Bhubaneswar Municipal ... vs Siba Narayan Patra & Ors
2023 Latest Caselaw 1124 Ori

         ORISSA HIGH COURT : C U T T A C K
                       RVWPET NO.145 OF 2020
      An application under Order 47 Rule 1 read with Section 114 of the
                       Code of Civil Procedure


Bhubaneswar Municipal Corporation                  : Petitioner

                                -Versus-

Siba Narayan Patra & ors.                          : Opposite Parties


      For Petitioner                  : M/s.P.K. Mohanty, Sr.Adv.,
                                        P.Mohanty, P.K.Nayak,
                                        P.K.Pasayat, Mrs.J.Mohanty
                                        & S.N.Dash

      For O.Ps.                       : M/s.M.K.Mishra, Sr.Adv.
                                        Mr.S.N.Das, Adv.
                                        Mr.U.K.Sahoo, ASC
                                        Mr.P.K.Parhi, DSGI

                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of Hearing & Judgment : 02.02.2023

1. The Review Petition involves the following prayer :-

"It is therefore prayed that this Hon'ble Court may graciously be pleased to consider the aforesaid submissions, facts and grounds and accordingly, review the order dated 18.3.2019 by such further modification and/or clarification and/or by recalling the said order dated 18.3.2019 (i.e. passed in WP(C)

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No.18168/08 and WP(C) No.7597/2013, vide Annexure-1 series...."

2. Reading the above prayer, it appears through the Review Petition,

intention of the Bhubaneswar Municipal Corporation (BMC) is either for

modification and/or clarification involving the order dated 18.3.2019

passed in W.P.(C) No.18168 of 2008 appears to have been disposed of

along with W.P.(C) No.7597 of 2013. The Review Petition is clearly

based on their pleadings through Paragraphs-10 & 11 therein.

3. Advancing his submission, Mr.Mohanty, learned senior counsel for

the Petitioner (BMC) taking this Court to the plea taken in Paragraphs-10

& 11 of the Review Petition, the grounds raised therein and reading

through the provision at Section 489 of the Orissa Municipal Corporation

Act, 2003 submitted that unless there is approval and/or sanction of the

Competent Authority in the Housing and Urban Development

Department, the Municipal Corporation is getting difficulty in working

out the direction of this Court. In the circumstance and reading through

the provision at Section 489 of the Act, Mr.Mohanty, learned senior

counsel for the Petitioner attempted to satisfy such grounds while

pursuing his remedy under the Review Petition involved herein asking for

a direction also the Housing and Urban Development Department

competent to come to the rescue of the Municipal Corporation in the

working of the Resolution dated 28.4.2017 and the direction of this Court

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in the disposed of Writ Petitions. Mr.Mohanty in the circumstance, claims

review of the order involved herein.

4. Mr.M.K.Mishra, learned senior counsel for the contesting Opposite

Parties, however, though has no objection to the clarification of the order

to the extent even involving the Housing and Urban Development

Department in giving full compliance to the Resolution dated 28.4.2017

and the direction in the disposed of Writ Petitions involved herein in

reference to the provision to Section 489 of the Act submitted, the role of

the Housing and Urban Development Department becomes automatic.

Mr.Mishra further to substantiate the claim of the Petitioners involving

the Writ Petition took this Court to the Resolution of the BMC dated

28.4.2017 at Page-100 of the Brief of W.P.(C) No.18168 of 2008 and

reading through the Resolution, submitted, the claim of the Petitioners in

the said Writ Petition has a source through the Housing and Urban

Development Department Resolution No.2441-VOOO 37/87 HUD dated

24.6.1987 thereby handing over all the tenements being 1270 in numbers

also along with handing over of 148 tenements in Kharavelanagar N.A.C.

Colony. Mr.Mishra through the said Resolution submitted, the Resolution

further depicts, there has been intervention of the Hon'ble Minister of

Housing and Urban Development Department involving such decision in

its meeting dated 11.1.2008 and 12.9.2014. It also clearly discloses, there

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is already a direction for handing over the tenements involved therein to

the long occupiers.

