Smt. Geetanjali Mahapatra & vs State Of Orissa & Others ... Opposite ...
2023 Latest Caselaw 15764 Ori

Orissa High Court

Smt. Geetanjali Mahapatra & vs State Of Orissa & Others ... Opposite ... on 8 December, 2023

Author: G. Satapathy

Bench: D. Dash, G. Satapathy

    IN THE HIGH COURT OF ORISSA AT CUTTACK
           W.P.(C) Nos.35394 & 25230 of 2021

  (An application under Articles 226 & 227 of the
  Constitution of India)

Smt. Geetanjali Mahapatra &                ...        Petitioners
another
(In W.P.(C) No.35394 of 2021)
                                -versus-
State of Orissa & others                   ...   Opposite Parties

                                    AND

Bibhas Mahapatra                           ...         Petitioner
(In W.P.(C) No.25230 of 2021)
                                -versus-
State of Orissa & others                   ...   Opposite Parties

For Petitioners                 : Mr. S.P. Mishra,Sr. Advocate
For Opposite Parties            : Mr.S.N. Das, ASC
                                  Mr. G. Mukherji,Sr. Advocate
                                  (for OPNo.7)
                                  Mr. D. Mohapatra,
                                  Advocate (for OPNo.3)

        CORAM:
           HON'BLE MR. JUSTICE D. DASH
           HON'BLE MR. JUSTICE G. SATAPATHY

                    DATE OF HEARING :08.11.2023
                    DATE OF JUDGMENT:08.12.2023

G. Satapathy, J.

1. Instant writs under Articles 226 & 227 of

the Constitution of India by the petitioners invoke the

extraordinary writ jurisdiction of this Court to

overthrow the allotment of Government land by OP

No.2 vide Office order No. 2632/CA, Bhubaneswar

dated 22.01.2021 in favour of OP No.7 as illegal.

2. Facts as involved in these two writs are

that the petitioner No.2 was allotted with HIG Plot

No. K-8-1190(A) under Kalinga Nagar Plotted Scheme

measuring an area of Ac.4912 sft (corner plot) on

25.08.2003 which was subsequently modified by

adding the petitioner No.1 as co-allottee on

09.07.2010. The petitioners were charged at a higher

rate for allotment of this plot being a corner plot

having roads 30ft. on Eastern side and 200ft. on

Northern side, but possession thereof was only

delivered for land measuring 4219 sqft. On approval

of building plan, the petitioners accordingly

constructed one G+3 storeyed building thereon and

by paying the land holding tax regularly for the

Holding No. 10880 in Ward No. 23. In the year 2009,

the petitioners obtained a Revised Residential Layout

Plan for Kalinga Nagar(K-VIII) and accordingly, the

plot No. 1190(A) belonging to the petitioners was

marked in red colour in the said layout plan.

According to the petitioners, they left some vacant

place in front of the building as per approved plan

which is abutting to the 200ft. wide road on the

northern side and the petitioners and their

tenants/inmates access to the main road through the

land to the 200ft. wide road on the northern side and

the same is the only passage to approach the existing

public road since 30ft. wide road on the eastern side

of the plot No. 1190(A) is not accessible for the

petitioners because of its downward gradient/slope

starting from a height equivalent to the first floor of

the existing building of the petitioners.

While matter stood thus, on 17.01.2021

and 18.01.2021, the petitioners noticed some

construction work in front of the said entrance of

their plot on northern side completely obstructing the

petitioners and other inmates of the building and

petitioner No.2 accordingly approached this Court in

W.P.(C) No.25230 of 2021 to stop the construction

work over the 200ft. wide road situated towards the

northern side of their plot and despite notice to OPs

with an interim order to Bhubaneswar Development

Authority(BDA), Bhubaneswar Municipal Corporation

(BMC) and the State Authorities to prevent

construction over the said road, neither the State

Authorities nor the BDA/BMC took any steps to

prevent any construction which according to the

petitioners was being carried out by OPNo.7 and,

thereafter, on 22.09.2021 letter No.32973 was

served on petitioner No.2 by BDA for demarcation of

plot of the petitioners and Government plots

measuring a total area Ac.2.267 decimals in Mouza-

Ghatikia allotted to OPNo.7 and subsequently, letter

No.33129 dated 22.09.2021 was also served on

petitioner No.2 for aforesaid demarcation by omitting

the four plots allotted to OPNo.7. At this stage,

petitioner No.2 obtained information through RTI

from OPNo.1 that a piece of Government land

measuring Ac.2.267 decimals has been allotted to

OPNo.7 for expansion of the campus of Institute of

Medical Science (IMS) and SUM Hospital and Institute

of Dental Science(IDS). According to the petitioners,

there was no Government vacant land except 200ft.

