Orissa High Court
Anadi Behera & Another vs Bhubaneswar Development Authority & ... on 15 July, 2015
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
OJC No.15846 of 1997
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Anadi Behera & another .... Petitioners
Versus
Bhubaneswar Development Authority
& another .... Opp. Parties
For Petitioners ... Mr. P.K. Mohanty, Advocate
For Opposite Parties ... Mr. Dayananda Mohapatra, Advocate
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing : 06.07.2015 : Date of judgment : 15.07.2015
Dr. A.K.Rath, J By this writ application, the petitioners have prayed, inter alia,
to restrain the opposite parties from interfering with the possession over
the land appertaining to Plot Nos.68 and 92, Sabik Khata No.5, area
Ac.0.675 and Plot Nos.121 and 123, Sabik Khata No.92, area Ac.0.255 dec.
of Mouza-Bomikhal.
2. The case of the petitioners is that petitioner no.1 is the owner
in possession of the land under Plot Nos.68 and 92, Khata No.5, area
Ac.0.675 of Mouza-Bomikhal. Petitioner No.2 is the owner in possession of
the land appertaining to Plot Nos.121 and 123, Sabik Khata No.92, area
Ac.0.255 dec. of Mouza-Bomikhal. In the record of right, the land in
question was recorded in the names of the petitioners. While the
petitioners were in possession of the land, a notice was served on them on
24.2.1977for acquisition of the land. Thereafter, the petitioners along with 2 others, who were similarly circumstanced, submitted a representation before the competent authority to release the land from the process of acquisition. Thereafter, the site selection committee was constituted by the Government to finalize the extent of the land required for acquisition. The committee agreed for reduction of the proposed road from 100 feet to 60 feet. Accordingly, the Executive Engineer, Capital Construction Division No.II, Bhubaneswar was requested to furnish withdrawal proposal of the land as well as revised land acquisition proposal. Since no decision was taken, the petitioner along with others filed a writ application before this Court assailing the notification issued under the Land Acquisition Act (hereinafter referred to as "the Act"), which was registered as OJC No.303 of 1997. During pendency of the said writ application, by an interim order, this Court directed the Secretary, Works Department to cause an enquiry and submit a report as to whether the lands of the petitioners are necessary for construction of the proposed road. The Secretary, Works Department after causing enquiry submitted a report before the Court that the lands of the petitioners are not required for construction of the road. Pursuant to the said report, this Court by order dated 17.9.1992 directed the State Government to withdraw acquisition of the lands of the petitioner, which are not covered by the road proposed in the drawing. Since the notification issued under the Act was not withdrawn, the petitioner filed writ applications being OJC Nos.5565 of 1995 and 7438 of 1997 respectively before this Court for a direction to the State of Orissa to release the land from the process of acquisition as per the direction issued by this Court or in the alternative to acquire the land by paying adequate compensation at the prevailing market rate.
3. The further case of the petitioners is that the Vice-Chairman, Bhubaneswar Development Authority, opposite party no.2, (hereinafter referred to as "the B.D.A") in his letter dated 11.5.1987, vide Annexure-4, intimated the Director of Estate-cum-Joint Secretary, G.A. Department that 60 feet wide link road connecting Sachivalaya Marg and Bidyut Marg was not considered necessary in the draft master plan. The road is a minor 3 road linking two arterial roads and that there is no traffic congestion. It is further stated that the G.A Department had taken a decision to release the lands of the petitioners from the process of acquisition. It is further stated that the B.D.A and its officials have been attempting to interfere with the possession of the petitioners. When the petitioners tried to construct a boundary wall, the B.D.A. initiated a proceeding under Section 91 of the Orissa Development Authorities Act (hereinafter referred to as "the ODA Act"). The action of the opposite parties is tainted with mala fide. With the factual scenario, this writ petition has been filed.
4. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties 1 and 2. It is stated that the land measuring an area of Ac.24.128 dec. comprising both Government land and the private land between Bidyut Marg and Sachivalaya Marg in Unit 14, Madhusudan Nagar has been licensed in favour of B.D.A.-Nicco Parks Resorts Ltd., a joint venture, for a period of 33 years on annual licence fee basis for running an amusement park, by the Government of Orissa, G.A Department vide order dated 18.6.1997. It is further stated that the possession of the land has been duly made over to the company for the purpose of running an amusement park. Steps were taken to remove all the filthy from the lake area. When the possession was handed over, there were no constructions over the disputed land. Subsequently, the petitioners started construction of a pucca house over the lands. The said fact was reported by the Amin of the B.D.A on 20.9.1997. The report clearly reveals that one Subhasis Ray was constructing a building and on being asked he intimated that he is the authorized agent of the petitioners. The construction of the plinth of the house was under progress. After receipt of the inquiry report and on being satisfied that the petitioners had not obtained any permission for construction of the building as mandatorily required under Sections 15 and 16 of the ODA Act, a proceeding was initiated under Section 91 of the ODA Act, which was registered as U.A.P No.831 of 1997 against Anadi Behera. The Secretary, B.D.A. directed to issue notice to the petitioners to show cause under 4 Section 91(1) of the ODA Act as to why an order directing him to remove the unauthorised structures should not be made in accordance with law. In consonance with the order dated 23.9.1997, a show cause notice was issued to the petitioner no.1 directing him not to proceed with the construction along with a notice under sub-section (2) of Section 92. Similarly another proceeding was initiated against the petitioner no.2 under the ODA Act, which was registered as U.A.P No.830 of 1997. In consequence with the order dated 23.9.1997, notice to show cause under Section 91(1) and notice to discontinue the work under Section 92(1) were issued to the petitioner no.2. It is further stated that the petitioners are trying to make unauthorised constructions over the disputed land without obtaining prior permission from the B.D.A as required under Sections 15 and 16 of the ODA Act. In that view of the matter, the B.D.A. has no other option, but to initiate the proceeding under Section 91 of the ODA Act and directed the petitioners to restrain from making further construction. The petitioners have absolutely no right to make any construction over the disputed lands without obtaining prior permission from the B.D.A and the constructions already made are liable to be demolished by the authority in consonance with Section 91 of the ODA Act. It is further stated that the petitioners have also filed two suits for the self-same relief in the court of learned Civil Judge (Junior Division), Bhubaneswar being Title Suit No.201 of 1997 and Title Suit No.220 of 1997.
5. Heard Mr. Prasanta Kumar Mohanty, learned counsel for the petitioners and Mr. Dayananda Mohapatra, learned counsel for the BDA.
6. As would be evident from paragraph-10 of the counter affidavit, for the self-same cause of action, the petitioners have filed two suits being Title Suit No.201 of 1997 and Title Suit No.220 of 1997 respectively in the court of learned Civil Judge (Junior Division), Bhubaneswar. The petitioners have also stated that they have also filed two writ applications being OJC Nos.5565 of 1995 and 7438 of 1997 before this Court, which are pending adjudication. The aforesaid writ applications have been filed for a direction to the State of Orissa to release the land 5 from the process of acquisition as per the direction made in the earlier writ application or in the alternative to acquire the land by paying adequate compensation at the prevailing market rate.
7. In view of the fact that the petitioners have filed two suits before the learned Civil Judge (Junior Division), Bhubaneswar for the self- same cause of action and two writ applications as cited supra, it is open to the petitioners to pursue the same. The instant writ application is an abuse process of the court and a ruse.
Accordingly, the writ petition is dismissed.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
The 15th July, 2015/Pradeep