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2017 DIGILAW 281 (ORI)

Krutibas Mohanty v. State of Odisha

2017-03-16

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This writ petition has been filed by the petitioners seeking setting aside of the orders dated 17.9.2014 issued by O.P.2, Director, Biju Pattnaik International Airport under Annexure-2 series and further issuing necessary direction to prohibit the O.P.2 from forcibly taking away the private lands of the petitioners and others residing in Bhimpur Mouza in Bhubaneswar. 2. Assailing the impugned orders, the petitioners claiming to be the residents of Bhimpur Mouza adjacent to Biju Pattnaik International Airport since 1994 made request to the Chief Minister, the Chief Secretary and other dignitaries of the State to provide a 10 feet wide road connecting Bhimpur Mouza from the Airport gate till Kine House. While the matter was pending consideration of the appropriate authority, considering substantial increase of the residents in the locality, an amended request was made to the Government for providing at the minimum a 30 feet wide road. It is claimed, the State Government after considering the difficulties of the residents was pleased to alienate an area measuring Ac.1.506 pertaining to Khata No.740, Plot Nos.454 and 466 under Mouza-Bhimpur in favour of the Airport Authority and in lieu of that area, the Airport Authority also surrendered equal extent of land pertaining to Khata No.746 Plot Nos.698, 699, 729, 1004, 285, 296 & 297 in Mouza-Bhimpur measuring an equal extent of area of Ac.1.506 for utilization of the local public as public road of 30 feet wide subject to condition that the Airport Authority shall develop and construct the road at their own cost. The petitioners claimed that they along with other local public are already enjoying 10 feet wide Government road along with another 10 feet wide from private land as has been assigned by the private recorded land owners. Involving a dispute with regard to the measurement and demarcation, the petitioners made G.A. Department and the Director of Estate several times and the Authorities after visiting the area along with the R.I. and Land Officers and after discussing with the local residents sought for demarcation of the land to find out the 10 feet land, as claimed to have been provided by the vendors to the petitioners through their sale deed with reference to Sabik and Hal Map through the field staff of the Tahasildar involving sale deeds in order to find out the actual position of the road. It is alleged that in spite of adhering to the decision of the Special Secretary, G.A. Department, Orissa and in clear ignorance of the documents produced by the petitioner, a fabricated map was prepared in order to deprive the present petitioners along with the local public of Bhimpur Mouza. The petitioners moved a writ petition in their first attempt, vide W.P.(C) No.10169/2014, this Court disposed of the same on 28.5.2014 directing the competent authority to consider the grievance of the petitioners therein within a period of three months from the date of communication of this order. Another set of persons including some of the petitioners filed another writ petition, i.e., W.P.(C) No.12192/2014, which matter was disposed of on 11.8.2014 again directing the Director of Biju Pattnaik International Airport Authority to dispose of the representation submitted by them. The representation was disposed of by the O.P.2 observing that there is no illegal construction of the boundary wall by Airport Authority and the construction has been undertaken on appropriate demarcated line made by the G.A. Department after carving out 20 feet width land corresponding to an area of Ac.1.506, as per their letter dated 18.8.2006. It is claimed that there already existed a road constructed by the Bhubaneswar Municipal Corporation prior to handing over the land to the Airport Authority by the G.A. Department. It is further alleged that though the O.P.2 started a constructed work on a 40 feet road from Kine House but while approaching towards Bhimpur Mouza, they are now trying to forcefully take away the 10 feet private land of the petitioners including that of the private land of more than 50 residents of the locality with an intention to develop 30 feet wide road following their promise. The petitioners complain to the competent authority including the Airport Authority did not make any improvement in the situation, on the other hand the Airport Authority taking help of a large number of police attempted to have the construction taking away the petitioners land compelling the petitioners to file the present writ petition seeking direction, as indicated herein above. 3. The petitioners complain to the competent authority including the Airport Authority did not make any improvement in the situation, on the other hand the Airport Authority taking help of a large number of police attempted to have the construction taking away the petitioners land compelling the petitioners to file the present writ petition seeking direction, as indicated herein above. 