road on the northern side of plot No.1190(A) as per

lay out plan and approved notification of BDA vide

Annexures-5 and 6 and thereby, the petitioners

strongly believe that plot No.2577 (Pt) measuring

Ac.0.086 decimals was subsequently carved out in

Hal Settlement on the northern side of plot

No.1190(A) and has been allotted to OPNo.7 vide

Annexure-11, but according to petitioners, allotment

of Government land to OPNo.7 being a part of public

road as per Hal ROR under Annexure-12 is

impermissible and thereby, no land on the northern

side of petitioners' plot could have been allotted to

OPNo.7. Since the Comprehensive Development Plan

(CDP) under Annexure-6 being approved by the State

Government under Section 11 of the Orissa

Development Authorities Act, 1982 (in short "the

Act"), any change in the said plan and modification is

to be made in the manner of prescribed under

Section 14 of the Act, but no such modification of

CDP has been made in terms of Section 14 of the Act.

It is further stated by the petitioners that BMC

normally used the 200ft. wide road abutting the land

of the petitioners in plot No.1190(A) in front of the

land of OPNo.7 as a Parking Lot by handing over the

said area to successful bidder for the purpose and in

case, the Authority wanted to allot such plot, choice

ought to have been given to the petitioners to

purchase the said land before allotting in favour of

any other person. Asserting the claim of allotment of

aforesaid land in favour of the OPNo.7 to be not in

consonance with Annexures-5 and 6, the petitioners

with aforesaid averments in the writs have prayed to

quash Annexure-11 as illegal.

3. In response to the notices, OPNos.1 and

2 have filed their joint counter being supported by

affidavit by traversing all the allegations made in the

writ, while admitting the allotment of land to OPNo.7

as stated and interalia averring that such allotted

land to OPNo.7 is under its possession with

construction of the boundary wall and using it as two

wheeler parking area and the petitioners used their

plots for commercial purpose by constructing a

building having access towards 30ft. wide road. It is

further stated by OPNo.1 & 2 in their counter that the

GA and PG Department being the owner of plot

No.2577 have rightly allotted the land under it to

OPNo.7 by following due process of law. The

petitioners when relying upon Annexure-6 to assert

their claim, the Hal ROR of Mouza-Ghatikia has been

finally published by the Settlement Authorities on

14.11.2013 and the CDP map prepared under

Annexure-A/2 in Hal Land Schedule indicates the

30ft. wide road in front of the plot of the petitioners

and in terms of the order of this Court, a joint

demarcation involving the officers of GA and PG

Department, BDA, Tahasildar, Bhubaneswar and BMC

was conducted on 24.09.2021 in respect of plot No.K-

8/1190(A) relating to Kalinga Nagar Plotted

Development Scheme, K-8 Mouza-Ghatikia and after

measurement, it was found that plot No.K-8/1190(A)

has been bounded by compound wall of the length of

69ft. 6" on eastern side, 54ft. on western side, 30ft.

on northern side and 30 ft. on southern side and a

four storeyed building has been constructed over plot

No.1190(A) in which Sanjibani Medicine Store,

Jagannath Nillay (Guest House) and Hotel and

Restaurant are functioning. It is claimed in the

counter that the Petitioner No.2 Bibhas Mahapatra

was present at the time of enquiry and he agreed

that a 200ft. wide master plan road has been shown

in Sabik drawing map which is situated adjacent to

the land to OPNo.7. Further, while questioning the

locus of the petitioners to challenge the allotment of

land to OPNo.7, the OPNos.1 and 2 has prayed to

dismiss the writ petitions.

