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Judgment
G. Satapathy, J.
Instant writs under Articles 226 & 227 of the Constitution of India by the petitioners invoke the extraordinary writ jurisdiction of this Court to overthrow the allotment of Government land by OP No.2 vide Office order No. 2632/CA, Bhubaneswar dated 22.01.2021 in favour of OP No.7 as illegal.
Facts as involved in these two writs are that the petitioner No.2 was allotted with HIG Plot No. K-8-1190(A) under Kalinga Nagar Plotted Scheme measuring an area of Ac.4912 sft (corner plot) on 25. 08.2003 which was subsequently modified by adding the petitioner No.1 as co-allottee on 9. 07.2010. The petitioners were charged at a higher rate for allotment of this plot being a corner plot having roads 30ft. on Eastern side and 200ft. on Northern side, but possession thereof was only delivered for land measuring 4219 sqft. On approval of building plan, the petitioners accordingly constructed one G+3 storeyed building thereon and by paying the land holding tax regularly for the Holding No. 10880 in Ward No. 23. In the year 2009, the petitioners obtained a Revised Residential Layout Plan for Kalinga Nagar(K-VIII) and accordingly, the plot No. 1190(A) belonging to the petitioners was marked in red colour in the said layout plan. According to the petitioners, they left some vacant place in front of the building as per approved plan which is abutting to the 200ft. wide road on the northern side and the petitioners and their tenants/inmates access to the main road through the land to the 200ft. wide road on the northern side and the same is the only passage to approach the existing public road since 30ft. wide road on the eastern side of the plot No. 1190(A) is not accessible for the petitioners because of its downward gradient/slope starting from a height equivalent to the first floor of the existing building of the petitioners.
While matter stood thus, on 17.01.2021 and 18.01.2021, the petitioners noticed some construction work in front of the said entrance of their plot on northern side completely obstructing the petitioners and other inmates of the building and petitioner No.2 accordingly approached this Court in W.P.(C) No.25230 of 2021 to stop the construction work over the 200ft. wide road situated towards the northern side of their plot and despite notice to OPs with an interim order to Bhubaneswar Development Authority(BDA), Bhubaneswar Municipal Corporation (BMC) and the State Authorities to prevent construction over the said road, neither the State Authorities nor the BDA/BMC took any steps to prevent any construction which according to the petitioners was being carried out by OPNo.7 and, thereafter, on 22.09.2021 letter No.32973 was served on petitioner No.2 by BDA for demarcation of plot of the petitioners and Government plots measuring a total area Ac.2.267 decimals in Mouza-Ghatikia allotted to OPNo.7 and subsequently, letter No.33129 dated 22.09.2021 was also served on petitioner No.2 for aforesaid demarcation by omitting the four plots allotted to OPNo.7. At this stage, petitioner No.2 obtained information through RTI from OPNo.1 that a piece of Government land measuring Ac.2.267 decimals has been allotted to OPNo.7 for expansion of the campus of Institute of Medical Science (IMS) and SUM Hospital and Institute of Dental Science(IDS). According to the petitioners, there was no Government vacant land except 200ft. road on the northern side of plot No.1190(A) as per lay out plan and approved notification of BDA vide Annexures-5 and 6 and thereby, the petitioners strongly believe that plot No.2577 (Pt) measuring Ac.0.086 decimals was subsequently carved out in Hal Settlement on the northern side of plot No.1190(A) and has been allotted to OPNo.7 vide Annexure-11, but according to petitioners, allotment of Government land to OPNo.7 being a part of public road as per Hal ROR under Annexure-12 is impermissible and thereby, no land on the northern side of petitioners’ plot could have been allotted to OPNo.7. Since the Comprehensive Development Plan (CDP) under Annexure-6 being approved by the State Government under Section 11 of the Orissa Development Authorities Act, 1982 (in short “the Act”), any change in the said plan and modification is to be made in the manner of prescribed under Section 14 of the Act, but no such modification of CDP has been made in terms of Section 14 of the Act. It is further stated by the petitioners that BMC normally used the 200ft. wide road abutting the land of the petitioners in plot No.1190(A) in front of the land of OPNo.7 as a Parking Lot by handing over the said area to successful bidder for the purpose and in case, the Authority wanted to allot such plot, choice ought to have been given to the petitioners to purchase the said land before allotting in favour of any other person. Asserting the claim of allotment of aforesaid land in favour of the OPNo.7 to be not in consonance with Annexures-5 and 6, the petitioners with aforesaid averments in the writs have prayed to quash Annexure-11 as illegal.