3. Referring to several documents enclosed along with the writ petition and the interim order passed by this Court facilitating a fresh measurement of land by its order dated 26.2.2015, Sri Ashok Mohanty, learned senior counsel appearing for the petitioners, strenuously urged that even though a demarcation process has been undertaken but since the demarcation process did not follow the direction of this Court in true spirit and there has been no application of Hal status of the land involved therein, alleged that a demarcation report has been prepared to benefit the opposite parties and with a deliberate intention to deprive the permanent residents in the locality from their right over particular land. It is also alleged that since the lands included in the road project belonging to the petitioners with the support of registered sale deeds, their private lands cannot be utilized for road purpose unless and until there is acquisition under the statute meant for the same by the competent authority and the action of the public authorities alleged to be absolutely illegal and contrary to the provision of law. It is under the circumstance, Sri Mohanty, learned senior counsel for the petitioners, submitted that the public authorities should be prohibited from undertaking their ill-designed action and also prevented from depriving the petitioners from their right over their won lands. 4. Pursuant to the notice, O.P.1 filing counter affidavit challenging the maintainability of the writ petition on the premises that the writ petition involves disputed questions of facts also contended that the petitioners are in the habit of moving this Court again and again for no lawful reason. In spite of this Court’s direction for measurement/demarcation involving the petitioners and the measurement process though undertaken involving the petitioners, the petitioners finding the factual position against them refused to sign the demarcation proceeding. It is asserted that there has been an appropriate demarcation proceeding not only involving the parties but also taking into consideration all the information available and the documents connecting the locality. It is asserted that there has been an appropriate demarcation proceeding not only involving the parties but also taking into consideration all the information available and the documents connecting the locality. Thus, while justifying the report prepared for the purpose submitted that there is no wrongful deprivation to the petitioners from their land and the allegation that the O.P.2 is forcibly taking away the private lands of the petitioners is out and out false and also contrary to the materials available on record. 5. Referring to the detailed counter affidavit, Sri V.Narasingh, learned counsel for O.P.2, on allegation that there has been illegal diversion of petitioners lands by the O.P.2, contended that the demarcation proceeding has been undertaken taking into consideration the relevant records available involving the particular area and the lands. For the time and again direction of this Court for considering the petitioners grievance, the matter has also been taken up with due care and caution. It is alleged that the previous attempt for demarcation was deliberately obstructed by the petitioners. However, following the interim direction of this Court, a fresh demarcation process has already been undertaken finding the claim of the petitioners false and under the circumstance, Sri Narasingh, learned counsel for O.P.2, contended that the writ petition firstly is not maintainable for the involvement of disputed question of fact and secondly, the claim of the petitioners runs contrary to the land particulars and materials available with the Revenue Authority. 6. Sri S.P.Mishra, learned Advocate General for the State referring to the counter affidavit of the State, O.P.1, the yadast and draft R.O.R. submitted that the claim of the petitioners that there has been illegal diversion of the petitioners lands is not only contrary to the records available with the Revenue Authority but for the involvement of the disputed questions of fact, no adjudication of the dispute involved is possible in exercise of power under Article 226 or 227 of the Constitution of India, further referring to the fresh demarcation undertaken following the interim direction of this Court submitted that there has been a clear indication of the actual fact supporting the case of the Government as well as the Airport Authority and the demarcation undertaken in presence of the petitioners even though signed by several local people but the petitioners refused to sign on the false pretext. Under the above premises, Sri S.P.Mishra, learned Advocate General, while claiming that an important assignment involving security of the Airport at Bhubaneswar is being delayed for the illegal attempt of the petitioners and thus, while requesting for dismissal of the writ petition urged for vacation of the interim order and permitting the O.Ps. to proceed with the construction of the compound wall of the Airport and also for making available of the road provision in the locality. 