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2012 DIGILAW 109 (ORI)

Rajashree Gajendra v. State of Odisha

2012-02-24

B.K.MISRA, L.MOHAPATRA

body2012
JUDGMENT L. MOHAPATRA, J. : Not being satisfied with the decision of the State Government refusing to allot additional land for construction of a “Janata Delux Hotel” in the city of Bhubaneswar, the petitioner, a lady entrepreneur, has knocked the doors of this Court for the second time. 2.The chronological events forcing the petitioner to approach this Court for the second time for the self-same relief are given below in the form of a chart. - The petitioner runs a Hotel in the city of Bhubaneswar in the name and style of M/s. Hotel Ekamra and has acquired experience of running a Hotel. December, 1997 - In order to establish a “Janata Delux Hotel”, the petitioner prepared a project and got the same registered with D.I.C., Bhubaneswar requiring Ac.2.5 decimals of land. January, 1998 - The project was recommended by the D.I.C. to the Director of Industries. May, 1998 - The Director of Industries moved the Government in the Industries Department for allotment of Ac.2.5 decimals of land in favour of the petitioner for the above purpose. - The Industries Department having found the project viable, sent its recommendation to the Government in the Department of General Administration for allotment of Ac.2.5 decimals of land. - Department of Tourism and Culture approved the project. June, 1998 - The petitioner submitted an application before the Director of Estates for allotment of Ac.2.285 decimals of land over Plot No.2292(P) in Mouza Laxmisagar-1 in the city of Bhubaneswar for the said project. 16th March, 1999 - The G.A. Department allotted Ac.1.285 decimals of land over the above plot in Laxmisagar-1 and directed the petitioner to deposit a sum of Rs.64,24,264/- towards premium at the rate of Rs.50,00,000/- per acre. 20th March, 2001 - By this date, the petitioner had deposited Rs.40,03,026/-. - Though the land was allotted in March 1999, possession could not be delivered as the State Government failed to remove the encroachment. The petitioner moved the State Government either to hand over the vacant possession of the said allotted land or give an alternative land extending to an area of Ac.2.5 decimals at some other place. - The G.A. Department having failed to handover possession of the allotted land, found an alternative site and again allotted Ac.1.285 decimals of land over Plot Nos.324(P) and 328/1110(P) under Khata No.429 at Unit-XII in Bomikhal. - The G.A. Department having failed to handover possession of the allotted land, found an alternative site and again allotted Ac.1.285 decimals of land over Plot Nos.324(P) and 328/1110(P) under Khata No.429 at Unit-XII in Bomikhal. For allotment of this alternative land, the petitioner was asked to deposit a further sum of Rs.4,82,364/- and the said amount was also deposited. - When the building plan was prepared and placed before the Bhubaneswar Development Authority for approval, an objection was raised on the ground that the land allotted was within the “Open Space Land Use Zone” and, therefore, the plan could not be approved. November, 2007 - The petitioner again approached the G.A. Department indicating the above difficulty and also prayed for allotment of additional land available near the allotted land and also for adjustment of interest that had accrued on the amount deposited by her and she also approached for allotment of land available for construction of an approach road from National Highway No.5 on the southern side of the allotted plot. - The building plan could not be approved as the allotted land was coming within the “Open Space Land Use Zone” and, accordingly, the G.A. Department allotted Ac.0.288 decimals of land in exchange of similar extent of land out of the allotted area, as a result of which, the allotted area of the petitioner got shifted to about 300 ft. backward from the main road without adjoining service road connecting the National Highway No.5. December, 2008 - The Housing and Urban Development Department changed user of the allotted land from “Open Space Zone” to “Commercial Use Zone”. - Since the petitioner required Ac.2.5 decimals of land for construction of the Hotel and additional land of Ac.0.950 decimals was available to be allotted adjacent to the plot allotted in favour of the petitioner, she submitted a representation for allotment of the above additional land, allotment of land for construction of a road from National Highway No.5 to the Hotel Project and adjustment of the interest accrued on the amount deposited by her towards premium. - On the basis of the said representation, the then Chief Secretary made the following recommendation :- “The D.I.C., Bhubaneswar had originally recommended an area of 2.5 acres of Government land for setting up of a Hotel Project, out of which Ac.1.285 dec. - On the basis of the said representation, the then Chief Secretary made the following recommendation :- “The D.I.C., Bhubaneswar had originally recommended an area of 2.5 acres of Government land for setting up of a Hotel Project, out of which Ac.1.285 dec. land was allotted in the year 1998 but possession could not be given in spite