In response to the notices, OPNos.1 and 2 have filed their joint counter being supported by affidavit by traversing all the allegations made in the writ, while admitting the allotment of land to OPNo.7 as stated and interalia averring that such allotted land to OPNo.7 is under its possession with construction of the boundary wall and using it as two wheeler parking area and the petitioners used their plots for commercial purpose by constructing a building having access towards 30ft. wide road. It is further stated by OPNo.1 & 2 in their counter that the GA and PG Department being the owner of plot No.2577 have rightly allotted the land under it to OPNo.7 by following due process of law. The petitioners when relying upon Annexure-6 to assert their claim, the Hal ROR of Mouza-Ghatikia has been finally published by the Settlement Authorities on 14. 11.2013 and the CDP map prepared under Annexure-A/2 in Hal Land Schedule indicates the 30ft. wide road in front of the plot of the petitioners and in terms of the order of this Court, a joint demarcation involving the officers of GA and PG Department, BDA, Tahasildar, Bhubaneswar and BMC was conducted on 24.09.2021 in respect of plot No.K-8/1190(A) relating to Kalinga Nagar Plotted Development Scheme, K-8 Mouza-Ghatikia and after measurement, it was found that plot No.K-8/1190(A) has been bounded by compound wall of the length of 69ft. 6” on eastern side, 54ft. on western side, 30ft. on northern side and 30 ft. on southern side and a four storeyed building has been constructed over plot No.1190(A) in which Sanjibani Medicine Store, Jagannath Nillay (Guest House) and Hotel and Restaurant are functioning. It is claimed in the counter that the Petitioner No.2 Bibhas Mahapatra was present at the time of enquiry and he agreed that a 200ft. wide master plan road has been shown in Sabik drawing map which is situated adjacent to the land to OPNo.7. Further, while questioning the locus of the petitioners to challenge the allotment of land to OPNo.7, the OPNos.1 and 2 has prayed to dismiss the writ petitions.
Similarly, OPNo.3 has filed counter supported with an affidavit by stating interalia that the Revenue plot No.2577 (P) has been carved out during current settlement in the year 2013 under the provision of Orissa Survey and Settlement Act, 1958 but the lay out plan prepared for K-8 being admittedly done as per CDP 1994 wherein a road of 200ft. was proposed, but there was no land acquisition for construction of said road as referred to in CDP 1994 and subsequently, after alignment of roads, the road in question has been modified in CDP 2010 and there is a change of alignment and shifting of road of earlier CDP 1994 and subsequently, a strip of Government land remained as residue which the Authority carved out in different plots including plot No.2577 (P) and at the time of allotment made to the petitioners, the boundary was described with proposed CDP 1994 and accordingly, a 200 ft. road to the northern side of it was shown on the basis of draft CDP. The OPNo.3 has further stated in the counter that initially the petitioners were allotted with a land measuring an area of 3757 square ft., but the petitioners were required to pay the additional cost towards the allotment of excess land to them and the plot allotted to the petitioners was for residential purpose with a layout of road 30ft. wide road to the east of the plot which is very much in existence and used, but in compliance to the requirements of road for residential purpose, the claim of the petitioners to have access to 200ft. road on the north side of the plot is unsustainable and not possible in view of the changed circumstance, when the petitioners have already violated the building permission by raising construction for commercial purposes. OPNo.3 has also claimed in his counter affidavit that at the time of carving out of the plot in the Settlement in the year 2013, the petitioners having not raised any objection before the Settlement Authority, now are asserting the competence of GA Department to allot the land in favour of the OPNo.7 by Annexure-11 notwithstanding to the right of OPNos.1 and 2 to allot the property.
The OPNo.7 has filed a separate counter affidavit by refuting the claim of the petitioners and interalia averring that during preparation of current record of rights, the Settlement Authority recorded the unused land between the plot of the petitioners and the 200ft. road in the name of Government and the Government of Orissa following the OGLS(Amended) Rules, allotted the aforesaid land to OP No.7 under Annexure-11 in accordance with law and the relevant provisions, and there is absolutely no road in Plot No. 2577 (Part) as allotted to OP No.7. The claim of the Petitioners thus merits no consideration and the writ petitions are accordingly liable to be dismissed.
