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2017 DIGILAW 1047 (ORI)

Nruplal Udyan Trust v. Debendra Mohan Satpathy

2017-09-14

I.MAHANTY, K.R.MOHAPATRA

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JUDGMENT : K.R. Mohapatra, J. This Review Petition has been filed assailing the judgment dated 03.04.2012 passed by this Court in W.P.(C) No.11898 of 2011, wherein, the writ Court, while allowing the writ petition, quashed the permission granted in favour of the review petitioner (opposite party No.6-Nruplal Udyan Trust therein) (for short ‘the Trust’) for construction of market complex in the public garden, namely, Nruplal Udyan (for short ‘the Park’). The writ Court further restrained the review petitioner and its members from making any construction in the Park and directed the then Notified Area Council, Barpalli (for short ‘NAC Barpalli’) to maintain the Park and develop it by renovating the same. 2. Bereft of unnecessary details, the fact relevant for proper adjudication of the Review Petition are as follows: W.P.(C) No.11898 of 2011 was filed essentially seeking interference of this Court for protection of Nruplal Udyan (Park) and to restrain the opposite parties therein from making construction of market complex in the Park and not to change the nature and character of the Park. The writ petitioner-Debendra Mohanty Satpathy, a public spirited person had filed the writ petition contending that the Park is named after the then Ruler of Barpalli, namely, Nruplal Singh, who donated Plot No.865 under Khata No.1429 and Plot No.866 Khata No.483 to an extent of Ac.0.92 decimal land under Barpalli mouza for establishment of a public garden/park to be used by the local residents. The Park was inaugurated on 11.03.1934. Subsequently, the Park was developed and maintained by Barpalli Panchayat Samiti. In 1971, Barpalli was declared to be a NAC and accordingly, it took over maintenance and beautification of the Park. It was contended in the writ petition that since then the Park started losing its glory and beauty, in spite of several requests by the local public NAC Barpalli did not take any step to renovate Park and maintain it. Taking undue advantage of the same, some persons with vested interest formed a Trust in the name and style of ‘Nruplal Udyan Trust’ in the year 2006 and by gaining over officials of NAC, Barpalli, the Trust had obtained permission to construct a market complex in the Park. In no time, the Trust had started construction of the proposed market complex by felling trees and destroying the greenery of the Park. In no time, the Trust had started construction of the proposed market complex by felling trees and destroying the greenery of the Park. Thus, the writ petitioner, in order to ascertain the truth, had sought for certain information from NAC, Barpalli under the provisions of the Right to Information Act, 2005 and came to know that the Trust had obtained permission for construction of 16 shop rooms of 16’ x 12’ size each, which was covering almost the entire frontage of the Park. It was further informed that the local MLA had sanctioned fund from MLALAD for the construction in question and a sum of Rs.2.70 lakh had already been spent as on 24.03.2011. Thus, finding no other alternative, he had approached this Court by filing the aforesaid writ petition. 3. The Trust (opposite party No.6 in the writ petition) filed its counter affidavit refuting the allegations made in the writ petition. It was contended inter alia that the petitioner was the former Chairman of Barpalli NAC during 1979-81. He was subsequently removed from the office before completion of his tenure. During his tenure, the petitioner had not taken any step for improvement of the Park in question. During his tenure, he had allowed some of his supporters to encroach upon the Park from its western side facing National Highway by constructing unauthorized shop rooms, which were ultimately removed in the year 2002 by the District Administration. Thus, it was contended in the counter affidavit that the writ petitioner had come to the Court with unclean hands and the writ petition, in the nature of public interest litigation, would not be maintainable. The Managing Trustee of the Trust, namely, Sri Sibnaryana Singhdeo was a descendant of the Nruplal Singh, the then king, who had donated the land for establishment of the Park. Looking into the precarious condition of the Park and in order to prevent further encroachment of the Park, he along with some respectable persons of the locality had formed the Trust for renovation and development of the Park. Accordingly, the Trust after obtaining necessary permission under Section 121 of the Orissa Municipal Act from the NAC, Barpalli had undertaken the construction work of 10 shop rooms, urinal, as well as rest room with drinking water facility only on Ac.0.12 decimal of land out of the total area of Ac.0.92 decimal, which covered the western boundary of the Park. Accordingly, the Trust after obtaining necessary permission under Section 121 of the Orissa Municipal Act from the NAC, Barpalli had undertaken the construction work of 10 shop rooms, urinal, as well as rest room with drinking water facility only on Ac.0.12 decimal of land out of the total area of Ac.0.92 decimal, which covered the western boundary of the Park. The Trust had also applied to the Tahasildar, Barpalli under Section 8-A of the Orissa Land Reforms Act for conversion of the land in question to be used for homestead purpose. Accordingly, OLR Case No. 44 of 2011 was initiated on the file of the Tahasildar, Barpalli and by order dated 01.11.2011 the Trust was directed to pay the premium for conversion of the land. Thereafter, the Trust had undertaken construction of market complex in order to utilize the fund raised from the rent of those shop rooms for development of the Park by creating a corpus fund. It was thus contended by the Trust that permission granted and the construction raised was not illegal and the writ petition was not maintainable. 