ORISSA HIGH COURT, CUTTACK. W.P. (C) No. 1576 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. ---------- Smt. Rajashree Gajendra … Petitioner Versus State of Odisha and four others … Opposite Parties For Petitioner : Mr. S.K. Gajendra, Sr. Advocate And M/s. Laxman Pradhan, N. Jena and D.P. Das. For Opp. Parties : Additional Government Advocate (for O.Ps. 1 to 4). M/s. Milan Kanungo, Jaspal Mahanty and S.K. Mishra. (for intervenor-O.P.5). ---------- PRESENT : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH ---------------------------------------------------------------------------------------------------- Date of Judgment : 06.04.2011 ---------------------------------------------------------------------------------------------------- C.R. Dash, J. The Government in G.A. Department allotted Ac.1.285 decs. of land in favour of the petitioner. The petitioner approached the Government for allotment of Ac.1.215 decs. of more land in extent over and above the aforesaid extent of land already allotted. The Government in G.A. Department vide Annexure-39 rejected such representation of the petitioner. The petitioner has, therefore, been obliged to approach this Court for quashing of Annexure-39. She has also prayed for other ancillary and alternative reliefs, more fully described in the prayer of the writ petition. 2. Shorn of unnecessary details, the petitioner’s case is as follows :- The petitioner is a lady entrepreneur with sufficient experience in Management of Hotel. She has a Hotel in Bhubaneswar in the name and style “M/s. Hotel Ekamra”. That is a Registered Unit under the District Industries Centre (‘D.I.C’ for short), Bhubaneswar. She wanted to establish a ‘Janata Deluxe Hotel’ keeping in view the demand for hotel accommodations in Bhubaneswar. On 22.12.1997 she got the project of a ‘Janata Deluxe Hotel’ registered with the D.I.C., Bhubaneswar, vide Annexure-1. The D.I.C., Bhubaneswar, vide letter dated 13.01.1998 (Annexure-2) recommended the project to the Director of Industries, Orissa for approval of the same with request to take steps with the Government in General Administration Department (‘G.A. Department’ for short) for allotment of Ac.2.5 decs. of government land in favour of the petitioner for her hotel project. The Director of Industries, Orissa, vide letter dated 08.05.1998 (Annexure-4) moved the Government in Industries Department for follow up action in the matter for allotment of Ac.2.5 decimals of government land in Bhubaneswar city area in favour of the petitioner. The Industries Department while approving the project of the petitioner 2 by opining it to be a viable project, vide letter dated 04.06.1998, recommended the project to the Department of Tourism and Culture for approval of the same and to take follow up action with the appropriate authorities of the State Government for allotment of Ac.2.5 decs. of land for the project of the petitioner in Bhubaneswar city area. The Department of Tourism and Culture approved the project of the petitioner and recommended to the G.A. Department vide its letter dated 18.06.1998 (Annexure-5) for allotment of Ac.2.5 decs. of land in favour of the petitioner so that the project can be grounded. 3. After the aforesaid spade work, the petitioner on 20.06.1998 filed application before the Director of Estates (opp. party no.1) for allotment of an area of Ac.2.285 decs. of land over plot no.2292 in mouza Laxmisagar-1, Bhubaneswar for the proposed project. The petitioner, as asserted by her, reliably learnt that the G.A. Department is proposing to allot an area of Ac.1.285 decs. of land for the project over plot no.2292 (P) in mouza Laxmisagar-1 against her requirement for Ac.2.5 decs. of land. The petitioner, therefore, on 18.08.1998 vide Annexure-7 made a representation to the Chief Secretary (opp. party no.4) for allotment of required extent of Ac.2.5 decs. of land. The Government in G.A. Department, however, vide order dated 16.03.1999 (Annexure-8) allotted an area of Ac.1.285 decs. of land over plot no.2292 (P) in mouza Laxmisagar-1 in favour of the petitioner for the project. On such allotment, the petitioner was asked to deposit a sum of Rs.64,24,264/- towards premium of the allotted land @ Rs.50,00,000/- (fifty lakhs) per acre. The petitioner accepted the lease of Ac.1.285 decs. of land, as aforesaid, on protest, as the same was less than the extent of land required by her for the project. The 3 petitioner vide order dated 08.01.2000 (Annexure-9) was allowed to pay the premium in eight half yearly equal instalments of Rs.8,03,026/- each for the last seven instalments and Rs.8,03,032/- towards the first instalment. The petitioner deposited the first instalment with the Government on 31.01.2000 and the necessary lease deed in respect of the aforesaid land was executed on 09.03.2000. Subsequently, on 08.06.2000 the lease was registered after obtaining “No Objection Certificate” from the appropriate authorities of the Income Tax Department in Calcutta. 