1. Instant writ petition is at the behest of the petitioners assailing the correctness, legality and judicial propriety of the impugned order dated 11th November, 2021 passed in UAP Case No. 60 of 2021 by the learned Deputy Commissioner, ODA Court (opposite party No.1) under Annexure-9 and its confirmation by the decision of the Principal Secretary to Government, Housing and Urban Development Department, Odisha (opposite party No.2) vide Annexure-11, while disposing of Appeal Case No.28 of 2021 under Section 91(2) of the Odisha Development Authorities Act, 1982 (herein after referred to as ‘the ODA Act’) with a declaration to the effect that the unauthorized construction made by opposite party No.5 in House No. MIG-15 at Anant Vihar, Phase-3, Pokhariput, Bhubaneswar as contrary to the original plan and hence, with a direction to the opposite parties to demolish the same within a stipulated time.

2. The contention of the petitioners is that both are senior citizens and retired Government officials and joint owners of the House No. MIG-16 situated to the eastern side of MIG-15 of opposite party No.5. It is claimed that the petitioners are presently residing in MIG-16 post-retirement and in so far as the adjoining house i.e. MIG-16 is concerned, opposite party No.5 taking advantage of their absence, demolished 25 feet long common eastern side boundary wall and encroached about 2 to 3 inches from MIG- 16, which they could know later on. According to the petitioners, opposite party No.5 raised the illegal construction over the common boundary wall leaving no setback as per the provision of the ODA Act, Odisha Development Authorities (Planning and Building Standards) Rules, 2020 (in short ‘the ODA Rules’) and Bhubaneswar Development Authority (Planning and Building Standards) Regulations, 2008 (briefly as ‘the Regulations, 2008’) which was duly taken cognizance of by the BDA Squad and accordingly, suo-motu proceedings in UAP Case No. 64 of 2009 and UAP Case No. 430 of 2013 were initiated but later dropped by without any intimation to them, even though, they are the affected party as the construction was and has been made over a common boundary wall. It is claimed that the petitioners then approached the Vice Chairman, BDA (opposite party No.3) in the year 2014 and submitted objection against closure of the proceedings in UPA Case No. 64 of 2009 and UAP Case No. 430 of 2013 thereby regularizing the illegal construction made by opposite party No.5 and pending action, the latter managed to obtain additional plan approved from the BDA in respect of new construction against which a complaint was lodged before the Superintendent of Police (Vigilance), Bhubaneswar, which was forwarded to the Secretary, Housing Urban Development Department, Government of Odisha and as no action was taken on the same, a grievance petition under Annexure-3 was filed. In the meanwhile, as according to the petitioners, opposite party No.5 again started new additional construction in the ground floor of MIG-15 deviating the original plan and finding no other alternative once again registered a complaint before the Additional Commissioner, Zone-3, BMC, who immediately dispatched a team for spot verification and on inspection, the violation was noticed, taking judicial notice of which, the matter was submitted to the ODA Court with an intimation that the alleged construction is over the boundary wall without leaving any setback. While referring to Annexure-4 series, as per the petitioners, the Additional Commissioner, Enforcement conducted an inquiry and sent a report to the Additional Commissioner, BMC stating therein that opposite party No.5 has put up construction over the common boundary wall, whereafter, opposite party No.2 initiated UAP Case No. 60 of 2021 under Sections 91 (1) read with 92(1) of the ODA Act and in that connection, spot inquiry was held and report under Annexures-7 revealed construction with the portico wall extended by 2 inches towards the boundary wall. It is alleged by the petitioners that the said proceeding was dropped by order dated 11th November, 2021, whereafter, opposite party No.5 restarted the illegal construction and being aggrieved of the order in UAP Case No. 60 of 2021, they filed Appeal Case No. 28 of 2021 which has resulted in the passing of the impugned order under Annexure-11. It is contended that on the face of record, violation and deviation to the approved plan with construction over MIG-15 is apparent, however, opposite party No.5 could able to get it regularized. Hence, it is claimed that such illegal construction by opposite party No.5 was not duly taken notice of and as such, the proceeding in UAP Case No.60 of 2021 was dropped and furthermore, opposite party No.2 confirmed the same vide Annexure-11 and therefore, the same is liable to be interfered with and quashed with a direction to demolish it.