of repeated attempts with force. An alternative site was given after 9 years. The project requirement stands from day one, at Ac.2.5 as recommended by D.I.C., Director of Industries and Deptt. of Tourism of Govt. of Orissa. The balance extent of available land Ac.0.950 now asked for would not only be necessary for the project but also give a direct approach for the Hotel to the main road. The recommendation of the D.I.C. enclosed to the application is at P.345/C. Recommendation of the D.I. to the Under Secretary, Industries Department recommending Ac.2.5 of land is at P.342/C. The recommendation of the Deptt. of Tourism for the same extent of land to the G.A. Deptt. is at P.341/C. As can be seen from the map placed at P.340/C, the Govt. land of Ac.0.950 dec. gives access to the Hotel to the main road on two sides. The present allotment of Ac.1.285 dec. would not be adequate for any decent Hotel particularly when it is surrounded by the existing building of Institute of Hotel Management and pipelines on two sides. Since the land-use has been changed by H. & U.D. Department there would not be any difficulty for allotting it to the Hotel. In view of the fact that the entrepreneur would definitely have to undergo a huge cost escalation in the construction of Hotel now compared to what would have happened in the year 1998-99, additional allotment of Ac.0.950 dec. seems to be only reasonable, if not an adequate compensation for the harassment suffered by the party. The party had deposited Rs.40.15,136/- in the years 2000-2004 and would have perhaps made full payment if possession of the land would have been ensured. She had also paid the balance amount of Rs.4.82 lakhs, but no interest has been deposited. Her requests to calculate interest on the amount already deposited towards payment of premium in respect of additional land would not be prima-facie acceptable if we have already not allowed such concession to other parties where possession handover was delayed. She had also paid the balance amount of Rs.4.82 lakhs, but no interest has been deposited. Her requests to calculate interest on the amount already deposited towards payment of premium in respect of additional land would not be prima-facie acceptable if we have already not allowed such concession to other parties where possession handover was delayed. We have not permitted to her to take possession of the land in time and her harrowing experience with depositing huge amount of money and yet not getting possession of land, forbids us for charging her interest for the delay. Pending a decision on the issue of who bears the interest and who pays it, the extent of land now applied which Ac.0.950 dec. allotted to the party on payment of usual rate as applicable to the earlier plot. This Ac.0.950 would give adequate land to the Hotel project as prayed for by the entrepreneur”. 26th December, 2009 - When the matter was placed before the Hon’ble Chief Minister, the following order was passed rejecting the representation as well as recommendation made by the Chief Secretary. “Ac.1.285 dec. of land already allotted to Smt. Gajendra will be sufficient for the project. There is no need to allot additional land”. - The petitioner thereafter approached this Court in W.P.(C) No.1576 of 2010 challenging the above decision of the State Government. - Since no reason was assigned for rejection of the representation of the petitioner as well as the recommendation made by the then Chief Secretary, the Court felt that the project requires Ac.2.5 decimals of land and additional land was available adjacent to the plot allotted in favour for the petitioner and the matter was remitted back to the Government for reconsideration. 21st June, 2011 - Government after reconsideration passed the following order :- “Smt. Gajendra was allotted Ac.1.285 dec. of land in Mouza Bomikhal on 24.2.2007 in lieu of the land allotted to her earlier in Mouza Laxmisagar. Subsequently, on her request, an area of Ac.0.285 dec. adjacent to the plot was allotted in exchange of Ac.0.288 dec. in 2008. In her application dtd. 14.1.2009, she has requested again for allotment of additional land of Ac.0.950 dec. adjacent to the same plot. While making this allotment of Ac.0.285 dec. of land it was consciously decided not to allot Ac.0.950 dec. adjacent to the plot was allotted in exchange of Ac.0.288 dec. in 2008. In her application dtd. 14.1.2009, she has requested again for allotment of additional land of Ac.0.950 dec. adjacent to the same plot. While making this allotment of Ac.0.285 dec. of land it was consciously decided not to allot Ac.0.950 dec. as the Site Selection Committee had considered her request and rejected her plea for the additional land. Later, her request was also turned down by the Government on the ground that Ac.1.285 dec. of land already allotted to her would be sufficient for the Hotel Project. Land in and around Bhubaneswar City is becoming scarce day by day due to expansion of the city as well as requirement of land for infrastructure development like road public health and other purposes. The land of Ac.1.285 dec. already allotted for the Hotel project will be quite sufficient. Additional land cannot be allotted keeping in view future requirement. I agree with the above proposal. So, the prayer for allotment of additional land is rejected.” - Challenging the said order of the Government, this writ application has been filed. 