4. The G.A. Department took no step for handing over possession of the leasehold land to the petitioner despite her repeated requests. The petitioner by 20.03.2004 had already deposited Rs.40,03,026/- towards premium of the leasehold land. Despite such deposit, the authorities in G.A. Department failed to deliver possession of the land to the petitioner. As asserted by the petitioner, owing to encroachment of the leasehold land by some strangers, the matter was pushed to litigation and, even after disposal of the First Appeal concerning the matter by the High Court, the G.A. Department took no step for delivery of possession of the leasehold land in favour of the petitioner. While matter stood thus, the petitioner reliably learnt that the G.A. Department is contemplating to allot her an alternative site. 5. Coming to know about such fact, the petitioner again made representation before the Director of Estates and other authorities for allotment of required extent of land of Ac.2.5 decs. in her favour, if the Government is at all contemplating to allot her an alternative site. The G.A. Department, however, vide order dated 24.02.2007 4 (Annexure-21) allotted Ac.1.285 decs. of land (as was allotted to her originally in Laxmisagar-1) over plot nos. 324(P) and 328/1110(P) under Khata No. 429 at Unit-XII in mouza Bomikhal, Bhubaneswar in favour of the petitioner. On such allotment, on being forced by the authorities of G.A. Department, the petitioner deposited Rs.4,82,364/- towards the balance premium in respect of the aforesaid alternative site under protest, reiterating her claim for allotment of the balance extent of land, to make the allotted area Ac.2.5 decs., which is the extent of land required for her project. 6. On allotment of the aforesaid land, the petitioner found that there is no approach road to the land. She approached the Director of Estates (opp. party no.1), who assured her that a direct approach road of 18 meters width from the Southern side of the plot to connect N.H.-5 shall be provided. Believing such assurance, the petitioner accepted the allotment under protest and by that time she had already deposited Rs.44,97,500/- towards the full premium of the land. The petitioner faced another hurdle when she approached the Bhubaneswar Development Authority (‘B.D.A.’ for short) for approval of the building plan for her Hotel Project. The Planning Member of the B.D.A. refused to approve the building plan, since the allotted land was within the “Open Space Land Use Zone” of the Development Plan of B.D.A. Building Regulation. She again approached the Special Secretary to G.A. Department (opp. party no.2) on 17.11.2007, reiterating her grievance in matters of allotment of balance extent of land, payment of accrued interest on her deposited amount of money and to take prompt step for conversion of the land, as shown in the Development Plan of the B.D.A. to commercial site. On 20.12.2007 5 the petitioner moved the Hon’ble Chief Minister, Orissa seeking his intervention in the matter, requesting him to order for allotment of balance extent of land measuring an area of Ac.1.215 decs. or more available over plot nos.324 (P) and 328/1110(P) and for further direction to the Department for calculation of interest @ 12% per annum over her earlier deposited amount of Rs.40,15,136/- and to adjust the accrued interest on the aforesaid deposit towards the premium she would have been required to pay for the balance land sought to be allotted. When no action was taken, the petitioner on 26.04.2008 again moved the Hon’ble Chief Minister, Orissa. She then came to learn that she shall not be permitted by the B.D.A. for construction of multi-storied building on the allotted site, since it contravenes Regulation 51(b) of the Planning and Building Standards of the B.D.A. and also the National Highway Regulation, which provides restriction for such construction within 100 meters from the centre of the National Highway on either side. The petitioner citing the aforesaid problems, vide Annexures 28 and 29, moved the opposite parties 1 and 2 respectively again to take appropriate steps in the matter. 7. The Chief Secretary, Orissa (opp. party no.4), on the representation of the petitioner, took up the issue and his Note on the petitioner’s representation favours allotment of balance extent of land, as required by the petitioner for her project. 8. At this juncture, the G.A. Department, vide its order dated 24.11.2008, intimated the petitioner that the Government have allotted an area of Ac.0.288 decs. in exchange of Ac.0.288 decs. out of the 6 allotted area of Ac.1.285 decs. coming within 100 meters restriction area from the centre of N.H.