Omfed Bazar Sangha and Others vs State of Orissa and Others

B.S. Chauhan, C.J.—This Writ Petition has been filed by the Petitioner- a registered association claiming the right of preference for allotment of shop rooms in the new commercial complex on the ground that the members of the said Sangha had earlier been running their trade on the road sides with the knowledge of the Opposite Parties-authorities.

The facts and circumstances giving rise to this case are that the members of the Petitioner Sangha had been carrying on different business in omfed since very long period and they had been given assurance by letter dated 5.9.1990 (Annex.-1) the Sanghs'' members would be considered for preferential allotment of shop rooms in the new commercial complex. The Sangh was asked to submit the list of its members. After completing all the requirements, a list was furnished by the Petitioner and subsequent thereto a meeting was held under the presidentship of Hon''ble Minister of Fisheries and Animal Husbandry and it was decided to provide 50 Nos. of kiosks to the members of the Petitioner Sangha, therein, as it is evident from the letter dated 26th February, 1992 (Annex.-2). In spite of such assurances the Government has not taken any action to provide the shop rooms to the members of the Petitioner Sangha. In spite of making repeated requests nothing has been done. Hence this petition.

Mr. Palit, Learned Counsel for the Petitioner has submitted that the legitimate claim of 143 members of the Sangha has not been considered as no shop room had been allotted to either of them in spite of the assurances given to them at the time of eviction. The doctrine of promissory estoppel is applicable. Therefore, the Writ Petition deserves to be allowed.

On the contrary Mr. D. Mohapatra, Learned Counsel appearing for the Bhubaneswar Development Authority (hereinafter called the "Authority") and Mr. P. Panda, Learned Additional Standing Counsel have vehemently opposed the petition contending that the members of the Petitioner Sangha were rank trespassers on the public roads. They were evicted for widening the roads. No assurance could be given in contravention of the statutory provisions. Question of application of promissory estoppel does not arise. Thus, the petition is liable to be dismissed.

We have considered the rival submissions made by the Learned Counsel for the parties and perused the record.

The facts remain undisputed to the extent that the members of the Petitioner Sangha had never been granted any permission by any authority under any statute to settle on any part of the public land in Bhubaneswar. Every member had been a rank trespasser and had become the law unto himself and instead of facing criminal prosecution for encroaching upon the public land he has the audacity to approach the Writ Court for seeking the equitable relief. No rent or licence fee has ever been paid by any of the members and it is submitted by Mr. Palit that the question of making payment of rent or licence fee could not arise because no body had ever asked them for any payment.

The list prepared on 5.8.1997 jointly by the Petitioner and the officers of the Authority after verification of facts containing the names of 133 members of the Sangh, who were running their business on road sides prior to 1990 has been placed on record. It may be pertinent to refer to the part of the said list. The said part reads as under:

SI. No.

Name of Member

Tenure

Name of Business

10.

Butu Khan

2 years

Meat shop

15.

Md. Khalil

6 years

Gadi shop

18.

Jani Khan

5 years

Watch shop

21.

Hemanta Kumar Bhanja

7 years

Cycle Repairing shop.

2.

Sukanta Kumar Rout

2 years

Shoes shop.

25.

Mansur Ali

2 years

Garage

26.

Md. Muna

1 year

Betel shop

27.

Kalab Rajarao

2 years

Saloon

29.

Juman Khan

8 years

Egg shop

34.

Mansur Ali

5 years

Garage

35.

Sahadeb Prusty

2 years

Garage

39.

Nakul Barabhoi

4 years

Furniture shop

41.

Babaji Sahoo

4 years

Betel shop

42.

Rankanidhi Pradhan

3 years

Betel shop

45.

Gopal Mohapatra

6 months

Art shop

46.

Chittaranjan Barik

2 years

Hotel

50.

Fakir Panigrahi

4 years

Book Stall

51.

Sk. Ajiz

1 � yrs.

Watch shop

52.

Batakrushna Maharana

3 years

Furniture Shop

54.

K. Ashim

6 years

Garage

55.

Singh Babu

5 years

Auto part shop

56.

Prafulla Ku. Mishra

8 years

Watch shop

57.

Sashi Bhushan Singh

5 years

Luna Hardware

61.

C.R. Pattnaik

5 years

Stationary

62.