3.We have heard the learned counsel for the petitioner, learned Additional Government Advocate and Shri Kanungo, learned counsel appearing for the Intervenor. Undisputedly, the Court being satisfied with the submission of the learned counsel appearing for the petitioner that the project required an extent of land covering Ac.2.5 decimals to make it viable and that no reason had been assigned by the State while rejecting the said representation of the petitioner as well as the recommendation made by the then Chief Secretary, remitted the matter back to the Government for reconsideration. 4.Learned counsel for the petitioner with reference to the order impugned in this writ application submitted that there is no scarcity of land in Bhubaneswar and he referred to a chart which forms a part of the record to substantiate his contention that several Hotel projects have been allotted land as per their requirements, out of whom, many have used the land for construction of Hotel and some have not yet used the land and they are lying vacant. It was further contended by the learned counsel that the lessee of a particular land has preferential right for allotment of a vacant adjacent land and in this connection reliance was placed by the learned counsel on a decision of the Apex Court. It was further contended by the learned counsel for the petitioner that there is no approach road to the allotted plot and unless the land is allotted by the State Government for construction of 18ft. wide road from National Highway No.5 to the allotted plot, the project will not be viable. The other claim of the petitioner is also for adjustment of interest accrued on the amount deposited by her towards premium in case the additional land is allotted in her favour. 5.Learned counsel for the State submitted that purpose of the petitioner is to construct a “Janata Delux Hotel” for common man who can afford such Hotel. According to the learned additional Government Advocate, there are several small and medium size Hotels catering to the need of the common men and all these Hotels are running on smaller plots. Learned counsel for the State has also submitted that the petitioner does not have any right to claim for allotment of an additional land specially when the State Government feels that there is scarcity of land in the city of Bhubaneswar. 6.Shri Kanungo, learned counsel appearing for the Intervenor submitted that additional land of Ac.0.950 decimals available adjacent to the plots allotted in favour of the petitioner has already been recommended to be allotted in favour of the Intervenor for the purpose of construction of a Trauma Care Centre and, therefore, the said land cannot be allotted in favour of the petitioner. According to Shri Kanungo, if the petitioner requires larger area, the Government may consider allotting such land elsewhere as there is necessity of Trauma Care Centre near the National Highway No.5. 7.The reliefs sought for in the writ application being more than one, we would like to deal with each relief separately. The first relief sought for by the petitioner is allotment of additional land of Ac.0.950 dec. available adjacent to the allotted plots and also for allotment of land to construct a 18th feet wide road in between National Highway No.5 and the allotted plots. The first relief sought for by the petitioner is allotment of additional land of Ac.0.950 dec. available adjacent to the allotted plots and also for allotment of land to construct a 18th feet wide road in between National Highway No.5 and the allotted plots. While rejecting the claim of the petitioner after remand, it is observed in the order impugned that initially the petitioner had been allotted Ac.1.285 dec. of land in Mouza Bomikhal on 24.2.2007 in lieu of the land allotted to her earlier in Mouza Laxmisagar. Subsequently, on her request, an area of Ac.0.285 dec. adjacent to the plot was given in exchange of Ac.0.288 dec. in 2008. Her request in the letter dated 14.1.2009 for allotment of additional land of Ac.0.950 dec. adjacent to the plot was turned down by the Site Selection Committee and subsequently by the Government on the ground that Ac.1.285 dec. of land allotted in favour of the petitioner would be sufficient for the Hotel Project. It is also observed in the order that land in and around the Bhubaneswar City is becoming scarce day by day due to expansion of the City as well as the requirement of land for infrastructure development like road, public heal and other purpose. 8.There is no dispute that the project prepared for construction of the Hotel has been made expecting allotment of Ac.2.5 dec. of land by the State Government. The said project requiring Ac.2.5 of land was accepted by the D.I.C., Industries Department and Tourism Department and, therefore, the Site Selection Committee may not be competent to decide as to whether less than Ac.2.5 of land will be sufficient to make the project viable. The duty of the Site Selection Committee as appears from the submission made by the learned counsel appearing for the parties is to select a suitable site for allotment keeping in mind the requirement of the project. When the project requires Ac.2.5 dec. of land and the same is reduced to almost half, the entire project has to be modified accordingly and ultimately it may not be found to be viable. 