Rajashree Gajendra vs State Of Odisha And Others
2023 Latest Caselaw 250 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                         WP(C) No.13536 of 2016

     Rajashree Gajendra                        ....               Petitioner

                                    -versus-

     State of Odisha and others                ....        Opposite Parties


     Advocates appeared in this case :

     For Petitioner :          Mr. Sarat Kumar Gajendra, Sr. Advocate
                               Mr. L. Pradhan, Advocate
                               Mr. D. P. Das, Advocate
                               Mr. B. P. Das, Advocate

     For Opposite Parties : Mr. Y.S.P. Babu, AGA


      CORAM:

      JUSTICE ARINDAM SINHA
      JUSTICE SANJAY KUMAR MISHRA

                            JUDGMENT

06.01.2023

ARINDAM SINHA, J.

1. 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

WP(C) no.13536 of 2016 // 2 //

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 //

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

// 4 //

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

// 5 //

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. 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

// 6 //

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

// 7 //

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. 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

// 8 //

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.

// 9 //

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.

( Arindam Sinha ) Judge

( S. K. Mishra ) Judge

P.K. Sahoo