Dhirendra Ku. Das vs State Of Odisha
2025 Latest Caselaw 5267 Ori

Orissa High Court

Dhirendra Ku. Das vs State Of Odisha on 24 March, 2025

               ORISSA HIGH COURT : CUTTACK

                   W.P.(C) No.20713 of 2011

              In the matter of an Application under
     Articles 226 and 227 of the Constitution of India, 1950

                              ***

1. Dhirendra Ku. Das Aged about 42 years Son of Late Krushna Mohan Das At: Balisahi, Bhandari Lane P.O./P.S.: Puri Town District: Puri.

2. Ramesh Chandra Swain Aged about 42 years Son of Late Madhu Swain At: Chhaitana, P.O.: Namara Via: Astaranga, District: Puri.

3. Rama Chandra Sahoo Aged about 42 years Son of Late Kasinath Sahoo At: Markanda Sahi P.O./P.S.: Puri Town District: Puri. ... Petitioners

-VERSUS-

1. State of Odisha Represented though Commissioner-cum-Secretary Government of Odisha

Housing and Urban Development Department Secretariat Building Bhubaneswar, District: Khordha.

2. Commissioner-cum-Secretary Government of Odisha Finance Department Secretariat Building Bhubaneswar, District: Khordha.

3. Director, Municipal Administration Odisha, Bhubaneswar District: Khordha.

4. Executive Officer, Puri Municipality At/P.O./P.S./District: Puri. ... Opposite parties

Counsel appeared for the parties:

For the Petitioners : Mr. Hrudananda Mohapatra, Asima Samantaray, M.R. Behera, Advocates

For the Opposite party : Mr. Jayanta Kumar Bal, Nos.1 to 3 Additional Government Advocate along with Santosh Kumar Brahma, Additional Standing Counsel

For the Opposite party : Mr. Pradipta Mohanty No.4 Senior Advocate assisted by M/s. Pranoy Mohanty, Sanjib Kumar Sahu and Prasannajit Pani, Advocates

P R E S E N T:

HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 21.03.2025 :: Date of Order : 24.03.2025

O RDER

Questioning the propriety of instruction of Government of Odisha in Housing and Urban Development Department in Letter No.14449/HUD, dated 13.06.2011 (Annexure-12) and legality of Office Order No.3239, dated 13.05.2011 (Annexure-13) whereby Office Order No.3162, 3165, 3168 and 3171, dated 11.05.2011 were kept in abeyance as well as Office Order No.4113, dated 13.06.2011 of the Puri Municipality (Annexure-14) cancelling Office Order Nos.3162, 3165, 3168 and 3171, dated 11.05.2011 by virtue which the services of the petitioners were regularised, the instant writ petition has been filed to invoke extraordinary jurisdiction of this Court under the provisions of Articles 226 and 227 of the Constitution of India, with the following prayer(s):

"Under the aforesaid facts and circumstances of the case, it is, therefore, prayed that this Hon'ble Court may graciously be pleased to:

(i) quash the Government Order dated 13.06.2011 under Annexure-12 by concurrently holding the same as bad, illegal and not sustainable or maintainable in the eye of law;

(ii) quash the Order passed by Puri Municipality vide Order No.3239, dated 13.05.2011 and Order No.4113, dated 13.06.2011 under Annaxures-13 and 14 respectively;

(iii) pass such other order (s)/direction(s) as may be deemed fit and proper in the bona fide interest of justice;

And for which act of kindness, the petitioners as in duty bound shall ever pray."

2. This Court by Order dated 10.08.2011 issued notice to the opposite parties and granted stay of operation of Orders in Annexure-14.

2.1. The Puri Municipality entered appearance by executing Vakalatnama in favour of Sri Pradipta Mohanty, learned Advocate through the Executive Officer on 01.12.2011.

2.2. Though the matter was listed on 20.07.2022, 27.07.2022, 29.08.2022, 08.01.2025 and 06.03.2025 along with W.P.(C) No.20715 of 2011 (Nabakishore Nayak and Others Vrs. State of Odisha and Others) for the opposite parties to file response, no counter affidavit is forthcoming.

2.3. The matter thereafter stood adjourned to 21.03.2025 for hearing on admission. On the date of hearing, i.e., 21.03.2025 also no counter affidavit has been filed by the opposite parties. It is unfortunate to note that even after lapse of considerable period, there is no response

from either the State Government or the Puri Municipality.