9.Coming to the next question as to whether there is scarcity of land in and around the Bhubaneswar City or not, learned counsel for the petitioner relied upon Annexure-49 obtained under Right to Information Act attached to the affidavit filed on 11.1.2012. 9.Coming to the next question as to whether there is scarcity of land in and around the Bhubaneswar City or not, learned counsel for the petitioner relied upon Annexure-49 obtained under Right to Information Act attached to the affidavit filed on 11.1.2012. The said document relates to allotment of land in favour of different organizations from 1.1.2006 to 12.12.2009 within the Bhubaneswar Municipal Corporation area. After careful scrutiny of the information given, it appears that one Cabana Hotel Management Pvt. Ltd., had been allotted Ac.7.541 dec. of land in the area Dumudama in the year 2007. Another affidavit has been filed by the petitioner on 8.12.2011 indicating allotment of land to Hotels in Bhubaneswar vide Annexure-45. If the first application of the petitioner for allotment of land in the year 1998 is taken into consideration, it will be found that after 1998 land has been allotted in favour of several Hotels in and around the city of Bhubaneswar. From the chart, it appears that M/s. May Fare Hotels and Resorts Pvt. Ltd. was allotted a little more than Ac.3.000 dec. of additional land in the year 2000 in Jayadev Vihar, Hotel Jagannath and Resorts Pvt. Ltd. was allotted Ac.2.000 dec. of land in the year 1999 in Jayadev Vihar, Hotel Keshari Plaza was allotted Ac.2.000 dec. of land in the year 2000 in Jayadev Vihar, which was subsequently cancelled, Hotel Taj Group had been allotted Ac.7.390 dec. of land in the area Samantarapur, which was subsequently determined, M/s. Speciality Hotels India (P) Ltd. had been allotted Ac.4.000 dec. of land din Jayadev Vihar in the year 1999, which was subsequently cancelled. 10.As is evident from the above, all the above Hotels had been allotted with land as per their requirements. The petitioner has not been allotted with the land as required under the project. So far as scarcity of land is concerned, reference can also be made to Annexure-43, the notification issued by the Housing and Urban Development Department dated 16.7.2011. The said notification has been issued in exercise of powers conferred by Sub-section (2) of Section 3 of the Orissa Development Authorities Act, 1982 including 351 additional areas of the revenue villages mentioned in the said notification within the boundaries of Bhubaneswar Development Authority. The said notification has been issued in exercise of powers conferred by Sub-section (2) of Section 3 of the Orissa Development Authorities Act, 1982 including 351 additional areas of the revenue villages mentioned in the said notification within the boundaries of Bhubaneswar Development Authority. In view of the above, we are not in a position to accept the contention of the learned counsel for the State that there is scarcity of land in Bhubaneswar and that additional land cannot be allotted in favour of the petitioner as per the requirement of the project. The question as to whether additional land will be allotted in favour of the petitioner or not is undisputedly within the domain of the State Government but at the same time discrimination should be avoided. 11.The next question for consideration is as to whether Ac.0.950 dec. of land available adjacent to the allotted plots could be allotted in favour of the petitioner or not. In respect of this issue, we have heard the learned counsel for the petitioner, learned counsel for the State as well as learned counsel appearing for the Intervenor. Undisputedly, Ac.0.950 dec. of land are available adjacent to the plots allotted in favour of the petitioner. Submission of the learned counsel on behalf of the Intervenor is that recommendation has been made for allotment of the said land in its favour for the purpose of establishing a Trauma Care Centre. Admittedly, no allotment has been made till today in favour of the Intervenor. 12.Coming to the question as to whether the petitioner has any right to seek for allotment of the said land in her favour or not, apart from the fact that the petitioner required more land for the project than that has been allotted, a decision of the Hon’ble Supreme Court in the case of D.M. Nanjjappa (Dead) By Lrs. v. S.A. Ramappa and others reported in (2000) 7 Supreme Court Cases 506 relied upon by the petitioner may be referred to. v. S.A. Ramappa and others reported in (2000) 7 Supreme Court Cases 506 relied upon by the petitioner may be referred to. In the said decision, the Hon’ble Supreme Court while analyzing the provisions contained in the Karanatak Land Grant Rules, 1969 specifically Rule 4(2) of the said Rules held that any person may be granted the land adjacent or close to the land already held by him subject to fulfillment of other conditions of the said sub-rule and on the payment of market