KHIRODINI SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellate order passed by the Commissioner -cum -Secretary to Government in the Housing and Urban Development Department (in short, 'the Commissioner') in an appeal under Section 91 (2)[wrongly indicated in the impugned order to be under Section 91(1)] of the Orissa Development Authorities Act, 1982 (in short 'the Act') is underchallenge in this writ application by Smt. Khirodini Sahoo (hereinafter referred to as 'the petitioner').

(2.) FACTUAL backdrop leading to filing of this application is essentially as follows : On the allegation that the petitioner had constructed her ground floor over a plinth area of 1436 sq. ft. and first floor over a similar area without leaving any set -back, a proceeding was initiated against the petitioner by the Secretary of Cuttack Development Authority (hereinafter referred to as 'the CDA'). It was alleged that such construction was in violation of the plan as approved by the competent authority. Notice in terms of Section 91(1) of the Act, and direction to stop construction in terms of Section 92(1) of the Act was issued, and the petitioner was required to show -cause as to why action for unauthorised construction shall not be taken. Reply to such notice was submitted by the petitioner. Her stand was that construction was made within stipulated time as per approved plan. The Secretary noticed that one Arjun Charan Palai, who has made an application in this proceeding to be impleaded as an intervener, had made original complaint on the basis of which action was initiated against petitioner. Said Arjun Charan Palai is described as 'objector'. His locus standi shall be considered infra. After show -cause reply was submitted by the petitioner, the objector filed an application to be impleaded as a party in the proceeding, and sa(sic)e was allowed by the Secretary. Date of appearance of parties was fixed by the Secretary to 25 -6 -1993, when the objector appeared, but petitioner did not. An application for adjournment was filed by her which was rejected, and the matter was disposed of on perusal of certain documents filed by the objector. The Planning Member of CD A suggested for demolition of the unauthorised construction. The Secretary concurred with such suggestion of the Planning Member and by his order dated 25 -6 -1993 directed demolition, subject to confirmation by the Vice -Chairman. On 18 -8 -1993, the Vice -chairman endorsed the view. An appeal was carried by the petitioner before the Commissioner which was dismissed by the latter with following observations : 'Planning Member, CDA contends that the appellant has made unauthorised construction. Therefore, the demolition order has been passed. On verification it is revealed that both the appellant and the intervenor has made unauthorised construction. It is in a Basti area. Heard all the parties. Perused the joint inspection report, the documents submitted by the appellant and the petition filed by the intervenor. The excess construction beyond the approved plan is illegal. The order passed by the CDA is up -held. The CDA is directed to take action against the intervenor for his unauthorised construction. The appeal is dismissed.' It is to be noted here that an application for intervention was filed by Arjun Charan Palai before the Commissioner which was allowed.

(3.) WE shall deal with question of locus standi of the applicant for intervention. Section 91 deals with removal of unauthorised occupants. Action is to be taken by the concerned authority for removal of unauthorised development and the action may be initiated on the basis of information given by any functionary or employee of the Development Authority (In short, 'the Authority') or on the basis of complaint received from any person about commencement or continuance or completion of any unauthorised development. After initiation of the proceeding, the dispute becomes one between the Authority and the notice i.e. the person allegedly making unauthorised development Thereafter person making the complaint has no right to participate in the proceeding. The proceeding is a statutory one, and can only involve the Authority and the person making unauthorised development. In such proceeding the original complainant is neither a necessary nor a proper party. Where presence of a person before a Court, Tribunal or Authority is necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions in the dispute, such a person should be added as a party. This finding is a condition precedent for exercise of the jurisdiction by the forum for addition of a party. Two tests for determining the question who is a necessary party to a proceeding are ; firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question; and secondly, it should not be possible to make an effective adjudication in the absence of such a party. As observed by the apex Court in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar : AIR 1963 SC 786, a necessary party is one without whom no order can be made effectively, a proper party is one in whose absence an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceeding, A party seeking such a joinder as a proper party will have to prima facie establish that such a party has interest in the subject -matter of the litigation and as such should be impleaded. The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject -matter of adjudication. If the answer is in the affirmative, joinder can be permitted. By reason of direct interest in the subject -matter or even by reason of eventual reliefs sought, such a test would be answered. There is distinction between necessary party and proper party. A proper party is one whose impleadment may facilitate disposal of a proceeding. A necessary party is one without whose impleadment it may not be possible to adjudicate completely and effectively the points in issue in a proceeding. Without a proper party a proceeding can continue, but without a necessary party it would fall. - - - -