7. Considering the rival contentions of the parties and on scan of the pleading in the writ petition, this Court finds, the petitioners’ claim runs through the information available in sale deeds running in their favour. There is dispute with regard to the starting point and end point involving a road construction in the local when the Government Authority and the Airport Authority claim that there has been appropriate measurement and construction of the compound wall as well as the road is being made following the proper measurement and based on the information available through the land records. Considering the rival claim of the parties at an earlier occasion by way of interim direction dated 26.2.2015, this Court in this writ petition passed the following order :- “As an interim measure, it is directed that the General Administration Department-opposite party no.1 is to take a fresh measurement in presence of the concerned villagers including the petitioners involving the Air Port Authority and submit a report on the next date. Further, it is directed that fresh measurement will be conducted taking into account the Sabik map of the locality. In view of the urgency in the matter and keeping in mind the allegations made by the petitioners particularly on the aspect that their land is illegally going to be taken over b the Air Port Authority in connivance with the State Officials, this Court directs for maintenance of status quo by the parties in respect of the construction at the spot till next date. Following the direction dated 26.2.2015, this Court finds, the Authorities have also entered into a measurement and demarcation process in the matter of construction of public road and the boundary wall of the Biju Pattnaik International Airport at Bhubaneswar and from the report, this Court finds, the following :- “As per direction of the Hon’ble High Court dated 04.03.2015 in Misc. Case No.3560 of 2015 the fresh measurement of the road land has been conducted on the basis of the sabik settlement (1953-54) map of mouza-Bhimpur. We have also measured some plots relating to the adjacent Mouza-Bhubaneswar on the basis of the sabik settlement map (1953-54) of Mouza-Bhubaneswar to identify the village boundary of Mouza-Bhimpur as the petitioner’s land is situated near by the village boundary of mouza Bhimpur. After due measurement of the land belonging to petitioner’s we have also demarcated the boundary line of the 30’.0” wide road land out of which 20’.0” wide road land was left by the Airport authority & 10’.0” wide road land belongs to State Government of Mouza-Bhimpur. After field measurement, it was found that the points on the southern side of the 30’.0” wide road land fixed earlier on the basis of the Hal settlement map (1988-89) of Mouza-Bhimpur, Unit No.22 is intact with the fresh measurement as per the sabik map (1953-54) of mouza-Bhimpur. So the boundary line of the Airport land identified for construction of the public road and the compound wall of Biju Patnaik International Airport, Bhubaneswar is correct as per the Sabik as well as the Hal map of Mouza Bhimpur. The trace map prepared on the basis of the sabik (1953-54) settlement map of Mouza-Bhimpur and Mouza-Bhubaneswar is enclosed along with the attendance of the persons present at the time of field measurement. The petitioner Sri Krutibash Mohanty and others have refused to put their signature on the attendance.” Reading of the aforesaid observations in the report, this Court finds, the measurement involving the dispute raised by the petitioners though has been undertaken involving the petitioners and the measurement has been taken up involving both the Hal settlement map as well as sabik map and even though the report has been signed by several residents of the locality, as appearing at Page-91 of the brief, showing their attendance at the time of enquiry and signatures thereof as a matter of mark of acceptance of the measurement/demarcation report but the present petitioners though were present at the spot but refused to sign the same. 8. Considering the discussions in the measurement/demarcation report, this Court finds, the allegation of Sri Ashok Mohanty, learned senior counsel that the measurement has been undertaken without taking into consideration the sabik plot index runs contrary to the detailed discussion therein. 8. Considering the discussions in the measurement/demarcation report, this Court finds, the allegation of Sri Ashok Mohanty, learned senior counsel that the measurement has been undertaken without taking into consideration the sabik plot index runs contrary to the detailed discussion therein. At this stage, this Court wants to refer to a decision of the Hon’ble apex Court in the case of State of Rajasthan vs. Bhawani Singh & others reported in 1993 Supp (1) SCC 306. This Court finds, deciding the question of maintainability of the writ petition for involvement of the disputed questions of fact, the Hon’ble apex Court held that the matter involving the disputed questions relating to title of the parties over the land cannot be gone into adjudication in a writ petition either under Article 226 or 227 of the Constitution of India. 9. For the observations made herein above, for the law of the land and particularly for the observations in the demarcation report, this Court finds no scope for interfering in the impugned action. Consequently, the writ petition stands dismissed. 10. For dismissal of the writ petition, the interim order passed in Misc. Case No.3560/2015 stands vacated.