[Cites 4, Cited by 0]
Orissa High Court
Surendra Prusti And Others vs State Of Odisha on 11 March, 2026
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22236 OF 2016
(An application under Articles 226 and 227 of the
Constitution of India)
*****
Surendra Prusti and others Petitioners
...
.
-versus-
1. State of Odisha, represented through the
Commissioner-cum- Secretary to Government,
Housing & Urban Development Department,
Odisha Secretariate, At/PO-Bhubaneswar, Dist-
Khurda
2. E.I.C-cum Secretary to Government,
Works Department, Odisha Secretariate, At/Po-
Bhubaneswar, Dist- Khurda
3. Collector, Bhadrak, At/Po/Dist- Bhadrak,
4. Bhadrak Municipality, represented
through its Executive Officer, At/Po/Dist-
Bhadrak.
5. Tahasildar, Bhadrak, At/Po/Dist-
Bhadrak.
6. Jashoda Senapati, wife of late Nityananda
Senapati, resident of Village- Naripur, Opp. Parties
Po/PS/Dist- Bhadrak ...
.
Advocates appeared :
For Petitioners : Mr. Pratyasis Mohanty, Advocate
For Opposite Parties : Mr. Manmaya Kumar Dash,
Additional Standing Counsel
(For Opposite party Nos.1, 3 and 5)
Mr. Prafulla Kumar Rath, Senior
Advocate
being assisted by Mr. Saibrata Rath,
Advocate
(For Opposite Party No.4)
Page 1 of 8
CORAM:
JUSTICE K.R. MOHAPATRA
JUSTICE SANJAY KUMAR MISHRA
------------------------------------------------
Heard and disposed of on 11.03.2026
----------------------------------------------
JUDGMENT
By the Bench;
1. This matter is taken up through hybrid mode.
2. Petitioners, in this Writ Petition, seek for a direction to set
aside the notices issued by the Executive Officer Bhadrak
Municipality on 6th December, 2016 under Annexure-1 series,
whereby permission granted to the Petitioners for raising
construction over plot No.339 was recalled.
3. Mr. Mohanty, learned counsel submits that the Petitioners
being unemployed youths were granted permission by the Executive
Officer, Bhadrak Municipality- Opposite Party No.4 during 1999-
2000 to raise construction over the aforesaid plot to earn their
livelihood. Accordingly, the Petitioners constructed shop rooms
over the said plot and were earning their livelihood.
3.1 At that juncture, one Jashoda Senapati- Opposite Party No.6,
filed OJC No.11815 of 1999 before this Court with a prayer to
demolish the structures over plot No.339, which is recorded as
'Nayanjori' as the constructions made over plot No. 339 were
obstructing access to plot Nos.337 and 338 recorded in her name
and she faced immense difficulties. The Petitioners herein were not
made parties to the said writ petition. Only by impleading two of the
shop owners of plot No.339 (not the Petitioners), the earlier writ
petition was filed. This Court disposed of the said writ petition on
22nd August, 2016, relevant portion of which is reproduced
hereunder,
"18. On perusal of records, it appears that no material has
been produced before this Court stating that Plot No. 339
recorded as "Nayanjori", which is a Government land under
the possession of Public Works Department, has ever been
transferred to the Municipality. If the said land in question
has not been transferred to Municipality actually, the
Municipal authority cannot utilize the same other than the
purpose, for which it has been recorded. In that view of the
matter, the Municipal authorities have acted in excess of
their jurisdiction in misutilizing the Government property
recorded as "Nayanjori", by issuing necessary permission to
have a construction over it.
19. The 'Nayanjori' land between a plot (meant for
residential or commercial purpose) and the road is meant
for public utility, which could be for footpath or for
drainage, and construction on the same would not be
permissible in law.
20. The present is a case where a drain passes through such
land, being Plot No. 339. It is a matter of common
knowledge that because of any construction which may be
permitted to be raised over a drain, free flow of flood and
rain water would be obstructed. There is no provision in law
to permit raising of construction over a drain, even with
certain conditions. Not only this, the opposite parties have
not been able to show that how permission for construction
could be accorded on 'Nayanjori' land meant for public
purpose. The land in question does not even belong to the
Municipality, which has granted permission and is
subsequently collecting the rent. Merely to raise the
revenue, the Municipality cannot be permitted to grant
permission to raise construction (for collecting rent) over
such land, which does not belong to the Municipality and is
meant for public purpose. The Municipality is a body
constituted to take care of the public convenience, and by
permitting the private parties to raise construction over
public utility land, through which a drain passes, can
neither be justified in law, nor can it be said to be a proper
action of the Municipality.
21. The rights of the petitioner are affected as the
construction is raised in front of the property of the
petitioner. Reliance in this regard has been placed on a
Division Bench judgment of this Court in the case of Girish
Chandra Sahu and others vs. Nagendranath Mitra and
others, AIR 1978 ORISSA 211.
22. In view of the aforesaid, we are of the clear opinion that
no permission could have been granted by the opposite party
No. 3-Municipality for raising construction on Plot No. 339,
either by opposite parties No. 5 and 6 or any other person.
Accordingly, it is directed that the opposite party No. 3-
Municipality, shall recall the permission so granted for
raising construction on the public land being Plot No. 339
recorded as "Nayanjori" and it is further directed that the
encroachment case under the OPLE Act pending against
opposite parties No. 5 and 6 shall be heard and decided in
accordance with law, as expeditiously as possible, but not
later than six months from the date of filing of certified copy
of this order before the Tahasildar, Bhadrak, if the same has
not yet already been decided. The writ petition stands
allowed to the extend indicated above."
