DEBENDRA MOHAN SATPATHY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner has filed this writ petition challenging the illegal and unauthorized construction of Market Complex on the public garden, namely, Nruplal Udyan, which is situated on the heart of Barapalli Notified Area Council in the district of Bargarh and has prayed for issuance of a mandamus to the opposite parties to take appropriate action against opposite party no.6 Trust Member to stop construction of market complex inside the aforesaid Udyan and also to direct the Notified Area Council to renovate the garden by planting plants and trees, urging various facts and legal contentions.

(2.) The petitioner claiming that he is a public spirited person and residing in Barpalli has filed this writ petition ventilating the grievance of the general public of Barpalli town for protection of Nruplal Udyan and against the illegal action of the opposite parties, particularly the Trust and its members as the illegal and unauthorized construction of Market Complex in the garden is not permissible in law. It is stated that the said park is a public garden inaugurated on 11.3.1934 and since then it has been named after the then King Nruplal Singh and has been used by the local residents for recreation. Gradually the garden was developed by the Barpalli Panchayat Samiti. Thereafter some amusement articles were installed for the children so that they can play and enjoy in the said garden. In 1971 Barpalli became a Notified Area Council (N.A.C.) and accordingly the maintenance and beautification of the garden was entrusted to the said N.A.C.and after being taken over by the Barpalli N.A.C. the garden lost its past glory and was ruined for which the public of Barpalli town were unable to take any step to impress upon the NAC to renovate the garden and maintain the damaged amusement articles installed.

(3.) Opposite party no.6 Trust formed in the year 2006 with an oblique motive and taking advantage of the name of Nruplal Udyan has recently started construction work in the garden. Thereafter the petitioner applied to the NAC under the Right to Information Act to know the actual fact. He was surprised to know that the authorities have accorded permission in favour of Nruplal Udyan Trust to construct a market complex on the garden. The information furnished by the NAC on 21.3.2011 is produced as Annexure-1. It is the case of the petitioner that the garden was meant for the local inhabitants numbering nearly about one lakh people. Some vested interest members of the Trust-opposite party no.6 with a view to make profit are constructing shop rooms illegally inside the garden which is not permissible in law. Therefore, grant of permission by the NAC for the same in favour of opposite party no.6 is illegal. It is stated that the garden is located on Plot No.865 under Khata No.1429 and plot no.866 under Khata No.483 under Barpalli mouza, Thana No.51 having total area of Ac.0.92 and in the remark column of the R.O.R. it is mentioned as "Nruparaj Udyan Sarba Sadharana Byabahara Karanti". It is the case of the petitioner that some vested interest members of opposite party no.6-Trust are constructing 16 shop rooms of the size of 16"x12" each which covers almost the frontage of the garden land as a result of which Nruplal Udyan will become history for the local inhabitants within a short span of time. It is the further case of the petitioner that the local M.L.A. has sanctioned Rs.5,00,000.00 from the M.L.A.LAD fund and the improvement work is in progress under the supervision of opposite party no.5 and a sum of Rs.2,70,000.00 has already been spent as on 24.3.2011. This is public money and can never be misutilised by a private trust. Copy of the information furnished to the petitioner by the District Planning and Monitoring Unit, Bargarh so also by Panchayat Samiti Office, Barpalli are produced as Annexure-3 series. It is alleged that the Trust Members have collected good amount of money for construction of the shop rooms and before completion of construction the petitioner has learnt that they have allotted the shop rooms to their near and dear ones. Granting permission by the NAC in favour of the Trust for construction of shopping complex is illegal and opposed to the law as the park which is maintained from 1934 cannot be converted and used for any purpose other than park which is against the interest of the public. If such market complex is constructed inside the garden, no space will be available for public purpose and the plantation and gardening will lose its existence and the people will not get any free air and it will not be possible to maintain ecology. When the trust was created, the public was of the opinion that the garden will be renovated but when the illmotive of construction of market complex inside the garden came to light, the same created serious concern among the public and they raised their voice against such illegal construction over the Udyan situated over an area of Ac.0.92 decimals.