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Judgment
Arindam Sinha, J
Mr. Sahoo, learned advocate appears on behalf of added opposite party and submits, with reference to order dated 10th March, 2022, admittedly the Corporation has title over the area, in which road access was proposed to be given to petitioners. He submits, as such the additional affidavit does not disclose title documents in respect of the land gifted to the Corporation. Said order dated 10th March, 2022 is reproduced below.
“ 1. Mr. Mohanty, learned advocate appears on behalf of petitioners and submits, annexure-6 is writing dated 29th January, 2019 made by authorized officers of Bhubaneswar Municipal Corporation (BMC) approving proposal of access road to his clients’ property. The access was proposed to be given from part of land gifted by Santoshi Real Estate and Promoters (O.P.3), also his client’s vendor. He submits, purpose of the gift was to provide access for the separate several plots sold by the donor/vendor, over the gifted land.
He draws attention to counter filed by BMC, in particular paragraphs 6 to 8 to submit, though BMC had required his clients to withdraw their earlier writ petitioner for giving effect to the proposal for road access, the intervener and subsequently added opposite party filed a suit, by reason of which BMC has not acted.
Ms. S.Das, learned advocate appears on behalf of added opposite party no.4. On query from Court regarding her client’s title documents in respect of the land, contended by petitioners to have been gifted to BMC, she prays for adjournment to obtain instructions and produce documents.
Added opposite party will file title documents in respect of the land, over which road access has been proposed (annexure-6), for this Court to consider its locus standi.
The additional affidavit must be filed by 25th March, 2022, on copy served upon petitioners as well as BMC.
List on 29th March, 2022.”
On the question of locus standi, he relies on views expressed by a Division Bench of High Court of judicature of Madras in judgment dated 12th April, 2007 (W.A. nos.156 of 2000 and 45 of 2003) (Sri Devi Nagar Residences Welfare Association Vs. Subbathal and others), paragraphs 10 to 12.
On query from Court Mr. Sahoo draws attention to permission dated 7th October, 2005, for development, granted by Bhubaneswar Development Authority (BDA) to owners of the plots abbuting the gifted land. He demonstrates that open space was mentioned in the table, to be 2.323 acres equivalent to 15.36% of the entire land. His client association has members, who are purchasers from those mentioned in the permission letter. Hence, the open space cannot be dealt with by the Corporation.
On further query from Court, Mr. Sahoo is unable to show authority regarding making road in a designated open space would render that part of it as closed space or not open.
In Sridevi Nagar Residences (supra) the space reserved was for public purpose. In that context of facts the Division Bench expressed its view regarding whether or not that association was necessary party. Here, the association has already been added as opposite party. The space in question is said to be open space but whether for public purpose, this Court does not want to opine since the surrounding plots are owned by members of the association and petitioners. Whether apart from them public are also to use the open space is something that this Court is not required to comment upon. Clearly the case at hand is distinguishable on facts from Sridevi Nagar Residences (supra).
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 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.
There will be order in terms of prayer in the writ petition, to be carried out within four weeks of communication.
The writ petition is disposed of.
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