M.R. Mahanta

7 years

Watch shop

64.

Gopa Pandokan

4 years

Betel

65.

Umesh Rout

5 years

Betel

66.

J.K. Traders

5 years

Paper godown

67.

Narayan Behera

7 years

Garage

69.

Prabhakar Sahoo

6 years

Hotel

70.

Manmohan Sahoo

4 years

Betel

71.

G.S. Behera

1 year

Garage

72.

Hemanta Das

8 years

Pressure shop

73.

B. Dalai

6 years

Trunk repairing shop

74.

R.N. Sahoo

7 years

Tailoring shop

77.

Ulash Ch. Sahoo

5 years

Stationary

78.

P. Patnaik

5 years

Garage

79.

G.C. Barik

8 years

Saloon

80.

Biswanath Samal

6 years

Electrical shop

82.

Niranjan Sahoo

9 years

Hotel

83.

Bidyadhar Swain

7 years

Betel

85.

R.R. Behura

5 years

Stationary

88.

B.Panda

5 years

Electrical

89.

K. Meheswar Rao

5 years

Tailoring

90.

R.C. Kanhar

5 years

Electrical

91.

Darpanarayan Samal

8 years

Betel

95.

Arani Swain

4 years

Stationary

98.

B.K. Panda

2 years

Betel

101.

Marntaj Khan

8 years

Vegetable

105.

Lochan Sahoo

8 years

Shoes shop

106.

K. C. Sahoo

8 years

Ladies corner

107.

Pitambar Samal

8 years

Medicine store

109.

Puma Ch. Behera

7 years

Sweet Shop

110.

R.C. Mohapatra

7 years

Mixture

111.

Srinibas Barik

7 years

Cloth shop

112.

Prakash Ku. Maharana

6 years

Paper godown

114.

Pravanjali Mahakur

8 years

Tea Stall

115.

Bijyan Mahapatra

7 years

Betel shop

118.

Pravas ku. Maharana

5 years

Furniture

119.

Surendra Ku. Sahoo

5 years

Grocery shop

120.

Chandraketu Singh

7 years

Hardware

129.

S.C. Sahoo

9 years

Grocery

131.

Kalandi Khan

3 years

Meat shop

132.

M. K. Rath

8 years

Auto part.

133.

Ranjan Ku. Swain

3 years

Stationery

The list cannot be truthful and correct for the simple reason that the so called members whose names have been shown therein claim to have running their shops prior to the assurance given in 1990. The aforesaid list is nothing but a fraud in collusion with the statutory authorities to seek unwarranted relief either from the Writ Court or the Authority itself. The proceedings of the meeting dated 19.4.2007 reveals that a decision could not be taken regarding rehabilitation of these persons because of pendency of this case. However, it is evident from the said minutes that they were evicted from the place of their business for widening of roads in 1990. Most of these persons whose names had been in the list referred to above could not be there in 1990.

In the Writ Petition much emphasis has been given on the facts mentioned in paragraph 3C that a meeting under the Chairmanship of the Minister of Fishery and Animal Husbandry was held on 26.2.1992 and it was agreed that 50 kiosks would be reserved for the members of the Petitioner Sangha. This issue has been considered by this very Division Bench while deciding earlier Writ Petition [W.P.(C) Nos. 7790 of 2008 -Omfed Bazar Sangha v. State of Orissa] on 11.9.2008 filed by the Petitioner Sangha in respect of some other encroachers claiming to be its members. In that case it was observed that none of the Counsel was able to point out as under what statutory provisions the resolution of the said meeting could be given effect to in law and how the resolution of such a committee can be binding on the Authority or Bhubaneswar Municipal Corporation. Reliance had also been placed while deciding the said case on various Judgments of the Supreme Court including Poona City Municipal Corporation Vs. Dattatraya Nagesh Deodher, , Municipal Corporation, Indore v. Sri Niyamatulla AIR 1971 SC 97, J.N. Ganatra Vs. Morvi Municipality, Morvi, and Borosil Glass Works Ltd. Employees Union v. D.D. Bambode and Ors. AIR 2001 SC 378 that unless a resolution or decision is referable to a statutory provision it cannot be given effect to and the question of its execution does not arise. The Writ Petition was dismissed observing that the encroachers had no legal right to claim any kind of preference or rehabilitation.