4. Similarly, OPNo.3 has filed counter

supported with an affidavit by stating interalia that

the Revenue plot No.2577 (P) has been carved out

during current settlement in the year 2013 under the

provision of Orissa Survey and Settlement Act, 1958

but the lay out plan prepared for K-8 being

admittedly done as per CDP 1994 wherein a road of

200ft. was proposed, but there was no land

acquisition for construction of said road as referred to

in CDP 1994 and subsequently, after alignment of

roads, the road in question has been modified in CDP

2010 and there is a change of alignment and shifting

of road of earlier CDP 1994 and subsequently, a strip

of Government land remained as residue which the

Authority carved out in different plots including plot

No.2577 (P) and at the time of allotment made to the

petitioners, the boundary was described with

proposed CDP 1994 and accordingly, a 200 ft. road to

the northern side of it was shown on the basis of

draft CDP. The OPNo.3 has further stated in the

counter that initially the petitioners were allotted with

a land measuring an area of 3757 square ft., but the

petitioners were required to pay the additional cost

towards the allotment of excess land to them and the

plot allotted to the petitioners was for residential

purpose with a layout of road 30ft. wide road to the

east of the plot which is very much in existence and

used, but in compliance to the requirements of road

for residential purpose, the claim of the petitioners to

have access to 200ft. road on the north side of the

plot is unsustainable and not possible in view of the

changed circumstance, when the petitioners have

already violated the building permission by raising

construction for commercial purposes. OPNo.3 has

also claimed in his counter affidavit that at the time

of carving out of the plot in the Settlement in the

year 2013, the petitioners having not raised any

objection before the Settlement Authority, now are

asserting the competence of GA Department to allot

the land in favour of the OPNo.7 by Annexure-11

notwithstanding to the right of OPNos.1 and 2 to allot

the property.

5. The OPNo.7 has filed a separate counter

affidavit by refuting the claim of the petitioners and

interalia averring that during preparation of current

record of rights, the Settlement Authority recorded

the unused land between the plot of the petitioners

and the 200ft. road in the name of Government and

the Government of Orissa following the

OGLS(Amended) Rules, allotted the aforesaid land to

OP No.7 under Annexure-11 in accordance with law

and the relevant provisions, and there is absolutely

no road in Plot No. 2577 (Part) as allotted to OP No.

7. The claim of the Petitioners thus merits no

consideration and the writ petitions are accordingly

liable to be dismissed.

6. In response to the counter affidavits of

OP Nos. 1,2,3 and 7, the Petitioners have also filed

rejoinder by inter alia reiterating their claim advanced

in the petition. It is also stated by them that had

there been any surplus unutilized land available in

between the allotted land of the Petitioners and

200ft. wide road on north, the Petitioners plot being

contiguous to the surplus land, opportunity ought to

have been extended to the Petitioners to purchase

the land in terms of the Clause-33 of BDA Land

(Disposal and Allotment) Regulations, 2015(in short

"the Regulations"). However, the Authority concerned

in gross violation of the aforesaid Regulation has

allotted the unutilized land of Plot No. 2577 (Part) to

OP No.7 and the status of the land of the Petitioners

as corner plot is thus being changed due to allotment

of land to OP No.7 vide Annexure-11 and the

boundary described in the possession letter dated

07.08.2010 to the Petitioners in Annexure-2 does not

describe it to be a proposed road. The claim of OP

No.3, with regard to change in the alignment and

shifting of the road towards the southern side during

CDP, 2010 resulting in a strip of Government land

remaining residue and being part of in different plots

including Plot No. 2577 is false, rather plot No. 2577

in Hal ROR under Annexure-12 along with settlement

map of 2013-14 under Annexure-D/2 has been shown

as a road.

7. In the course of argument, this Court

heard Mr. S.P. Mishra, learned Senior Counsel

appearing for the Petitioners, Mr. G. Mukherji,

learned Senior Counsel appearing of OP No.7, Mr. D.

Mohapatra, learned counsel appearing for OP No.3

and Mr.S.N.Das, learned Additional Standing Counsel.