value of land if in the opinion of the authority such land is required for better enjoyment or better cultivation of the land. Rule-5 and 6 of the said Rules provided for percentage of reservations and order of priority. The Hon’ble Supreme Court while analyzing Rules, 4, 5 and 6 of the aforesaid Rules held that if a person satisfies the conditions enumerated in Rule-4, he is entitled to allotment of additional land adjacent to the land held by him. Though factually the above cited decision relied upon by the learned counsel for the petitioner is different than the present case, considering the fact that Rule 4(2) of the said Rules provided for preferential right in favour of a person already holding a land with adjacent vacant land, the spirit behind such legislation cannot be overlooked. The purpose of introducing such provision was to see a land holder, if allotted a vacant land adjacent to the land held by him shall be in a position to develop it better and it will be more useful for the land holder. If the above intention of the legislature is taken into account, the petitioner stands on a better footing than the Intervenor. Since the Intervenor requires the smaller piece of land, the State Government can think of allotting a land of equal size at any other place nearer to National Highway No.5 like several other private hospitals that have come up within the city of Bhubaneswar near to National Highway No.5. 13.Another prayer in the writ application is for allotment of additional land for the purpose of construction of a road from National Highway No.5 to the allotted lands. We have perused the sketch map attached to the writ application. The sketch map shows that there is a road to the western side of plot allotted in favour of the petitioner. 13.Another prayer in the writ application is for allotment of additional land for the purpose of construction of a road from National Highway No.5 to the allotted lands. We have perused the sketch map attached to the writ application. The sketch map shows that there is a road to the western side of plot allotted in favour of the petitioner. But in order to reach the plot, one has to travel from Rasulgarh square towards Mancheswar Industrial Estate and then again take a left turn to reach the allotted plots. It is stated in the counter affidavit that the approach road to the plot is quite wide. From the photograph attached to the rejoinder, the road does not appear to be wide enough to allow passage of two vehicles. As a matter of fact if the photograph taken on 9.11.2011 is seen properly, the road appears to be narrow. We are therefore of the view that the prayer of the petitioner for allotment of an additional land for construction of a road in between National Highway No.5 and the allotted plot is not unjustified. 14.The other prayer is for adjustment of the interest accrued on the amount deposited by the petitioner towards cost of additional land, if allotted in favour of the petitioner or otherwise. Undisputedly the petitioner had deposited a sum of Rs.43.03,026/- on 20.3.2011. Thereafter also she had deposited a sum of Rs.4,82,364/-. The land allotted in favour of the petitioner in Laxmisagar-1 could not be delivered possession because of the encroachment and finally an alternative site at Bomikhal was allotted only in February 2007. Therefore, the State Government enjoyed the amount deposited by the petitioner from March 2011 till February 2007 till final allotment in favour of the petitioner was made in Bomikhal. Therefore the petitioner is entitled to adjustment of the interest accrued on such deposit at the rate of interest as has been decided in a series of cases depending on the facts of each case. Reference may be made in this regard to decisions of the Hon’ble Supreme Court in the case of Aditya Mass Communications (P) Ltd. v. A.P.S.R.T.C. reported in AIR 2003 Supreme Court 3411, Sovintory (India) Ltd., v. State Bank of India, New Delhi reported in AIR 1999 Supreme Court 2963 and several other decisions cited by the learned counsel for the petitioner. In most of the cases, interest has been allowed at the rate of 12% per annum. We, therefore direct that in the event, an additional land is allotted in favour of the petitioner, the interest be calculated on the amount deposited by the petitioner from the date of deposit till February 2007 at the rate of 12% per annum and the interest amount calculated on the above basis at the rate of 12% per annum be adjusted against the price of the land or in the alternative the said amount be adjusted otherwise or refunded to the petitioner. 15.In view of the discussions made above, we hope and trust that the State Government shall consider the grievance of the petitioner afresh keeping in mind the observations made above and shall specially take note of the fact that the petitioner is a lady entrepreneur having experience in the management of Hotel. We accordingly remit the matter back to the State Government for reconsideration of the claim of the petitioner afresh and consequently quash the impugned order rejecting the representation of the petitioner after the matter was remitted back to the State Government for reconsideration. B. K.ISRA, J.I agree. Ordered accordingly.