SANTILATA SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Letters Patent appeal is directed against the order dated 28-6-2001 by which a learned single Judge of this Court has dismissed the appellant's writ petition.

(2.) The appellant purchased Ac. 0.069 decimals of land towards western portion of Sabik Plot No. 488 under Sabik Khata No. 682, Mouza-Ramgarh, Cuttack from one Palia Dei and Radharani Dei under two separate sale deeds dated 30-9-1985 and 1-3-1999 (Annexures 1 and 2 of the writ petition). After the purchase she remained in possession thereof. Respondent No. 4 and his co-sharers are owners of Sabik Plot Nos. 486 and 487 covering an area of Ac. 0.230 decimals under Sabik Khata No. 503 and the aforesaid plots adjoin plot No. 488 purchased by the appellant towards its west. During Hal Settlement operation, the area of the land occupied by respondent No. 4 was increased by Ac. 0.010 decimals and accordingly respondent No. 4 and his co-sharerswere found to be in possession of Ac. 0.240 decimals of land instead of Ac. 0.230 decimals. With the intention of regularising the aforesaid increased area in favour of respondent No. 4, a complaint was made by him before the Cuttack Development Authority alleging that certain portion of the land belonging to him is within the purchased land of the appellant. This complaint was registered as Unauthorised case No. 134 of 1995. The said respondent also filed T. S. No. 459 of 1995 in the Court of the Additional Civil Judge (Senior Division), Cuttack for declaration that the appellant has no right to make any construction on her purchased land without leaving any space and for a decree of mandatory injunction directing the appellant to remove and demolish all constructions which were maid in violation of Municipal Building Rules. The said suit is pending. In the above complaint case, the Cuttack Development Authority issued notice dated 12-10-95 directing the appellant to remove the construction. After receipt of the notice, the appellant filed her reply on 27-11-95 at Annexure-4 wherein she pleaded that she had purchased the land in the year 1995 with an existing house and in order to make it habitable she was carrying repair works. She further stated in her reply that she had already obtained approved plan for construction of the building and also applied for approval of the extension of the building and the said application has been registered as B.P. No. 949 dated 15-11-95. She also expressed her willingness, in the reply, to compound the offence, if any, alleged to have been made by way of construction. After reply was filed on 10-1-96, the Cuttack Development Authority issued a letter (Annexure-5) directing the appellant to furnish Court affidavits from the neighbours on the western and eastern side of the plot indicating their "no objection" for regularisation of the building constructed with no set back. Pursuant to such direction, the appellant filed affidavits of two neighbours and in the said affidavits it was stated that they have no objection, if the compounding is allowed and unauthorised construction alleged to have been made by the appellant is regularised. Inquiries were conducted by the Authority and reports were also submitted and in the report dated 20-8-99 it is clearly mentioned that there has been no change in the construction of the building after submission of the earlier report. There were two earlier reports and in the report dated 20-7-96 it was suggested for compounding and regularising the structure and in the inquiry dated 22-7-98/22-9-98 it was reported that the holding is old one and lies in the Basti area and that the usual practice is to allow O (zero) set back. The further case of the appellant is that in spite of such reports and suggestion for compounding the irregularities, on 27-8-99 an order was passed by the Secretary, Cuttack Development Authority, respondent No. 3, for demolition of the structure. The appellant challenged the above order before the government which was dismissed. The appellant thereafter filed O.J.C. No. 4535 of 2000 which was dismissed giving rise to the present appeal.

(3.) The learned single Judge while dismissing the writ petition observed that despite notice by the Cuttack Development Authority to stop construction, the appellant continued the construction and completed the same. Looking at the photographs, he also observed that the construction work undertaken could not be repairing work and in absence of valid approved plan construction was done unauthorisedly.