Orissa High Court
Sri Santosh Kumar Sahu And vs State Of Odisha And Others on 23 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WRIT PETITION (CIVIL) Nos.2376 and 8991 of 2021
(Applications under Articles 226 and 227 of the Constitution of
India)
W.P.(C) No.2376 of 2021
Sri Santosh Kumar Sahu and .... Petitioners
Another
-versus-
State of Odisha and Others .... Opposite Parties
AND
W.P.(C) No.8991 of 2021
.... Petitioner
Sri Basant Kumar Shaw
-versus-
State of Odisha and Others .... Opposite Parties
Appeared in this case:
For Petitioner(s) : Mr. Ranjan Ku. Nayak, Advocate
In W.P.(c) No.2376/2021
Mr. Karunkar Rath, Advocate
In W.P.(C) No.8991/2021
For Opposite Parties : Mr. Samir Kr. Mishra, Advocate
In W.P.(C) No.2376/2021
Mr. Manas Behari Agasti, Advocate
Mr. D.P. Mohanty, Advocate
For the Interveners in W.P.(C) No.8991/2021
Mrs. Saswata Pattnaik
Mr. P.K. Muduli
Additional Government Advocates for the State
In both the writ petitions
W.P.(C) Nos.37571 and 37572 of 2020 Page 1 of 17
CORAM:
THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
JUDGMENT
23.08.2021
Dr. S. Muralidhar, CJ
1. Both the writ petitions involve a common question concerning
the precarious condition of the Flyover Bridge at 6/400 km on
Balasore By-Pass road in Balasore district, Odisha requiring
structural rehabilitation. Accordingly, both the petitions are being
disposed of by this common judgment.
2. Writ Petition (Civil) (PIL) No.2376 of 2021 has been filed by
two residents of P.S. Sahadevakhunta, district Balasore as a
Public Interest Litigation (PIL) seeking to ventilate the grievance
of a large number of residents of Balasore aggrieved by the
inaction of the authorities for structural repairing and
rehabilitation of the aforementioned Flyover Bridge.
3. It is stated that the said Flyover Bridge was inaugurated on 14th
April, 1984. It is the only means of communication to several
institutions located in and around Balasore. It connects the surface
transport system to the neighbouring Mayurbhanj District
bordering West Bengal as well as to the densely populated areas
such as Baliapal, Bhograi, Jaleswar and Basta. According to the
Petitioners, within a span of 36 years, due to poor or non-existent
repair and maintenance work, the Flyover Bridge has become
dilapidated, endangering human life and property. It is stated that
on 24th November, 2014 while a Senior Advocate Harish Chandra
Mohanty and his son Advocate Pritisovan Mohanty were coming
from the Court of the District Judge, Balasore after completion of
their court work to the Bar Association hall a speeding bus fell
down on them from the said fly over bridge as a result of which
Advocate Harish Chandra Mohanty died on the spot and his son
Pritisovan Mohanty though survived due to persistent efforts of
the doctors but was rendered permanently immobile.
4. It is stated that the Civil Society, Balasore has been raising a
demand since 2012-13 but no action was taken. The Executive
Engineer (R & B) Division-I, Balasore (Opposite Party No.6) had
by letter dated 25th June, 2018 informed that for repairing and
maintenance of the Flyover bridge an estimated cost of Rs.892.43
lakh have been approved. A letter dated 20th September, 2018
from the Engineer-in-Chief, Unit-V, Bhubaneswar to the
Superintending Engineer (AC), Eastern Circle, Balasore stated
that M/s. Concrete Structural Consultant, Bangalore had prepared
a detailed report after conducting a survey.
5. It is pointed out that there are shop keepers/vendors beneath the
Flyover Bridge, Balasore who had made holes in the central
pillars under the bridge. They had used marble and granite tiles
thereby causing damage to the concrete plinth areas in the ground
level. It is contended that as a result thereof the entire structure of
the Flyover Bridge has become weak rendering it accident prone.
