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Abit Piloo Mody College of Architecture v/s State of Odisha

    W.P. (C) No. 24465 of 2012

    Decided On, 03 October 2013

    At, High Court of Orissa

    By, THE HONORABLE JUSTICE: SANJU PANDA & THE HONORABLE JUSTICE: DR. B.R. SARANGI
    By, JJ.

    For Petitioner: Bijan Ray, C. Choudhury, B. Mohanty, D. Chhotray, S. Mohanty, B. Mohanti, A.K. Mohanty, Advocates and Mr. B. Routray, Senior Advocate And For Respondents: Dayananda Modhapatra, M. Mohapatra, G.R. Mohapatra, S.P. Rath, Advocates for C.D.A. and Addl. Govt. Advocate for State



Judgment Text


1. In W.P.(C) No. 24465 of 2012 the petitioner has assailed the letter No. 22811/CDA dated 12.12.2012 issued by the C.D.A. calling upon the petitioner for taking steps to vacate the land unauthorisedly occupied by the Institution in excess of the allotted area for demarcation of which necessary assistance shall be extended on a date and time convenient to the parties.

In W.P.(C) No. 11910 of 2003 the petitioner-Ajay Binay Institute of Technology, has challenged the demand raised by the Cuttack Development Authority, in short, 'CDA' in its letter dated 3.2.2003 under Annexure-4 in respect of Ac. 10.00 of land in Sector-1 of Bidanasi Project Area and also sought for a direction to allot further Ac. 10.17 of land and to refund the sum paid in excess of the actual cost of the land to the petitioner.

In W.P.(C) No. 3748 of 2008 the petitioner has sought to quash the order dated 4.3.2008 passed by the learned District Judge, Cuttack in F.A.O. No. 17 of 2008 under Annexure-9 and the order dated 12.2.2008 passed by the learned Civil Judge (Junior Division) 1st Court, Cuttack in I.A. No. 21 of 2008 under Annexure-7 rejecting its application for interim injunction.

In W.P.(C) No. 15758 of 2008 the petitioners have sought for a declaration for allotment of land measuring Ac. 20.17 in Sector-1, Abhinaba Bidanasi Project Area, which is in possession of the petitioners and are deemed to have been leased out in their favour and sought for a direction to execute formal lease deed in respect of Ac. 20.17 dec. of land in their favour.

The sum total of the reliefs sought by the petitioner in the above mentioned writ petitions are

(i) to declare that the petitioner-Institute is in possession of the land measuring Ac. 20.17 in Sector-1, C.D.A.;

(ii) to direct the C.D.A. to execute formal lease deed in respect of the very same land i.e., Ac. 20.17 in Sector-1, C.D.A.;

(iii) to restrain the C.D.A. from interfering in the peaceful possession of the petitioner-Institute over the said land;

(iv) to quash the order of demolition issued by the C.D.A.; and

(v) to refund the amount paid in excess of the dues admissible to the C.D.A.