3. On the contrary, opposite party No.5 filed a counter affidavit and denied all the allegations made against him by the petitioners. According to opposite party No.5, the complaint at the instance of the petitioners is not maintainable for the reason that similar complaints had been lodged earlier and dealt with in UAP Case No.64 of 2009 and UAP Case No. 430 of 2013, wherein, after due examination, the proceedings were dropped. In other words, according to opposite party No.5 for the self- same cause of action, the proceeding in UAP Case No.60 of 2021 would amount to abuse of process of the court. It is contended by opposite party No.5 that the petitioners have also constructed the house over MIG-16 without leaving any setback and have encroached the adjacent House No. MIG-17, which is evident from the show cause reply submitted by him on 3rd November, 2021 in connection with UAP Case No. 60 of 2021 with respect to MIG-15. According to opposite party No.5, he has constructed the house as per and in accordance with the provisions of the ODA Rules, 2020 read with the original plan of MIG under Pokhariput Housing Scheme, 2000 dated 9th March, 2021 and it was with the permission granted under Section 16(3) of the ODA Act. It is, thus, claimed that the plain was duly sanctioned by the BDA and hence, there is no violation and that apart, the old building over MIG-15 is in existence since 2007 but the petitioners time and again have made false allegations and lodged complaints with the authorities below, so therefore, opposite party No.5 justified the impugned order under Annexure-11 and dismissal of the appeal filed by the petitioners. In response to the above, the petitioners filed a rejoinder to the counter affidavit and reiterated the claim that no setback was left out at the portico area in terms of the original Scheme of the plan which is also not permissible under the ODA Act and Rules. Again a reply from opposite party No.5 was received to the rejoinder of the petitioners by stating that the construction has been as per the approved plan which is held by the ODA Court and also confirmed by opposite party No.2 with a conclusion that the development so undertaken to be as per the Scheme and additional plan approved by the BDA and hence, there is no irregularities committed while upholding the decision of the ODA Court.

4. Heard Mr. Mishra, learned Senior Advocate for the petitioners; Mr. Panda-1, learned counsel for opposite party Nos.1 and 2; Mr. Mohapatra, learned counsel for opposite party Nos. 3 and 4; and opposite part No.5 in person.

5. Mr. Mishra, learned Senior Advocate for the petitioners referring to Annexures-5 series and 7 besides Annexure-4 series, such as, report dated 8th October, 2021 of the Deputy Commissioner, South-West Zone, BMC submitted that there has been unauthorized construction over the boundary wall which is commonly shared by the parties. It is further submitted that no setback was left while taking up construction over MIG-15 by opposite party No.5, which is in gross violation of the relevant provisions of the ODA Rules. It is also contended that such construction by opposite party No.5 is not in consonance with the provisions of the Regulations, 2008 particularly with reference to Regulation 38 thereof. As per Mr. Mishra, learned Senior Advocate, Rule 32 of the ODA Rules, the minimum setback permissible in a given size of plot for low risk buildings as prescribed therein has not been confirmed. It is submitted that when there has been no setback left, which is required as per Rule 32 of the ODA Rules and furthermore, when projection is extended by 2 to 3 inches over to MIG-16, the authorities below failed to take cognizance of the same and committed serious illegality, while concluding that the construction is in accordance with the original approved plan. It is contended that spot verification was held and the deviation was noticed but unfortunately, the proceeding in UAP Case No. 60 of 2021 was dropped behind the back of the petitioners and when the decision under Annexure-9 was challenged, it was again confirmed vide Annexure-11, a decision which cannot be justified and thus, shall have to be set aside with a direction to bring down the illegal construction which has been put up by opposite party No.5.

6. Opposite party No.5 in person would submit that there has been no illegal construction and whatever has been taken up over MIG-15 is in accordance with law. It is contended that the authorities below did not find any irregularities committed in the construction and hence, rightly dismissed the complaint and finally dropped the proceeding in UAP Case No. 60 of 2021. Furthermore, opposite party No.5 submits that the petitioners are equally guilty of leaving no setback in respect of MIG-16 and therefore, they do not have any moral authority to question any such space not being left out with respect to MIG-15. It is contended that the petitioners have not approached the Court in clean hand and therefore, the action which has been initiated at their instance should be dismissed. Referring to a judgment of this Court in M/s. Swastik Builders & Development Pvt. Ltd. Vrs. State of Orissa and others reported in AIR 2001 ORISSA 80, opposite party No.5 further submits that the appeal under Section 91 of the ODA Act at the instance of the petitioners is not maintainable, inasmuch as, a 3rd party has no such right. Another decision of this Court in Santosh Kumar Tripathy Vrs. State of Orissa & others 2015 (I) OLR 1000 has been placed reliance on by opposite party No.5 challenging the locus standi of the petitioners to maintain the appeal.

