:08

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W.P.(C) No.34272 of 2022 Page 10 of 10

M/S.Chitraka Eartmovers and Builders, Bbsr v. State of Odisha

Case brief

What is this about?

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M/S.Chitraka Eartmovers and Builders, Bbsr v. State of Odisha

Case brief

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