Further because of the existing market complex under the Flyover
Bridge no maintenance or repair work could be proceeded with.
6. It is pointed out that the Collector, Balasore (Opposite Party
No.4) had convened a meeting by a letter dated 20th September,
2018 to undertake the repair work through a tender process. On
31st August, 2019 a letter was written by Opposite Party No.6 to
Opposite Party No.4 with a request to evict the unauthorized
encroachers under the Flyover Bridge to facilitate the starting of
repairs. When these efforts were in vain, the present petitions
were filed.
7. The first writ petition was filed on 20th January, 2021. On 5th
March, 2021 the accompanying writ petition i.e. W.P.(C) (PIL)
No.8991 of 2021 was filed seeking more or less the same reliefs
by the members of the Civil Society, Balasore. The prayer in both
the writ petitions was for a direction to the Opposite Parties to
undertake repairs and renovate and rehabilitate the Flyover Bridge
from Fakir Mohan Golei to Sahadev Khunta Bus Stand from the
Railway line connecting the Eastern and Western parts of
Balasore town. A specific prayer in the second petition was to
quash a letter dated 4th December, 2020 issued by the Sub-
Collector, Balasore stating that the work of dismantling the
existing structure of shopping complexes under the Flyover
Bridge scheduled to be undertaken on 7th December, 2020 was
postponed.
8. In response to both the writ petitions, counter affidavits have
been filed by the Opposite Parties inter alia agreeing that the
Flyover Bridge required repairs and that since the shop
keepers/vendors had made holes in the pillars to fix shutters
without permission from Public Works Department (PWD), such
illegal construction had necessitated the repairs to the Flyover
Bridge. It is pointed out that the order dated 4th December, 2020
issued by the Collector, Balasore intimating that dismantling of
the existing shop room complex would be undertaken on 7th
December, 2020 was challenged in W.P.(C) No.23557 of 2020 in
this Court. The said writ petition was disposed of on 13th October,
2020 by this Court with the observation that:
"....since the parties have admitted that the
petitioners are occupying a portion of the site under
the existing Fly Over bridge and carry out their
business for their livelihood, they should be
protected under the Street Vendor (Protection of
Livelihood and Regulation of Street Vending) Act,
2014. Earlier in a batch of Writ Petitions filed by
many such street venders, the opp. parties were
directed to consider the case of the petitioners, but
the opp. parties without considering the case of the
petitioners passed the impugned order which smacks
the insensitivities of the authorities and is not
sustainable in the eye of law."
9. Accordingly, the following directions were issued:
"Accordingly, this Court sets aside the impugned
order dated 05.08.2020 passed by the Collector and
District Magistrate, Balasore-opp. party no.2 vide
Annexure-4 and direct him to invite the petitioners
for appearance before him and give them an
alternative site for carrying out their 4 business for
their livelihood as mandated by the statute and
thereafter he may direct for repair work of the
existing Fly Over bridge. The above exercise shall
be completed within a period of two weeks from the
date of receipt of copy of this order. The Opp. Party
No.-2 is also directed not to evict the street venders
without making arrangement for an alternative site
for vending activities of the petitioners."
10. Earlier to the above orders, a series of orders have been passed
in the petitions of the shop keepers by this Court permitting them
to file a representation ventilating their grievances. An order dated
5th August, 2020 of the Collector, Balasore on these
representations is significant. The relevant portion of the said
order reads as under:
"Pursuant to the above kind orders of Hon'ble High
Court, Misc. Case No.1/2020 to 25/2020 have been
instituted in this court. Notices have been served
upon the Petitioner to appear and say their side.
Cases were taken up on 2.7.2020. Advocate for the
petitioners submitted case of his clients.
