Smt. Naka Bharati vs State of Orissa and Others

Heard, Mr. Mohanty, learned Counsel for the petitioner, and Mr. Srikanta Nayak, learned Counsel for opposite party No. 3. Municipality.

By order dated 16.6.1998 permission was accorded in favour of the petitioner for construction of a shed temporarily in the vacant place by the side of the municipal stall near the Town Hall of Parlakhemundi measuring an area of 9'' x 8'' with certain conditions. One of the conditions was that the Petitioner should construct the shed on the above-mentioned site not exceeding an area of 9'' x 8'' and the construction should be such, which could be removed at any time without difficulty. The petitioner took possession of the land in question. By subsequent order dated 24.6.2002, the Executive Officer of the Municipality, opposite party No. 3, accorded permission to the petitioner for construction of a pucca show-room measuring 9'' x 8'' in the vacant place. It was stipulated in the permission order that the petitioner should construct the shop-room at her own cost as per the condition prescribed in the agreement. The agreement dated 16th June, 2002, Annexure-5, gave power on the Municipality to demolish the shop-room at any time by giving one month�s notice to the licensee if the land is required for public purposes. It was further stipulated that the licensee would not claim any compensation for such demolition. It is submitted by Mr. Mohanty that in consonance with the said order the petitioner constructed a pucca shop-room in the allotted area, but withoutany rhyme or reason on 22nd of October, 2002 the Municipality cancelled the permission for construction of the pucca shop-room on the ground that the petitioner encroached upon Government road and the construction led to public inconvenience. By order dated 1st November, 2002 the petitioner was directed to demolish the said shop-room constructed by her within seven days. The said order Annexure-11 is impugned in this Writ Petition. It is submitted that in consonance with the permission accorded in her favour the petitioner has constructed the pucca shop-room in the allotted area and without any rhyme or reason the Municipality is trying to demolish the said construction, thereby causing hardship and loss to her.

Mr. Nayak, learned Counsel for opposite party No. 3- Municipality, at the other hand, forcefully submitted that the petitioner has encroached upon the Government land and made the construction. The construction made by the petitioner causes public inconvenience. According to Mr. Nayak, in consonance with the terms of the agreement, the Municipality has the right to demolish the said construction and the order of demolition, Annexure-11, should not be interfered with by this Court.

Admittedly on 24th June, 2002 permission was accorded to the petitioner to construct a pucca shop-room measuring 9'' x 8''; whereas the order of demolition was issued on 1st of November, 2002, vide Annexure-11, i.e., four months after the permission was accorded. According to the petitioner, she has constructed the pucca structure as per the permission at huge expenses and such construction should not be directed to be demolished after four months. We find sufficient force in the contention raised on behalf of the petitioner. But then, if the construction has been made by the petitioner not on the area allotted to her, but by encroaching public road, the same cannot be allowed to continue.

Without entering into any controversy as to the nature of construction and whether the same is on public road, we feel that this Writ Petition can be disposed of directing the municipality to make spot verification/measurement after giving due notice to the petitioner. The petitioner shall be permitted to retain the pucca construction made by her on an area 9'' x 8'' excluding thickness of the walls. On measurement, if it is found that the petitioner has encroached upon public road and/or raised any structure other than the shop-room measuring 9'' x 8'' excluding thickness of the walls, the same should be demarcated and the petitioner should be directed to remove or demolish the said construction within seven days. If the petitioner does not remove or demolish the said construction within the time stipulated, the Municipality will be at liberty to remove or demolish the same at the cost of the petitioner. However, the petitioner shall be permitted to retain the construction measuring 9'' x 8'' excluding thickness of the walls over the land originally earmarked.

Needless to say, the parties shall be governed by the terms of the agreement entered into by them.

The Writ Petition is accordingly disposed of.