8. Mr. S.P. Mishra, learned Senior Counsel

mainly referring the sketch map and building plan

forcefully submitted that the Petitioners was allotted

with Plot No. 1190 (A) having their lands abutting

30ft. wide road on east and 200ft. road on north, but

the 30ft. road on the east adjacent to the plot of the

Petitioners starts with a downward gradient from a

height of first floor and thereby, the Petitioners and

the inmates of the building have the only access to

the road through the 200ft. wide road on the

northern side and if the land stands allotted to OP

No.7 over the 200ft. road, the Petitioners would have

no access to the main road. It was further submitted

by Mr. Mishra that as per approved plan under

Annexure-3 series, the land over which construction

is proposed is accessible by an approved means of

access of 60.96 meter and 9.14 meter in width which

in fact supports the boundary description as stated in

Annexure-2 and Clause-2(xxxiii) of the Regulations

under Annexure-P/4 series defines the "corner plot"

and stipulates that the frontage would be on the

street having larger width. It was further submitted

that the revised residential lay out plan for Kalinga

Nagar K-VIII under Annexure-5 indicates existence of

200ft. road to the north of Plot No.1190-A of the

Petitioners and the land allotted to OP No.7 under

Annexure-11 is coming under yellow zone meant for

only residential purpose, but its use for non-

residential purpose is impermissible, and if the 200ft.

wide road abutting the land of the Petitioners towards

north is used or allotted for any other purpose, it

would definitely change the status of the Petitioners'

plot as "corner plot" which is violative of Article-14 of

the Constitution of India as held by Rakesh

Agarwal Vrs. State of UP and Others; 2020 AWC

2875. While summing up of his argument, Mr. Mishra

submitted that the allotment of land to OP No.7 vide

Annexure-11 being arbitrary, unfair, illegal as well as

not inconformity with law is liable to be quashed and

it was accordingly, prayed by him to quash Annexure-

11.

9. In reply, Mr. G. Mukherji, learned Senior

Counsel appearing for the OP No.7 submitted that the

Petitioners have no locus to challenge the allotment

of land to OP No.7 under Annexure-11 since the land

allotted to the Petitioners has not been validly

transferred by execution of lease deed/sale deed and

thus they have no right to challenge the allotment of

land to OP No.7 by the authority concerned. He

submitted that even for a moment considering the

claim of the Petitioners to have the right to access

200ft. wide road, it is not permissible in terms of

National Building Code of India(Development Control

Rules and General Building Requirements) Part-3

wherein under Caluse-4.5 titled as "Means of Access"

stipulates that no premises other than highway

amenities like petrol pumps, motels, etc. shall have

the access directly from highways and such other

roads not less than 52m (170ft) in width. He further

submitted that the petitioners had never used the

northern side of the plot for access which is clearly

admitted by the petitioners at paragraph-16.6 in the

writ petition that the BMC used the said road in front

of SUM Hospital of OPNo.7 as a Parking Lot by

handing over to the successful bidder for the purpose.

It was also submitted that the land allotment made

by the Government in BDA in 1992 was modified in

2012 vide Annexure-A/2 and the State conducted its

current settlement on 14.11.2013 and the CDP was

accordingly prepared as per Hal plots in 2014-15

which is admitted by the petitioners in their rejoinder

in para-iii to counter of OPNo.7, and the CDP,

building plan approval and letter of possession must

have undergone some changes in the meantime and

thereby, there is no question of allotting a part of

existing road to OPNo.7. While concluding his

argument, Mr. Mukherji submitted that since there

exists serious disputed question of facts which cannot

be adjudicated in a writ jurisdiction, the claim of the

petitioners in this writ being not maintainable is liable

to be rejected.

10. Mr. D. Mohapatra, learned counsel

appearing for OPNo.3 submitted that while allotments

made to the petitioners, the boundary was described

with reference to proposed CDP road 1994, but later

on with the subsequent developments, the alignment

of CDP road has been modified during CDP 2010, no

matter the width of CDP remained the same and

thereby, shifting of road towards the southern side of

earlier CDP 1994, a strip of Government land was

carved out in different plots including plot No.2577

(P) which has been allotted to OPNo.7 and the

petitioners are using their allotted land for various

commercial purposes by deviating the approved plan

and condition, and the claim of the petitioners to

have an access to 200ft. road is not possible in the

changed circumstance. He further submitted that the

petitioners have no right to question the authority of

OPNo.3 to allot the land of BDA since BDA has the

ownership with right, title and interest over the land

in question. It was accordingly urged for dismissal of

the writ petitions.

11. Mr.S.N.Das, learned Additional Standing

Counsel reiterating the arguments as advanced by

the above OPs prayed to dismiss the writ.

12. From the facts as exposited, it is quite

evident that the sole question emerged for

consideration is whether the allotment of Government

land in favour of OP No.7 under Plot No. 2577(Pt.) by

the OP No. 3 under Annexure-11 is illegal.

