Orissa High Court
Basanta Kumar Sahoo vs State Of Odisha And Others ..... Opp. ... on 25 June, 2018
Equivalent citations: AIR 2019 (NOC) 22 (ORI.), AIRONLINE 2018 ORI 304
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 16352 of 2013
In the matter of an application under Articles 226 and 227 of
AFR the Constitution of India.
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Basanta Kumar Sahoo ..... Petitioners
and others
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioners : M/s. S.P. Sarangi, B.C. Mohanty,
P.P. Mohanty, D.K. Das and
P.K. Dash, Advocates.
For Opp. Parties : Mr. P.K. Muduli,
Addl. Govt. Advocate
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PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HONOURABLE DR. JUSTICE B.R. SARANGI
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DECIDED ON :: 25.06.2018
--------------------------------------------------------------------------- DR. B.R. SARANGI, J, The petitioners, who are villagers of Bahanaga and other Gram Panchayats under Bahanaga Block in the district of Balasore, have filed this writ petition with following prayers:-
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"In the circumstances, it is therefore prayed that this Hon'ble Court would graciously be pleased to issue a 'Rule-NISI' calling upon the Opposite Parties to show cause as to why the letter dated 27.06.2013 issued by the Additional Secretary to Government, in the Department of Home (Civil Defence) vide Annexure-20, wherein it has been decided to set up the Fire station at Village-Talakurunia in stead of Bahanaga shall not be quashed if the Opposite Parties fail to show cause or show insufficient cause, make the said Rule absolute.
And Further direct the Opposite Parties to immediately construct the Fire Station at Village-Sathi under Bahanaga Block in terms of the notification dated 20.12.2012 vide Annexure-14.
And Issue such other writ/writs, order/orders, direction/directions as this Hon'le Court may deem it fit and proper in the interest of justice.
And for this act of your kindness the Petitioners shall as in duty bound ever pray."
2. The essence of relief sought before this Court is that the decision of the State Government to set up Bahanaga Fire station at village Talakurunia of Bahanaga Block, instead of village Sathi of the said Block, is not only violative of policy decision of the State Government, but also illegal, arbitrary and mala fide, and thus is liable to be quashed.
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3. The factual matrix of the case, in hand, is that the Government of Odisha made a policy decision to establish Fire Stations in 120 numbers of uncovered Blocks of the State. Bahanaga Block, being one of them, was selected for establishment of the Fire Station. Accordingly on 11.01.2011, the Fire Officer, Cuttack wrote a letter to the Collector-cum- District Magistrate, Balasore intimating therein the decision for opening of the Fire Station at Bahanaga. In the said letter, the Fire Officer, Cuttack requested for identification of land for opening of the said Fire Station. On 17.01.2011, the Additional District Magistrate, Balasore wrote a letter to the Tahasildar, Soro requesting therein to identify two acres of Government land at Bahanaga and to take immediate steps for convening the meeting of the Site Selection Committee.
4. On 24.01.2011, the I.G. of Police, Fire Services and Home Guard, Cuttack wrote a letter to the Collector- cum-District Magistrate, Balasore requesting therein to take necessary steps for early alienation and advance possession of the land in favour of the Home Department for construction of Fire Station building of Bahanaga. On 4 17.02.2011, the Fire Officer, Odisha, Cuttack requested Sub- Collector, Balasore to take necessary steps to convene the meeting of the Site Selection Committee and for advance possession of the land for construction of Bahanaga Fire Station.
5. On 25.03.2011, the I.G. of Police, Fire Services and Home Guard, Cuttack wrote a letter to the Collector- cum-District Magistrate, Balasore requesting therein to take necessary steps for early alienation/advance possession of the land in favour of Home Department for construction of Fire Station of Bahanaga. Similar request was also made on 07.05.2011 by the Fire Officer, Odisha, Cuttack. Further to expedite the matter the Chief Fire Officer, Odisha, Cuttack on 03.06.2011 wrote a letter to the Collector-cum-District Magistrate, Balasore requesting therein for alienation of land in favour of the Home Department to start construction work of Bahanaga Fire Station. Accordingly, the Site Selection Committee held a meeting on 08.04.2011 and, after visiting a number of sites in the vicinity of Bahanaga, ultimately selected a patch of land bearing Khata No.721, Plot No.1181, 5 area Ac.2.00, mouza-Sathi, Kissam-Gochar. The said proceeding of the Site Selection Committee was sent by the Deputy Collector, Revenue, Balasore to the Tahasildar, Soro, vide communication dated 25.06.2011, and requested therein to take further follow up action as per the provisions of the Orissa Government Land Settlement Act, 1962 (for short "OGLS Act").