Mr. Palit, Learned Counsel for the Petitioner has placed very heavy reliance on a decision in Labha Ram and Sons and Others Vs. State of Punjab and Others, wherein the Apex Court directed the authorities to allot certain plots and shops in the new market to the traders who had been affected because of shifting of mandi giving them preference. The ratio of the said decision has no application in the instant case for the reason that they were licensed dealers paying licence fee as well as mandi fee to carry out their business and they were not the encroachers. They were claiming place in the new; mandi town because they had been restrained to carry out the business in their existing place. Admittedly they were not encroachers or rank trespassers like the members of the Petitioner Sangha. Therefore, the Petitioner in the instant case cannot claim any benefit of the said Judgment.

The writ is a discretionary relief. It can be exercised only to advance cause of justice and not to perpetuate any illegality or injustice. The Court has to keep in mind that interest of justice and public interest can coalesce in certain circumstances. The Writ Court cannot thwart the cause of justice. The "person aggrieved" can only approach the Writ Court for equitable relief. The ''person aggrieved'' means a person who had particular or peculiar interest and suffered the legal injury. Therefore, there must be judicially enforceable & right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. Only legally protected right can be enforced through Court. The existence of such right is the condition precedent to invoke the writ jurisdiction. (Vide The State of Orissa Vs. Madan Gopal Rungta, ; Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, ; State of Kerala Vs. Smt. A. Lakshmikutty and others, ; Utkal University Vs. Dr. Nrusingha Charan Sarangi and Others, ; M.S. Jayaraj Vs. Commissioner of Excise, Kerala and Others, ; The Chairman, Railway Board and Others Vs. Mrs. Chandrima Das and Others, ; and State of Punjab Vs. Raghbir Chand Sharma and Another, ).

A Constitution Bench of the Supreme Court in The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, held as under:

The article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In The State of Orissa Vs. Madan Gopal Rungta, , this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the Constitution. In Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, , it has been held by this Court that the legal right that can be enforced...must ordinarily be the right of the Petitioner himself who complains of infraction of such right and approaches the Court for relief.... The question, therefore, is whether in the present case the Petitioner has a legal right and whether it has been infringed by the contesting Respondents.

The "legal right" means an entitlement arising out of legal Rules. Thus it may be defined as an advantage or benefit conferred upon a person by a rule of law. (vide Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York, ; and State of Rajasthan and Others Vs. Union of India and Others, ).

In Milk Producers Association, Orissa and Others Vs. State of Orissa and Others, while dealing with same situation in Bhubaneswar itself, the Apex Court repelled the case of promissory estoppel given to similarly situated persons and held that the question of promissory estoppel in such a case does not arise. The Apex Court held that the rank trespassers cannot claim the right of rehabilitation. The Court observed as under:

There does not exist any legal concept which confers a legal right upon an encroachers to be rehabilitated. The matter may be different where the State comes out with a policy decision which meets the constitutional scheme as envisaged under Article 162 of the Constitution. In the instant case, we have noticed that the Appellants have failed to show the existence of any such scheme, which can be said to be irretrievable in nature...even the doctrine of promissory estoppel will have no application.

Thus, the case of the Petitioners is squarely covered by the aforesaid Judgment in Milk Producers'' Association Case (supra).

In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Ors. AIR 2008 SC 6996, the Apex Court has made a recommendation to the Legislature to reconsider the law of encroachment and adverse possession observing as under:

Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owners in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who wrongfully taken possession of the property of the true owner.

...there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession....

If the instant case is examined in the light of the aforesaid legal proposition, the members of the Petitioner- Sangha had been rank trespassers and the list-teferred to above which appears io nave been prepared in collusion with the statutory authorities is definitely not worth placing reliance because moot of the persons whose names have been shown in the list in 1990 at the time of widening the road were not affected. They cannot claim that they had any legally protected right, which can be enforced through Writ Court.

We do not see any cogent reason to take a view contrary to that taken in the earlier Writ Petition filed by the Petitioner-Sangha, i.e., W.P.(C) Nos. 7790 of 2008 disposed of on 11.9.2008.

The Writ Petition lacks merit and is accordingly dismissed.

B.N. Mahapatra, J.

I agree.