VINAYAKA MISSIONS LORD JAGANNATH INSTITUTE OF DENTAL SCIENCE AND RESEARCH, BHUBANESWAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this writ application the petitioner Vinayaka Missions Lord Jagannath Institute of Dental Science and Research, Bhubaneswar, which is managed by a Medical Educational and Charitable Trust, challenges the order dated 08.12.2007 under Annexure -9 passed by the Collector, Khordha resuming the land leased out in favour of the petitioner for running the Dental and Medical College.

(2.) IT is the case of the petitioner that the petitioner -Institution initially started functioning in 1998 in Toshali Plaza, Bhubaneswar with 60 dental students. In the year 1999 the second batch of students were admitted. The Institution was approved by the Dental Council of India for running in the premises of Toshali Plaza. Both the batches 9f students have completed the BDS Courses in 2004 &. 2005 respectively: It is stated that initially on the application of the petitioner for allocation of land for running the Dental and Medical College, the State Government in the Revenue and Excise Department vide their order No.43931/R dated 30.09.1996 gave advance possession of fifty -five acres of land in Mouza Sijua and Ranasinghpur with certain terms and conditions, which was subsequently by Government letter dated 18.11.1998 reduced to forty acres. However, ultimately in pursuance of direction of this Hon'ble Court vide order dated 11.12.2001 passed in OJC No.10775 of 2005, the lease deed under Annexure -2 was executed on 22.12.2001 by the Government in favour of the petitioner for seven acres of land for 99 years with certain terms and conditions. It is stated that against all adversities, the petitioner " trust constructed around 20,000 sq. ft. plinth area with three big size rooms of 4000 square feet each for hospital, office and store on the leased out land, which was the preliminary requirement to start the Dental College in a new place. The construction was made with prior approval of plan by the Bhubaneswar Development Authority. However, after two batches of 1998 and 1999, the petitioner's Institution could not take up further admission due to want of permission from the Dental Council of India because of inadequate infrastructure and teaching staff. Now, the petitioner trust has shifted all materials and instruments from the old building to the leased out land and has also installed own transformer for electrical connection after settlement of an electrical dispute with the concerned authorities. It is stated that during the year 2005 the petitioner received notice dated 17.10.2005 under Section 3 -B of the Orissa Government Land Settlement Act, 1962 (in short 'the OGLS Act) from the Additional Tahasildar, Bhubaneswar calling upon the petitioner to show cause as to why the land covered under the lease deed should not be resumed under Section 3 -B of the OGLS Act. The petitioner submitted its show cause reply underAnnexure -7 indicating inter alia that the land in question has not been used by the petitioner for any purpose other than for which it was allotted/leased out, where after the matter was not further pursued. However again the petitioner received a notice dated 28.7.2007 (Annexure -5) from the Collector, Khordha -opposite party No.3 under Section 3 -B of the OGLS Act for explaining the following:

(3.) A counter affidavit has been filed on behalf of the opposite parties stating that initially advance possession of fifty five acres of land was given to the petitioner in 1996 for establishment of Dental Medical College and Hospital within one year and to inform the authority about such utilisation. The petitioner having failed to utilise the land in question it was ultimately reduced to seven acres in respect of which lease was executed under Annexure -2 and as per subClause -15 of Clause -II of the lease agreement the lessor has right to resume the land under Section 3 -8 of the OGLS Act, if the lessee does not used the land for the purpose for which if was granted within one year of the execution of the lease. Even after one year of execution of the lease, the petitioner has not used the land .for establishment of the Dental College and Hospital but has kept some materials in the half constructed houses over the case land. Referring to the report (Annexure -4) of the Director, Medical Education and Training, it is stated that nowhere in his report the Director has stated that the land has been used by the lessee for running the Dental College and Hospital. Rather the report corroborates the earlier reports of the Revenue Inspector and the Tahasildal regarding non -utilisation of the land for the purpose for which it was leased out. In such circumstances, the Government decided to resume the land and accordingly notices were issued to the petitioner as per Section 3 -8 of the O.G.L.S. Act and after considering his reply, the Government decided to resume the land by cancelling the lease on being satisfied that the petitioner failed to utilise the land for running the Dental Medical College and Hospital. Inquiry report of the Tahasildar, Bhubaneswar dated 21.11.2006 about non -utilisation of the land in question by the petitioner for running the college has been annexed as Annexure -E/2. Some averments have been made in the counter affidavit regarding clandestine agreement dated 26.07.2011 entered into by the petitioner with one M/s. Sahu Trust for transferring the control and management of the petitioner with all assets and liabilities together with the interest in respect of forty acres of Government land. However, this Court feels that the details of such transaction are not necessary to be adverted to, since this does not constitute the ground on which the land has been resumed. It is stated further in the counter that even after the Director of Medical Education and Training submitted its report (Annexure -4), the petitioner has not taken any steps to establish the Dental Medical College and Hospital till the lease was cancelled and the land resumed. It is further stated that the Tahasildar was directed to publish a copy of the order in the locality as well as over the case land and to take over possession of the land and for correction of record of right. The order was published as directed in presence of witnesses and the Revenue Inspector was directed to take over possession on 10.12.2007 of the case land after observing all formalities and the petitioner (lessee) was directed to remain present on the said date. As per the report of the R.I., Annexure -H/2, the possession of the case land was taken over on 10.12.2007 in presence of the witnesses and watchers of the petitioner -Institution. It is thus submitted by the learned State Counsel that there is nothing wrong to resume the land resorting to Section 3 -B of the O.G.L.S. Act.