13. It is not in dispute that the petitioners

have been allotted with HIG Plot NO. K-8-1190(A)

under Kalinga Nagar Plotted Scheme having

Registration No. KHN-241/1993 measuring an area

4219 square ft. as "corner plot" with boundary of

200ft. road on north, 30ft. road on east, Plot No.

1190 on south and SUM Hospital on west, but the

real disputes starts when OP No.3 allotted some land

between the land of the petitioners under Plot No.

1190(A) and 200ft. road to OP No.7. According to the

petitioners, initially petitioner No.2 was allotted with

said plot measuring 4912 square ft., but

subsequently Plot No. 1190(A) measuring 4219

square ft. was allotted to petitioner No.2 on whose

request petitioner No.1 was added as co-allotee vide

order No. 9849 dated 09.07.2010. Accordingly,

possession thereof was handed over to the petitioners

on 7th August, 2010 vide Annexure-2 wherein

boundary was described with 200ft. road on north

and 30ft. road on east, Plot No. 1190 on south and

SUM Hospital on west, but the petitioners averments

in the writ petition clearly disclosing about allotment

of land to OP No.7 in between 200ft. road and the

land of the petitioners in plot no. 1190(A) which is

contrary to the claim of the petitioners that their land

was bounded on northern side by 200ft. road, rather

some vacant land was in between the plot of

petitioners and 200 ft. roads and, therefore, the

description of boundary as stated in Annexure-2 in

particular, on north side was either incorrect or it was

subsequently, carved out due to realignment of road

in the line of averment taken by OP No.3 in their

counter.

14. Further, it is also not disputed that the

petitioners have constructed a G+3 storeyed building

over plot no. 1190(A) allotted in their favour, when

the fact remains that neither any lease deed nor any

deed of conveyance has been executed for transfer of

the land in favour of the petitioners, and the

petitioners claim that they have already submitted all

documents, processing fee and service tax for

execution of lease deed in their favour in terms of

Annexure-P/3 series. On the other hand, Annexure-

P/1 which was issued by BDA to petitioner no. 2

shows that the petitioners have been asked to show

cause for constructing the building by deviating the

approved building plan and for encroachment of

Government Road. Further, the document as filed by

the petitioners under Annexure-P/2 also goes to

disclose that the Deputy Commissioner BMC has

issued notice on 04.04.2023 to the petitioners for

undertaking unauthorized development by way of

commercial use of the building as well as deviating

approved building plan in violation of Planning and

Building Standard Regulation under the ODA Act,

1982.

15. A cumulative reading of averments at

paragraph nos. 16.6 and 16.9 of the writ petition

would give some insight to the fact that there is some

land existing between plot no. 1190 (A) and 200ft.

road which is also used by BMC for the purpose of

Parking Lot. It is, therefore, difficult to accept the

claim of the petitioners that they are accessing to

200ft. public road directly from their land and the plot

allotted to the petitioners is a "corner plot". Although

much emphasis was given in course of argument that

allotment of aforesaid piece of land to OP No. 7 would

entirely block the frontage/passage of the petitioners

to access 200ft. public road on the northern side of

their plot, but such claim would not have any impact

since the petitioners would have indirect access to

200ft. road through 30ft. road abutting their land on

the eastern side. Further, the claim of the petitioners

that they have left some vacant space on the front of

the building as per the approved plan which is

abutting 200ft. road on the northern side prima facie

appears to be incorrect in view of their own

averments in paragraph no. 16.6 of the writ petition.

16. On going through the layout plan of BDA

under Annexure-5 and CDP, 2010 under Annexure-6,

this Court finds the existence of 200ft. road, but

Annexure nos. 5 and 6 taken on jointly cannot be

considered to exclude the existence of the land

between the land of the petitioners and 200ft. road.

17. Considering the rival submissions and on

going through the documents, this Court by an order

passed on 03.03.2023 directed for constitution of a

Committee of three technical persons to submit a

report by suggesting alternatively as to how the

advantage that was granted to the petitioners

remains intact or minimally adjusted and the

petitioners' access to the 200ft. wide road can be

maintained. Accordingly, the Joint Director of

Estates-cum-Additional Secretary to Government had

formed a committee of three technical persons to

submit a report as directed. The said Committee after

making necessary enquiry furnished a report to this

Court with findings as noted below:

FINDINGS

1. The petitioner has unhindered access to the 30ft. wide road and also to the 75 ft. main black top road (200ft. CDP proposed master plan) through the 30ft. wide road.

