Decided on March 15,1973

Sashibushan Rath Appellant
State of Orissa And Anr. Respondents


G.K.Misra, J. - (1.) AT the time of hearing Mr. Rath conceded that P. Penteya v. Executive Officer N.A.O. Bhubaneswar : 38 (1972) C.L.T. 915 directly covers this case, and that the writ application is to be dismissed if the aforesaid decision lays down the correct law. He accordingly contended that the case should be referred to a larger Bench for a decision if the aforesaid judgment lays down the correct law. As the case involves an important question of law, we heard the matter at length to see if the law has been correctly laid down in the aforesaid decision.
(2.) THOUGH a number of points had been taken in the writ application, the only substantial question of law that was placed at the time of hearing is that Section 344 of the Orissa Municipal Act (Act 23 of 1950) (hereinafter to be referred to as 'the Act ') is ultra vires Article 14 of the Constitution. Facts relevant to this contention may only be stated: The Petitioner has a small hotel in Janapatha Road, New Capital, Bhubaneswar. Admittedly, the construction was made without obtaining permission of the Notified Area Council. The Executive Officer of the Notified Area Council, Bhubaneswar, issued a notice (Annexure 1) on 24 -1 -1963 which ran thus: Whereas I am satisfied that you have constructed a thatched house and opened a (sic) shop without taking my permission, I do hereby order you in exercise of my power conferred on me under Section 273(A) of the Orissa Municipal Act to demolish the said unauthorized construction by the 31 -1 -1963 instant, under an intimation to this office. The Petitioner did not demolish the unauthorized construction in accordance with the aforesaid notice. There is no dispute that a notice under Section 273 -A(2) has not been served on the Petitioner. It is at this stage that the writ application has been filed challenging the constitutionality of Section 344 of he Act.
(3.) TO appreciate the contention of the Petitioner, Sections 273 -A, 274 and 344 of the Act may be noticed. They are extracted below: 273 -A Demolition or alteration of building work unlawfully commenced, carried on or completed: (1) If the Executive Officer is satisfied : (1) that the construction or reconstruction of any building or well - (a) has been commenced without obtaining the permission of the Executive Officer or where an appeal has been preferred to the council in contravention of any order passed by the council in appeal; or (b) is being carried on, or has been completed otherwise than in accordance with the plans of particulars on which such permission or order was based; or (c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or by -law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or by -laws ; or (ii) that any alterations required by any notice issued under Section 27 have not been duly made; or (iii) that any alteration of or addition to any building or any other work made or done for any purpose in, to or upon any building, has been commenced or is being carried on or has been completed in breach of Section 273, he may make a provisional order requiring the owner or the builder to demolish the work done, or so much of it as, in the opinion of the Executive Officer, has been unlawfully executed or to make such alterations as may in the opinion of the Executive Officer be necessary to bring the work into conformity with the Act. By laws, rules, direction or requisition as aforesaid, or with the plans and particulars on which such permission or order was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well. (2) The Executive Officer shall serve a copy of the provisional order made under Sub -section (1) on the owner of the building or well together with a notice requiring him to show cause within a reasonable time to be mentioned in such notice why the order shall not be confirmed. (3) If the owner fails to show cause to the satisfaction of the Executive Officer, the Executive Officer may confirm the order with any modification he may think fit to make, and such order shall then be binding on the owner. 274. Appeal against order of Executive Officer. Any person aggrieved by the orders of the Executive Officer made under any of the provisions of this Chapter may, within thirty days from the date of the order, appeal to the Municipal Council. 344. Time for complying with notice, order, and power to enforce in default : (1) Whenever by any notice, requisition or order under this Act, or under any rule or regulation or by law made under it any person is required to execute any work or to take any measures or do anything, a reasonable time shall be named in such notice, requisition or order within which the work shall be executed, the measures taken or the thing done. (2) If such notice, requisition or order is not complied with within the time so named, the Chairman of the Municipal Council concerned may cause such work to be executed or may take any measures or do any thing which may, in his opinion, be necessary for giving due effect to the notice, requisition or order aforesaid. (3) If no penalty has been specially provided in this Act for failure to comply with such notice, the said person shall be liable on conviction by a Magistrate to a fine not exceeding fifty rupees for every such offence.;

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