Uma Ballav Rath vs State of Orissa And Others

25 years ago, in 1996, Mr. Uma BallavRath, the Petitioner here, describing himself as a social worker associated with a number of voluntary organizations and a former Member of the Legislative Assembly (MLA), representing the Puri Assembly Constituency filed this Public Interest Litigation (PIL) challenging the inaction of the State Government in preventing unauthorized transfer of government lands by the Puri Municipality contrary to the provisions of Government Land Settlement Act, 1962, which had resulted in pollution of the ground water resources of Puri Town endangering supply of drinking water.

For nearly four years thereafter, no effective hearingstook place in this PIL. On 18th October, 2000, an order was passed permitting counsel for the Petitioner to file an affidavit "indicating therein that a large number of private individualshave been granted lands, which was reserved for Water Works Project". The Opposite Parties were directed to produce report of the Central Ground Water Board basing on which the final report of the Chakratirtha Housing Project was made.

3.On 5th September, 2001, the petition was admitted.It was noted by the Bench that the State Government,which was the main contestant, had not filed a counter affidavit till then. It was asked to do so within three weeks.

For more than six years thereafter, the petition was not listed for hearing.On 31st October, 2007, a detailed order was passed disposing of Misc. Case No.5245 of 1999 filed by the Orissa State Housing Board(OSHB) (Opposite Party No.4) for a direction to the Puri Municipality to refund the cost of land, ground rent along with interest on developmental cost. The Court declined to grant such substantial relief to the OSHB in the present PIL. Instead, the Court permitted OSHB to initiate appropriate proceedingsfor refund of its money, if so advised.

On 7th November, 2007, the Court passed a six-page order disposing of the writ petition noting the details of seven plots covering an area of 448 acres. That order was passed in the absence the Puri Municipality and in the absence of persons, who apparently were in occupation of some of those plots through leases, which according to them were validly granted in their favour, or through sale deeds with prior permission of the government. This Court directed that "the entire area of 448 acres should be kept free from any construction." Further the land in question was asked to be handed over to the Public Health Engineering Department (PHED), pursuant to government order dated 6th May, 1982. PHED was given the "liberty to take appropriate steps for recovery of land out of area 448 acres, which is a Sweet Water Reserve." The PHED was asked to issue notices to persons to whom leases were granted and if it resulted in cancellation of the lease and consequential demolition of the construction then "incase of any compensation is required to be paid to lessee, the same shall be decided in accordance with law."

The above order triggered a series of six review petitions being Review Petition Nos.162 to 167 of 2007. Three years after they were filed, theycame to be heard by the Division Bench on 30th November, 2010. The review petitioners pointed out that theywere in occupation of some of the plots through valid leases or sale deeds with prior permission of the government. They had not been made parties to the main writ petition and were not heard before the order dated 7th November, 2007 was passed. Accepting the said plea, the Division Bench by the order dated 30th November, 2010 allowed the review petitions. The order dated 7th November, 2007 was set aside and this PIL was listed for hearing with a direction to the Petitioner implead all the review petitioners as Opposite Parties.

It may be noted at this juncture, that in the meanwhile some of the affected parties filed individual writ petitionswhich are listed along with this PIL today. This includes W.P.(C) Nos.16592 of 2007, 13342 of 2009, 20153 of 2010, 20155 of 2010 and 11895 of 2014.

On 5th September, 2011, the following order was passed by the Court:

OJC NO.2915 OF 1996

05.09.2011 The Executive Engineer of P.H. Engineering Division, Puri is directed to submit a detailed report along with lay-out map regarding the number of structures, Government establishments and buildings, which have been come up under the various schemes, namely, Srikhetra Housing Scheme, Sidha Mahavir Housing Scheme and Sites and Service scheme in the total extent of Ac.448.00 land in mouza Balukhanda in the district of Puri after conducting spot inspection in the presence of the Collector, Puri or any other competent Senior Officer from his office deputed by him and the Executive Officer of Puri Municipality within three weeks."

On 11th March, 2019, a fresh order was passed admitting the writ petition and fixing the date of final hearing. It was directed that "status quo over the land in question shall be maintained by all the parties till the next date."

The petition was thereafter listed on 4th October, 2021 and was set down for final hearing today.

