The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 23500 OF 2022 Sanjay Keshari Mohapatra Petitioner Mr. Niranjan Panda, Advocate …. -versus- State of Odisha and others …. Opp. Parties Mr. Swayambhu Mishra, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 17.04.2023 8. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition prays for a direction to the Opposite Parties to shift the boring from the original point to a distance 25 meters over Plot No.440 in Mouza Dhamantira as per the compliance report dated 28th December, 2021 filed along with CONTC No.7138 of 2021. 3. It is submitted by Mr. Panda, learned counsel that the earlier the Petitioner had approached this Court raising objection to the construction of bore well and water tank thereby blocking the ingress and egress to his land over Plot Nos.501,502,503 and 496 in Khata No.206/81, 206/80 under the Dhamantira mouza. The writ petition was disposed of vide order dated 22nd September, 2021 with the following directions: “6. Regard being hand to the facts and submissions and the nature of relief sought for and without going into the merits of the case, the writ petition is disposed of, directing the Assistant Executive Engineer, R.W.S. & S, Nimapara (Opposite Party No.5) to dispose of the representation of the petitioners vide Annexure-5 Series within a period of three months from the date of receipt of a certified copy of this order be passing a reasoned order, taking into consideration the plight to be suffered by the petitioners. The petitioners are directed to supply the copy of 7. the writ petition containing all the annexures to the Page 1 of 6 // 2 // Opposite Party No.5 along with a certified copy of this order for convenience and reference to Annexure-5 Series. 8. maintain status quo as on date over the spot in question. Till disposal of the representation, parties shall 9. disposed of.” With the aforesaid observation, the writ petition is 4. Since the Opposite Parties violated the order passed in W.P.(C) No.29408 of 2021, CONTC No.7138 of 2021 was filed. In the said contempt petition, show cause affidavit dated 16th December, 2021 was filed by the Assistant Executive Engineer, R.W.S. & S, Nimapara, in which it is stated as under: legal process after receipt That in reply to the averments made in Para-4 of “9. the contempt petition, it is humbly submitted that the deponent never violated the order passed by the Hon’ble High Court in any manner. Moreover, status quo has been maintained over the plot in question since 22.09.2021 and no further work releted to the Piped Water Supply to Dhamantira has been taken up over the plot in question the order dated under 22.09.2021 of the Hon’ble High Court passed in W.P.(C) No.29408 of 2021. 10. That in reply to the averments made in Para-6 of the contempt petition, it is humbly submitted that the deponent has not started any work except the bore well over the plot in question as alleged in their representation beyond 22nd September, 2021 as per the order passed by the Hon’ble High Court and status quo has been maintained without any violation. 11. That in reply to the averments made in Para-7 of the contempt petition, it is humbly submitted that the work has been taken up for sinking of production well only after the site selected by the local representative and the villagers concerned. The developmental work i.e. for providing drinking water to the local people of Village- Dhamantira has been taken up on priority basis with cooperation of the local habitants as per the selected site. Moreover, the present humbly prayed before the Hon’ble Court to consider the averments made in the foregoing paragraphs and dispose of the case on ground of public interest as drinking water is essentially required for the general public at large.” Pursuant to the order dated 11th January, 2022 in the said 5. CONTC, a compliance affidavit was also filed by the Assistant Page 2 of 6 // 3 // Executive Engineer, R.W.S. & S, Nimapara on 27th January, 2022, relevant portion of which reads as under: towards hearing of “4. That it is humbly submitted that the petitioners were invited to attend the meeting on 21.12.2021 at Office of the Assistant Executive Engineer, RWSS Sub-Division, Nimapara their grievances and disposing the same vide Letter No.2116, dated 14.12.2021. Xerox copy of Letter No.2116, dated 14.12.2021 is filed herewith as Annexure-D. but the petitioners expressed their inability to attend the meeting scheduled to be held on 21.12.2021 and requested to reschedule the date. As per request of the petitioners, they were re-invited to attend the meeting on 28.12.2021 vide Letter No.2166 dated 18.12.2021. On 28.12.2021, the Petitioners attended the meeting held at office of the Asst. Executive Engineer, RWSS Subdivision, Nimapara and fruitful discussion have been made and unanimous decision has been taken up to resolve the grievance and to dispose of the case and the opposite party assured not to take up any further work regarding construction of Elevated Storage Reservoir, Pump House of Piped Water Supply to Dhamantira under Nimapara Block over the Plot No.497, the Govt. land. The Opposite Party further assured to take steps to reselect the site towards shifting to Plot No.440 by requesting the villagers and the PRIs member. Only underground pipe connection may be done with the production well which has already been sunk. Xerox copy of the proceedings of the meeting held on 28.12.2021 is filed herewith as Annexure-E. That it is humbly submitted that the present 5. deponent has also intimated regarding the proceedings of the meeting dated 28.12.2021 to the Executive Engineer, RWSS Division, Puri vide Letter No.93, dated 10.01.2022 and also requested the Tahasildar, Nimapara vide Letter No.47, dated 05.01.2022 to alienate land for Piped Water Supply to Dhamantira village under Nimapara Block. Xerox copies of Letter No.93, dated 10.01.2022 and Letter No.47, dated 05.01.2022 are filed herewith as Annexure-F and Annexure-5 respectively.” Considering the compliance affidavit filed, this Court vide order dated 29th April, 2022 dropped the contempt proceeding. 