2.4. Since the writ petition has been pending adjudication since 2011 and the opposite parties have not paid any heed to file any response despite adjournments, this Court was left with no option but to proceed with the case on merit.

2.5. It is not the case of the opposite parties that they had been under disability nor can the State instrumentalities be said to be under some disability. No explanation has ever been furnished as to why the counter affidavit had not been filed. The opposite parties cannot be permitted to take advantage of their own mistake. A person alleging his own infamy cannot be heard at any forum, particularly so before a Writ Court. The legal maxim 'allegans suam turpetudinem non est audiendus' fits to the context. If the opposite parties have committed a wrong by not filing the counter-affidavit, they cannot be permitted to take the benefit of their own wrong. (Vide G.S. Lamba Vrs. Union of India, AIR 1985 SC 1019; Narender Chadha Vrs. Union of India, AIR 1986 SC 638; Jose Vrs. Alice, (1996) 6 SCC 342; T. Srinivasan Vrs. Mrs. T. Varalakshmi, (1998) 3 SCC 112).

2.6. In view of the above, if the counter affidavit is not filed, and no explanation is proffered by the opposite parties,

for such lackadaisical attitude this Court has justified reason to decide the case on the basis of the averments in the writ petition, which has been pending since 2011.

2.7. This Court expressed the following view in Pratap Kumar Jena Vrs. Government of Odisha, 2016 SCC OnLine Ori 830:

"25. In Ram Bhual Vrs. Ambika Singh, JT (2005) 12 SC 49 = (2005) 12 SCC 121, the apex Court held that where specific pleadings in election petition has not been denied by the opposite party in his written statement while answering the pleadings, applying the doctrine of non-traverse, it can be said that on the pleadings, the case of the election petitioner on this aspect is established.

26. In Pyrites Phosphates & Chemicals Ltd. Vrs. State of Bihar, AIR 1998 Pat 57, the High Court of Patna held as follows:

'One cannot be allowed to frustrate the process of the Court by adopting the easy option of non- appearing despite valid service of notice. On the basis of doctrine 'non-traverse' i.e. acceptance by non-denial, it was held that the claim of the petitioner is not denied but accepted by the respondents.'

27. Applying the very principle of non-traverse to the present context, since the opposite parties have not filed the counter affidavit in the present case to controvert the contention raised in the writ application, the facts which have been pleaded by the petitioner are deemed to be admitted. Therefore,

any argument advanced by the learned counsel appearing for the opposite parties cannot sustain in absence of any pleadings thereof."

2.8. On consent of counsel for respective parties, as the challenge has been laid to the instruction of the Housing and Urban Development Department pursuant to which the impugned Orders were passed by the Puri Municipality in the present petition is identically placed in W.P.(C) No.20715 of 2011, both the writ petitions are taken up for analogous hearing.

2.9. Accordingly, this Court heard Sri Hrudananda Mohapatra, learned Advocate for the petitioners and Sri Jayant Kumar Bal, learned Additional Government Advocate and Sri Santosh Kumar Brahma, learned Additional Standing Counsel for the opposite party Nos.1 to 3 and Sri Pranoy Mohanty assisting Sri Pradipta Mohanty, learned Senior Advocate appearing for the opposite party No.4-Puri Municipality.

2.10. On conclusion of hearing, the matter stood reserved for preparation and pronouncement of judgment/order.

3. At the outset it was conceded by counsel for both the sides that the present matter is identically circumstanced as obtained in W.P.(C) No.20715 of 2011 and it is submitted at the Bar that the result of said

petition would equally be applicable to the present petitioners.

4. On perusal of record, it is ascertained that the very same instruction imparted in Letter dated 13.06.2011 (Annexure-12) and the Orders dated 13.05.2011 and 13.06.2011 (Annexures-13 and 14 respectively) were subject matter in W.P.(C) No.20715 of 2011 (Nabakishore Nayak Vrs. State of Odisha).

5. Today judgment has been pronounced in W.P.(C) No.20715 of 2011 (Nabakishore Nayak Vrs. State of Odisha).

6. Faced with such conceded position, the present writ petition is also disposed of in the same terms as contained in the said judgment in W.P.(C) No.20715 of 2011 (Nabakishore Nayak Vrs. State of Odisha) disposed of today.

(MURAHARI SRI RAMAN) JUDGE

Designation: JUNIOR STENOGRAPHER

Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Mar-2025 16:53:19

High Court of Orissa, Cuttack The 24th March, 2025//Aswini/Laxmikant/Suchitra