6. The I.G. of Police, Fire Services and Home Guard, Cuttack wrote a letter on 09.02.2012 to the Collector-cum- District Magistrate, Balasore requesting therein to initiate immediate action for alienation of the aforesaid Government land and also stating that the timely action should be taken to utilize the Government fund, which was allocated for construction of Bahanaga Fire Station. Similar request was also made by the Chief Fire Officer, Odisha, Cuttack, vide letter dated 18.02.2012, to the Collector-cum-District Magistrate, Balasore for alienation of land in question in favour of Home Department for ultimate construction of Bahanaga Fire Station and further a reminder was also 6 issued on 11.07.2012 by the Chief Fire Officer, Odisha, Cuttack.
7. On 08.08.2012, the Chief Fire Officer, Odisha, Cuttack requested the Sub-Collector, Balasore to send alienation case record with regard to Bahanaga Fire Station to the Collector-cum-District Magistrate, Balasore with necessary recommendation for alienation and advance possession in favour of Home Department for early construction of the Fire Station.
8. Since no action was taken for alienation of land in favour of Home Department, villagers of village Sathi represented to the Collector-cum-District Magistrate, Balasore requesting therein to alienate the land in question in favour of Home Department for construction of Bahanaga Fire Station. When the matter stood thus, on 20.12.2012 the Government of Odisha, in the Department of Home (Civil Defence) issued a notification in exercise of power conferred under Sections 2(g) and 8(ii) of the Orissa Fire Services Act, 1993 declaring therein establishment of 41 Fire Stations at 7 different places of the State. One of the Fire Stations was to be established at Bahanaga under Bahanaga Block in the district of Balasore which has been found place at Serial No.2 of the notification. As such, the said notification was issued in conformity with the policy of the State Government to establish the Fire Station on the side of the main road of the Block headquarters. On 02.01.2013, the Chief Fire Officer, Odisha, Cuttack wrote a letter to the Collector-cum-District Magistrate, Balasore stating therein that Rs.55 lakhs have been provided by the Government for construction of Bahanaga Fire Station and since the land was identified for the purpose, necessary steps be taken for sanction of alienation proposal and to issue instruction to the concerned Tahasildar to handover possession of the site to the Assistant Fire Officer, Balasore to start construction of the Fire Office for timely utilization of the fund itself.
9. When the matter stood thus, on 14.01.2013 the I.G. of Police, Fire Services and Home Guard, Cuttack wrote a letter to the Additional Secretary to Government of Odisha in the Department of Home (Civil Defence) stating therein that 8 pursuant to D.O. letter No.217 dated 15.11.2012 received from the Minister, Housing and Urban Development, Law, Information and Technology, Odisha, the State Government, vide notification dated 20.12.2012, has sanctioned establishment of 41 Fire Stations in the State including a Fire Station at Bahanaga Block of Balasore district. As desired by the Minister, the Chief Fire Officer was requested to report with regard to suitability of the proposed site "Talakurunia" for opening of Bahanaga Fire Station. But the Chief Fire Officer, Odisha Cuttack on 21.01.2013 requested the Collector-cum-District Magistrate, Balasore to take immediate steps for alienation of the land appertaining to Khata No.721, Plot No.1181, area Ac.2.00, Mouza-Sathi, Kissam-Gochar in favour of the Home Department for construction of Bahanaga Fire Station for timely utilization of the fund. Instead of carrying out the same, the Additional Secretary to Government in the Department of Home (Civil Defence), on 27.06.2013, wrote a letter to the Additional D.G. and I.G. of Police, Fire Services, Odisha, Cuttack requiring therein to take immediate steps for construction of Bahanaga 9 Fire Station at Talakurunia village under Bahanaga Block of Balasore district, hence this writ petition.
10. Mr. S.P. Sarangi, learned counsel appearing for the petitioners strenuously contended that the notification for establishment of Fire Station, having been issued on 20.12.2012 in exercise of power conferred on the authority under Sections 2(g) and 8(ii) of the Orissa Fire Services Act, 1993 and the same being a statutory notification, cannot be altered by way of a letter written by the Additional Secretary to Government in the Department of Home (Civil Defence) on 27.06.2013 in Annexure-20. As such, for the change of place for establishment of Bahanaga Fire Station from village Sathi to Talakurunia village under Bahanaga Block no reason has been assigned, save and except the same is to be changed as desired by the Minister of Housing and Urban Development, Law, Information Technology, Odisha, who has no jurisdiction to issue such instruction, because the construction has to be done by the Home Department. It is further contended that once the funds have been allocated on behalf of the Home Department, Government of Odisha for 10 construction at a site, i.e., Sathi, which has been selected by the Site Selection Committee to which the Assistant Fire Officer, Fire Station, Balasore is a signatory, the same cannot be modified or cancelled or changed at the caprice and whims of the Government by cancelling statutory notification, which is contrary to the provisions of law. Thereby, the entire action of the authority is illegal and mala fide, hence the order so issued under Annexure-20 dated 27.06.2013 is to be quashed.
