CASE TITLE : M/S. B.R. SPONGE (P) LTD. VS. MICRO SMALL ENTREPRENEUR FACILITATION COUNCIL, CUTTACK AND ANOTHER
CASE NO : W.P.(C) NO.8006 of 2017
DATE OF JUDGMENT : May 06, 2024

The petitioner (a private limited company) sought for quashing of the order of opposite party No.1, i.e. the Micro and Small Enterprises Facilitation Council dated 30.12.2016 and all consequential orders including the proceeding in connection with MSEFC Case No.27 of 2014. The dispute was between the petitioner and opposite party No.2 and the proceeding was disposed by learned Civil Judge, Senior Division, Rourkela for not availing the statutory remedy under section 19 of the Micro Small and Medium Enterprises Development Act, 2006. The issue was then referred to the Council, whose order dated 30.12.2016 is under question.

The petitioner’s primary contention is that opposite party No.2 is not a ‘supplier’ as per Section 2(n) of the MSMED Act and in support of it and relief asked for, the following decisions, such as, Silpi Industries Etc. Vrs. Kerala State Road Transport Corporation and Another (2021 SCC Online SC 439), Vaishno Enterprises Vrs. Hamilton Medical AG and Another (2022 SCC Online SC 355), Nitesh Estates Ltd. Vrs. Micro and Small Enterprises Facilitation Council of Haryana and Others (2022 SCC Online SC 1198) and Bridge and Roof Company (India) Ltd. Vrs. State of Odisha and Others (MANU/OR/0313/2022:2022(I) OLR 1046 were referred to. It was contended that opposite party No. 1 has not passed the impugned order as per the provisions under the MSMED Act. The mandatory procedure under 18(3) of the said Act has not been adhered to since no real attempt was made for conciliation.

On the contrary, the opposite parties raised a question as to the maintainability of the writ petition in view of the alternate remedy available under Section 34 of the Arbitration and Conciliation Act and have relied on an order of this Court dated 26.04.2017 in W.P.(C) No. 20768 of 2016 and the decision of the Apex Court in M/s. India Glycols Limited and Another Vrs. Micro and Small Enterprises Facilitation Council Medchal-Malkajgiri and Others dated 06.11.2023 in Civil Appeal No.7491 of 2023. The petitioner challenged the aforesaid contention by placing reliance on M/s Magadh Sugar and Energy Limited Vrs. State of Bihar and others (Civil Appeal No. 5728 of 2021 dated 24.09.2021; Radha Krishan Industries Vrs. State of Himachal Pradesh and Others (2021)6 SCC 771 and State of Uttar Pradesh and Another Vrs. Ehsan and Another in Civil Appeal No.5721 of 2023 dated 13.10.2023.

After consideration of the contentions from both sides, the Hon’ble Court answered on the following issues. Firstly, maintainability of reference under section 18 before the Council, since opposite party No2 is alleged to be not a supplier. Secondly, whether the Council exercised the jurisdiction under section 18 of MSMED Act regarding conciliation and arbitration. Thirdly, maintainability of the challenge before this Court since there is an alternative remedy by way of appeal available. While dealing with the issues, the Hon’ble Court observed that no real attempt at conciliation was made by the Council and as such, the necessary formalities under section 18 of the MSMED Act have not been complied with. So far as the claim of the petitioner that opposite party No.2 is not a ‘supplier’ within the confines of the Act is concerned, the Hon’ble Court further observed that the issue was not raised in the earlier stages, hence, the said question is required to be examined. Taking a wholesome approach and not intending to delay resolution of the matter, the Hon’ble Court remanded the matter back to the Council with a direction to adjudicate the matter with respect to the point of jurisdiction and other issues emanating therefrom.

CASE TITLE : DILIP KUMAR SINGH VS. STATE OF ODISHA AND ORS.
CASE NO : W.P.(C) NO.9029 of 2013
DATE OF JUDGMENT : May 13, 2024

The petitioner has assailed the orders dated 10.11.2009 (Annexure-3) passed in Misc. Case No.07 of 2009 and 19.01.2013 (Annexure-7) in Appeal Case No.02 of 2010 by opposite party Nos.2 and 3 respectively under the Orissa Development Authorities Act, 1982 (hereinafter referred as to ‘the O.D.A. Act’). The central issue related to the alleged construction over a plot with encroachment over Railways land.

The issue arose when the petitioner was alleged of encroaching upon some Railways land. Proceedings were initiated against the petitioner and opposite party No.3 passed an ex parte order on 10.11.2009 (Annexure-3) directing the petitioner to remove the encroachment. The aforesaid order was confirmed by opposite party No.2 vide order dated 19.01.2013 (Annexure-7). It is the petitioner’s case that the proceeding under the O.D.A. Act by opposite party No.3 sans jurisdiction and the action in respect of encroachment of the Railways land must be under the Odisha Public Premises (Eviction of Unauthorized Occupants) Act. However, no notice has been issued to him by the Railway Administration in that regard. Moreover, the opposite party No.3, with the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, lost its jurisdiction and lacks the authority to take action against him under the O.D.A Act, since such power now lies with the Rourkela Municipal Corporation in view of the order dated 30.03.2010 of the Government of Odisha in Housing and Urban Development Department and Articles 243-ZD, 243-ZE, 243-ZF and Article 243-W of the Constitution of India. Therefore, the exercise of power under Section 91 of the O.D.A. Act at the instance of opposite party No.3 is void ab initio. To buttress such argument, the petitioner relied on the decision of this court in Bijaya Krushna Das, President, Hotel Association of Puri Vrs. State of Odisha and others 2015(I) OLR 588.
Petitioner’s stance is refuted on the ground that that delegation of powers regarding urban and town planning to the Rourkela Municipal Corporation was pending consideration of the Government and could be processed in 2019 only, therefore, till such time, opposite party No.3 exercised jurisdiction regarding unauthorized and illegal constructions. The petitioner has not only made unauthorized construction over the set-back area of the approved plan but also covered the adjacent land of the Railways.

The Hon’ble Court first adjudicated, whether, the jurisdictional challenge to opposite party No.3 can be entertained now, despite the same not being raised initially. Referring to Pioneer Traders Vrs. Chief Controller of Imports and Exports AIR 1963 SC 734, Cantonment Board, Ambala Vrs. Pyare Lal AIR 1966 SC 108, Rex Vrs. Williams [(1914) 1 KB 608, it was observed that an inherent lack of jurisdiction affecting the root of the issue can be challenged at any stage. Since a patent lack of jurisdiction has been alleged in the present case, the Hon’ble Court opined that such an issue is to be examined. Furthermore, after introduction of Part IX-A of the Constitution of India, powers relating to the matters in 12th Schedule, i.e. urban and town planning, shall have to be dealt with as per the law of the Local Bodies and not under the O.D.A. Act.

In ultimate analysis, the Hon’ble Court held that opposite party No.3 erroneously invoked the authority under the O.D.A Act and the exercise of authority under the Municipal law is distinct from the delegation of power under Section 111 of the O.D.A. Act. As such, the very initiation of the action against the petitioner never had the sanction of law and accordingly, the writ petition was allowed with the impugned orders being set aside.