7. Mr. Mohapatra, learned counsel for opposite party Nos. 3 and 4 submits that the challenge of the petitioners in so far as leaving no setback is concerned shall have to be understood and appreciated with reference to Rule 32 of the ODA Rules, wherein, the minimum permissible limits have been prescribed in respect of low risk buildings. It is contended that as per Rule 32 of the ODA Rules, there is a total cumulative side setbacks for each of the plots with sizes mentioned therein. In so far are MIG-15 is concerned, as according to Mr. Mohapatra, learned counsel for opposite party Nos. 3 and 4, it falls in category at Serial No.3 of the table mentioned in Rule 32 of the ODA Rules, in which case, a total cumulative side setback of 1.5 meter stands prescribed. Much emphasis is laid on the fact that the standard so prescribed with the minimum setbacks for low risk buildings is referred to be as cumulatively. A reference is also made to Rule 90 of the ODA Rules by Mr. Mohapatra and it is submitted that the totality of the facts and circumstances of the case is to be taken judicial notice of before reaching at a conclusion with regard to the claim of the petitioners.

8. Mr. Panda-1, learned counsel for opposite party Nos. 1 and 2 justified the impugned orders under Annexures-9 and 11 with the submission that the construction which is alleged to be illegal was found by the authorities to be without merit.

9. As it is made to appear, the petitioners are the neighbour of opposite party No.5 and with regard to alleged construction, it is claimed to be over the common wall with a projection towards MIG-16 by 2 to 3 inches. As regards the setback, the petitioners further alleged that it has not been left out while carrying out the construction, which is not in consonance with Rule 32 of the ODA Rules. As regards, the locus standi of the petitioners, since an objection is raised by opposite party No.5 that the appeal is not maintainable at the instance of a 3rd party, the same is to be examined with reference to the relevant provisions of the ODA Act and Rules. In fact, application under Section 16 of the ODA Act is made to carry out any change in the use of a building or to take up or carry out any development of the same after seeking permission of the authority concerned. As per Sub-Section (3) of Section 16 of the ODA Act, on receipt of such application for permission, the authority under the Act shall pass order either with the grant or refusal thereof. Any applicant if aggrieved of an order under Section 16 or Section 17 may prefer an appeal and the decision of the Appellate Authority shall be final and not questionable in any court of law. Having considered the above provisions of the ODA Act, the Court finds that the appeal under Section 18 is maintainable at the instance of the applicant alone and not a 3rd party. Likewise, Section 91 of the ODA Act is in relation to an action which may be challenged by the person aggrieved and obviously does not include a 3rd party. In fact, this Court in Santosh Kumar Tripathy (supra) held that no appeal is maintainable under Section 91(2) of the ODA Act at the instance of 3rd Party. Referring to M/s. Swastik Builders & Development Pvt. Ltd. (supra) and on a proper reading of Section 16 as well as Section 91 of the ODA Act, it is loud and clear that an outsider or 3rd party cannot maintain an appeal against the decision of the authority. Rather, the appeal under Section 91(2) of the ODA Act can be filed only by the person aggrieved of the order passed under Sub-Section (1) thereof. Section 91 (1) of the ODA Act empowers an officer of the BDA to make an order to remove any development by demolition, which has been commenced or being carried on and completed in contravention of the development plan or without permission, approval or sanction as referred to in Section 15 or in violation of any conditions subject to which such permission, approval or sanction was granted. It has been held and observed in M/s. Swastik Builders & Development Pvt. Ltd. (supra) that if a person finds any authorized development having been made within the meaning of Section 91 of the ODA Act, he can certainly approach the authority for appropriate order and/or action and if thereafter order under Section 91 (1) of the Act is passed, only the person aggrieved of the it can file an appeal and the same cannot be by a 3rd party. In the instant case, as described earlier, the petitioners registered the complaints on couple of occasions, as a result of which, the proceedings in UAP Case Nos. 64 of 2009 and 430 of 2023 were initiated and lastly, UAP Case No.60 of 2021. In view of Section 91 of the ODA Act and keeping in view the decision in M/s. Swastik Builders & Development Pvt. Ltd. (supra), it has to be held that the petitioners rightly registered the complaints since unauthorized construction was alleged and for leaving no setback on the lateral side of MIG-15 adjoining MIG-16 not being in consonance with the provisions of the ODA Act and Rules but at the same time, they did not have the right to appeal against an order under Annexure-9. As earlier discussed, a right of appeal lies only in favour of the person aggrieved against whom the authority concerned passed an order for removal of unauthorized construction/development by demolition. The expression ‘any person aggrieved by an order under Sub-Section (1)’ occurring in Section 91(2) of the ODA Act is referrable to the person, who has been directed to remove the construction by demolishing it and obviously does not include an outsider or a 3rd party even though at the latter’s instance, the action was initiated. The intent and purport of Sections 16 and 91 of the ODA Act is that denial of permission or its revocation in terms of Section 17 for that matter shall be visited with a right of appeal by the person aggrieved and in the case at hand, it would have been opposite party No.5 had the decision gone against him. In other words, the petitioners though are entitled to register a complaint with the authority and rightly the previous proceedings including UAP Case No. 60 of 2021 have been initiated but by considering the scheme of the ODA Act and Rules, they have no right of appeal against Annexure-9, nevertheless, it was entertained and disposed of by an order under Annexure-11. Even by holding that the petitioners did not have the right to appeal as it is available to a person aggrieved with the conclusion so arrived at, the question which may be considered, whether, for the alleged construction by opposite party No.5 without setback space on the lateral side of MIG-15 adjoining MIG-16, any such error or illegality committed by opposite party No. 1 in not taking cognizance of the same especially with reference to Rule 32 of the ODA Rules read with Rule 90 thereof.

