FOOTPATH KHYUDRA BYABASAI SANGHA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Writ Petition has been filed by the Petitioner, a registered society, seeking for a direction to Opposite Party Nos. 1, 2, 3, 4 and 6 for rehabilitation of the members of the Petitioner -society by declaring plot Nos. 288, 238 and 340 corresponding to Khata No. 357 of Mouza: Bapuji Nagar, Bhubaneswar as vending zone or for allotting any other plot as vending zone in the larger interest of the members of the Petitioner society.

(2.) THE facts and circumstances giving rise to the present Writ Petition are that the Petitioner is a registered society formed by the small shopkeepers/traders who were carrying on business on the vacant land situated between the government quarters and the footpath at Bhubaneswar from Rajmahal Square to Unit -I market area. They were earning their livelihood by putting up small shops at the right side vacant land since 1970. Bhubaneswar Municipality which was there prior to formation of Bhubaneswar Municipal Corporation used to collect fees from those footpath shopkeepers and cabin owners every day at the rate of Rs.1 per shop since 1983 in accordance with Section 307 of the Orissa Municipal Act, 1950 (hereinafter referred to as 'Act 1950). There were 161 shopkeepers dealing in readymade garments, small betel shops, plastic goods shops, leather bag shops and other daily utility shops, plastic toyshops etc. Prior to filing of the present petition, the Petitioner - society apprehending illegal, arbitrary and unauthorized action of Opposite Parties filed W.R(C) No. 5862 of 2004 in this Court. By Order Dated 28.05.2005 in Misc. Case No. 5951 of 2004 this Court was pleased to pass stay order injuncting Opposite Parties not to evict the members of Petitioner -society from said plots. Even prior to filing of W.P.(C) No. 5862 of 2004, the Petitioner -society had moved this Court by filing a Writ Petition being OJ.C. No. 1228 of 1996. The said Writ Petition was disposed of on 16.02.2004 wherein this Court observed that law is well settled that a person who is in occupation of the land belonging to Government or Municipal Corporation can be evicted from the land only after following the procedure established by law. This Court further observed that the society can approach the Bhubaneswar Municipal Corporation for construction of kiosks and the latter would allow the members of the petitioner society to carry on their business on payment of consideration and fee for such kiosks. After disposal of the Writ Petition, the Petitioner society made a representation to the Mayor of Bhubaneswar Municipal Corporation to rehabilitate the members of the Petitioner -society in the vacant land where they were carrying on their business. Petitioner -society also approached this Court in W.P.(C) No. 12555 of 2004, which was disposed of on 20.11.2004 with a direction to the members.of the society to make representation before the appropriate authority within fifteen days for rehabilitation and the appropriate authority was directed to dispose of the representation within one month in the event they filed such representation. Pursuant to said order passed in W.P.(C) No. 12555 of 2004, the Secretary of the Petitioner -society made representation to the authority on 26.11.2004. The members of the Petitioner -society made joint representation to the Secretary, General Administration Department, Director of Estate and the Hon'ble Chief Minister of Orissa on 06.12.2004. Thereafter, the Petitioner -society also made another representation wherein, it was brought to the notice of the General Administration Department that since the General Administration Department had already allotted/leased out different spaces on different plots including plots where the members of the Petitioner -society were carrying on their business to other similarly situated shopkeepers, there was no impediment to lease out spaces acquired by the members of the Petitioner -society on plot Nos. 288, 238 & 340. The representation of the Petitioner -society dated 26.11.2004 made in pursuance of order of this Court passed in W.P.(C) No. 12555 of 2004 was disposed of by the Special Secretary to Government in General Administration Department vide Order Dated 27.12.2004 wherein the Petitioner's request was turned down as regards rehabilitation of the members of petitioner -society in the case land where they were carrying on their business. Thereafter, the Petitioner filed Writ Petition bearing W.P.(C) No. 339 of 2005.This Court vide order dated 07.02.2005 directed the Learned Addl. Government Advocate to obtain all necessary instructions/papers and place the same before the Court and further directed that till then status quo as on that date with regard to possession of the land in dispute shall be maintained by the parties. This order had been extended from time to time. The grievance of the Petitioner society is that when the stay Orders Dated 07.02.2005 and 14.02.2005 were in force, Opposite Parties 3 and 5 in clear violation of the order of this Court on 24.02.2008 forcibly demolished the structures and evicted the members of the Petitioner -society from the plots where they were having their shops. The Opposite Parties evicted/demolished those footpath shops and cabins without giving notice and without adopting any procedure enshrined in the Act 1950. The team accompanying the demolition squad looted the articles of those poor shopkeepers making them to suffer tragically. Hence, the Writ Petition.

