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2023 DIGILAW 10 (ORI)

Rajashree Gajendra v. State of Odisha

2023-01-06

ARINDAM SINHA, S.K.MISHRA

body2023
JUDGMENT Arindam Sinha, J. - Mr. Gajendra, learned senior advocate appears on behalf of petitioner and Mr. Babu, learned advocate, Additional Government Advocate, for State. The writ petition was moved before us on 21st November, 2022, when Mr. Gagendra, submitted, his client had applied for allotment of Acs.2.5 decimals of land under Odisha Industrial Policy, 1996, for setting up a hotel. Initially a plot was allotted but possession could not be given. Subsequently, another plot at an alternate site was allotted, of area Ac.1.285 decimals and given possession. Area of the plot being wholly insufficient for the project contemplated and land applied, his client sought allotment of the balance project land, as additional land. He adds, the project was duly recommended. The additional land will also serve as access to the national highway. 2. In spite of best efforts of his client to obtain allotment of the balance land, on their having had been recommendation by officers in the Government that such land was necessary, the application was rejected by order dated 26th December, 2009 passed by The Hon'ble Chief Minister. This was challenged by his client in W.P(C) no.1576 of 2010 resulting in judgment dated 6th April, 2011. He draws attention to the judgment to show the reasons, on which impugned therein order of The Hon'ble Chief Minister was set aside and quashed. 3. Subsequent to said judgment there was another judgment dated 24th February, 2012 in W.P.(C) no.19834 of 2011, whereby, inter alia, view taken was that prayer of his client for allotment of additional land for construction of road between the national highway and already allotted plot, is not unjustified. 4. His client preferred special leave petition being Special Leave to Appeal (C) no.7964 of 2014, disposed of on order dated 2nd July, 2014. Text of the order is reproduced below. 'Delay condoned. We have heard learned counsel for the petitioner. We are not inclined to interfere with the impugned order because the High Court has remanded the matter to the State Government for consideration of the claim of the petitioner. We are confident that the State Government will consider the representation of the petitioner taking into account the observations of the High Court. The special leave petition is disposed of.' (emphasis supplied) 5. Notwithstanding, impugned order dated 10th March, 2016 was made, once again rejecting his client's application for additional land. We are confident that the State Government will consider the representation of the petitioner taking into account the observations of the High Court. The special leave petition is disposed of.' (emphasis supplied) 5. Notwithstanding, impugned order dated 10th March, 2016 was made, once again rejecting his client's application for additional land. Submission was, the order does not bear reasons. There should be direction compelling the authorities to allot the land, on quashing impugned order. 6. 7th December, 2022 Mr. Gajendra had drawn attention to order made earlier on 21st November, 2022. We reproduce paragraph 6 from said order. '6. We have perused, inter alia, impugned order. Prima facie, it appears, recommendation no.1 is the reason for rejection. The recommendation is reproduced below. '1. The team verified feasibility to provide 2nd road connectivity from the south side (NH-5) of the hotel site. But the team did not consider it proper as it would pose serious problem for maintenance and repair of heavy water pipe line passed to the nearby high level water tank. Executive Engineer, GPEO have raised objection for using the site for road purpose in his letter No.19283 dtd. 1.11.2014.' Mr. Babu had submitted, his instructions were, additional land cannot be allotted to petitioner for construction of road in view of the reason reproduced above. 7. Mr. Gajendra then drew attention to certificate dated 12th April, 2019 containing opinion of Chief Engineer (Roads and Building) Retd., engaged by petitioner. The opinion is extracted and reproduced below. 'During my visit, I saw construction of a massive structure of the Hotel building in progress. For reaching the spot of the Hotel site I had to go on the Industrial Estate road on the back side of the allotted land site and take a turn to reach the Water supply Pump house gate over a vacant space which is being used as ingress and outgress for the purpose of building construction. There is no direct access of the Hotel building to the service road of N.H. No.5. If a 40 ft. or 50 ft wide road would be constructed from the Hotel building site of Smt. Rajashree Gajendra on the adjoining Southern side Govt. vacant land crossing the water supply pipe line with minimum 1 ft height over it there shall be absolutely no difficulty for maintenance of that stretch of pipe line nor any damage would be caused.' (emphasis supplied) 8. vacant land crossing the water supply pipe line with minimum 1 ft height over it there shall be absolutely no difficulty for maintenance of that stretch of pipe line nor any damage would be