10. Keeping in view the line of argument advanced by Mr. Mohapatra, leaned counsel for opposite party Nos. 3 and 4, for better appreciation, relevant provision, such as, Rule 32 of the ODA Rules is reproduced herein below:

32. Minimum setbacks for low risk buildings–(1) The minimum setbacks permissible in a given size of plot for low risk building shall be as mentioned in Table No.5 below:

As according to the above table, total cumulative side setbacks is prescribed as 1.5 meter in respect of a Plot with size above 1705-225 sq.m equivalent to 1800 Sq. Ft. and up to 2400 Sq. ft and as per Sub-Rule (2) of Rule 32, the width of a required setbacks on anyone side shall be maintained for the entire length of that side and cannot alternate from one side to the other. Furthermore, it is made to appear from Rule 32 that minimum front setback is prescribed with a total cumulative front and rear setback under column (d), whereas, total cumulative side setbacks only stands specified therein. It does mean that a minimum front setback has to be maintained which may exceed and in any case, the total cumulative front and rear setback must confirm to the standard prescribed for low risk buildings. In the case of side setbacks, no such provision is made alike minimum front setback. In respect of smaller size plots up to 1200 Sq. ft, no side setback is prescribed but above 1200 Sq. ft up to 5300 Sq. ft, total cumulative setbacks have been specified. As earlier stated, considering the size of the plot of opposite party No.5, as according to Rule 32 of ODA Rules, it has to be 1.5 meter as the side setback but subject to Sub-Rule (2) thereof, which is to the effect that the setback shall be maintained on any one side for the entire length of that side and cannot alternate from one side to other. In so far as the Rule 90 of ODA Rules is concerned, it relates to restrictions on compounding deviation pertaining to unauthorized development. With exceptions carved out under clauses (i) to (v) of Section 90(1), if any such deviation may be compounded. As according to the petitioners, there is deviation in the construction over the portico area which adjoins MIG-16 as it has been raised over a common boundary wall and that apart, no minimum setback is maintained and as such, there is no compliance of Rule 32 the ODA Rules.

11. Opposite party No. 1 concluded that there is no violation and in so far as the construction undertaken by opposite party No.5, it was as per the Scheme and additional plan approved by the BDA. As to the order under Annexure-9, it was concluded that the raised pillar situate inside the boundary wall and as to the portico wall, the same is extended by 2 inches only towards the boundary wall and as per Rules 10, 32 and 90 of the ODA Rules, the same is not considered illegal.