6. Mr. Panda, learned counsel for the Petitioner submits that the compliance affidavit filed by Opposite Party No.5 was not Page 3 of 6 // 4 // correct and it was never acted upon. Hence, this writ petition has been filed for the aforesaid relief. 7. Mr. Mishra, learned Additional Standing Counsel submits that the order of this Court has been complied with in its letter and spirit. Thus, the Petitioner does not have any cause of action to file the writ petition. Referring to Paragraphs-9 and 10 of the counter affidavit, Mr. Mishra, learned Additional Standing Counsel submits that it is accepted by the parties in front of Local PRI (Panchayati Raj Institution) Members that compound wall will be constructed fifteen meters away from the last embankment of the Petitioners private Plot Nos.501,502,503 and 496 in Khata No.206/81, 206/80, as the boring point had already been constructed over Government Plot No.497 since 16th September, 2021. 8. It is also submitted that supply of water from the boring point to the field will be through underground pipe lines. The transformer for power supply will be inside the Govt. Plot No.440. Thus, there will be no difficulty for the Petitioner to approach his agricultural field. He also refers to the settlement arrived at between the parties, relevant portion of which reads as under: “The Opposite Party assured not to take up any further work like construction of ESR Pump house etc. as PWS to Dhamantira over Plot No.497 as every steps has been followed to maintain status quo. Further the Petitioners have requested to shift the site from Plot No.497 to Plot No.440 in Khata No.218 i.e., approximate 25.00 mtr away from the production well (already sunk) for better conveyance. The Opposite Party replied that a reselection of site to be made through the villagers & the concerned P.R.I. members. Accordingly the villagers & PRI Members are to be requested by the Assistant Engineer, , R.W.S. & S, Nimapara to reselect and shift the site from Plot No.497 to Plot No.440 for further work to be taken up. Page 4 of 6 // 5 // Moreover, any underground pipe connection with lowering of pump motor may be done to the production well which has already been sunk before filing of case No.W.P.(C) 29908 of 2021 & CONTC No.7138 of 2021. Both the party (Petitioners & Opposite Party) agreed with the decision and ended the meets with thanks.” He, therefore, submits that the writ petition merits no consideration and is liable to be dismissed. 9. Considering the submissions made by learned counsel for the parties and on perusal of the settlement arrived at between the parties, it is clear that the grievance of the Petitioner was with regard to construction of ESR (Elevated Storage Reservoir) Pump house from PWS (Piped Water Supply) to Dhamantira will be done over Plot No.497, the entrance to their land will be closed and they will face difficulty to enter into their land. In the counter affidavit filed by Opposite Party No.5, it is categorically stated that the transformer for power supply will be inside the Govt. Plot No.440 and since the bore well has already been sunk since 16th September, 2021, i.e., by the time the earlier writ petition was filed, the parties agreed before the PRI Member that a compound wall will be constructed at a distance 15 meters from the last embankment of the land of the Petitioner in Plot Nos.501, 502, 503 and 496. Thus, there is no probability of any hindrance to the Petitioners access to his agricultural land. It is insisted upon by Mr. Panda, learned counsel for the Petitioner that the said compound wall should have been constructed 25 meters away, as assured. 10. On perusal of the settlement arrived at between the parties, it reveals that the Petitioner had requested to shift the site from Plot No.497 to Plot No.440 in Khata No.218, i.e., approximate 25.00 meter away from the production well Page 5 of 6 // 6 // (already sunk) for better conveyance. That was never an assurance of the Opposite Parties, as alleged. 11. Thus, shifting of the construction to Plot No.440 i.e. 25 meters away was only a request on behalf of the Petitioner. However, the constructions are being made as per the settlement made before the parties before the PRI Members. Hence, this Court is of the considered opinion that no deviation has been made as assured by the Opposite Party No.5 in the said settlement. It also appears that due to the construction, the ingress and egress to the agricultural land of the Petitioner is not affected, which was the grievance of the Petitioner at the outset. Further shifting of the bore well does not arise as prayed for in the writ petition, as it has already been sunk by the time the earlier writ petition was filed. Shifting of the bore well was never agreed upon by the parties to the aforesaid settlement. 12. In view of the above, this Court is of the considered opinion that the prayer of the Petitioner to shift the boring from the original point to 25 meter distance over Plot No.440 is not sustainable, as it has already been agreed upon by the parties that since the bore well has already been sunk by the time the earlier writ petition was filed, it could not be shifted. 13. Accordingly, the writ petition being devoid of any merit stands dismissed. 14. Case record in W.P.(C) No.29408 of 2021 and CONTC No.7138 of 2021 be sent back to the concerned Section immediately. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 6 of 6