In response to the counter affidavits of OP Nos. 1,2,3 and 7, the Petitioners have also filed rejoinder by inter alia reiterating their claim advanced in the petition. It is also stated by them that had there been any surplus unutilized land available in between the allotted land of the Petitioners and 200ft. wide road on north, the Petitioners plot being contiguous to the surplus land, opportunity ought to have been extended to the Petitioners to purchase the land in terms of the Clause-33 of BDA Land (Disposal and Allotment) Regulations, 2015(in short “the Regulations”). However, the Authority concerned in gross violation of the aforesaid Regulation has allotted the unutilized land of Plot No. 2577 (Part) to OP No.7 and the status of the land of the Petitioners as corner plot is thus being changed due to allotment of land to OP No.7 vide Annexure-11 and the boundary described in the possession letter dated 07.08.2010 to the Petitioners in Annexure-2 does not describe it to be a proposed road. The claim of OP No.3, with regard to change in the alignment and shifting of the road towards the southern side during CDP, 2010 resulting in a strip of Government land remaining residue and being part of in different plots including Plot No. 2577 is false, rather plot No. 2577 in Hal ROR under Annexure-12 along with settlement map of 2013-14 under Annexure-D/2 has been shown as a road.
In the course of argument, this Court heard Mr. S.P. Mishra, learned Senior Counsel appearing for the Petitioners, Mr. G. Mukherji, learned Senior Counsel appearing of OP No.7, Mr. D. Mohapatra, learned counsel appearing for OP No.3 and Mr.S.N.Das, learned Additional Standing Counsel.
Mr. S.P. Mishra, learned Senior Counsel mainly referring the sketch map and building plan forcefully submitted that the Petitioners was allotted with Plot No. 1190 (A) having their lands abutting 30ft. wide road on east and 200ft. road on north, but the 30ft. road on the east adjacent to the plot of the Petitioners starts with a downward gradient from a height of first floor and thereby, the Petitioners and the inmates of the building have the only access to the road through the 200ft. wide road on the northern side and if the land stands allotted to OP No.7 over the 200ft. road, the Petitioners would have no access to the main road. It was further submitted by Mr. Mishra that as per approved plan under Annexure-3 series, the land over which construction is proposed is accessible by an approved means of access of 60.96 meter and 9.14 meter in width which in fact supports the boundary description as stated in Annexure-2 and Clause-2(xxxiii) of the Regulations under Annexure-P/4 series defines the “corner plot” and stipulates that the frontage would be on the street having larger width. It was further submitted that the revised residential lay out plan for Kalinga Nagar K-VIII under Annexure-5 indicates existence of 200ft. road to the north of Plot No.1190-A of the Petitioners and the land allotted to OP No.7 under Annexure-11 is coming under yellow zone meant for only residential purpose, but its use for non- residential purpose is impermissible, and if the 200ft. wide road abutting the land of the Petitioners towards north is used or allotted for any other purpose, it would definitely change the status of the Petitioners’ plot as “corner plot” which is violative of Article-14 of the Constitution of India as held by Rakesh Agarwal Vrs. State of UP and Others; 2020 AWC 2875. While summing up of his argument, Mr. Mishra submitted that the allotment of land to OP No.7 vide Annexure-11 being arbitrary, unfair, illegal as well as not inconformity with law is liable to be quashed and it was accordingly, prayed by him to quash Annexure-11.
In reply, Mr. G. Mukherji, learned Senior Counsel appearing for the OP No.7 submitted that the Petitioners have no locus to challenge the allotment of land to OP No.7 under Annexure-11 since the land allotted to the Petitioners has not been validly transferred by execution of lease deed/sale deed and thus they have no right to challenge the allotment of land to OP No.7 by the authority concerned. He submitted that even for a moment considering the claim of the Petitioners to have the right to access 200ft. wide road, it is not permissible in terms of National Building Code of India(Development Control Rules and General Building Requirements) Part-3 wherein under Caluse-4.5 titled as “Means of Access” stipulates that no premises other than highway amenities like petrol pumps, motels, etc. shall have the access directly from highways and such other roads not less than 52m (170ft) in width. He further submitted that the petitioners had never used the northern side of the plot for access which is clearly admitted by the petitioners at paragraph-16.6 in the writ petition that the BMC used the said road in front of SUM Hospital of OPNo.7 as a Parking Lot by handing over to the successful bidder for the purpose. It was also submitted that the land allotment made by the Government in BDA in 1992 was modified in 2012 vide Annexure-A/2 and the State conducted its current settlement on 14.11.2013 and the CDP was accordingly prepared as per Hal plots in 2014-15 which is admitted by the petitioners in their rejoinder in para-iii to counter of OPNo.7, and the CDP, building plan approval and letter of possession must have undergone some changes in the meantime and thereby, there is no question of allotting a part of existing road to OPNo.7. While concluding his argument, Mr. Mukherji submitted that since there exists serious disputed question of facts which cannot be adjudicated in a writ jurisdiction, the claim of the petitioners in this writ being not maintainable is liable to be rejected.