-5. By such action of the G.A. Department, the allotted area of the petitioner got shifted to about 300 feet backward from the main road without any adjoining service road connecting the National Highway. The Housing & Urban Development Department, vide order dated 12.12.2008 changed the user of the allotted land from “Open Space Zone’ to ‘Commercial Use Zone’. By such action of the authorities concerned, the allotted land, no doubt, became free from any objection as raised by the B.D.A., but without any provision for a service road appropriate for the project, the project seemed to become unviable. 9. The aforesaid area allotted in favour of the petitioner for grounding the Hotel Project does not have direct approach road either on the southern side connecting it to the N.H.-5 near Mancheswar Railway Bridge nor on the northern backside main road leading to the Mancheswar Industrial Estate. An available area of Ac.0.950 decs. adjoining the northern side and available area of Ac.0.265 decs. on the southern side (totaling Ac.1.215 decs.) of the existing allotted land along with 18 meters wide approach road to the land from N.H.-5 were required by the petitioner for viability of the project. Highlighting the aforesaid problems, the petitioner again approached the Chief Secretary, Orissa (O.P.4) on 14.01.2009, requesting him to allot her at least the available area of Ac.0.950 decs. of land adjoining to the northern side of the allotted land over plot nos.324(P) and 328/1110(P). She also reiterated her grievance regarding payment of interest @ 12% per annum on the deposited amount. But no action was taken by the Chief Secretary (O.P.4). Again on 23.05.2009 the petitioner moved the 7 Chief Secretary explaining him the justification for allotment of balance extent of land of Ac.0.950 decs. The B.D.A., vide their letter dated 04.08.2009 (Annexure-37) refused to approve the Building Plan of the petitioner’s Hotel Project questioning justification with regard to allowing construction of Hotel with less than 18 meters wide approach road. The petitioner was constrained to move the Chief Minister, Orissa again on 12.10.2009 (vide Annexure-38) to intervene in the matter. The Government, however, vide order dated 11.01.2010 (Annexure-39) rejected the representation of the petitioner and refused to allot the balance extent of land, as required by the petitioner for grounding the Hotel Project. The petitioner has therefore been obliged to approach this Court for the reliefs more fully described in the writ petition. 10. Opposite party nos. 1 to 4 have filed their counter affidavit. Their stand is as follows :- The land initially allotted in favour of the petitioner in mouza Laxmisagar-1 could not be delivered in her possession owing to protracted litigation by stranger encroachers. The petitioner had applied for allotment of Ac.2.5 decs. of land in the new capital city area for the purpose of Hotel Project, but the Site Selection Committee recommended for allotment of Ac.1.285 decs. of land only for the project. Neither the D.I.C., Bhubaneswar nor the Director of Industries, Orissa while recommending the application of the petitioner, as in Annexures 4 and 5, has specifically recommended for allotment of Ac.2.5 decs. of land in favour of the petitioner. They have simply recommended the application of the petitioner for consideration of the proposal by the appropriate authority. The Site Selection Committee of 8 the Govt. consists of the Director of Estates and Ex-officio Additional Secretary to Govt. in G.A. Department, Chief Architect, Orissa, the Director of Town Planning and Planning Member, B.D.A. The meeting of the said Committee was held on 13.08.1998. The Committee made field visit and recommended for allotment of Ac.1.285 decs. of land in favour of the petitioner for her Hotel Project. The Committee took such decision on consideration of the feasibility of the project, suitability of the location and availability of government land. Accordingly, an area measuring Ac.1.285 decs. of land in mouza Laxmisagar-1 was allotted in favour of the petitioner for the project. The Government in G.A. Department took all possible steps for delivery of possession of the aforesaid land in favour of the petitioner, but failed owing to protracted litigations over the land with the stranger encroachers. When physical possession of the allotted land in Laxmisagar-1 could not be handed over to the petitioner in spite of the best efforts, the G.A. Department allotted an alternative site of equal extent in Bomikhal, Bhubaneswar. The land in Bomikhal was allotted on 24.02.2007 and possession of the same was delivered on 01.08.2007. The Housing & Urban Development Department on 12.12.2008 changed the user of the land to ‘Commercial Site’. The land in question allotted now in favour of the petitioner does not have any locational disadvantage and it is there in a prime location suitable for Hotel Project. Taking into consideration the situational advantage and other facts, the Site Selection Committee having recommended for allotment of Ac.1.285 decs. of land for the Hotel Project, claim of the petitioner for more land showing situational disadvantage is baseless. 