Smt. Namita Mahapatra vs Bhubaneswar Development ...
2021 Latest Caselaw 10670 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                     W.A. No.342 of 2021
               Smt. Namita Mahapatra                       ....          Appellant
                                                     Mr. A. C. Swain, Advocate
                                    -versus-
               Bhubaneswar Development Authority
               and Others                        ....                Respondents
                         Mr. D.K. Mohanty, Additional Government Advocate
                                       Mr. Dayananda Mohapatra, Advocate

                     CORAM:
                     THE CHIEF JUSTICE
                     JUSTICE B. P. ROUTRAY
                                      ORDER

Order No. 5.10.2021

05. 1. The present appeal is directed against an order dated 31st March, 2021 passed by the learned Single Judge in W.P.(C) No.10740 of 2021, the operative portion of which reads as under:

"A notice has been issued by the Bhubaneswar Development Authority against the petitioner in a proceeding in UPA Case No.427 of 2010. The petitioner is stated to have filed a show cause, questioning the jurisdiction of the B.D.A. over the property in question on the ground that, the said property comes under the jurisdiction of the concerned Grama Panchayat. The case is stated to have been posted to 06.04.2021. As the petitioner is stated to have filed the show-cause, it is premature to entertain the writ application at this stage.

The petitioner, if so advised, may contest the proceeding, as she has filed the show cause and the appropriate authority of the B.D.A. is directed to decide the issue of

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jurisdiction along with other issues, while disposing of the UPA Case No.427 of 2010.

It is obvious that, no coercive action shall be taken against the petitioner till disposal of the aforesaid proceeding. The writ application is accordingly disposed of."

2. In the present writ appeal an order was passed by this Court on 27th April, 2021 referring to judgment of this Court in Jagdish Prasad Naik and Ors. v. State of Orissa and Ors., 114(2012) CLT

119.

3. Counsel for the Appellant insists that in view of the above judgment, the BDA has no jurisdiction to issue the impugned show cause notice. He further submits that the above judgment has been brought to the notice of the BDA in the reply filed to the show cause notice.

4. The Court cannot proceed on presumption, when no final order has been passed by the BDA on the show cause notice, that it will not take into account the above judgment while passing the final order.

5. Consequently, leaving it open to the Appellant to raise all the grounds raised both in the writ petition as well as in the present appeal in response to the show cause notice, the Court declines to interfere.

6. The learned Single Judge has already protected the Appellant by directing that no coercive action be taken against the Appellant till

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disposal of the show cause notice. That interim order will continue as directed.

7. The writ appeal is accordingly disposed of.

8. An urgent certified copy of this order be issued as per rules.

(Dr. S. Muralidhar) Chief Justice

( B.P. Routray) Judge M.K. Panda