Mr. D. Mohapatra, learned counsel appearing for OPNo.3 submitted that while allotments made to the petitioners, the boundary was described with reference to proposed CDP road 1994, but later on with the subsequent developments, the alignment of CDP road has been modified during CDP 2010, no matter the width of CDP remained the same and thereby, shifting of road towards the southern side of earlier CDP 1994, a strip of Government land was carved out in different plots including plot No.2577 (P) which has been allotted to OPNo.7 and the petitioners are using their allotted land for various commercial purposes by deviating the approved plan and condition, and the claim of the petitioners to have an access to 200ft. road is not possible in the changed circumstance. He further submitted that the petitioners have no right to question the authority of OPNo.3 to allot the land of BDA since BDA has the ownership with right, title and interest over the land in question. It was accordingly urged for dismissal of the writ petitions.
Mr.S.N.Das, learned Additional Standing Counsel reiterating the arguments as advanced by the above OPs prayed to dismiss the writ.
From the facts as exposited, it is quite evident that the sole question emerged for consideration is whether the allotment of Government land in favour of OP No.7 under Plot No. 2577(Pt.) by the OP No. 3 under Annexure-11 is illegal.
It is not in dispute that the petitioners have been allotted with HIG Plot NO. K-8-1190(A) under Kalinga Nagar Plotted Scheme having Registration No. KHN-241/1993 measuring an area 4219 square ft. as “corner plot” with boundary of 200ft. road on north, 30ft. road on east, Plot No. 1190 on south and SUM Hospital on west, but the real disputes starts when OP No.3 allotted some land between the land of the petitioners under Plot No. 1190(A) and 200ft. road to OP No.7. According to the petitioners, initially petitioner No.2 was allotted with said plot measuring 4912 square ft., but subsequently Plot No. 1190(A) measuring 4219 square ft. was allotted to petitioner No.2 on whose request petitioner No.1 was added as co-allotee vide order No. 9849 dated 09.07.2010. Accordingly, possession thereof was handed over to the petitioners on 7th August, 2010 vide Annexure-2 wherein boundary was described with 200ft. road on north and 30ft. road on east, Plot No. 1190 on south and SUM Hospital on west, but the petitioners averments in the writ petition clearly disclosing about allotment of land to OP No.7 in between 200ft. road and the land of the petitioners in plot no. 1190(A) which is contrary to the claim of the petitioners that their land was bounded on northern side by 200ft. road, rather some vacant land was in between the plot of petitioners and 200 ft. roads and, therefore, the description of boundary as stated in Annexure-2 in particular, on north side was either incorrect or it was subsequently, carved out due to realignment of road in the line of averment taken by OP No.3 in their counter.
Further, it is also not disputed that the petitioners have constructed a G+3 storeyed building over plot no. 1190(A) allotted in their favour, when the fact remains that neither any lease deed nor any deed of conveyance has been executed for transfer of the land in favour of the petitioners, and the petitioners claim that they have already submitted all documents, processing fee and service tax for execution of lease deed in their favour in terms of Annexure-P/3 series. On the other hand, Annexure-P/1 which was issued by BDA to petitioner no. 2 shows that the petitioners have been asked to show cause for constructing the building by deviating the approved building plan and for encroachment of Government Road. Further, the document as filed by the petitioners under Annexure-P/2 also goes to disclose that the Deputy Commissioner BMC has issued notice on 04.04.2023 to the petitioners for undertaking unauthorized development by way of commercial use of the building as well as deviating approved building plan in violation of Planning and Building Standard Regulation under the ODA Act, 1982.
A cumulative reading of averments at paragraph nos. 16.6 and 16.9 of the writ petition would give some insight to the fact that there is some land existing between plot no. 1190 (A) and 200ft. road which is also used by BMC for the purpose of Parking Lot. It is, therefore, difficult to accept the claim of the petitioners that they are accessing to 200ft. public road directly from their land and the plot allotted to the petitioners is a “corner plot”. Although much emphasis was given in course of argument that allotment of aforesaid piece of land to OP No. 7 would entirely block the frontage/passage of the petitioners to access 200ft. public road on the northern side of their plot, but such claim would not have any impact since the petitioners would have indirect access to 200ft. road through 30ft. road abutting their land on the eastern side. Further, the claim of the petitioners that they have left some vacant space on the front of the building as per the approved plan which is abutting 200ft. road on the northern side prima facie appears to be incorrect in view of their own averments in paragraph no. 16.6 of the writ petition.