(3.) LEARNED Counsel for the State vehemently argued that in OJC No. 1228 of 1996 this Court vide order dated 16.2.2004 inter alia held that there is no right as such vested in the members of the Petitioner -society to continue to occupy any land belonging to the Government or the Municipal Corporation. The members of the Petitioner -society also cannot insist that so long they have not been rehabilitated in the kiosk built by the Opposite Parties they cannot be evicted from the case land. However, the Petitioner -society is always free to approach Bhubaneswar Municipal Corporation -Opposite Party No. 2 for construction of kiosk and for allowing the members of the Petitioner -society to carry on their business on payment of required consideration/ fee for such kiosk. This Court disposed of W.P.(C) No. 5862 of 2004 with the observation that since the matter in dispute had already been adjudicated in the Writ Petition bearing OJC No. 1228 of 1996, this Court did not propose to pass any further order and accordingly dismissed the Writ Petition along with Misc. Case. It was also argued that the Petitioner has no locus standi to file the present Writ Petition for the fourth time on the self -same issue invoking extraordinary jurisdiction abusing the process of the Court and, therefore, the Petitioner is not entitled to get any relief in the present Writ Petition. The case land is the busiest road and thousands of public using it for day -to -day movements. Rehabilitation of the members of the Petitioner -society by providing vending zone will seriously jeopardize the interest of the public by creating traffic hazards to the pedestrians. Creation of vending zone and rehabilitation of the venders are being done by Bhubaneswar Municipal Corporation. The alleged fee/daily mahasul collected by the Bhubaneswar Municipal Corporation does not confer any right, title or interest on the members of the Petitioner -society over the case land. The same also does not entitle them to encroach public road thereby causing immense hardship to the public. Learned Counsel seriously challenged the allegation of looting of articles of the shopkeepers by the demolition squad and contended that the said allegation is nothing but concoction of facts as the demolition works were carried on with tne help of police officers of the concerned police station. The case land pertaining to plot Nos. 338 and 340 is Government land coming within 200ft. Master Plan Road (Rajpath) leads from Rajmahal Square to Raj Bhawan Square. The southern side of Hal plot No. 338 (excluding the area utilized for Rajpath) is part of that 200ft, Master Plan Road known as 'Janpath' running from Sisubhawan to Vani Vihar Square via Rajmahal and Master Canteen Square and it is the busiest road and thousands of city dwellers are using that road for their day today movements. The quantum of traffic is increasing day by day and expansion of the road in question is essential to accommodate the present day demand. It was further contended that Opposite Party No. 7 while disposing of the application of the Petitioner -society has taken into consideration all aspects of public utility and inconvenience caused to public over the case land and has rightly turned down the request of the Petitioner for constructing the kiosk in question over the case land. Bhubaneswar Municipal Corporation is a nodal agency for maintenance of public road and Orissa Municipal Corporation Act empowers Bhubaneswar Municipal Corporation under Section 407 to evict encroachers from the public roads. The case land being a part of the public road is subject to action by Bhubaneswar Municipal Corporation and G.A. Department is not required to handover such land to the Bhubaneswar Municipal Corporation for eviction of unauthorized encroachers over the same. Thus, the petition is liable to be dismissed.