JAGADISH PRASAD NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioners in this Writ Petition challenge the Order Dated 8.8.2011 passed in Appeal Case No. 17/2011 (Annexure -1) upholding the Order Dated 25.4.2011 passed in U.A.P. No. 339/2010 (Annexure -2) by the Authorities under the Orissa Development Authority Act, 1982 (in short, "the Act"), wherein the construction undertaken by the Petitioners over plot Nos. 195(P). 196(P) and 299 of Khata No. 412 of Mouza -Kalarahanga, Bhubaneswar, has been directed to be removed within fifteen days from the date of service of the order and in case of failure to do so, the said development would be removed by the Bhubaneswar Development Authority (in short, "B.D.A.").

(2.) ACCORDING to the Petitioners, plot Nos.195(P), 196(P) and 299 of khat a No. 412 in Mouza -Kalaraganga, Bhubaneswar, belong to Petitioner No.2 and in order to construct multi -storied residential buildings over the said plots, Petitioner No. 2 prepared a building plan and got the technical approval from the Kalarahanga Gram Panchayat vide letter dated 4.2.2003 (Annexure -7). The said approved building plan was re -checked and technically approved by the Junior Engineer, Bhubaneswar Panchayat Samiti and was re -validated for a further period of five years from the date of conversion of the schedule land by Order Dated 5.8.2006, vide Annexure -8. Initially the said plots were agricultural land and the competent authority under Section 8(A) of the Orissa Land Reforms Act, 1960 (in short, O.L.R. Act) allowed conversion of the land from agriculture to homestead (Gharabari) with effect from 27.3.2007 and the premium was accordingly paid by Petitioner No. 2. When the construction was going on, Petitioner No. 2 entered into an agreement on 3.8.2009 with Petitioner No. 1 for development of the said plots and also executed an irrevocable power of attorney for effective execution of the construction project over the same. When the construction was at the advance stage, on 16.7.2010 the Petitioners received a notice dated 12.7.201 (Annexure -13) issued by the Joint Town Planner -1 of B.D.A. asking them to show cause within seven days as to why penal action would not be taken against them for undertaking the construction of S+8 storied building without permission under Section 16 of the O.D.A. Act. On 16.7.2010 the Petitioners also received another show cause notice dated 14.7.2010 (Annexure -15) issued under Section 91 (1) of the O.D.A. Act in U.A.P. No. 339/2010 as to why order shall not be passed directing removal of the roof level construction of S+3, S+4, S+1 storied and a plinth level construction of apartment building constructed unauthorisedly in violation of the approved plan and rules and regulations. On 16.7.2010, the Petitioners received an Order Dated 14.7.2010 passed under Section 92 (1) of the O.D.A. Act (Annexure -14) that the development undertaken by them was without permission, approval & sanction as required under Section 15 of the O.D.A. Act & Petitioner No.1 was directed to discontinue & stop the development from the date of service of the order under a written intimation.

(3.) THE Petitioners advanced three propositions in challenging the impugned orders. No.1 - With the introduction of Part -IX in the Constitution by the Constitution (Seventy Third) Amendment Act, 1992 with effect from 24.4.1993 & consequent amendment of the Orissa Gram Panchayat Act, 1964, the provisions of O.D.A. Act, 1982 are not applicable to the areas/territories under the jurisdiction of a Gram Panchayat. No.2 - The O.D.A. Act, 1982 has no application to agricultural land & therefore, any order or notification under the provisions of the said Act bringing agricultural land within the purview of the O.D.A. Act or including the said land in the Development areas declared under the O.D.A. Act is illegal. No.3 - Without prejudice to proposition Nos.(1) & (2), the Petitioners advanced their argument that inclusion of an area within the development area by a notification in exercise of powers under the O.D.A. Act ipso facto or per se shall not give authority, power and/or jurisdiction to a Development Authority unless there is a notification under the provisions of the O.D.A. Act constituting the Development Authority specifically for the area so included in the existing Development Area.