12. According to opposite party No.5, the additional work in MIG-15 was being undertaken in accordance with approved plan issued vide order No.11355, dated 9th March, 2021 of the BDA, which is in accordance with Section 16(3) of the ODA Act with nil setback at its left side of the existing house, so therefore, it is in conformity with the provisions of law. It is contended that the earlier proceedings have been rightly dropped after reply was received, the fact which is suppressed by the petitioners. In respect of UAP Case No.64 of 2009, opposite part No.5 referred to the enquiry reports as at Annexure-C/1 series. It is also brought to the notice of the Court that the petitioners have approached the civil court in CS No.2186 of 2021 alleging the illegal construction which is pending before the court of learned Civil Judge (Senior Division), Bhubaneswar since 2021. Under the above circumstances, opposite party No.5 submits that as the construction is in accordance with the Rules and the claim of the petitioners stands duly considered, so therefore, no ground remains for the Court’s interference.

13. Since the petitioners do not have the right to appeal under the ODA Act, the Court proceeded with the matter on the premise that the challenge is against the conclusion drawn by opposite party No.1 in dropping the proceeding in UAP Case No.60 of 2021 without taking any decision as to if the provisions of the ODA Act and Rules have been duly complied with. The Court finds that the alleged construction is challenged by the petitioners in respect of the construction made over the boundary wall commonly shared with opposite party No.5 which is adjoining the portico area. According to the report at Annexure-4 series, the construction is over the boundary wall and the Amin’s report dated 22nd October, 2021 as at Annexure-5 supports the petitioners but it runs contrary to report dated 10th November, 2021 as at Annexure-7 barring the projection indicated. In fact, according to Annexure-7, the column stands within the area of opposite party No.5 but there is extension of common wall by 2 inches. In response to the alleged construction, opposite party No.1 is of the view that as the Amin’s report revealed existence of the pillar inside the boundary wall and portico wall is extended 2 inches towards the said wall, the same cannot be considered illegal as per Rules 10, 32 and 90 of the Rules. As it is made to suggest, the petitioners denied proper measurement by the BDA. After having considered the rival contentions of the parties, it is perceived by the Court that the dispute is over the extension of the portico towards the boundary wall and raising construction over the same leaving no setback and thereby affecting proper ventilation. It is not a case where opposite party No.5 is alleged of having left no setback at all on each of the sides as required under the ODA Act and Rules. The bone of contention is with regard to the construction over the boundary wall near the portico area without setback. The claim of the petitioners appears to be that the pillar stands over the boundary wall and construction with no setback, whereas, the same is contradicted. If the pillar is raised inside the boundary wall, then there can be no violation by opposite party No.5 and the extended projection by 2 inches may be ignored or condoned which is what has been concluded by opposite party No.1. The challenge is also on the ground that due to the construction raised over the common wall with the pillar in the portico area, there is no proper ventilation enjoyed by the petitioners. Having taken judicial notice of the nature of dispute which is confined to the portico area, the Court is of the considered view that there is a need for confirmation as to if the pillar is within the area of the plot possessed by opposite party No.5 and in that case, any such construction over the common boundary wall allegedly obstructing ventilation whether to be permissible with nil setback which is also justified on the strength of the Pokhariput Housing Scheme, 2000. Except the above, the Court does not find any other issues involved for being taken cognizance of. The Court is quite conscious of the fact that any such marginal projection could possibly be dealt with the provisions of ODA Rules but before that, it is necessary to have findings with clear and unquestionable evidence vis-a-vis issues identified which have not been specifically dealt with and addressed to.

14. Hence, it is ordered.

15. In the result, the writ petition stands allowed to the extent as aforesaid. For the reasons discussed, the impugned order vide Annexure-11 is quashed thereby restoring the proceeding in UAP Case No. 60 of 2021 with the order under Annexure-9 set aside for being disposed of leaving it for opposite party No.1 to examine the aspects which have been earmarked and to pass a final order on the same with the issuance of necessary direction to opposite party No.5, if it is absolutely required and found to be expedient and to complete the entire exercise as expeditiously as possible preferably within a period of four weeks from the date of receipt of a copy of this judgment.