2. The petitioner, Ajay Binay Institute of Technology, hereinafter to be referred to as "petitioner-Institute", in short, is a society, registered under the Societies Registration Act. The petitioner-Institute applied to the Revenue Divisional Commissioner for allotment of land for establishment of technical institution on 27.8.1994. The Collector, Cuttack intimated the petitioner-Institute that its application was under active consideration by way of lease vide letter dated 12.9.1994. On 29.9.1995 the State Government leased out the contiguous land to the Law College free of premium. However, so far as it relates to the petitioner, on 5.12.1996, C.D.A. only agreed to allot 10 acres of land at prevailing market rate in Sector-1 of Abhinaba Bidanasi Scheme, C.D.A. at the relevant point of time, i.e. 1994-95, which was varied between Rs. 11 lakhs to 16 lakhs per acre. During the year 1996, Plot Nos. 11/1/A, 11/1/B and 11/1/C in Sector-1 of Abhinaba Bidanasi Scheme, C.D.A. comprising an area Ac. 20.17 were allotted by the C.D.A. to be possessed by the petitioner-Institute. On 12.3.1997 the lease of land in favour of Kendriya Vidyalaya was granted free of premium. On 29.8.1998 the C.D.A. allotted 10 acres of land in favour of the petitioner-Institute in Sector-13, Bidanasi Project Area. The petitioner-Institute being an 'industry', the Government in Industries Department intimated the C.D.A. to provide land at concessional rate to the petitioner-Institute in the rate as per IPR, 1996 of the Government. Even though such letter has been received by the C.D.A., no steps have been taken for allotment of land in concessional rate in favour of the petitioner-Institute. However, on 27.1.2001, the C.D.A. acknowledged receipt of Rs. 1,74,24,000.00 towards the cost of 10 acres of land allotted in favour of the petitioner in Sector-1, Bidanasi Project Area. When the matter stood thus, on 20.3.2001 the C.D.A. cancelled the allotment in favour of the petitioner-Institute on the ground that the land was required for public utility purpose and the letter of possession handed over to the petitioner was purported to be resumed by C.D.A. Finding no other alternative, the petitioner-Institute had to approach the State Government and on consideration of the grievances, the Chief Secretary directed status quo ante to be maintained pursuant to the letter dated 23.4.2002. It is not out of place to mention here that the C.D.A. had no locus standi till that date as the State Government had not handed over the land in its favour. Therefore, the entire action taken till that date by the C.D.A. authorities was without jurisdiction. However, the Government sanctioned advance possession of the Government land measuring Ac. 32.89 in Khata No. 1/1 in Plot Nos. 1/5, 1/6, 1/9 and 1/10 of mouza Subarnapur, Cuttack. Clause (b) of the letter dated 26.6.2002 clearly indicates that the C.D.A. will utilize the aforesaid land for the purpose of housing scheme and for allotment to institutions on merit. Therefore, effectively the land was transferred in favour of C.D.A. by the State Government with effect from 26.6.2002. By virtue of the order passed by the Chief Secretary on 23.4.2002 to restore the status quo ante and in view of fixation of land premium by the Government in Revenue Department at Rs. 48.80 lakhs per acre, the C.D.A. revoked the letter of cancellation of allotment on 11.7.2002 and intimated that final cost of the land in favour of the petitioner-Institute shall be worked out and will be intimated for deposit. As per the demand raised by C.D.A., the petitioner-Institute paid a sum of Rs. 3.48 crores pursuant to the letter dated 8.10.2002 in respect of the total cost of the land measuring Ac. 20.17 including the ground rent to the C.D.A. However, on 3.2.2003 suddenly the C.D.A. demanded total consideration of Rs. 8.85 crores stating that the Revenue Department has fixed the price of the land @ Rs. 48.00 lakhs per acre and Rs. 200/- per square feet in respect of development cost. Therefore, when the petitioner had deposited a sum of Rs. 3.48 crores, the C.D.A. demanded to deposit the balance of Rs. 5.36 crores. Challenging such demand, the petitioner-Institute filed W.P.(C) No. 11910 of 2003 and this Court vide order dated 19.1.2004 stayed realization of the demand raised by the C.D.A. and also directed not to interfere with the possession of the petitioner-Institute for non-payment of the demand. The petitioner paid ground rent of Rs. 4,39,302.60 paise for the aforesaid land which the C.D.A. has acknowledged towards the entire land of Ac. 20.17 at the rate of Rs. 4356/- per acre vide letter dated 31.3.2006. This clearly indicates that acceptance of rent without demur creates a tenancy in favour of the petitioner-Institute.

3. While the said writ petition was pending, an advertisement was issued by the C.D.A. for allotment of land for commercial purposes in Sector-1 even though the State Government had specifically directed in its letter dated 26.6.2002 while sanctioning advance possession that the aforesaid land shall be utilized for the purpose of housing scheme and for allotment to institutions. In violation of the said order of the State Government, the C.D.A. issued the advertisement inviting applications for allotment of land in Sector-1 for commercial purposes. On 5.2.2008 the C.D.A. issued a notice to the petitioner threatening to dispossess the petitioner alleging occupation of excess land by the petitioner-Institute though the said letter does not indicate the extent of excess land possessed by the petitioner. Therefore, finding no other alternative, the petitioner filed C.S. No. 19 of 2008 before the learned Civil Judge (Junior Division) 1st Court, Cuttack for appropriate injunction to restraining the C.D.A. from interfering with their possession. Learned Civil Judge (Junior Division) 1st Court, Cuttack rejected the prayer for injunction sought by the petitioner. Challenging such order, the petitioner filed F.A.O. No. 17 of 2008 before the learned District Judge, Cuttack and the learned District Judge, Cuttack by order dated 13.2.2008 in F.A.O. No. 17 of 2008 passed an interim order restraining the C.D.A. and directing maintenance of status quo. But on final hearing by judgment dated 4.3.2008 learned District Judge, Cuttack dismissed the F.A.O. as well as the interim application by confirming the order passed by the learned Civil Judge (Junior Division) 1st Court, Cuttack. Against the said order, the petitioner approached this Court in W.P.(C) No. 3748 of 2008 and vide order dated 2.4.2008 this Court directed the parties to maintain status quo in respect of the disputed land. In the meantime the advertisement issued by the C.D.A. for allotment of land for commercial purposes has been stayed by this Court by order dated 24.4.2008 in a public interest litigation bearing W.P.(C) No. 6183 of 2008. Apart from the above while government sanctioned the advance possession vide letter dated 26.6.2002 specifically stated that the land shall be utilized for the purpose of housing scheme and allotment to institution. Therefore, there is bar for allotment of the land for commercial purpose.