2. During handing over possession to the petitioner, the 200ft. wide road did not exist in the field. It was a proposed road. At present, the width of the said road is only 75 ft. black top. As lease deed has not yet been executed and registered, boundary description is to be incorporated in the lease deed as per the field position prevailing at the time of execution of lease deed.

3. The excess land available in between the proposed 200ft. master plan road and the plot allotted to the petitioner has been leased out in favour of SOA University by GA & PG Department in the year, 2021.

4. At this stage, there is no possibility of adjustment because of development taken place regarding allotment of land, execution of registered lease deed, handing over of possession and correction of ROR in favour of SOA University.

5. Lease deed has not been registered in favour of the petitioner by the BDA.

The allotment process has not yet been completed in favour of the petitioner due to pendency of UAP case and use of residential plot for commercial purpose by the petitioner.

18. On a careful perusal of the findings as

noted above, it appears that the petitioners have got

unhindered access to the 30ft. wide road and also

75ft. main black top road(200ft. CDP proposed

master plan) through the 30ft. wide road. It is, true

that the petitioners dispute the findings of the

Committee by filing their objections, but the

petitioners' objection with regard to their unhindered

access to the 30ft. wide road and also to 75ft. main

black top road(200ft. CDP proposed master plan)

through the 30ft. wide road appears to have not been

disputed since the petitioners in their objection claim

that every house abutting the road of 30ft. on east

side have indirect access to the 200ft. road through

30ft. road and this does not make all these houses a

corner plot as that of the petitioners. It, therefore,

appears that the petitioners claim have been diluted

for asserting their plot to be a "corner plot". It is

when claimed by the petitioners that their plot is

corner plot, there is no evidence or document to

show that the petitioners have paid any extra charges

for acquiring "corner plot" and when there appears

some land carved out in front of the land of the

petitioners on northern side which is being used as a

Parking Lot as per the averment of the petitioners,

their claim of "corner plot" remains mysterious. It is,

however, claimed by the petitioners that the road on

east side has an elevation up to the level of first floor,

but at the same time, the petitioners claim to have

left some space on the northern side facing 200ft.

road and, thereby, the petitioners can also have the

access to 30ft. road by making a slope. Interestingly,

the claim of the petitioners goes to indicate that they

are asserting easementary right over the land allotted

to OP No.7 as the access to 200ft. road in the present

writ petition by only setting up a claim that their land

abuts the 200ft. road on northern side bypassing that

they have got access to the said 200ft. road through

30ft. road on the eastern side. It is also stated in the

objection to the survey report of the Committee that

the OP No.7 has recently constructed the boundary

wall by obstructing the free passage of the petitioners

during the pendency of the writ petition which

appears to be prima facie contrary to their own

averments at paragraph 16.6. From the report of the

Committee, it appears that one of the two

alternatives suggestions, which is for access of the

petitioners to 200ft. road has in fact been properly

answered, though the other suggestion of the Court

for the petitioners has been answered in the negative

for there being no possibility of adjustment of land by

keeping the advantage of the petitioners intact or

minimally adjusted.

19. The petitioners also claim that the land

allotted to OP No.7 under Annexure-11 is coming

under yellow zone meant for residential purpose only

as per the CDP approved by the Government under

Annexure-6, but at the same time, it is stated by OP

Nos. 1 to 3 in their counters that the petitioners are

using their land in plot No. 1190(A) for commercial

purposes by setting of Sanjibani Medicine Store,

Jagannath Nillay (Guest House) and Hotel and

Restaurant. The petitioners, although in their

rejoinder have cleverly disputed about functioning of

the Guest House, Hotel and Restaurant, but they

have never denied the functioning of Sanjibani

Medicine Store and the petitioners are, therefore,

liable for using their land contrary to the approved

BDA plan, which is evident from the paragraph-8 of

the objection of the petitioners to the survey report of

the Committee wherein it is stated by the petitioners

to have already applied for permission for

commercial/non-residential use of the allotted plot,

but the permission is pending with BMC. It is also

strongly claimed by the OPs that since the petitioners

have constructed the building violating the building

plan so also encroaching upon the Government land,

OPNo.3 is not executing any lease deed with the

petitioners and such non-execution of lease deed has

never been denied by the petitioners, rather the

petitioners claim that the BDA is intentionally not

executing the lease deed, although they have

approached OPNo.3 again and again. In support of

their contention, the petitioners have relied upon

Annexure-P/3 which was in fact stated to be

submitted by petitioner No.2 on 13.07.2015, but the

undisputed claim of the petitioners with regard to

allotment of land to them dates back to 15.07.2003.