On going through the layout plan of BDA under Annexure-5 and CDP, 2010 under Annexure-6, this Court finds the existence of 200ft. road, but Annexure nos. 5 and 6 taken on jointly cannot be considered to exclude the existence of the land between the land of the petitioners and 200ft. road.
Considering the rival submissions and on going through the documents, this Court by an order passed on 03.03.2023 directed for constitution of a Committee of three technical persons to submit a report by suggesting alternatively as to how the advantage that was granted to the petitioners remains intact or minimally adjusted and the petitioners’ access to the 200ft. wide road can be maintained. Accordingly, the Joint Director of Estates–cum-Additional Secretary to Government had formed a committee of three technical persons to submit a report as directed. The said Committee after making necessary enquiry furnished a report to this Court with findings as noted below:
FINDINGS
The petitioner has unhindered access to the 30ft. wide road and also to the 75 ft. main black top road (200ft. CDP proposed master plan) through the 30ft. wide road.
During handing over possession to the petitioner, the 200ft. wide road did not exist in the field. It was a proposed road. At present, the width of the said road is only 75 ft. black top. As lease deed has not yet been executed and registered, boundary description is to be incorporated in the lease deed as per the field position prevailing at the time of execution of lease deed.
The excess land available in between the proposed 200ft. master plan road and the plot allotted to the petitioner has been leased out in favour of SOA University by GA & PG Department in the year, 2021.
At this stage, there is no possibility of adjustment because of development taken place regarding allotment of land, execution of registered lease deed, handing over of possession and correction of ROR in favour of SOA University.
Lease deed has not been registered in favour of the petitioner by the BDA. The allotment process has not yet been completed in favour of the petitioner due to pendency of UAP case and use of residential plot for commercial purpose by the petitioner.
On a careful perusal of the findings as noted above, it appears that the petitioners have got unhindered access to the 30ft. wide road and also 75ft. main black top road(200ft. CDP proposed master plan) through the 30ft. wide road. It is, true that the petitioners dispute the findings of the Committee by filing their objections, but the petitioners’ objection with regard to their unhindered access to the 30ft. wide road and also to 75ft. main black top road(200ft. CDP proposed master plan) through the 30ft. wide road appears to have not been disputed since the petitioners in their objection claim that every house abutting the road of 30ft. on east side have indirect access to the 200ft. road through 30ft. road and this does not make all these houses a corner plot as that of the petitioners. It, therefore, appears that the petitioners claim have been diluted for asserting their plot to be a “corner plot”. It is when claimed by the petitioners that their plot is corner plot, there is no evidence or document to show that the petitioners have paid any extra charges for acquiring “corner plot” and when there appears some land carved out in front of the land of the petitioners on northern side which is being used as a Parking Lot as per the averment of the petitioners, their claim of “corner plot” remains mysterious. It is, however, claimed by the petitioners that the road on east side has an elevation up to the level of first floor, but at the same time, the petitioners claim to have left some space on the northern side facing 200ft. road and, thereby, the petitioners can also have the access to 30ft. road by making a slope. Interestingly, the claim of the petitioners goes to indicate that they are asserting easementary right over the land allotted to OP No.7 as the access to 200ft. road in the present writ petition by only setting up a claim that their land abuts the 200ft. road on northern side bypassing that they have got access to the said 200ft. road through 30ft. road on the eastern side. It is also stated in the objection to the survey report of the Committee that the OP No.7 has recently constructed the boundary wall by obstructing the free passage of the petitioners during the pendency of the writ petition which appears to be prima facie contrary to their own averments at paragraph 16.6. From the report of the Committee, it appears that one of the two alternatives suggestions, which is for access of the petitioners to 200ft. road has in fact been properly answered, though the other suggestion of the Court for the petitioners has been answered in the negative for there being no possibility of adjustment of land by keeping the advantage of the petitioners intact or minimally adjusted.