9 11. Taking into consideration the grievance of the petitioner regarding the objection that had been raised under the National Highway Regulation, the allotment order dated 24.02.2007 was revised suitably. Regarding the claim of the petitioner for provision of 18 meters wide road to the allotted plot, it is asserted in the counter affidavit that 50 feet wide road is available to the plot adjoining its western side. As the area allotted in favour of the petitioner is quite sufficient and there is acute shortage of land in Bhubaneswar with demand for land by different institutions / organizations, the representation of the petitioner for allotment of more land has been rightly rejected. 12. The Site Selection Committee in its meeting dated 09.09.2009 have recommended allotment of land measuring Ac.0.950 decs. in favour of M/s. Blue Wheel National Health Care and Educational Trust (opp. party no.5) for establishment of a Super Specialty Hospital and Trauma Care Center. The extent of land recommended for allotment in favour of the aforesaid intervener- opposite party no.5 is covered under the additional land sought to be allotted in her favour by the petitioner, and the same is situated adjacent to the land already allotted in favour of the petitioner. 13. The G.A. Department has allotted less extent of land than what is allotted in favour of the petitioner for Hotel Project and in favour of other Hotel Projects, namely, M/s. Swarna Bhumi Resorts Pvt. Ltd., Bhubaneswar in mouza Chandrasekharpur and M/s. Hotel Aries in mouza Chandrasekharpur. The case of Hotel Mayfair & 10 Resorts Pvt. Ltd. and other cases cited by the petitioner are on different footings. 14. The petitioner by 20.03.2004 had deposited the 5th instalment towards premium totaling to Rs.40,15,136/-. She paid the premium in violation of the agreed slab and did not pay the interest @ 12% per annum, as stipulated in the Lease Conditions despite default in payment of premium by her. The petitioner has however made full payment in respect of the land in Bomikhal by depositing the balance amount of Rs.4,82,364/-. The claim of interest by the petitioner has been denied on the ground that such concessions have not been allowed to any party where handing over possession has been delayed due to factors beyond control of the authority. All other claims by the petitioner have been denied. 15. The petitioner has filed rejoinder affidavit oppugning the stands taken in the counter affidavit filed by the opposite parties 1 to 4. She, in the rejoinder affidavit, has questioned the scope of the Selection Committee to restrict the allotment of land to lesser extent than the requirement, which is best known to the Promoter and Recommending Authorities like the D.I.C., Bhubaneswar, Director of Industries and Tourism Department. The rejoinder affidavit mainly centers round the competence of the Selection Committee to restrict the extent of land sought to be allotted by the petitioner. The petitioner has also highlighted the alleged apathy and callousness on the part of opposite parties 1 to 4 to deliver possession of the allotted land in Laxmisagar-1 even after closure of the litigation. The existence of 50 feet wide road to the western side of the plot is denied by the petitioner. The 11 petitioner has relied on the Note of the Chief Secretary, Orissa in Annexures - 42 and 43 favouring allotment of balance extent of land in her favour, as sought for by her. The Chief Secretary in Annexure-43 has specifically suggested for allotment of Ac.0.950 decs. of land on payment of usual rate, as applicable to the earlier plot. Filing an additional rejoinder affidavit, the petitioner has questioned recommendation for allotment of Ac.0.950 decs. of land in favour of the intervener-opposite party no.5 and has further brought to the notice of the Court that the land allotted to the petitioner had long since been selected for use as Hotel site. 16. The intervener-opp. Party no.5 has filed the intervention petition (which he has prayed to be treated as counter affidavit) with a prayer for allotment of Ac.0.950 decs. of land over plot nos.324 (PT) and 328/1110 (PT) under Khata No. 429 in mouza Bomikhal for establishment of Super Specialty Hospital with Trauma Care Centre, as such allotment has been recommended by the Site Selection Committee. The intervener-opp. Party no.5 by filing different Annexures has substantiated its claim of expertise to establish the aforesaid centre and further claim for allotment of the land recommended by the Site Selection Committee. 