4. The petitioner preferred an appeal on 21.7.2008 to the State Government indicating the State's assurance to grant lease of 20 acres of land and that on 5.12.1996 the C.D.A. permitted the petitioner-Institute to possess 20 acres of land. At this juncture, the C.D.A. wrote a letter to the AICTE for withdrawal of approval in favour of the petitioner-Institute, which was challenged in W.P.(C) No. 15758 of 2008. However, in gross violation of this Court's order granting status quo on 2.4.2008, the C.D.A. dumped building materials for construction of road. However, on 25.3.2009 the petitioner appeared before the State for hearing of the appeal pursuant to the notice issued by the State. Pending final decision on the appeal, the Government directed the petitioner to clear the dues vide order dated 4.7.2009. In consideration of the Government direction in the appeal, the petitioner paid a sum of Rs. 2,51,36,000/- for the entire Ac. 20.17 of land on 13.7.2009. But the C.D.A. did not encash the cheque. Then the Government again called upon the petitioner to attend the hearing of the appeal on 18.12.2009. Despite compliance of the order in the appeal, the C.D.A. called upon the petitioner to remove the encroachment from the C.D.A. 's land without indicating the nature and extent of encroachment. Accordingly, W.P.(C) No. 24465 of 2012 was filed challenging such letters dated 12.12.2012 and 18.12.2012 respectively and entertaining the said writ petition, this Court passed interim order on 21.12.2012 staying operation of the aforesaid two letters.

5. The C.D.A. filed its counter stating therein that on 20.4.1996 the petitioner-Institute applied for 10 acres of land in Bidanasi Project Area for establishment of the institution. On consideration of the same, the C.D.A. vide letter dated 5.12.1996 required the petitioner to submit willingness to pay the cost of the land at the market rate and to submit the lay out plan and the project report. However, the petitioner requested to expedite the proposal for allotment. But at no point of time the petitioner ever prayed for allotment of land at any specific sector or place. However, the C.D.A. considered the proposal for allotment of land in its 51st meeting and decided to allot 10 acres of land in OTM surplus land at Choudwar, which has been communicated to the petitioner on 16.2.1998 requiring their willingness. But the petitioner vide letter dated 20.3.1998 requested the Secretary for allotment of land at Bidanasi Housing scheme and on consideration of the same, vide letter dated 29.8.1998 the C.D.A. intimated approval of allotment of 10 acres of land in favour of the petitioner-Institute in Sector-13 subject to the stipulation that the cost of the land would be intimated at the time of allotment of the land. The petitioner-Institute agreed for the proposal of the C.D.A. and consented for the same and requested to deliver possession immediately in its letters dated 25.9.1998 and 26.1.1999. However, vide letter dated 18.7.1999 the petitioner-Institute requested the Vice Chairman to allot at least 5 acres of land in Sector-1 immediately, which was referred to the allotment committee of the C.D.A. On consideration, the allotment committee in its meeting held on 16.7.1999 decided to change the purpose for use of five acres of land from recreational purpose to public and semi public use. And further decided that the rest 5 acres of land may be allotted in Sector-13 and the said proposal has been approved by the allotment committee in its 59th authority meeting held on 13.8.1999. It is stated that the petitioner has been intimated the cost of five acres of land allotted in Sector-1 at a tentative cost of Rs. 1,74,24,000/- excluding the additional charge for situational advantage and such assessment was made keeping in view the average premium of Rs. 34,84,800/- in respect of other sectors. Accordingly, the willingness of the petitioner-Institute was sought for and it was required to deposit the cost of the land within two months. In response to the said letter, the petitioner expressed its willingness in its letter dated 3.9.1999 with a token deposit of Rs. 2 lakhs. Therefore, vide letter dated 7.10.1999 the C.D.A. directed for payment of rest of the amount by 30.10.1999. The petitioner failed to deposit the said amount in time and went on paying installment on 3.9.1999 of Rs. 2 lakhs and again Rs. 10 lakhs on 25.9.1999 and requested to allow time for 2-3 years to deposit the rest amount. In the meantime, lot of correspondence were made between the parties and by letter dated 14.7.2000, C.D.A. informed the petitioner-institute to deposit the amount within one month along with interest at the rate of 18%. However, the petitioner vide letter dated 21.7.2000 intimated the C.D.A. to allot the land on concessional rate as per IPR, 1996 of the Government of Orissa with reference to the letter of the General Manager dated 10.5.2000 to which the C.D.A. in its, letter dated 3.8.2000 refused his request for allotment under IPR, 1996. It is further stated by the C.D.A. that at no point of time any assurance was given for allotment of Ac. 20.17 dec. of land in favour of the petitioner. On the other hand, the petitioner has only been allotted Ac. 5.00 of land for which lease deed has been executed and further Ac. 5.00 dec. of land is in possession of the petitioner, for which steps have been taken for vacation of the same as the same is in unauthorized occupation and out of that 20 acres of land some portions were allotted in favour of the State Administrative Tribunal as well as other institutions and some portions are left for allotment for commercial purpose. Therefore, though the petitioner is in possession of Ac. 12.17 decimals of land at this moment, but only lease has been executed in respect of 5 acres of land and so far as excess possessions of 5 acres or Ac. 7.17 decimals is concerned the petitioner is in unauthorized possession of the same, for which the petitioner is liable to be vacated.