This Court has heard the submissions of Mr. A.K. Mohapatra-1, learned counsel for the Petitioner,Mr. P. Mohanty, learned Senior Advocate for the Puri Municipality, Mr. S.K. Nayak-1, learned Senior Advocate along with Mr.D. Nayak, learned Advocate for the OSHB, and Mr. D.K. Mohanty, Additional Government Advocate for State-Opposite Party Nos.1 to 3. The Court has also heard the submissions of Mr. S.P. Mishra, learned Senior Advocate appearing some of the Petitioners and Mr. D. Mohapatra, learned Advocate on behalf of the Petitioners in the individual writ petition who are lessees of some of the plots.

Mr. Mohapatra, learned counsel for the Petitionerat the outset stated that he was pressing only the following two prayers in the writ petition:

"(i) To quash/cancel the leases granted by the Puri Municipality in respect of the Government Lands in Puri Town and recover possession thereof from the occupants;

(ii) To deliver possession of the 448 & 228 Acres of land identified and reserved for Water Works Scheme at Chakartirtha and Baliapanda to the State Public Health Engineering Organization for management and maintenance;

It is pointed out on behalf of Opposite Parties, in particular, Opposite Party Nos.5 and 6 the Puri Municipality that the present Petitioner was a politically alignedperson and a political rival of the then Chairman of the Puri Municipality who was a sitting MLA representing the Puri Constituency; that this PIL was filed only to defame him out of political rivalry. Opposite Party Nos.5 and 6 point out that the PHED was entrusted with the job of water supply in Puri and was given adequate funds for that purpose. Small patches of land under the housing scheme wereallotted to landless and socially economically weaker persons. It was pointed out that "residential building and housing colonies are existing since time immemorial and in the meantime other housing scheme like-Srikhetra Housing Scheme, Sidha Mahavir Housing Scheme and Sites and Service Scheme have been taken up." It was stated that lands had been leased out for residential housing for private individuals/entities as well as government servants, with the prior approval of the State Government as provided under Section 127 of the Orissa Municipal Act, 1950.Even in respect of land given on lease, the title continued with the Municipality. It was further pointed out that various government institutions like ITI Office and Block Officeetc. were in existence even prior to the notification dated 14thMarch, 1966 by which the Puri Joint Works Committee was abolished and all powers were vested with the Puri Municipality.

During course of hearing, Mr. Mohapatra, learned Counsel for the Petitioner pointed out that on 8thMay, 2000, the Government of Orissaitself brought out a press note in which it acknowledged that they were several unauthorized constructions either by way of encroachment or without approval, which had come to the knowledge of the government and that after transfer of the Water Works to PHED, the Puri Municipality allotted/ leased out 171.43 and 7 acres of land from 'Chakratirtha' to 'Baliapanda' respectively to different organizations and agencies. The said press note give the details of the Water Works Reserve land in both the areas and shared general information with the public that any sale, transfer, renewal of the reserved land by the Puri Municipality and any construction over the prohibited lands shall be treated as illegal and unauthorized.

In the affidavit filed by Opposite Party Nos.5 and 6, it is stated that after the press note, the Collector, Puri and Vice-Chancellor ofPuri Konark Development Authority (PKDA) asked the Commissioner of the Government inthe Housing and Urban Development Department to relax the restriction in the press note in the in the existing colonies which were in existence much prior to the issuance of the said press note. A copy of the letter dated 17th January, 2004 of Puri Municipality to the Government making the above request and listing out as many as nine coloniesand agencies to whom land have been allotted by way of lease, has been enclosed with the said affidavit of Opposite Parties 5 and 6. It is not known whether the Government has taken any decision on the letter of the Puri Municipality as on date.

In the counter affidavit filed by the Opposite parties, who had been the review petitioners,details of the leases granted have been set out. It is pointed out that the Srikhetra Housing Scheme was floated by Puri Municipality way back in the year 1974 and was completed in 1977. There werealso the SidhaMahavir Housing Schemes and the Sites and Service scheme floated by Puri Konark Development Agency and the Puri Municipality in 1982, in which, allotmentsweremade in the years 1985 and 1986 respectively. The copies of the sketch map and plan have been annexed. Thedetails of the sanction granted by the Housing and Urban Development Department for such schemes and the leasing out of plotsof land have also been set out in the counter affidavit. These details have not been able to be contradicted by the Petitioner since no rejoinder thereto appears to have been filed.