He submitted that announcement has been made by
the BRIT, Balasore to evict and demolish their shops
without any written notice. But documents depict
that out of 25 petitioners, in 25 writ petitions, only
11 petitioners were given lease for that shops, they
are Sri Manoranjan Behera, Harapriya Mohapatra,
Raghunath Sahu, Ranjan Kumar Bang, Sideswar
Saha, Sukumar Dey, Sephali Sinha, Sk. Zahid,
Manoj Kumar Modo, Trilokinath Modi & Banchu
Madhab Prasad. They have been duly noticed along
with the other 138 private shopkeepers (who have
not been leased out in the 3rd week of February,
2020. Hench, their averment in regard to non service
of written notice is not true.
In the notice it was mentioned that the entire
underneath space of Fly Over Bridge need to be
vacated for safe execution of work.
The Petitioners claim themselves to be street
vendors. But as per street vendors Act, 2014, street
vendors means a person engaged in vending of
articles, goods, works, food items or merchandise of
everyday use or offering service to the general
public, in a street, lance, side walk, footpath,
pavement, public park or any other public place or
private area, from a temporary built up structure, or
by moving from place to place and includes hawker,
peddler, squatter and all other synonymous terms,
which means be local or region specific.
The word street vendor is not appropriate to the
petitioners for the reason that the Fly Over was
inaugurated on the 13th April, 1984. For organized
development of this space (i.e. underneath of the Fly
Over) for shops and to beauty by the tower, the
Hon'ble Chief Minister laid down foundation of the
Fly Over Shopping scheme. This shows that the
shopkeepers were not street vendors. Rather they
continued their business in the said shopping
complex.
Lease was given to the lease holders with agreement
for renewal after 11 months and they have to pay
monthly rent for their such occupation. Hence the
petitioners have paid their rent up to Feb., 2020.
None has renewed the lease after 1st term of 11
months.
However, in the lease agreement the Petitioners have
agreed that the lease should make available the
underneath surface of the bridge of taking all types
of repairs to the bridge in future.
The Executive Engineer, Balasore (R & B) Division
No.1 in his Letter No.9930/dtd. 26.7.2019 has
initiated the Collector and District Magistrate that
the Fly Over Bridge on ole N.H. 5 (Balasore By
Pass Road) at 6/400 km at F.K. Golei Chhak, O.T.
Road was constructed and opened to traffic during
the year 1984. It is the 1st FOB, of Odisha, which is
35 years Old, due to prolonged playing of traffic on
the carriage way of existing FOB, the expansion
joint petitions have been severely damaged with
exposure of reinforcement in some places. The
concrete patches at some points have started scaling.
The wearing coat on the Bridge carriage way is to be
repaired and replaced with a new one. The bearing
of the Bridge are to be replaced with new bearing.
The rehabilitation work of Desk Slap, Girders, piers
and parapets, painting, replacement of drainage sport
and estimate for the same has been prepared and
submitted to the Chief Engineer (DPI & Roads)
Odisha, Bhubaneswar vide his Office L. No.1694 dt.
2.2.2029 for according administrative approval and
Technical sanction.
The E.E. Balasore (R & B) Division-I also has
intimated that in the meantime tender for the same
has been invited by the Chief Engineer. Soon after
finalization of tender at Chief Engineer level, the
Repair and Rehabilitation of Fly Over Bridge will
be taken up.
The Executive Engineer further has mentioned that
the under space of the existing Fly Over Bridge has
been un-authorizedly occupied by many
shopkeepers and vendors, which are to be
evicted/removed before commencement of work for
deploying men and wearing machineries for
execution of rehabilitation work.
The above discussion explains urgency of repair
works of the Fly Over Bridge which is coming under
development work and impending danger, if the
repair work is not taken up immediately. Being life
line of the citizens of Balasore Town repair of the
Fly Over Bridge is necessary and unavoidable.
In view of the above, the Secretary BRIT, Balasore
is directed to announce forthwith in the area for the
shopkeepers to vacate the shops and remove their
goods/property by16.8.2020 positively so that the
surface i.e. the underneath of the Fly Over Bridge is
made available from encroachment to the E.E. (R &
B) Division-I Balasore for taking up their works.