6. Mr. Bijan Roy, learned Senior Counsel appearing for the petitioner in all the cases strenuously urged that under the scheme of Orissa Development Authorities Act, the Government is the controlling authority. Section 103 of the said Act stipulates that all directions of the State are to be carried out by the C.D.A. and the decision of the State Government or any dispute between the authority and State Government shall be final. Apart from the same, the scheme of the Act provides that under Section 91(2) of the O.D. Act, orders passed by the C.D.A. under Sub-section (1) of Section 91 are appealable and the decision of the State Government shall be final. He further urged that C.D.A. has agreed to allot 10 acres of land at the prevailing market rate and such prevailing market rate existing in 1996 varies between 10 lakhs to 16 lakhs. Therefore, on 3.2.2003 while confirming the lease of 10 acres of land, the petitioner was called upon to pay at the enhanced rate of Rs. 48.00 lakhs per acre which C.D.A. ought not to have done. However, such enhancement is under challenge in this proceeding. Before obtaining property from the State Government, on 5.12.1996 the C.D.A. agreed to allot 10 acres of land but delivered possession of Ac. 20.17 decimals with an understanding that the balance Ac. 10.17 decimals shall be allotted in due course after obtaining Government orders.

7. The petitioner informed the Government that it is in possession of 20 acres of land with effect from 5.12.1996 and such assertion has no where been denied or controverted by the C.D.A. Therefore, applying the principle of doctrine of non-traverse, the petitioner is in possession Ac. 20.17 decimals of land. Apart from the same, Mr. Ray urged that the petitioner deposited the annual rent for Ac. 20.17 decimals for the period 2001-2006, which has been duly acknowledged by C.D.A. That itself creates a tenancy right and as such, in view of the provisions contained in Section 115 of the Evidence Act, the C.D.A. is estopped to take a different stand at subsequent stage. When this Court passed status quo order in respect of land in possession of the petitioner which includes Ac. 20.17 decimals, there is violation of the status quo order in view of the fact that in 2011-12 the C.D.A. allotted 2 acres of land in favour of Orissa Administrative Tribunal and 15,600 sq.ft. on 26.3.2012 in favour of the M.A.C.T. out of the disputed land. Apart from the same, it is further urged by Mr. Ray that C.D.A. has issued an advertisement for allotment of the disputed plots for commercial purposes, which is in gross violation of the Government direction, which is a statutory direction and as such under Section 75 of the O.D. Act, the C.D.A. cannot resort to any regulation to allot the land for commercial purposes. Apart from the same, the petitioner-institute preferred an appeal under Section 91(2) of the O.D. Act before the State Government against the repeated direction of C.D.A. without notice for removal of occupation of excess land and pending final decision of the appeal, the Government directed the petitioner to clear up the dues. In compliance to the same, the petitioner deposited a sum of Rs. 2.51 crores for the entire Ac. 20.17 decimals. He has relied upon a judgment of this Court in Sakuntala Garabadu and others v. State of Orissa and others, 62 (1986) CLT 71. Mr. Ray, learned Senior Counsel appearing for the petitioner further urged that in respect of the Law College, Kendriya Vidyalaya, which are coming within the said locality, the Government has been pleased to allot the land free of premium whereas in the present case the C.D.A. has demanded exorbitant rate contrary to Government direction. Mr. Ray also relied upon judgments in M/s. Hindustan Concrete Product v. State of Orissa and others (112) 2011 CLT 753 stating that the petitioner being entitled to get the benefit under the IPR 1996, the same not having been granted, the ratio decided by this Court in the said case with regard to payment of concessional rate for allotment of land has not been followed.

