Minati Senapati vs Bhubaneswar Development
2021 Latest Caselaw 11560 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                              RSA No.379 of 2012

            Minati Senapati                         ....            Appellant
                                                               Mr.A.P. Bose
                                        -versus-

            Bhubaneswar Development                 ....          Respondent
            Authority


                      CORAM:
                      MR. JUSTICE D.DASH
                                        ORDER

11.11.2021 Order No.

03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).

2. The Appellant, by filing this Second Appeal under Section 100 of the Civil Procedure Code (for short, 'the Code') has assailed the judgment and decree passed by the learned District Judge, Khura at Bhubaneswar in R.F.A. No.56 of 2010.

By the said judgment, the First Appellate Court, while dismissing the Appeal filed by the Plaintiff-Appellant under section 96 of the Code, has confirmed the judgment and decree passed by the learned Civil Judge (Junior Division), Bhubaneswar in C.S. No.312 of 2006.

3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

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4. The case of the Plaintiff, in short, is that she is the daughter of one Kapila Charan Mohapatra, who was the original allottee of suit shop room situated in Block 'C' of Indradhanu Market Complex, Nayapalli, Bhubaneswar being assigned with number as F/G-97. It is stated that under an agreement dated 28.01.1992, the Bhubaneswar Development Authority, arraigned as the Defendant, had allotted said shop room to Kapila. He having died in the year 2003, the Plaintiff vide Office Order dated 30.03.2005, the same has been re- allotted in her name. As per Clause-8 of the said agreement, the allottee is not permitted to make any addition or alternation to the existing structures without obtaining prior permission of the Defendants in writing and without complying with the statutory provisions contained in Orissa Development Authorities Act, 1982 (hereinafter called as 'the ODA Act'). It is stated that for safety of the running of the business in the said shop room of an area of 1333.71 sq. ft, the Plaintiff when put some shutters gates at different portions, the nearby shop owners complained and then on 31.08.2006, the Revenue Inspector attached to the Defendant threatened to dispossess the Plaintiff from the suit shop room by cancellation of her allotment on the false allegation that she was changing the nature and character of the shop premises. So, the Suit came to be filed as the Plaintiff apprehended illegal dispossession and interference in her peaceful possession of the suit shop room.

5. The Defendant, filing the Written Statement, alleged that the Plaintiff, has made addition and alternation in the suit

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premises without their prior permission and has thus also violated the provisions of the ODA Act. It is said that UAP Case No.105 of 2003 under the ODA Act had been initiated against the Plaintiff and by order dated 28.7.2003, she was directed to remove the unauthorized structure. It is further stated that the Civil Court has no jurisdiction in the matter to entertain the Suit for injunction, as prayed for.

6. The Trial Court having found from the evidence that the Plaintiff has made addition and alteration violating the condition as at Clasue-8 of the agreement as well as the statutory provisions contained in section 15 and 16 of the ODA Act refused to grant the relief of permanent injunction restraining the Defendant from cancelling the allotment and entering into the possession of the suit shop room.

7. The unsuccessful Plaintiff having carried the Appeal under section 96 of the Code before the First Appellate Coiurt has also failed therein.

8. Heard Mr.A.P.Bose, learned counsel for the Appellant in the matter of admission of the Appeal.

It is submitted that the finding of the First Appellate Court that provision of sections 15 and 16 of the ODA Act stand as a bar for said alterations without written permission cannot be sustained as the said act of the Plaintiff in putting the shutters at different points of the suit shop room does not come within the meaning of 'development'. According to him, above

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is the substantial question of law that arises in the case for being answered.

9. Keeping in view the submissions made, I have gone through the judgments passed by the Courts below.

10. Admittedly, Clasue-8 of the agreement under which the Plaintiff is occupying suit shop room prohibits the allottee from for carrying out any addition or alternation to the existing structure without prior written permission of the Defendant and without complying the guiding provisions of the ODA Act. Section 16 of the ODA Act says that for the purpose of carrying out any development, an application in writing to the Authority has to be first made seeking permission and it can only be carried out after said permission is granted. The term 'development' as defined in the ODA Act means making any material change in the building and includes reconstruction. On going through the evidence, the action of the Plaintiff in putting shutters gates at different point of time of the suit shop room has been found by the Courts below as addition and alteration to the existing structure. This Court finds no such reason to take a different view as regards that matter. Thus, the act of the Plaintiff comes within the meaning of 'development' as defined in the ODA Act. The Courts below thus found to have not at all fallen in error in saying so.

In that view of the matter, this Court is not in a position to accept the submission of the learned counsel for the Appellant. Accordingly, holding that no substantial question of

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law arises in this Appeal standing to be answered, this Appeal stands dismissed. No order as to costs.

(D.Dash) Judge

Basu