11. Mr. P.K. Muduli, learned Additional Government Advocate contended that both Sathi and Talakurunia villages are under Bahanaga Block. Since the land demarcated for Bahanaga Fire Station at village Sathi was objected to, for which the alienation of land was not possible, and the proposed site at village Talakurunia is nearest to Soro Fire Station, thus Talakurunia is more suitable than Sathi, for which Talakurunia is selected. Since selection has been made by complying all the formalities, it cannot be said that any illegality or irregularity has been committed by the authority so as to warrant interference of this Court. In 11 support of his contention he has relied upon the judgment of this Court in Sarat Kumar Raj v. State of Odisha, 117 (2014) CLT 584.
12. We have heard Mr. S.P. Sarangi, learned counsel for the petitioners and Mr. P.K. Muduli, learned Additional Government Advocate for the opposite parties. Pleadings between the parties having been exchanged, with the consent of learned counsel for the parties the matter is being disposed of finally at the stage of admission.
13. The factual matrix, as delineated above, is not in dispute. As per the policy decision of the Government, it was decided on 27.10.2011 to establish 120 numbers of Fire Stations in uncovered Blocks of the State. Accordingly, the Site Selection Committee, which was constituted headed by the Sub-Collector, Balasore; Fire Officer, Balaosre; Tahasildar, Soro; Sub-Divisional Officer (R & B), Soro; Sub- Divisional Officer (RWSS); Chief District Medical Officer, Balasore; and Assistant Fire Officer, Balasore, in its proceeding held on 18.04.2011 in Annexure-8 allotted the 12 land at mouza-Sathi, Khata No.721, Plot No.1181 measuring Ac.2.00, having free from encroachment, for construction of Bahanaga Fire Station. As it was a Gochar land, the same could be de-reserved. The site having been selected, funds have also been allocated for construction of Bahanaga Fire Stating building at village Sathi by the Executive Engineer, Orissa Police Housing Corporation.
14. By virtue of statutory notification dated 20.12.2012, the location to establish the Fire station has been notified, wherein against Sl. No.2 under the heading name of the place, it has been mentioned as "Bahanaga" under Block Bahanaga in the district of Balasore. But, on 14.01.2013 a D.O. letter was issued by the Minister, Housing and Urban Development, Law, Information and Technology, Odisha for establishment of Fire station at village Talakurunia under Bahanaga Block in the district of Balasore, wherein the Minister desired to report about suitability of the proposed site at village Talakurunia for opening of said Fire Station. By the time such D.O. letter was issued by the Minister, Housing and Urban Development, 13 Law, Information and Technology, Odisha, the Government had already provided requisite funds for construction of Bahanga Fire Station at village Sathi where the Site Selection Committee had selected the land measuring Area Ac.2.00, Khata No.721, Plot No.1181 and necessary alienation proceeding had also been progressed. But all on a sudden on 27.06.2013, a communication was made by the Additional Secretary to the Government in Home (Civil Defence) Department to the Additional D.G. and I.G. of Police, Fire Service, Odisha Cuttack to the following effect:-
"Sub : Establishment of a Fire Station at
Talakurunia Village in Bahanaga Block.
Sir,
I am directed to invite reference to your letter No. 431/FS, dated 14-1-2013 on the subject noted above and to say that permission is hereby accorded to set up the Fire Station at Talakurunia Village in Bahanaga Block instead of at Bahanaga of Balasore District. Immediate steps may be taken for construction of the Fire Station building at Talakurunia."
15. The aforesaid communication, on careful perusal, does not indicate any reason why the decision taken by the Site Selection Committee to establish Bahanaga Fire Station at village Sathi under Bahanaga Block shall not be 14 constructed, save and except that permission has been accorded to set up Bahanaga Fire Station at Talakurunia village in Bahanaga Block. Since the said communication dated 27.06.2013 under Annexure-20 does not indicate any reason why Bahanaga Fire Station should be set up at village Talakurunia and why not at village Sathi, where the Site Selection Committee has already selected the land, same cannot sustain in the eye of law.