Copy of the order be given to the Executive Officer.
Balasore Municipality for his co-operation in the
matter.
Accordingly this case is disposed of."
11. When these matters were taken up for hearing by this Court
on 22nd April, 2021 the following order was passed:
"1. These matters are taken up by video
conferencing mode.
2. The Court has viewed the video prepared of the
flyover bridge at Balasore. It is obvious from the
said video as well as the photographs appended to
the compliance affidavit filed by the Chief Engineer
(DPI & Roads), Mr. Manoranjan Mishra on 19th
April 2021, that the present condition of the flyover
bridge is indeed deplorable with clearly visible
cracks and the withering away of the joints. To say
the least, the flyover bridge appears to be in a
precarious condition, needing urgent repairs.
3. Mr. Manoranjan Mishra, Chief Engineer (DPI &
Roads), has appeared on virtual link and explained
to the Court the proposal to repair the flyover bridge
by resorting to shut down during the night between
10 pm and 6 am for a period of over 90 days for
replacement of bearings, fixing expansion joints,
lifting of the girders and slabs and so on.
4. One major hurdle to commencing the repair work
is the shops just below the flyover bridge which are
visible in the video. It appears that in relation
thereto, earlier W.P.(C) No.23557 and 23560 of
2020 were filed by Sidheswar Saha and others in
this Court claiming to be shopkeepers in possession
of the shops just below the flyover bridge. The said
writ petitions were disposed by a Division Bench of
this Court by a common order dated 13th October,
2020. By the said order, the Court accepted the plea
of those Petitioners that they should be protected
under the Street Vendor (Protection of Livelihood
and Regulation of Street Vending) Act, 2014 ('the
2014 Act'). The Collector and District Magistrate,
Balasore (Opposite Party No.4 herein) was asked to
invite those Petitioners and give them an alternative
site for carrying out their business for their
livelihood as mandated by the 2014 Act and
thereafter undertake the repair work of the flyover
bridge.
5. Mr. P.K. Muduli, learned Additional Government
Advocate for the State-Opposite Parties states that
the above exercise was directed by this Court to be
completed within two weeks of 13th October, 2020.
However, although an alternative site was ready,
none of the shopkeepers agreed to move there. He
points out that on the other hand one of them, Sk.
Jahid, has filed an intervention application i.e. I.A.
No.6464 of 2021 in W.P. (C) 8991 of 2021 praying
that he should be rehabilitated in the same shop
room below the flyover bridge after its renovation.
Mr. Muduli points out that this is contrary to the
relief already granted in favour of the shopkeepers.
6. It appears to this Court that since the repair of the
flyover bridge will require complete shutting down
of the shops, it is necessary that the shopkeepers
must be heard in the present proceedings. Learned
counsel for the Petitioner has not taken the steps to
implead them although it ought to have been done.
7. Therefore, in the interests of justice, notice is
directed to be issued, in both writ petitions, to
Opposite Party - Secretary, Balasore Regional
Improvement Trust (BRIT) by Registered/Speed
Post with A.D. making it returnable by the next date.
A copy of the present order as well as the previous
order dated 12th April, 2021 and the copies of the
present petitions shall be enclosed with the notice.
Requisites be filed within a week. Tracking report
be placed on record by the next date.
8. Mr. R.K. Nayak, learned counsel appearing for
the Petitioners in W.P.(C) No.2376 of 2021
undertakes to ensure the copies of said writ petition
accompanied by copies of the order dated 12th April
2021, as well as the today's order passed in these
petitions is served on the aforementioned shop
keepers (i.e. Petitioners in W.P.(C) Nos.23557 and
23560 of 2020).
9. List on 12th May, 2021.
10. The personal appearance of Mr. Manoranjan
Mishra, Chief Engineer (DPI & Roads) is dispensed
with for the time being.
