BIRANCHI NARAYAN DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Petitioners, who are the owners of Plot Nos. 352, 353 and 344 situated in Mouza -Nayapalli (North) now Jayadev Vihar, filed the Instant Writ Petition for a direction to the Opposite Parties to re -transfer and reconvey the land which they were compelled to contribute for implementation of the Scheme No. II in Nayapalli (North) after abandonment of the Scheme or in the alternative to allot equivalent extent of land that was taken in course of implementation of Town Planning Scheme No. II.

(2.) THE Bhubaneswar Development Authority had prepared Town Planning Scheme No. 2 for Nayapalli (North) in exercise of powers conferred under Chapter VI of the Orissa Development Authorities Act, 1982. Para -4 of the Scheme made provision for adequate road network, infrastructural facilities, drainage channel, construction of embankment road on either side of drainage channel. According to the scheme, Nayapalli (North) had a total area of 88.000 acres and out of the said land about 56 acres were reserved for residential plots, Ac.19.00 for laying of roads, Ac.2.700 for construction of drainage channel, Ac.5.783 for providing community facilities and Ac.4.595 for construction of Sewerage treatment plant. The Scheme provided that the owner of each original plot shall primarily be liable to make proportionate contribution in the form of land. The Scheme further provided that each land owner who owns land to the extent of Ac.1.00 is required to contribute 12 per cent of his total land and persons having more than Ac.1.00 land were required to contribute 15% of the original land held by them for execution of the scheme. Pursuant to the same, the Petitioners were compelled to transfer an area of Ac.1.837 decimals. But subsequently the Town Planning Scheme was withdrawn. The contention of the Learned Counsel for the Petitioners is that the Petitioners cannot be deprived of their valuable land which were taken for enforcing the Town Planning Scheme No. 2 after the scheme was withdrawn and depriving the Petitioners of their valuable property rs violative of the constitutional right guaranteed under Article 300 -A of the Constitution. The Petitioners moved an application on 19.5.1988 before the Bhubaneswar Development Authority, Opp.Party No. 2 for grant of permissio'n to subdivide their land bearing Plot Nos.352,353 and 344, Khata No. 170 corresponding to Sabik Plot Nos. 862,867 and 869 in Mouza -Jayadev Vihar for residential purpose enclosing therein 6 numbers of blue print copies of layout plan. The Planning Member, Bhubaneswar Development Authority sent a letter dated 29.1.1991 to the Petitioners indicating therein to submit 8 copies of layout plan conforming to the Draft Comprehensive Development plan and demarcating clearly the provisions of drainage alignment, roads, and plots for further action at their end. The said letter was sent on the basis of the letter of the Joint Secretary to Government -cum -Director, Housing, Government of Orissa dated 29.1.1991. It is also pertinent to mention here that the Bhubaneswar Development Authority issued a notice in respect of Draft Planning Scheme No. 2 for Nayapally only in the news paper on 27.2.1993 in which it was inter alia mentioned that any person who is injuriously affected by the above scheme being entitled to claim damages in accordance with Section 65 of the Orissa Development Authorities Act, 1982 should details of the claim to the Valuation Officer within 3 months of the date of publication of this notification with supporting documents and evidence. The Petitioner, seeing no other way prepared, and submitted the layout plan according to the aforesaid direction given adhering to the Draft Comprehensive Development Plan and demarcating clearly the drainage alignment of 30 feet width and each side embankment roads of 25 feet width apart from the internal roads of 30 feet widths and only on submission of such plan, the Planning Member approved the same with the following directions. (i) The Road network including the drainage channel may be demarcated on the ground & laid out at least up to the formation level. (ii) The area earmarked as road & drainage channel may be gifted to the Bhubaneswar Municipality free of cost.

(3.) THE Petitioners moved several representations and the record became bulky. But they were not given any alternative land in lieu of the excess land. It is not necessary to go further as the noting of the Government in the above record is liable to be perused. The noting of the Additional Land Officer in the file is relevant. Paragraphs - v & vi thereof are quoted below: v) Sri Das had further represented that patch of land measuring Ac.5.702 swx. Pertaining to Plot No. 688/2656, Khata No. 1427 in Mz.Jaydev Vihar is remaining unallotted which may be allotted to him in liey of his private land measuring Ac.1.837 dec. utilized for different development purposes under Town Planning Scheme Nayapalli North -M & Ac.0.191 dec (Balance land after adjustment as proposed above, of Ac.0.410 dec. from the Ac.0.601 dec. land claimed) given to RBI for staff quarters. vi) As per kind verbal orders of Special Secretary the said piece of land was surveyed by the Amin of G.A.department, the report of the Amin, land scheduled & sketch map may be perused at P.271/C to P.269/C. The report states that only Ac.0.459 dec of land is vacant & free from encroachment & rest of the land is under encroachment by milkmen. If considered Sri Das may be allotted Ac.2.082 dec. of land from the said piece of land i.e. Plot No. 688/2856, Khata No. 1427(G.A. Department), Mz -Jayadev Vihar after vacation 61 encroachment. Submitted for kind perusal & orders. The matter was referred to the Chief Minister, Orissa, who, on 19.7.2007 observed as under: It transpires that the land alienated in favour of RBI for construction of staff quarters was recorded in the name of G.A. Department in the ROR published in 1960 -61. Neither any appeal nor any revision appears to have been filed against such recording. The Petitioner has not also made any objection at the time of alienation of the land in favour of RBI. After a lapse of 30 years, he Gomes up with a claim that the land belongs to him. Moreover, a Civil suit is pending over the case land. In view of the above, it may not be appropriate to settle Ac.0.410 of land as suggested by the Department. The Department is therefore advised to pursue the matter vigorously in the Civil Court. 2. As regards contribution of land for construction of drain and embankment, the Department may address the following: a) How many land owners have contributed land for construction of channel No. 4 & embankment under Town Planning Scheme, Nayapafli, North -M - b) Whether the drain & embankment has been constructed as par the approved plan of BDA? c) Whether the drain & embankment is being used for the purpose for which it has been constructed? Sd/ - Chief Minister; Orlssa.