8. Mr. B. Routray, learned Senior Counsel appearing for the petitioner in W.P.(C) No. 11910 of 2003 also supported the contention raised by Mr. B. Ray, learned Senior Counsel and also strenuously contended that the C.D.A. authorities have acted in excess of their jurisdiction and tried to cause harassment to the petitioner by issuing letters time and again at different point of time taking different stand coercing the petitioner to deposit at higher rate which itself amounts to arbitrary and unreasonable exercise of power by the authorities.

9. Mr. D. Mohapatra, learned counsel appearing for the C.D.A. reiterated the contentions raised in the counter affidavit filed by the C.D.A. and emphasized that there is compliance of the provisions of law inasmuch as the C.D.A. has never violated any order passed by this Court and more so the petitioner having remained in possession of land in excess of the land allotted in its favour, as per the provisions of law appropriate action has been taken against them for eviction and therefore the C.D.A. has not committed any error or irregularity. Therefore, the action taken is well within its jurisdiction and this Court may not interfere with the same.

10. On consideration of the pleading available on record and the rival contentions of the parties, it is now to be determined whether this Court can exercise the power invoking the extraordinary jurisdiction when alternative remedy is available to the parties.

11. The issue of exhausting statutory remedy has been considered time and again by the Supreme Court. The Constitution Bench of the Supreme Court, in K.S. Rashid & Son Vs. Income Tax Investigation Commission & Ors., AIR 1954 SC 207, held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. The said power is limited. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. Similar view has been reiterated by the Apex Court in Sangram Singh Vs. Election Tribunal, Kotah & Anr., AIR 1955 SC 425 : 1955 (2) SCR 1, holding that the power of issuing writs are purely discretionary and no limit can be placed upon that discretion.

12. Again a Constitution Bench of the Supreme Court, in Union of India Vs. T.R. Varma, AIR 1957 SC 882, held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. The Apex Court held that existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such remedy is exhausted, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds therefor.

13. In S.T. Muthusami Vs. K. Natarajan & Ors., AIR 1988 SC 616, the Supreme Cour

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t held that the High Court cannot be justified to exercise the power in writ jurisdiction if an effective alternative remedy is available to the party. 14. In Kerala State Electricity Board & Anr. Vs. Kurien E. Kalathil & Ors. (2000) 6 SCC 293, while dealing with a similar issue, the Apex Court held that the writ petition should not be entertained unless the party exhausted the alternative/statutory efficacious remedy. 15. In A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors., (2007) 7 SCC 695, the Supreme Court deprecated the practice of exercising the writ jurisdiction when efficacious alternative remedy is available. The Court observed as under:- Though no hurdle can be put against the exercise of Constitutional powers of the High Court, it is a well recognized principle which gives judicial recognition that the High Court should direct the party to avail himself of such remedy, one or other, before he resorts to a Constitutional remedy. Similar view has been reiterated in Rajasthan State Road Transport Corporation & Anr. Vs. Krishna Kant & Ors., (1995) 5 SCC 75, L.L. Sudhakar Reddy & Ors Vs. State of A.P. & Ors., (2001) 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. Vs. State of Maharashtra & Ors., (2001) 8 SCC 509, G.K. N. Driveshafts (India) Ltd. Vs. Income Tax Officer & Ors., (2003) 1 SCC 72; and Pratap Singh & Anr. Vs. State of Haryana, (2002) 7 SCC 484. 16. In view of the aforesaid position of law laid down by the apex Court and keeping in view the admitted fact that appeal is pending before the appellate authority under Section 91(2) of the O.D. Act and the State Government is in seisin of the matter, the contentions raised in this writ petition can well be adjudicated by the appellate authority in appeal. Therefore, in fitness of things, instead of exercising jurisdiction under Article 226 of the Constitution, since the matter is sub judice before the appellate authority, liberty is granted to the petitioner to raise all these questions as raised before this Court, in the appeal, which shall be considered by the appellate authority in accordance with law. We further observe that if the petitioner is apprehensive of any malfeasance or misfeasance of the opposite parties, it is at liberty to move the appellate authority seeking interim relief, which shall be considered in accordance with law. With the aforesaid observation and direction, the writ petitions are disposed of.
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