11. As the restrictions due to resurgence of COVID-
19 situation are continuing, learned counsel for the
parties may utilize a printout of the order available
in the High Court's website, at par with certified
copy, subject to attestation by the concerned
advocate, in the manner prescribed vide Court's
Notice No.4587, dated 25th March, 2020 as
modified by Court's Notice No.4798, dated 15th
April, 2021."
12. Thereafter on 23rd June, 2021 the following order was passed:
"1. This matter is taken up by video conferencing
mode.
2. Mr. Samir Kumar Mishra has filed his
vakalatnama on behalf of Opposite Parties.
3. Since the entire pleadings of the present Writ
Petition are similar with the connected case W.P.(C)
No.8991 of 2021, learned counsel appearing for the
said Petitioner will ensure that the complete set of
pleadings in the aforesaid Writ Petition are also
served on Mr. Mishra within a week.
4. Specific to the issue raised in Paragraph 5 of the
order dated 22nd April, 2021, Mr. Mishra states that
the learned Additional Government Advocate can
provide the details of the alternative site given to the
shopkeepers. Learned Additional Government
Advocate will provide such details to Mr. Samir
Mishra within ten days to enable him to seek
instruction and inform the Court of the consent of
the shopkeepers to move to such alternative site.
5. List it on 5th August, 2021.
6. In the meantime, the directions issued in
Paragraph No. 5 of the order dated 12th April, 2021
be complied with.
7. As the restrictions due to resurgence of COVID-
19 situation are continuing, learned counsel for the
parties may utilize a printout of the order available
in the High Court's website, at par with certified
copy, subject to attestation by the concerned
advocate, in the manner prescribed vide Court's
Notice No.4587, dated 25th March, 2020 as
modified by Court's Notice No.4798, dated 15th
April, 2021."
13. On the next date i.e. on 9th August, 2021 the following order
was passed by this Court:
"1. This matter is taken up by video conferencing
mode.
2. An affidavit has been filed on behalf of Opposite
Party No.6 i.e. the Executive Engineer, Balasore (R
& B) Division-I, Balasore on 3rd August, 2021
enclosing the copy of the minutes of the meeting
dated 15th July, 2021 held with the shopkeepers
who were having shops under the Fly Over Bridge,
Balasore.
3. A copy of the above affidavit and the enclosures
be served on Mr. Mishra, learned counsel, who
appears on behalf of the private Opposite Parties
within the next two days to enable him to seek
instructions and file a response affidavit if any
thereto before the next date.
4. Para-4 of the order dated 23rd June, 2021 passed
by this Court be complied with forthwith by
providing the relevant details to Mr. Samir Kumar
Mishra, learned counsel appearing for private
Opposite Parties.
5. List on 23rd August, 2021."
14. An affidavit dated 22nd August, 2021 has been filed on behalf
of the shopkeepers in which inter alia it is stated in paras 3 to 6 as
under:
"3. That in the meeting held under the chairmanship
of Collector, Balasore the following sites have been
proposed.
i. Khruda-Tamuali road side
ii. Tamulia ROB-ITI Chhaka.
iii. Bampada road side
So far as the site at serial no.1 is concerned the same
is located at 5.8 kilometers away from the township
and as such not suitable for carrying out the vending
activities by the opposite parties.
So far as the site no.2 is concerned the same is 4.2
Kilometers away from the township and therefore
not suitable for business activities.
Likewise, the site at serial no.3 is concerned the
same is 5.1 Kilometers away from the township and
therefore, not suitable for relocation of the vendors-
opposite party.
4. That it is humbly submitted that none of the above
sites are having habitation nearby so as to enable the
opposite parties to carry out their business activities.
In the meeting held by the Collector, the vendors
have proposed to relocate them in the public park
located adjacent to the fly over bridge.
5. That the vendors-opposite parties earn their
livelihood by their business activities and unless
they are suitably relocated, they will be deprived of
their daily source of substance.