4. The opposite parties, namely, authorities of the State of Odisha also filed their respective counter affidavits supporting the stand taken by the Trust. 5. Taking into consideration the rival contentions of the parties and materials available on record, this Court held that the land in question was donated by the ex-Ruler of Barpalli for establishment of a Park and the same was named after him. Thus, donation being for the purpose of establishment of a Park, the Trust is not entitled to put up any construction inside the Park and the Trust cannot be permitted to carry out any construction work on the basis of the permission granted by NAC, Barpalli, which is illegal. This Court also deprecated the action of NAC, Barpalli in granting permission to the Trust for construction of shop rooms in a portion of the Park. Thus, while allowing the writ petition, the permission granted in favour of the Trust was quashed and the Trust as well as its members were restrained from making any construction in the Park in question. Being not satisfied with the judgment dated 03.04.2012, the Trust has filed this petition seeking review of the said judgment. 6. Mr. Thus, while allowing the writ petition, the permission granted in favour of the Trust was quashed and the Trust as well as its members were restrained from making any construction in the Park in question. Being not satisfied with the judgment dated 03.04.2012, the Trust has filed this petition seeking review of the said judgment. 6. Mr. Mohanty, learned Senior Advocate for the review petitioner submitted that the writ Court proceeded on a misconception that construction of proposed market complex would obstruct the frontage of the Park, which is not a fact. Further, the writ Court did not take into consideration the fact that the Trust would raise fund from the market complex to maintain and develop the Park. As a portion of the land utilized for construction of market complex has already been converted to Gharabari (homestead) following due procedure of law, there cannot be any objection for construction over any portion of the same. A negligible area of Ac.0.12 decimals is being used for construction of the market complex and income out of the said shop rooms will be for renovation, development and maintenance of the Park. Besides the construction meant for commercial purpose, urinals, rest room with drinking water facilities are being constructed for public utility, which is essential for a Park. All these factors although raised, were not taken into consideration by the writ Court. 7. Upon hearing Mr. Mohanty, learned Senior Advocate for the petitioner and on perusal of records it reveals that the land in question was donated by the ex-Ruler of Barpalli, Nruplal Singh for establishment of Park for the public of Barpalli. It is also not disputed that the donation of the ex-Ruler was only for the establishment of a Park and not for any other purpose. The donee, namely, local body of Barpalli was donated with the land, as aforesaid, for establishment of the Park. Accordingly, the Panchyat Samiti of Barapalli and thereafter, since 1971, NAC, Barpalli is looking after maintenance and development of the Park. As it appears, the petitioner-Trust does not have any right, title, interest or authority conferred under law to maintain and develop the Park in question. Permission was granted by the NAC, Barpalli to the Trust for construction of market complex, which has no authority under law to take up such construction. As it appears, the petitioner-Trust does not have any right, title, interest or authority conferred under law to maintain and develop the Park in question. Permission was granted by the NAC, Barpalli to the Trust for construction of market complex, which has no authority under law to take up such construction. The donor, namely, ex-Ruler of Barpalli has never made any provision in the gift deed for construction of any market complex inside the Park. As such, the permission granted was arbitrary and the same is de hors the law. A bare perusal of the judgment of the writ Court makes it absolutely clear that the petitioner-Trust was created by some people of the locality in the name of the ex-Ruler, namely, Nruplal Singh for maintenance and development of the Park, which was conferred upon the local body by the donor (ex-Ruler). Thus, NAC, Barpalli has also no authority under law to delegate its responsibility of maintenance and development of the Park to any private body. There being no error apparent on record, the contentions raised by Mr. Mohanty do not stand to the scrutiny for review of the judgment passed in the writ petition. 8. In that view of the matter, we are not inclined to entertain the review petition being devoid of any merit, which is accordingly dismissed. I. Mahanty, J. I agree.