It, therefore, appears to this Court that there might

be some issues between OPNo.3 and the petitioners

since the lease deed was not executed for such a long

period which is evinced by Annexure-P/3 which was

submitted by petitioner No.2 around 12 years after

allotment of land to them and strangely enough, the

lease deed is yet to be executed even after 20 years

of the allotment of the land to the petitioners.

20. In the aforesaid circumstance, the

decision relied on by the petitioners in Rakesh

Agarwal (supra) does not come to the aid of the

case at hand, since it is not materially changing the

location of the allotted plot to the petitioners when no

lease deed has yet been executed in their favour.

21. The land allotted to OPNo.7 being

admittedly belonging to OPNo.3, the petitioners do

not have any locus to challenge such allotment of

land, especially when the petitioners have not yet

been armed with the lease deed with OPNo.3.

22. From the averments taken in the writ

petition, counter affidavit, rejoinder and objection to

the rejoinder so also the survey report submitted by

the Committee, there exists serious disputed question

of facts since the claim of the petitioners is denied by

OPs and the petitioners' claim/right over the land

allotted to OPNo.7 is also seriously disputed by

OPNo.7. Further, the petitioners seriously dispute the

map produced by OPNos.1 and 2 vide Annexure-A/2.

The petitioners also claim about existence of no land

in front of northern side of their plot by contending

that their land is bounded by 200ft. on the northern

side, whereas a piece of land appears to be existing

in between the land of the petitioners and 200ft. road

and it cannot be adjudicated upon in exercise of writ

jurisdiction. Similarly, the petitioners seriously

dispute the report of the Committee. There also

appears dispute between the parties regarding use of

the allotted land to the petitioners for commercial

purposes. There is also serious disputed question of

facts as emerging from the claim of BDA that the land

allotted to OPNo.7 was carved out after realignment

and shifting of 200ft. road which the petitioners

attack. Additionally, the petitioners have claimed for

exercise of right of preemption to acquire the plot of

land allotted to OPNo.7 as the owner of contiguous

land, but such claim for preemption of the petitioners

is not tenable in view of Clause-33 of the Regulations

wherein it has been stipulated that the left out

patches of land which cannot be used otherwise or

developed as an independent residential or

commercial plot can be allotted to the land owner

who has a plot contiguous or adjacent to it but in this

case, the plot being used as a Parking Lot which is

evident from Annexure-14 as filed by the petitioners

wherein one Nepal Pradhan was handed over the land

as a Parking Lot by BMC as per the admitted

averments of the petitioners and the same having

being allotted to OPNo.7, it cannot be said that the

land allotted to OPNo.7 cannot be used otherwise.

Yet, Annexure-A/7 goes to reveal that the portion of

land allotted to OPNo.7 in front of the land of the

petitioners measuring 0.86 decimals stands recorded

in the name of OPNo.7 as a road with type (kissam

patita) in the current ROR.

23. On a conspectus of facts and documents

as noted and with the discussion made hereinabove,

this Court does find that there exists disputed

question of fact and with the same the petitioners

cannot question the authority of OPNo.3 to allot land

to OPNo.7 to be annulled in exercise of extraordinary

writ jurisdiction. Further, in absence of any clear

evidence of advantage of the petitioners for direct

access to the road and they having their access to the

200ft. road through 30ft. road as per the survey

report of the Committee which was not specifically

denied by the petitioners in their objection, no relief

as advanced by the petitioners is allowable.

24. Resultantly, both the writ petitions being

found to be devoid of merit stand dismissed on

contest and in the circumstance, no order as to cost.

(G. Satapathy) Judge

I Agree

(D.Dash) Judge

Orissa High Court, Cuttack, Dated the 8th day of December, 2023/Kishore

Signed by: KISHORE KUMAR SAHOO

Location: High Court of Orissa Date: 09-Dec-2023 11:35:35