6. That the vendors-opposite party have also
requested the Collector, Balasore by filing a petition
to bring them back to their respective places after
the repairing of the bridge is over.
The copy of the petition filed before the Collector,
Balasore is annexed as Annexure-A/15.
It is humbly submitted that at present the repair of
the bridge is going on and wherever it is necessary
to vacate the premises temporarily, the venders are
vacating the same for smooth repair of the bridge."
15. This Court has heard the submissions of Mr. K.K. Rath and
Mr. R.K. Nayak, learned counsel appearing for the Petitioners,
Mr. Samir Kumar Mishra, learned counsel for the Opposite
Parties (shopkeepers) and Mrs. Saswata Pattnaik, learned
Additional Government Advocate as well as Mr. P.K. Muduli,
learned Additional Government Advocate for the State.
16. The decision dated 5th August, 2020 of the Collector, Balasore
clearly indicates that none of the shopkeepers can be categorized
as street vendors in terms of the Street Vendors Act, 2014.
Consequently, the question of rehabilitating them in terms thereof
does not arise.
17. The fact that the Flyover Bridge is in a precarious condition
and is posing a grave threat to the heavy traffic plying thereon is
not in dispute at all. Every passing day there is real and imminent
threat to the safety of the users of the Flyover Bridge. Equally, the
shopkeepers operating under the Flyover are also subjecting
themselves unnecessarily to a great risk. It may be mentioned at
this stage that certain shopkeepers have also filed intervention
applications in both these writ petitions and have also been heard
in those applications.
18. There is an urgent need to immediately begin the repairing of
the aforementioned nearly 40 year old Flyover Bridge in order to
ensure safe and hazard free transportation for the users of the Fly
Over Bridge. In other words, it can break no further delay.
19. To the Court, it appears that the shopkeepers are not being
reasonable in rejecting all the three alternative sites that have been
offered to them by the Collector, Balasore. The shopkeepers
cannot insist that they will not move any of those alternative sites.
20. Mr. Samir Kumar Mishra, learned counsel for the shopkeepers
(opposite parties) realize that their attitude has to be one of the
cooperation since the Flyover Bridge is a lifeline for the whole
Balasore city and it is nobody's interest to let it continue in such a
precarious stage. He did try to point out that the shopkeepers have
in fact vacated their shops to facilitate the repairs and referred to
some photographs enclosed with the recent affidavit. However,
this is disputed by some of the Petitioners.
21. Nevertheless, keeping in view the public interest and the
interest of safety of the residents of Balasore, the Court issues the
following directions:
(i) within a period of two weeks, and in any event, not
later than 15th September, 2021 the shopkeepers will have
to opt for one of the three sites, failing which the
Collector, Balasore is authorized to pass an order
indicating which of the three sites will be earmarked for
the shopkeepers to move therein;
(ii) within a further period of 15 days thereafter all the
shopkeepers will move into the earmarked site, perhaps
into temporary structures that may be erected there in co-
operation with the local admininstration, failing which the
Collector is authorized to take steps, if necessary with the
help of the police, to evict the shopkeepers by removing
their articles and clearing out all the spaces occupied.
(iii) Even at this stage, it will be open to the shopkeepers
to come forward to collect their belongings failing which
for a period of ten days, the Collector will store the
belongings in some secure place to which the shopkeepers
can come and collect their belongings on proper
identification.
(iv) The repair work will be taken up immediately
thereafter by making all the necessary arrangements as
already decided. The Collector, Balasore will endeavour
to complete the repair works as early as possible. It is
made clear that the shopkeepers will not to come back to
the old sites once the repairs are carried out.
22. It will be open to any of the parties to apply to the Court if there is
any difficulty in carrying out the above directions.
23. The writ petitions are disposed of in the above terms, but in the
circumstances, with no order as to costs.
24. An urgent certified copy of this order be issued as per rules.
(S. Muralidhar)
Chief Justice
(B.P. Routray)
Judge
S.K.Jena/PA