16. In the counter affidavit filed by opposite parties no.1 to 4, the reasons for establishment of Bahanaga Fire station at village Talakurunia have been assigned in paragraph-30, which reads as follows:-
"30. That, the contentions urged in Ground-I of the Writ Petition are incorrect, wholly misconceived, disputed and denied herewith. It is submitted that the land demarcated for Bahanaga Fire Station at Village Sathi was objected for which alienation of land was not possible and the proposed site at Village-Talakurunia is nearest to Soro Fire Station. Talakurunia is more suitable than Sathi for which Talakurunia is selected. The letter dated 27.06.2013 issued by the Addl. Secretary to Government, Home Department, Government of Odisha to set up the Fire Station at Talakurunia Village in Bahanaga Block instead of Village-Sathi of Balasore District is legal, valid and justified in the facts of the present case since it has been done complying all the formalities. There is no illegality in 15 the matter of selection of Village-Talakurunia for setting up the Fire Station. For political gain, the Petitioners have filed the present Writ petition."
17. Much has been said that in view of objection raised with regard to establishment of Bahanaga Fire Station at village Sathi under Bahanaga Block, the decision has been taken to have it at village Talakurunia and reliance has been placed on Annexure-A/3 to the counter affidavit, the so- called representation filed by the inhabitants of Bahanaga Block. On perusal of the said representation, paragraph-4 states as follows:-
"4. While the process for Establishment of Fire Station was processed erroneously Ganjina has been proposed by some Officials without judicious mind. The proposed place cannot serve the people of this locality in a better way. So far other infrastructure facilities are concerned Talakurunia is much useful than Ganjina.
Under the above circumstances, we therefore pray and request your augustself to issue necessary instruction to the concerned department to review the establishment proposal at Ganjina and necessary order may be passed to establish Fire Station at Talakurunia under Bahanaga Block for which act of your kindness we shall remain ever grateful to you."
From the above, it is evident that inhabitants of Bahanaga had never objected for establishment of Bahanga Fire Station 16 at village Sathi, rather objection was with regard to establishment of Fire Station at village Ganjina. Therefore, request has been made to establish the Bahanaga Fire Station at village Talakurunia under Bahanaga Block. As such, nowhere there was any objection with regard to establishment of Fire Station at village Sathi, where the selection committee has selected the land and for the said purpose alienation proceeding was continuing.
18. Apart from the above, as stated in paragraph 30 of the counter affidavit which has been quoted above, that establishment of Fire Station at village Talakurunia is nearest to Soro Fire Station, cannot and could not have been a ground for establishment of Fire Station at village Talakurunia. As a matter of principle, a Fire Station has to be established at a place where there is no Fire Station even in nearby places. As has been admitted, at Soro there is already a Fire Station and in the event Bahanga Fire Station is established at village Talakurunia under Bahanaga Block, it will be nearer to the said Fire Station, which is undesirable. 17
19. As the impugned communication dated 27.06.2013 does not indicate any reason why Fire Station should be established at Talakurunia village under Bahanaga Block, this Court, in absence of any reason, is unable to accept the subsequent explanation submitted in the counter affidavit.
20. It is well settled principle of law as laid down by the apex Court that the reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice.
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This view has been taken into consideration by the apex Court in Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 and Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915.
21. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, the apex Court held as follows:-
"the reasons, if disclosed, being open to judicial scrutiny for ascertaining their nexus with the order, the refusal to disclose the reasons would equally be open to the scrutiny of the Court; or else, the wholesome power of a dispassionate judicial examination of executive orders could with impunity be set at naught by an obdurate determination to suppress the reasons."
22. In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, the apex Court held that keeping in view the expanding horizon of the principles of natural justice, the requirement to record reasons can be regarded as one of the principles of natural justice which governs exercise of power by administrative authorities. Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority is required to record reasons for its decision. 19
23. In State of West Bengal v. Atul Krishna Shaw, AIR 1990 SC 2205, the Apex Court observed that giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review.
24. In Krishna Swami v. Union of India, (1992) 4 SCC 605= AIR 1993 SC 1407, the Apex Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne-out from the record.
The Court further observed that, "reasons are the links between the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusion reached. Least it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21".
25. In Vasant D. Bhavsar v. Bar Council of India, (1999) 1 SCC 45, the Apex Court held that an authority must pass a speaking and reasoned order indicating the materials on which its conclusions are based. Similar view has also 20 been reiterated in Indian Charge Chrome Ltd. v. Union of India, AIR 2003 SC 953 and Secretary, Ministry of Chemicals & Fertilizers, Govt. of India, v. CIPLA Ltd., AIR 2003 SC 3078.