The petitioners also claim that the land allotted to OP No.7 under Annexure-11 is coming under yellow zone meant for residential purpose only as per the CDP approved by the Government under Annexure-6, but at the same time, it is stated by OP Nos. 1 to 3 in their counters that the petitioners are using their land in plot No. 1190(A) for commercial purposes by setting of Sanjibani Medicine Store, Jagannath Nillay (Guest House) and Hotel and Restaurant. The petitioners, although in their rejoinder have cleverly disputed about functioning of the Guest House, Hotel and Restaurant, but they have never denied the functioning of Sanjibani Medicine Store and the petitioners are, therefore, liable for using their land contrary to the approved BDA plan, which is evident from the paragraph-8 of the objection of the petitioners to the survey report of the Committee wherein it is stated by the petitioners to have already applied for permission for commercial/non-residential use of the allotted plot, but the permission is pending with BMC. It is also strongly claimed by the OPs that since the petitioners have constructed the building violating the building plan so also encroaching upon the Government land, OPNo.3 is not executing any lease deed with the petitioners and such non-execution of lease deed has never been denied by the petitioners, rather the petitioners claim that the BDA is intentionally not executing the lease deed, although they have approached OPNo.3 again and again. In support of their contention, the petitioners have relied upon Annexure-P/3 which was in fact stated to be submitted by petitioner No.2 on 13.07.2015, but the undisputed claim of the petitioners with regard to allotment of land to them dates back to 15.07.2003. It, therefore, appears to this Court that there might be some issues between OPNo.3 and the petitioners since the lease deed was not executed for such a long period which is evinced by Annexure-P/3 which was submitted by petitioner No.2 around 12 years after allotment of land to them and strangely enough, the lease deed is yet to be executed even after 20 years of the allotment of the land to the petitioners.
In the aforesaid circumstance, the decision relied on by the petitioners in Rakesh Agarwal (supra) does not come to the aid of the case at hand, since it is not materially changing the location of the allotted plot to the petitioners when no lease deed has yet been executed in their favour.
The land allotted to OPNo.7 being admittedly belonging to OPNo.3, the petitioners do not have any locus to challenge such allotment of land, especially when the petitioners have not yet been armed with the lease deed with OPNo.3.
From the averments taken in the writ petition, counter affidavit, rejoinder and objection to the rejoinder so also the survey report submitted by the Committee, there exists serious disputed question of facts since the claim of the petitioners is denied by OPs and the petitioners’ claim/right over the land allotted to OPNo.7 is also seriously disputed by OPNo.7. Further, the petitioners seriously dispute the map produced by OPNos.1 and 2 vide Annexure-A/2. The petitioners also claim about existence of no land in front of northern side of their plot by contending that their land is bounded by 200ft. on the northern side, whereas a piece of land appears to be existing in between the land of the petitioners and 200ft. road and it cannot be adjudicated upon in exercise of writ jurisdiction. Similarly, the petitioners seriously dispute the report of the Committee. There also appears dispute between the parties regarding use of the allotted land to the petitioners for commercial purposes. There is also serious disputed question of facts as emerging from the claim of BDA that the land allotted to OPNo.7 was carved out after realignment and shifting of 200ft. road which the petitioners attack. Additionally, the petitioners have claimed for exercise of right of preemption to acquire the plot of land allotted to OPNo.7 as the owner of contiguous land, but such claim for preemption of the petitioners is not tenable in view of Clause-33 of the Regulations wherein it has been stipulated that the left out patches of land which cannot be used otherwise or developed as an independent residential or commercial plot can be allotted to the land owner who has a plot contiguous or adjacent to it but in this case, the plot being used as a Parking Lot which is evident from Annexure-14 as filed by the petitioners wherein one Nepal Pradhan was handed over the land as a Parking Lot by BMC as per the admitted averments of the petitioners and the same having being allotted to OPNo.7, it cannot be said that the land allotted to OPNo.7 cannot be used otherwise. Yet, Annexure-A/7 goes to reveal that the portion of land allotted to OPNo.7 in front of the land of the petitioners measuring 0.86 decimals stands recorded in the name of OPNo.7 as a road with type (kissam patita) in the current ROR.
On a conspectus of facts and documents as noted and with the discussion made hereinabove, this Court does find that there exists disputed question of fact and with the same the petitioners cannot question the authority of OPNo.3 to allot land to OPNo.7 to be annulled in exercise of extraordinary writ jurisdiction. Further, in absence of any clear evidence of advantage of the petitioners for direct access to the road and they having their access to the 200ft. road through 30ft. road as per the survey report of the Committee which was not specifically denied by the petitioners in their objection, no relief as advanced by the petitioners is allowable.
Resultantly, both the writ petitions being found to be devoid of merit stand dismissed on contest and in the circumstance, no order as to cost.
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