caused.' (emphasis supplied) 8. On that date (7th December, 2022) there was direction upon State to file additional affidavit dealing with the certificate. State filed additional affidavit dated 20th December, 2022 affirmed by Deputy Director of Estates General Administration and Public Grievance Department. The affidavit carries disclosure being undated field inspection report. Today, Mr. Babu relies on it as State's contention to oppose prayers in the writ petition. We have perused the disclosure in said affidavit. The disclosure carries findings and recommendations made by four persons, who had signed the report. We extract and reproduce the recommendations. '1. The team verified feasibility to provide 2nd connectivity from the south side (NH-5) of the hotel site. But the team did not consider it proper as it would pose serious problem for maintenance and repair of heavy water pipe line passed to the nearby high level water tank. Executive Engineer, GPEO have raised objection for using the site for road purpose in his letter No.19283 Dated 1.11.2014. 2. Further, the committee felt that the lessee has kept the land idle for a long time. Moreover, several hotels at Bhubaneswar having less than one Acre of land have been established in the limits of BMC. So the committee did not consider it fit and proper to recommend for allotment of additional land due to scarcity of government land for public purpose within the limits of BMC.' 9. Petitioner has prayed for quashing impugned order dated 10th March, 2016 and for direction upon the authority to make allotment of balance required extent of land of Ac. 1.215 decimals, out of which area of Ac. 0.950 decimals is available adjoining to the northern side and an area of Ac.0.265 decimals is available adjoining to the southern side of petitioner's allotment. 10. Hearing of the writ petition on earlier two occasions resulted in our aforesaid direction upon State to file additional affidavit, which has been filed. As aforesaid, contention of State for opposing the prayer are the recommendations made in the undated field inspection report, the two recommendations reproduced above. We have perused the recommendations. 10. Hearing of the writ petition on earlier two occasions resulted in our aforesaid direction upon State to file additional affidavit, which has been filed. As aforesaid, contention of State for opposing the prayer are the recommendations made in the undated field inspection report, the two recommendations reproduced above. We have perused the recommendations. The authors of the report in so recommending, themselves appear as not convinced on recommendation no.1, to have giving recommendation no.2 for additional support to recommendation no.1. The second recommendation says, further the committee felt that the lessee has kept the land idle for a long time, which is why the committee did not consider it fit or proper to recommend allotment of additional land due to scarcity of Government land for public purpose within the limits of Bhubaneswar Municipal Corporation (BMC). 11. The affidavit was called for from State because petitioner had relied on certificate dated 12th April, 2019, relevant content of which also stands extracted above. There has no scope for State to contend in the alternative. In event they wanted Court to uphold their reasons for rejecting petitioner's claim for additional allotment, the reasons had to be good ones. The first reason appears to be based on objection regarding maintenance of underground water pipe. That reason would not allow the land on the southern side of petitioner's allotment to be used as access to her plot or for that matter to be used as access for any purpose since, access would, according to the report, pose serious problems for maintenance and repair of heavy water pipe line passed to the nearby high level water tank. Thus, the second reason citing scarcity of availability of Government land for public purpose militates against the first. 12. There has been no attempt to dispute contents of the certificate by an expert, deponent of said affidavit not being one and having had relied on the undated field inspection report. The report does not deal with the opinion. Secondly, inclusion of the second recommendation as alternative case weakened the contention regarding damage to water pipe being reason for rejection of the claim for allotment of additional land on southern side of petitioner's allotment, for purpose of access to it. 13. Impugned order dated 10th March, 2016 is set aside and quashed. Secondly, inclusion of the second recommendation as alternative case weakened the contention regarding damage to water pipe being reason for rejection of the claim for allotment of additional land on southern side of petitioner's allotment, for purpose of access to it. 13. Impugned order dated 10th March, 2016 is set aside and quashed. Opposite party no.1 is directed to forthwith allot the additional land on southern side of petitioner's allotment, since State had only considered granting it on that side. The additional allotment is to be made and must be informed to petitioner, within four weeks of communication. 14. The writ petition is allowed and disposed of.