Orissa High Court
Jayanta Kumar Das & Others vs State Of Odisha & Others on 6 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.23872 of 2019
(Through hybrid mode)
Jayanta Kumar Das & others .... Petitioners
-versus-
State of Odisha & others .... Opposite Parties
Advocates appeared in this case:
For Petitioners : Mr. G. Mukherjee, Senior Advocate
For Opposite Parties : Mr. P.K. Rout, AGA
(For opposite party no.1 & 2)
Mr. T. Mishra, Advocate
(For opposite party nos.3 & 4)
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA
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Date of hearing and judgment : 06.02.2023
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ARINDAM SINHA, J.
1. Mr. Mukherjee, learned senior advocate appears on behalf of
petitioners. He submits, his clients are street vendors, who were
evicted for construction of the market complex. The complex was
to be ground plus two stories high. Only ground floor was
constructed. The open space is where the un-accommodated
vendors, his clients, are carrying on their business but they are
being prevented. Now the Municipality is causing subterfuge by
purporting to relocate his clients to outside the city.
2. Mr. Mishra, learned advocate appears on behalf of the
Municipality and submits, his clients are willing to relocate
petitioners. On query from Court regarding omission to construct
two floors in the complex he submits, the funds stood returned to
the administration.
3. Mr. Rout, learned advocate, Additional Government
Advocate appears on behalf of State. He submits, unutilized funds
were returned to the government. Report of the District Magistrate
is that petitioners in carrying on their business are obstructing the
road. They must accept the relocation.
4. On 6th January, 2023 we had made observations in our order
made that day. Paragraphs 4 to 6 are reproduced below.
"4. Construction of the market complex as
planned, is in the realm of administration, to be executed
by State and the Municipality. Court is not inclined to
interfere in the administrative matter unless State and the
Municipality create a situation where petitioners can
demonstrate that they are unable to administer.
Accordingly, we adjourn hearing of the writ petition in
WP(C) no.23872 of 2019
the hope that there will be further construction in the
market complex to accommodate petitioners, who stand
covered by said order dated 27th August, 2019.
5. List on 3rd February, 2023.
6. We make it clear that on adjourned date, in
event we are unable to dispose of the writ petition on
parties having worked out the controversy, we will hear
and adjudicate on it."
5. Mr. Mukherjee points out from his clients' rejoinder dated
19th July, 2021 that there is covered space in the ground floor,
which is occupied by motorcycles and squatters. There is also open
area, enclosed by the construction made of ground floor. On query
from Court he submits, the plan was obtained under Right to
Information Act, 2005. He submits further, the covered area
occupied by squatters and parked motorcycles be allotted to his
clients, of floor area 10 ft by 10 ft each, till relocation on
completion of construction. He reiterates, the offer of relocation
outside the city is an act of subterfuge.
6. Mr. Mukherjee points out there is order dated 27th August,
2019 made in his clients' earlier WP(C) no.10585 of 2019. In
effect, this writ petition is for enforcing directions made in the
earlier writ petition. Relied upon paragraphs in said order are
reproduced below.
WP(C) no.23872 of 2019
"It is submitted by learned counsel for the
petitioners that there are vacant places available near the
construction area, where the street vendors are carrying
out their business. The Municipal Council is to further
construct shop rooms. Accordingly the persons, who are
waiting for allotment, may be permitted to carry out their
business for the time being to eke out their livelihood till
such construction is completed.
Accordingly we direct the Municipal Council to
consider such applications of the street vendors to
continue with their business in the vacant place and
their application for allotment of shop rooms shall be
considered on completion of such construction in future
on priority basis.
With the above observation/direction this writ
petition is disposed of."
(emphasis supplied)
On query from Court Mr. Mishra submits, existing allottees are
parking their motorcycles in the covered space earmarked for
parking. That is a condition for the sanction. Accommodating
petitioners would be in violation of said condition.
7. There were eight petitioners in aforesaid WP(C) no.10585 of
2019. Of them only six are before us. The facts are that
construction is not complete. The funds could not be utilized and
were returned. That does not mean there cannot be reallocation of
WP(C) no.23872 of 2019
funds for completing the construction. In the circumstances, there
is no impediment for the municipality to implement directions
made in said order dated 27th August, 2019. Petitioners are to be
allowed to carry on their vending business in aggregate of 600
sq.ft. covered constructed area (100 sq.ft. each) and their case for
allotment of shop rooms shall be considered on completion of
construction in future, on priority basis. This temporary
arrangement should not be seen as violation of condition of
sanction since, the construction is not yet complete. On
contingency of there being no further construction, existing
constructed area then has to be revisited by the municipality, for
purpose of utilization, in line with the directions made herein.
Petitioners will communicate this order to concerned opposite
parties, for implementation thereof within three weeks hence.
8. The writ petition is disposed of.
(Arindam Sinha)
Judge
(S.K. Mishra)
Judge
P.Pradhan
WP(C) no.23872 of 2019