It is at this stage, Mr.Mishra, learned senior counsel for the

contesting Opposite Parties drawing attention of this Court to Annexure-3

of the Review Petition and reading through the same brings to the notice

of the Court that after the judgment of the Court passed in the above two

Writ Petitions, the BMC itself issued a communication on 4.12.2019 to

the Director, Municipal Administration & Ex-Officio, Additional

Secretary to Government, Housing and Urban Development Department

seeking their clarification/instruction on implementation of the order

involved thereby also giving reference to the Resolution of the Housing

and Urban Development Department dated 6.7.1987. It is at this stage,

answering to the claim of Mr.Mohanty, learned senior counsel for the

Petitioner on Section 489 of the Act comes into play, Mr.Mishra, learned

senior counsel contended, there is no need in interfering or modifying the

order of this Court in the Writ Petition involved except if it is so

necessary, there may be clarification extending the direction for also

involvement and compliance of the direction by the Housing and Urban

Development Department. It is in the above background, Mr.Mishra,

learned senior counsel claims, there is in fact no necessity in clarifying or

interfering with the order in entertainment of the Review Petition, as there

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is automatic pressing of Section 489 of the Act applying to both Parties

involved herein and in no circumstance, O.P.1, the Housing and Urban

Development Department can wriggle out of the direction involved

herein.

5. Considering the rival contentions of the Parties, this Court getting

through the findings and observations of this Court in W.P.(C) No.18168

of 2008, first of all finds, there was no requirement for delving into much

for there is some sort of consent by the learned counsel for the BMC on

order of this Court in the Writ Petitions disposed of earlier indicated in

the order involved being applied to the case and for clear provision at

Section 489 of the Act, the role of O.P.1, Housing & Urban Development

Department is well invited and there needs no clarification to the order

involved. Be that as it may, in the further consideration through the

Review Petition and as gathers from the submission of both the Counsel,

this Court here finds, the matter involves a Resolution of the BMC itself.

Through their Resolution dated 28.4.2017 at Proposal No.6(3) therein,

there is already decision by the BMC in involvement of 148 tenements

involved herein also dependent on the Resolution of the Housing and

Urban Development Department bearing No.2441-VIII 37/87 HUD dated

24.6.1987, further also the BMC Resolution dated 28.11.1998 and also in

the inclusion of decision of the Minister of Housing and Urban

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Development Department dated 11.1.2007 and 12.9.2014 in the matter of

delivery of possession of tenements involved herein. This Court here

takes into account the pleading of the BMC in the Review Petition

through Paragraphs-10 & 11 herein reading as follows :-

"10.That, the Hon'ble Court ultimately, while considered the writ petition No.18168/2008 also 7597/2013 as the same are similar, by the order dated 18.03.2019 disposed of the writ petitions only considering the averments made in the writ petition, counter affidavit of BMC and learned counsel appearing for the writ petitioners and for the BMC. Then, taking into consideration the Government of Odisha in Housing & Urban Development Department Circular dated 24.6.1987 vide Annexure-4 to the writ petition i.e. WP(C) No.18168/2008 and Annexure-3(1) of W.P.(C) No.7597/2013 and on following the judgment of the Hon'ble Court in WP(C) No.7219/2016 and WP(C) No.15157/2016, disposed of on 16.3.2017 in respect of CMC, construing the same, to be the similar case, covering the case of the writ petitioners and also as not being in disagreement by both the learned counsels directed the BMC to pass order settling the tenements in favour of the petitioner by passing appropriate order within a period of 2 months from the date of communication of the order. The said order dated 18.3.2019 of the Hon'ble Court was received by the office of the BMC on 9.4.2019. After receipt of the said order, the matter was thoroughly examined at the concerned section including the legal section and then after taking legal consultation from their learned counsel also, communicated to the administrative department of the Municipal Corporation i.e. O.P. No.95 of this review petition, the Opposite Party No.5 to the writ petition, the Director, Municipal Administration, Odisha Secretariat, Bhubaneswar for such instruction for taking decision, as the tenements have been constructed over the Govt. land of G.A. department with the funding of the State Government as well as Central Government, which comes squarely under the purview of the section 489 of the OMC Act, 2003 which enjoins that, "The tenure on government land shall be governed by the corporation to all residents on tenable sites and full property rights shall be granted on resettlement or rehabilitation sites with previous sanction of Government" in letter No.34419 dated 4.12.2019 of

