Municipal authorities cannot grant construction permissions on government land recorded for public utility purposes; actions taken without appropriate jurisdiction are unlawful.

JUDGMENT :

By the Bench;

1. This matter is taken up through hybrid mode.

2. Petitioners, in this Writ Petition, seek for a direction to set aside the notices issued by the Executive Officer Bhadrak Municipality on 6^th December, 2016 under Annexure-1 series, whereby permission granted to the Petitioners for raising construction over plot No.339 was recalled.

3. Mr. Mohanty, learned counsel submits that the Petitioners being unemployed youths were granted permission by the Executive Officer, Bhadrak Municipality- Opposite Party No.4 during 1999- 2000 to raise construction over the aforesaid plot to earn their livelihood. Accordingly, the Petitioners constructed shop rooms over the said plot and were earning their livelihood.

3.1 At that juncture, one Jashoda Senapati- Opposite Party No.6, filed OJC No.11815 of 1999 before this Court with a prayer to demolish the structures over plot No.339, which is recorded as ‘Nayanjori’ as the constructions made over plot No. 339 were obstructing access to plot Nos.337 and 338 recorded in her name and she faced immense difficulties. The Petitioners herein were not made parties to the said writ petition. Only by impleading two of the shop owners of plot No.339 (not the Petitioners), the earlier writ petition was filed. This Court disposed of the said writ petition on 22^nd August, 2016, relevant portion of which is reproduced hereunder,

“18. On perusal of records, it appears that no material has been produced before this Court stating that Plot No. 339 recorded as "Nayanjori", which is a Government land under the possession of Public Works Department, has ever been transferred to the Municipality. If the said land in question has not been transferred to Municipality actually, the Municipal authority cannot utilize the same other than the purpose, for which it has been recorded. In that view of the matter, the Municipal authorities have acted in excess of their jurisdiction in misutilizing the Government property recorded as "Nayanjori", by issuing necessary permission to have a construction over it.

19. The 'Nayanjori' land between a plot (meant for residential or commercial purpose) and the road is meant for public utility, which could be for footpath or for drainage, and construction on the same would not be permissible in law.

20. The present is a case where a drain passes through such land, being Plot No. 339. It is a matter of common knowledge that because of any construction which may be permitted to be raised over a drain, free flow of flood and rain water would be obstructed. There is no provision in law to permit raising of construction over a drain, even with certain conditions. Not only this, the opposite parties have not been able to show that how permission for construction could be accorded on 'Nayanjori' land meant for public purpose. The land in question does not even belong to the Municipality, which has granted permission and is subsequently collecting the rent. Merely to raise the revenue, the Municipality cannot be permitted to grant permission to raise construction (for collecting rent) over such land, which does not belong to the Municipality and is meant for public purpose. The Municipality is a body constituted to take care of the public convenience, and by permitting the private parties to raise construction over public utility land, through which a drain passes, can neither be justified in law, nor can it be said to be a proper action of the Municipality.

21. The rights of the petitioner are affected as the construction is raised in front of the property of the petitioner. Reliance in this regard has been placed on a Division B