Orissa High Court
Chinmay Samantray And Another vs Bhubaneswar Municipal on 15 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. no.3064 of 2023
(Arising out of W.P.(C) no.24420 of 2019)
Chinmay Samantray and another .... Petitioners
-versus-
Bhubaneswar Municipal .... Opposite Parties
Corporation and others
Advocates appeared in this case:
For petitioners: Mr. Bikram Keshari Mohanty, Advocate
For Opp. Parties: Mr. P.K Mohanty, Senior Advocate
Ms. Deepali Mohapatra, Advocate
(for applicant)
CORAM: JUSTICE ARINDAM SINHA
JUDGMENT
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Date of hearing:10.03.2022, 30.03.2022 and 17.04.2023
Date of Judgment: 15.05.2023
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1. Ms. Mahapatra, learned advocate appears on behalf of
applicants. She submits, her clients are members of the association, who
have constructed their houses in their plots. The construction was made
upon permission duly obtained from Bhubaneswar Development
Authority (BDA). The permission dated 7th October, 2005 was granted
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under section 16(3) of Orissa Development Authorities Act, 1982. She
draws attention to clause (p) in the permission, reproduced below.
"Open space as suggested in the plan shall be developed and
handed over to B.M.C for its maintenance for the benefit of
the purchaser."
Open space was to be of area Ac.2.323. Apart from that there was area
of Ac.2.848 earmarked for internal roads. On query from Court she
submits, user for internal roads includes by the public.
2. She submits further, there is existing controversy between writ
petitioners, Bhubaneswar Municipal Corporation (BMC) and her clients,
particularly writ petitioners and her clients, regarding claim of former to
have access to their properties by road through the open space. The
controversy is pending adjudication in civil suit C.S. no.1477 of 2019
pending in the Court Civil Judge, Junior Division, Bhubaneswar. By
order dated 30th March, 2022 in the writ petition, the suit stands decided.
This the writ Court ought not to have done.
3. Above grounds, inspite of due diligence, could not be argued or
placed before this Bench, when said order dated 30th March, 2022 was
made disposing of the writ petition. They are good grounds of review
and as such said order dated 30th March, 2022 be recalled for the writ
petition to be restored for hearing once again.
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4. Mr. Mohanty learned senior advocate appears on behalf of
Bhubaneswar Municipal Corporation (BMC). He submits, his client has
been duly authorized by BDA to deal with the land in respect of, inter
alia, said order dated 30th March, 2022, to comply therewith. He hands
up internal letter dated 8th March, 2023 of his client, subject and text of
which are reproduced below.
"Sub: Provision of road access to the petitioner in
compliance to the order of Hon'ble High Court.
Ref: This office Letter No-853, dt.28.03.2023.
Sir,
With reference to the letter on the subject cited above I
am to inform you to take action on the matter immediately
and ensure physical opening of the road on 10.05.2023 in
presence of all stake holders with the help of Amin of S.E.
Zone.
Compliance report must be submitted immediately
for onward transmission to the Commissioner, BMC."
He submits, there has been implementation. Even otherwise the
application is without merit and should be dismissed.
5. He submits further, applicants first moved writ appeal no.486
of 2022 and had obtained order dated 16th February, 2023. They then
withdrew the writ appeal on 23rd March, 2023 and moved another
learned single Judge by WP(C) no.6138 of 2023. The writ petition stood
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dismissed. In the circumstances, not only there is omission of good
grounds, otherwise too the application should be dismissed.
6. Mr. Mohanty, learned advocate appears on behalf of writ
petitioners. He submits, his clients have purchased plots from the same
builder, who on behalf of, as constituted attorney of applicants, had
executed deed of gift dated 3rd May, 2006, inter alia, in respect of land
of area Ac. 2.848 for internal roads and area Ac. 2.323 for open spaces.
Ms. Mohapatra submits, area earmarked for open spaces in the gift deed
is Ac 1.087.
7. Mr. Mohanty submits further, his clients are purchasers from
the developer and they required access, which the BMC had proposed to
give. By order dated 30th March, 2022 there was direction for the BMC
to implement its proposal. The application be dismissed.
8. Paragraph-6 from order dated 30th March, 2022 is reproduced
below.
"6. The Corporation is the author regarding requirement
of layout and sanction of plans. It says that it will provide
access to petitioners over the open space. This access by
road over the open space, if will change the nature and
character of the open space, to become closed or
otherwise, does not fall for adjudication because added
opposite party has not been able to demonstrate anything,
its members title deeds undisclosed, that there was any
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right conveyed to them regarding nature and character of
the open space. The permission granted by BMC says
open space and on pain of repetition, the road will not
make that place any less open."
9. Applicants have not been able to demonstrate they have title
documents in respect of earmarked areas, either of Ac.1.087 acres or
Ac.2.323 meant for open spaces in said permission letter dated 7th
October, 2005. Ms. Mohapatra submits, gift made was only of Ac.1.087
for internal roads and allocation of Ac. 2.323 for open spaces in the
permission letter was erroneous but her clients had accepted the same.
So it turns out, inter alia, area of Ac. 2.323 was earmarked for open
spaces.
10. Under clause (p) in the permission letter, open spaces as
suggested in the plan were to be developed and handed over to BMC,
for their maintenance, to benefit the purchasers. Court accepts that
applicants are the persons referred by use of word 'purchasers' in the
clause. It transpires that from obtaining the permission on 7th October,
2005 till date of proposal made by BMC on 29th January, 2019, the open
spaces had not been developed and handed over to BMC, for
maintenance. It is also fact that spaces earmarked for internal roads and
open spaces have been gifted to BMC. In the circumstances, the writ
Court acted upon petitioners having moved for implementation of the
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proposal. As such, in directing implementation of the proposal the writ
Court did not decide right, title or interest of any party. That may be
subject matter of the civil suit pending. Furthermore, it was not pointed
out then nor has it been pointed out now, there was operating restraint
order obtained in the suit in respect of either petitioners or BMC to act
in respect of land gifted to BMC for purposes of, as aforesaid, internal
roads and open spaces. As will appear from order dated 30th March,
2022, the writ Court did not find any reason for the BMC to not
implement its proposal. Hence, there was direction for implementation.
Submission on behalf of BMC has been that steps have been taken to
implement the directions.
11. In dealing with the application it is made clear that controversy
or disputes that exist between applicants and writ petitioners, were not
gone into in the writ petition, nor herein. It appears, the developer may
have contributed to the controversy arisen. This is because applicants
clubbed their holdings and engaged the developer, who sold to writ
petitioners, leaving latter with no access. Hence, the proposal by BMC.
Applicants have a suit filed and pending. They must find their remedy,
also in damages for breach of agreement, if any.
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12. The application is dismissed.
(Arindam Sinha)
Judge
Sks
Signature Not Verified
Digitally Signed
Signed by: SISIR KUMAR SETHI
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 16-May-2023 16:03:17