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the Commissioner, BMC addressed to the Director, Municipal Administration and Ex-Officio Additional Secretary to Government, Housing and Urban Development Department, Bhubaneswar. A copy of the said letter No.34419 dated 4.12.2019 of the Commissioner, BMC addressed to Director, Municipal Administration is annexed herewith as Annexure-3.

11. That, while awaiting of such further instruction in the mater, pursuant to the aforesaid letter dated 4.12.2019 of the Commissioner, BMC, since the matter was further delayed and also in the meanwhile, and there was every chance of making allegations in this Hon'ble Court about non-compliance of the said order because of various constraints of law, the order sought to be reviewed also suffers from error apparent on the face of record, it could not be considered as being not properly passed, it has been necessary to file the instant writ petition for review of the said order dated 18.3.2019, besides the aforesaid grounds, also on the grounds stated herein below."

6. It is at this stage, reading through the above, this Court finds, the

BMC has the only worry in working out the direction of the order of this

Court in W.P.(C) No.18168/2008 in non-cooperation of the Housing and

Urban Development Department. From the provision of Section 489 of

the Orissa Municipal Corporation Act, this Court finds, the Housing and

Urban Development Department becomes duty-bound to respond to the

request and/or call of the BMC in implementation of the order of this

Court. It is made here clear that the claim of the Petitioners in the Writ

Petition gets well support through the Resolution indicated herein above

and that too in the involvement of the Housing and Urban Development

Department. Be that as it may, this Court again finds through Annexure-3

at Page-63 of the Brief, the BMC pursuant to the order of this Court in an

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attempt to work out the direction in the Writ Petition involved has already

sent a communication to the Housing and Urban Development

Department on 4.12.2019 requesting therein to provide clarification

and/or instruction in implementation of the order of this Court. In such

background of the mater, this Court finds, the only apprehension as raised

by the learned counsel for the Petitioner appears to be inaction of the

Housing and Urban Development Department in implementation of the

order of this Court by keeping the request of the BMC pending at its end.

The Writ Petition no doubt involves the Housing and Urban Development

Department. It is though the direction given therein is aiming to the BMC

but for the provision at Section 489 of the Orissa Municipal Corporation

Act, the Corporation being an instrumentality of the Housing and Urban

Development Department, the Department is to see implementation of the

order of this Court, further Resolution of the BMC taken note herein

above also in the inclusion of the Resolution of the Housing & Urban

Development Department. Since the BMC has already made a request to

the Housing and Urban Development Department, vide Annexure-3

herein in working out the order of this Court, this Court expresses its

anxiety as to the reason the Housing and Urban Development Department

is sitting over such matter for such long time and unnecessarily delaying

in implementation of the order of this Court and hopes and expects O.P.1,

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the Housing & Urban Development Department shall forthwith give order

to go ahead to the Corporation involved.

7. In the circumstance, this Court finds, there is no requirement for

interfering with the order and direction therein of this Court in disposal of

W.P.(C) No.18168/2008 except giving a clarification to the direction part

observing since there is requirement of issuing an order to go ahead, the

Housing and Urban Development Department being O.P.1 in the Writ

Petition should take an early decision to the request of the BMC, vide

Annexure-3 herein in facilitating the implementation of the order of this

Court.

8. With this observation, the Review Petition stands disposed of.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 2nd February, 2023/M.K.Rout, A.R.-cum-Sr.Secy.