26. The opposite parties cannot justify their action by assigning reasons in the counter affidavit, in absence of any reasons placed on record in its proper perspective. This proposition no more remains res integra in view of law laid down by the apex Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 and subsequently followed in catena of decisions including the Constitution Bench judgment in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851.
Similar view has also been taken by this Court in M/s. Umesh Cycle and Rickshaw Stores, Baripada v. State of Odisha and others (W.P.(C) No. 26687 of 2017) decided on 24.04.2018.
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27. The State legislature has enacted an Act to provide for the fire prevention and fire safety measures in the State and for the constitution of a State Fire Service to carry out firefighting measures called "The Odisha Fire Service Act, 1993". Section 2(g) thereof provides as follows:-
"2(g) "Fire Station" includes any post or place as the State Government may by general or special order, declare to be a Fire Station"
28. Chapter-II of the Odisha Fire Service Act, 1993 deals with Powers and functions of State Government, Director and other members, and Section-8 thereof deals with Powers of State Government to make orders with respect to Fire Service. Section-8(ii), being relevant for the purpose of the case, is extracted hereunder:-
"8(ii) for building or providing Fire Stations, or hiring places or accommodating the members and keeping its Fire-fighting appliances;"
29. In exercise of power conferred under Sections 2(g) and 8(ii) of the Act, 1993, the State Government has declared for establishment of 41 Fire Stations at different places in 22 different districts, vide notification dated 20.12.2012, wherein against serial no.2 the name of the place for establishment of Fire Station has been indicated as "Bahanaga" under Block Bahanaga in the district of Balasore. The notification is statutory one and the same has been done in conformity with the policy of the Government. Meaning thereby, the Government has been pleased to decide to establish 120 numbers of Fire Stations in left out Blocks of the State. If establishment of such Fire Stations, including the one at Bahanaga under Bahanaga Block in the district of Balasore, has been done in conformity with the policy decision as well as by virtue of the statutory notification issued on 20.12.2012, the said notification cannot be modified or altered or cancelled by the Addl. Secretary to the Government in Home (Civil Defence) by issuing executive instruction on 27.06.2013 in Annexure-20. In Subash Ramkumar Bind v. State of Maharashtra, AIR 2003 SC 269 the apex Court held that administrative instructions cannot possibly be a substitute for a notification which stands as a requirement of the statute. Therefore, the 23 executive fiat cannot issue any administrative institution to substitute for a notification which stands as requirement of the statute. Consequentially, the impugned communication issued on 27.06.2013 in Annexure-20 cannot sustain in the eye of law.
30. Mr. P.K. Muduli, learned Addl. Government Advocate relies upon the Division Bench judgment of this Court in Sarat Kumar Raj mentioned supra. On perusal of the same, it appears that fixation of the headquarters of Tahasil office was the subject-matter of challenge in the said case and this Court held that by exercising the power of judicial review the Court cannot strike down a policy decision taken by the State Government, merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is contrary to any statutory provisions or the Constitution, or it is patently illegal, arbitrary, discriminatory, or mala fide. From the pleadings available on record, this Court finds that the opposite parties have not made out a case that the decision taken by the Government 24 in exercise of statutory power is in any way contrary to law or the Constitution or is patently illegal, arbitrary, discriminatory or mala fide. Therefore, the judgment as mentioned supra, on which reliance has been placed by learned Addl. Government Advocate appearing for the opposite parties, has no assistance to the opposite parties, rather it supports the case of the petitioners.
31. In view of the aforesaid facts and circumstances and law discussed above, this Court is of the considered view that the communication made in Annexure-20 dated 27.06.2013 is not supported by any reason and subsequent explanation given in the counter affidavit cannot be accepted, and more particularly, when the decision has been taken in exercise of statutory powers in Annexure-14 dated 20.12.2012, the same cannot be altered, modified or cancelled by exercising executive powers in Annexure-20 dated 27.06.2013. Thereby, the communication dated 27.06.2013 in Annexure-20 is liable to be quashed and is hereby quashed. Accordingly, it is directed that necessary follow up action should be taken by the authorities 25 immediately to establish Bahanaga Fire Station at village Sathi, the site which has been selected by the Site Selection Committee, by alienating the land measuring Ac.2.01 decimal appertaining to Khata No. 721, Plot No. 1181 in favour of Home Department forthwith, by utilizing the fund already sanctioned, for betterment of the public at large.
32. The writ petition is allowed. No order as to costs.
Sd/-
(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 25th June, 2018, GDS/Ashok True Copy P.A.