17. Mr. S.K. Gajendra, learned Senior Counsel, on the aforesaid factual matrix raises the following contentions :- (i) The order dated 26.12.2009 vide Annexure-39 refusing the petitioner to allot in her favour the balance extent of land required for the project is hit by the principles of transparency and accountability of a Govt. body or an 12 instrumentality of government, as required under the Constitution of India. To support his contention, Mr. S.K. Gajendra relies on the cases of Reliance Energy Ltd. and Another vrs. Maharashtra State Road Development Corporation Ltd. and others, (2007) 8 S.C.C. 1; Global Energy Ltd. & Another vrs. Central Electricity Regulatory Commission, A.I.R. 2009 S.C. 3194. (ii) The order vide Annexure-39 is discriminatory inasmuch as the Government has allotted additional land to M/s. Mayfair Hotel and Resorts Pvt. Ltd. on three occasions from 1998 to 2000. (iii) Silence of the Government while passing order vide Annexure-39 on the grievance of the petitioner claiming payment of interest on the deposits made by her without availing any benefit is illegal and against the principles of transparency and accountability. Mr. S.K. Gajendra, learned Senior Counsel for the petitioner has justified the claim of interest relying on the cases of Alok Shankar Pandey vrs. Union of India & Others, A.I.R. 2007 S.C. 1198, Aditya Mass Communications (P) Ltd. vrs. A.P.S.R.T.C., A.I.R. 2003 S.C. 3411, Sovintorg (India) Ltd. vrs. State Bank of India, New Delhi, A.I.R. 1999 S.C. 2963. (iv) The petitioner having suffered delay in grounding the project for the laches on the part of opposite party nos. 1 to 4 and the project cost having escalated from rupees five 13 crore in 1998 to a minimum of rupees thirty crore by the end of 2008, opposite party nos. 1 to 4 are liable to pay the petitioner the escalation cost of the project. Learned counsel for the petitioner has relied on the case of P.M. Paul vrs. Union of India, A.I.R. 1989 S.C. 1034, Food Corporation of India vrs. M/s. A.M. Ahmed & Co. & Another, A.I.R. 2007 S.C. 829, Karnatak State Forest Industries Corporation vrs. Indian Rocks (2009) 1 S.C.C. 150, to substantiate his contention. Learned Addl. Govt. Advocate on the other hand supports the order vide Annexure-39 and submits that the delay in delivering possession of the land allotted at first in favour of the petitioner in Laxmisagar-1 was caused for reasons beyond the control of the Government. The petitioner having accepted the allotment of Ac.1.285 decs. of land at Laxmisagar-1 without any protest, she cannot claim balance extent of land in the event of allotment of an alternative site in her favour. The Site Selection Committee being the expert committee having recommended allotment of Ac.1.285 decs. of land to be sufficient for grounding the hotel project, claim of the petitioner for allotment of balance extent of land is not tenable. Land or additional land have been allotted for different projects on case to case basis taking into consideration the feasibility and availability of land, and question of allotment of additional land in favour of M/s. Mayfair Hotel & Resorts (P) Ltd. cannot be taken as a ground of discrimination against the petitioner. Claim of interest by the petitioner is untenable, as she had herself defaulted in payment of the agreed slab. Though the alternative site has already been allotted in her favour since 2007, the petitioner has not started any work for grounding the project and has 14 obstinately pursued for allotment of balance extent of land, which is not at all required for the project sought to be grounded by the petitioner and, above all, in no case interest having been paid to any of the allottees in case of similar nature, no interest can be paid to the petitioner on the basis of her wild allegation. On the point of claim of escalation charges, it is submitted by learned Addl. Govt. Advocate that the decisions cited by the petitioner has no application to the fact of this case and delivery of possession of the land having been delayed for reasons beyond the control of the Government and for obstinacy on the part of the petitioner to get more land, the claim of escalation charges by the petitioner is unfounded. Mr. Millan Kanungo, learned counsel appearing for the intervener-opp. party no.5 submits that the Site Selection Committee having recommended allotment of Ac.0.950 decs. of land in favour of opposite party no.5 and opposite party no.5 having already applied for allotment of the same from plot Nos.324(PT) and 328/1110(PT) under Khata No.429 of Mouza Bomikhal for establishment of a Super Specialty Hospital and Trauma Care Centre, the Government should be directed for early allotment of the land. 18. There is no denying of the fact that the petitioner has sought for allotment of the self-same land, for which opp. party no.5 has applied for. No right can be claimed by opposite party no.5 in respect of a particular piece of land on the ground that the Site Selection Committee has made recommendations for allotment of the same. The authority to take a decision in the matter lies with the appropriate Government. Admittedly, no decision has yet been taken for allotment of the land in favour of intervener-opp. party no.5. Prior 15 to recommendation of the Site Selection Committee for allotment of the land in question in favour of opposite party no.5, the petitioner had sought for allotment of the