In consequence of such direction, notices under Annexure-1 series
were issued and the permission granted for construction in favour of
the Petitioners were recalled.
4. Mr. Mohanty, learned counsel further submits that the
Petitioners had no fault in construction of shop rooms over
Nayanjori land. They being unemployed youths, applied to Bhadrak
Municipality for allotment of land and they were granted permission
to raise construction over plot No.339.
4.1 By virtue of the impugned notices, the Petitioners have lost
their livelihood. Very recently, constructions made by the
Petitioners over plot No.339 were razed to dust. It is his submission
that the Petitioners had a right to earn their livelihood. Thus, they
should not be deprived of their livelihood without affording them an
opportunity hearing. He also brought notice of the Court to order
dated 18th November, 2019 passed in the present writ petition,
wherein, a coordinate Bench of this Court directed the Collector,
Bhadrak, which is culled out hereunder.
"In view of the decision of this Court in the case of
Samsera Begum-V-the Additional District Magistrate,
Kendrapara and others, reported in 2016(2) OLR 806, the
petitioners are sought to be removed without being heard
following the observation made by the earlier Division
Bench of this Court. However, without entering into the
intricacies, in view of the suggestion made by the Court, the
Collector, Bhadrak will give details of alternative site of the
same dimension by the next date of hearing."
He, therefore, submits that alternative sites at a suitable place may
be given to the respective Petitioners to earn their livelihood.
5. Mr. Dash, learned Additional Standing Counsel referring to
paragraph-6 of the affidavit dated 23rd December, 2019 filed by the
Tahasildar, Bhadrak pursuant to order dated 18th November, 2019
submits that seventeen shop rooms in the newly constructed market
complex of the main market yard of Regulated Market Committee
(RMC) are reserved for the Petitioners and the same may be allotted
to the Petitioners subject to the terms and conditions as applicable to
other allottees on payment of arrear dues, if any. He further, submits
that construction over plot No.339 (Nayanjori) was illegal. The said
plot has been recorded in the name of PWD Department. Relevant
portion of paragraph-6 of the affidavit filed by the Tahsildar,
Bhadrak is quoted hereunder.
"6. That it is humbly submitted that 17 shops rooms of
newly constructed Market Complex of the main market yard
of Regulated Market Committee (RMC) are reserved for the
petitioners and the same may be allotted to the petitioners
subject to the terms and conditions as applicable to other
allottees on payment of arrear dues, if any."
Thus, no construction could have been made over the said plot by the
Petitioners. He however does not have any instruction, whether the
shop rooms reserved for the Petitioners are still available to be
allotted in favour of the Petitioners or not.
6. Mr. Rath, learned Senior Advocate, appearing for Opposite
Party No.4-Bhadrak Municipality, submits that in compliance of
order dated 22nd August, 2016 passed in OJC No.11815 of 1999,
notices were issued to the Petitioners recalling the permission
granted to them for construction. Thus, no exception should be
taken against the such action of Bhadrak Municipality. He further
submits that order dated 22nd August, 2016 passed in OJC No.11815
of 1999 has not been challenged or varied. Thus, the same is binding
on Bhadrak Municipality. The impugned notices under Annexure-1
series clearly reveal that the said notices were issued in compliance
of the direction made in OJC No.11815 of 1999. The Petitioners
being aware of the same, did not file any application either to review
or recall the order passed in OJC No.11815 of 1999. As such, the
impugned notices are neither illegal nor unjustified. Hence, he prays
for dismissal of the writ petition.
7. Upon hearing learned counsel for the parties and on perusal
of the record, it appears that plot No.339 is a piece of Government
land and is recorded in Nayanjori Kisam. The said plot is stated to
have been recorded in the name of PWD Department. It was never
transferred to Bhadrak Municipality. Thus, Bhadrak Municipality,
could not have been granted permission to the Petitioners for
construction over the said land. The same is also observed by the
coordinate Bench in OJC No.11815 of 1999. No construction could
have been made over Nayanjori Kisam of land.
8. It is alleged by Mr. Mohanty, learned counsel for the
Petitioners that no opportunity of hearing was afforded to the
Petitioners before issuance of notices under Annexure-1 series.
Hence, the notices under Annexure-1 series are illegal being
violative of principle of natural justice. It is very difficult on our part
to accept such submission as the notices were issued pursuant to the
direction of this Court in OJC No.11815 of 1999. Further, the
Petitioners were licensees. In that view of the matter, Bhadrak
Municipality had no other option than to issue notices under
Annexure-1 series in order to comply with the order passed in OJC
No.11815 of 1999. As such, we find no illegality in the impugned
notices under Annexure-1 series.
9. It is, however, averred in paragraph-6 of the affidavit dated
23rd December, 2019 filed by the Tahsildar, Bhadrak that seventeen
shop rooms out of forty-one, constructed by Regulated Market
Committee (RMC) Bhadrak, were kept reserved for the Petitioners
and it is stated that the same may be allotted to the Petitioners
subject to terms and conditions applicable to other allottees on
payment of arrear dues, if any.
9.1 Thus, we are of the considered opinion that the Petitioners,
if so advised, may approach the Collector, Bhadrak to workout the
averments made in paragraph-6 of the affidavit filed by the
Tahsildar, Bhadrak before this Court on 23rd December, 2019.
10. With the aforesaid observation, the writ petition is disposed
of without interfering with the impugned notices under Annexure-1
series issued by Bhadrak Municipality. In the facts and the
circumstances, there shall be no order as to costs.
(K.R. Mohapatra)
Judge
(S.K. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 11th day of March, 2026/ sashikant
eMudhra.App.Views.PartialControls.SigningModeTab.Signi
Date: 13-Mar-2026 10:39:38