The Court has carefully considered the above pleadings and submissions of learned counsel for the parties. At the outset it requires to be noted that not all PILs are necessarily non-adversarial. While one part of the prayers in a PIL may be in the interest of the public at large, the reliefs prayed for invariably prove to be adverse to a certain section of the society. When the reliefs prayed are sweeping in nature, like prayers (i)and (ii) above, and in this case, involve a number of individuals and entities whose interests may be genuinely and adversely affected, the Court finds it difficult to proceed with the PIL unless it has the complete details of the particular instances of illegality, encroachment, unauthorised construction and so on, backed by some empirical data that even prima facie bears out the contentions. Added to this, if the person bringing the cause to the Court is not doing it out of genuine public interest but for some collateral purpose, it delegitimizes the entire effort.

In the present PIL, the details that have emerged have been sporadic, and do not give a complete or comprehensive picture of the situation on the ground. In this scenario, passing any general kind of order, without notice to the affected parties, has the potential of arbitrary action against such unsuspecting and bonafide individuals and entities who then come rushing to the Court asking for stay of the implementation of its orders. In fact, this is what happened in the first instance when the Court on 20th November, 2010 was constrained to recall its order dated 7th November, 2007 wherein it had directed that the entire land of 448 acres should be cleared of unauthorised constructions. Although the Petitioner's objective of preserving the sweet water reserve was seemingly a laudable one, the Court was not informed of the ground reality where many persons had been granted leases of plots of land in the said area for various purposes with valid prior permission of the State Government.

Even today, Mr. Mohapatra maintains that there may be many plots of land which have been unauthorizedly leased out, or occupied and which there may be unauthorised constructions. When asked by the Court to specify the exact location of such plots, and the details of thepersons occupying such plots, Mr. Mohapatra sought some more time.

20.The counter affidavits of the Puri Municipality and the review petitioners impleaded as Opposite Parties reveal that many of these constructions and colonies had been in existence for many decades and much prior to the Press Note dated 8thMay 2000 of the State Government. The failure to gather the accurate background details concerning such unauthorised occupation of land and raising of unauthorised constructions at the time this PIL was filed in 1996, and even 25 years later, makes it difficult for the Court to pass effective orders targeting those particular instances of illegal occupation and construction.

At the same time, the Court acknowledges that the problem is a serious one that has had no satisfactory resolution in the past two and a half decades, despite the Court's intervention. If, therefore, a truly public spirited person in Odisha, acting out of genuine public interest (and there is no dearth of such persons), does the background empirical research work, places before the Court clear and complete details of even five or ten instances of violations giving the exact location of the plots of land in the area in question (through sketch maps/layout plans of the area), in the form of a 'Brandies' Brief', and importantly,gives the names of the persons currently in control of or in occupation of such plots, and impleads them in the petition as Opposite Parties, the Court might be able to intervene in an effective manner.

Even from the point of view of the authorities, without their being given the full details, it will be improper for them to proceed to take random and arbitrary action, which might cause another fresh set of problems.

It must be noted at this juncture that many of the present occupants of plots in the area, some of whom have filed the accompanying writ petitions, claim to be continuing to occupy those plots through validly executed lease deeds,or in some instances sale deeds with the RoR being mutated in their names and with prior sanction of the government.They further claim that they were in such occupation prior to the Press Note dated 8th May, 2000 of the State Government. It is for the State Government to verify these claims. The Court is unable at this juncture to express a view one way or the other.

The Court directs that, unless a decision has already been taken in the matter, the Government should within a period of twelve weeks take a decision on the request made to it by the Puri Municipality by letter dated 17th January, 2004 seeking exemption of certain colonies from the ambit of the Press Note dated 8th May, 2000.The said decision should be made public and also informed to the Puri Municipality for wide dissemination. Till such time a decision is taken, the State Government would do well to ensure that there is no further alteration of the prevailing status quo. This will undoubtedly require constantand vigilant efforts by the government agencies including the Puri Municipality itself. Also, it will require the collective efforts of public-spirited and individuals and organizations and an aware and vigilant civil society, to ensure that egregious violations of the law do not go unchecked.

25.With the above observations and directions, the writ petition is disposed of.

An urgent certified copy of this order be granted as per rules.

.........................................