Orissa High Court
Mulchand Pandey & Another vs Executive Officer on 7 December, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.27067 of 2019
Mulchand Pandey & Another .... Petitioners
Mr. S. Udgata, Advocate
-Versus-
Executive Officer, Jharsuda & Another .... Opposite Parties
Mr. J.P. Patra, ASC
Mr. G.B. Singh, Advocate for Intervener
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
07.12.2023
Order No.
06. 1. Heard Mr. Udgata, learned counsel for the petitioners, Mr.
Patra, learned ASC for the State opposite party No.2 and Mr. Singh,
learned counsel for intervener in I.A. No.16544 of 2023.
2. Instant writ petition is filed by the petitioners challenging
the impugned notice under Annexure-3 issued by opposite party
No.1 on the grounds stated therein.
3. Mr. Udgata, learned counsel for the petitioners submits that
there has been no opportunity to show cause from opposite party
No.1 instead demolition has been directed vacating the schedule
land within 24 hours with issuance of notice under Section 273-A of
the Orissa Municipal Act (hereinafter referred to as 'the Act'), hence,
the impugned action is illegal and while contending so, he refers to
a judgment of this Court in Dr. (Mrs.) Bellarani Dutta Vrs.
Bhubaneswar Development Authority and Another Vol.32
(1990)OJD 423 (Civil).
4. Mr. Patra, learned ASC for the State opposite party No.2
submits that the action is at the behest of the local Municipality.
5. None has appeared for opposite party No.1 though notice
was issued long back. The record reveals that neither AD nor
unserved notice retuned back from opposite party No.1. However,
Postal Tracking Report as at Flag-C shows that notice was delivered
on opposite party No.1 on 13th January, 2020. Since no one
appears for opposite party No.1, the Court is inclined to dispose of
the matter, as it is a year-old one considering the submissions of Mr.
Udgata, learned counsel for the petitioners and State and also Mr.
Singh, learned counsel, who appears for the intervener.
6. In so far as, the petitioners are concerned, it is admitted that
they are is in occupation of the Govt. land. The action is at the
behest of opposite party No.1 with a notice vide Annexure-3 which
is in terms of Section 273-A of the Act. By such notice, the
petitioners have been directed to demolish the unauthorized and
illegal construction within 24 hours after receiving the same,
otherwise to face the consequence.
7. The decision in Dr. (Mrs.) Bellarani Dutta (supra) of this
Court concluded that without providing an opportunity to show
cause as required, demolition by the authority under the Act is
illegal. In the aforesaid case, the Executive Officer directed
demolition before a date fixed which according to the Court held
not to be in compliance of and with the requirements as stipulated
in Section 273-A of Act. It has been held therein that authority
vested with power under statute is to exercise jurisdiction in the
manner provided failing which, in case of prejudice, the same is to
be vacated.
8. Having regard to the legal position discussed, the Court is of
the conclusion that in the present case, the petitioners have been
directed to remove the structures within 24 hours without inviting
objection with an opportunity provided to file a show cause as it is
statutorily mandated. Notwithstanding such possession of Govt.
land by the petitioners, since law demands and in view of the
decision in Dr. (Mrs.) Bellarani Dutta (supra), the Court is of the
conclusion that the impugned notice under Annexure-3 is without
following due process of law without providing an opportunity of
hearing to show cause, so therefore, the same is liable to be
interfered with and set aside.
9. Hence, it is ordered.
10. In the result, the writ petition stands allowed. As a
necessary corollary, impugned notice under Annexure-3 issued by
opposite party No.1 is hereby set aside with a consequential
direction to opposite party No.1 to provide an opportunity to the
petitioners to show cause before proceeding against them as per
Section 273-A of the Act leaving it open for him to take appropriate
action in accordance with law. It is further directed that in case any
notice is issued as per Section 273-A of the Act, necessary exercise
shall be undertaken in accordance with law within a stipulated
period preferable eight week's from the date of notice issued and
served.
11. A certified copy of this order be granted as per rules.
(R.K. Pattanaik)
Judge
Tudu
