Jayanta Kumar Ghadai and Others … v. ….. Opposite Parties Mr. P.P. Mohanty, AGA Mr. D. Mohapatra, Advocate (BDA) Mr. Amitav
Case Details
IN THE HIGH COURT OF ORISSA, AT CUTTACK W.P.(C) No. 40247 of 2023 Jayanta Kumar Ghadai and Others ….. Petitioners Mr. P.K. Rath, Sr. Advocate along with Mr. S. Rath, Advocate State of Odisha and Others Vs. ….. Opposite Parties Mr. P.P. Mohanty, AGA Mr. D. Mohapatra, Advocate (BDA) Mr. Amitav Tripathy, Advocate (OSRTC) Order No. 05. CORAM: DR. JUSTICE B.R. SARANGI MR. JUSTICE G. SATAPATHY ORDER 15.04.2024 W.P.(C) Nos.40247, 35242, 36721, 36877, 36878, 36880, 36881, 36882, 36885, 36887, 36970, 36973, 36975, 36978, 36980, 36984, 36988, 36991, 37511, 37516, 37518, 37519, 37549, 37598, 37603, 37770, 37771, 37773, 37774, 37778, 37781, 37792, 37899, 37902, 37904, 37906, 37908, 37912, 37914, 38078, 38082, 38240, 38243, 39053, 39865, 40830, 40976 of 2023 and 2533 & 8645 of 2024 These matters are taken up by hybrid mode. 2. Heard Mr. P.K. Rath, learned Senior Advocate appearing along with Mr. S. Rath; Ms. Pami Rath, learned Senior Advocate
Legal Reasoning
along with Ms. Guman Singh and Mr. N. Lenka, learned counsel appearing on behalf of the petitioners; Mr. P.P. Mohanty, learned Additional Government Advocate appearing on behalf of the State- opposite parties, Mr. Dayanand Mohapatra, learned counsel appearing on behalf of the opposite party-BDA and Mr. Amitav Tripathy, learned counsel appearing on behalf of opposite party- OSRTC. Page 1 of 8 3. The petitioners have filed this writ petition seeking to quash the Tender Notice No.50561 dated 17.11.2023 under Annexure-1 issued by the Bhubaneswar Development Authority, Bhubaneswar, and further to issue direction to the Bhubaneswar Development Authority (BDA), Bhubaneswar to act in terms of its decision dated 25.09.2020 and sell the shop room in favour of petitioners at the cost to be determined by it directly within a stipulated period. 4. Learned counsel appearing for the petitioners contended that pursuant to an agreement, petitioners were allotted with Stalls near Baramunda New Bus Stand, Bhubaneswar by the Orissa State Road Transport Corporation. Accordingly, they took over possession of the shop rooms and operated the same on deposit of security amount and they were also paying rent regularly, as admissible in terms of the contract. Subsequently, Bhubaneswar Development Authority, Bhubaneswar took a decision in a proceedings of the meeting held on 25.09.2020 at 11.00 AM in the 1st floor conference hall of BDA regarding eviction of encroachments and construction of new ISBT, Baramunda, wherein authorities of the various departments were participated. In the said meeting the decisions which were taken read as follows: “1. The original valid allottees of OSRTC now doing business in ISBT will be given priority for allotment of shops inside the proposed newly constructed ISBT. 2. The shops will be sold out in favour of the original valid allottees of the OSRTC as per the cost to be determined by the competent Authority. 3. The pending dues of the allottees be calculated upto-date by the G.M., OSRTC and collect the Page 2 of 8 same from the allottees. Those who clear the dues in full will be considered for allotment.” It is contended that pursuant to such decision, a list of shopkeepers was prepared by the BDA on 05.04.2023, wherein the names of some petitioners found place. Thereafter, on 22.06.2023 another list was prepared, wherein name of the some petitioners found place. Therefore, it is contended that petitioners are entitled to get the shop room in terms of the proceedings of the meeting held on 25.09.2020 and accordingly, the petitioners expressed their willingness to possess the shop rooms in terms of the aforesaid decision by paying rent and security deposit. At this point of time, the Secretary, BDA on 17.11.2023 under Annexure-1 issued request for proposal (RFP) for selection of Master Licensee for commercial space at Inter State Bus Terminal (ISBT), Bhubaneswar and lease of built-up automobile workshop. Clause2.4 of the notice inviting tender states that BDA invites E-Bids on single stage two submissions system (technical and financial) from eligible Bidders for selection of a Licensee to grant licensing rights of the commercial space at ISBT, Bhubaneswar, BDA shall receive Bids pursuant to this Tender document, in accordance with the terms set forth herein as modified, altered, amended, and clarified from time to time by BDA. Bidders shall submit bids in accordance with such terms and conditions on or before the date specified in this document. Bidders are advised to visit the site and familiarize themselves with various arrangements and all activities necessary in this regard. Chapter-3 of the said notice inviting tender deals with project information memorandum. It is further contended that now a different stand has been taken by the BDA by issuing such notice inviting tender, for which petitioners are Page 3 of 8 grossly affected on earning their livelihood. Therefore, petitioners have approached this Court by filing this writ petition and contended that let the opposite party-authorities first adheres to the decision of the proceedings of meeting held on 25.09.2020 and thereafter, they may proceed in terms of the notice inviting tender. 5. Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties contended that since the matter relates to BDA, he has no reply to give. 6. Mr. Amitav Tripathy, learned counsel appearing for OSRTC contended that they have nothing to say since the dispute is between BDA and the petitioners and since the building is being managed by the BDA, as such, the OSRTC being the beneficiaries of the same, if any terms and conditions is decided in these matters, the same will be abide by all the parties. 7. When these matters were taken up on 09.04.2024, Mr. Dayananda Mohapatra, learned counsel appearing for BDA filed an additional affidavit in compliance to the order of this Court dated 04.04.2024. Looking at the said additional affidavit, this Court on 09.04.2024, inter alia passed the following order. “2. In compliance to the order passed by this Court dated 04.04.2024, an additional affidavit has been filed by the Bhubaneswar Development Authority incorporating all the documents such as number of cases as 46 and number of petitioners, those who are claiming accommodation in new bus stand as they were the allottees in the old bus stand as 69. Out of them, 59 petitioners remained present. Out of 69 petitioners, cases of 67 numbers have been considered for allotment. So far as two persons are Page 4 of 8 concerned namely Gangadhar Sahoo and Mamata Pradhan, their cases have not been considered since they are not the allottees. Learned counsel for the petitioners contended that they are the legal heirs of the original allottee, therefore they are also entitled for allotment of shop room. 3. Mr. D. Mohapatra, learned counsel appearing for BDA is directed to take instruction to that effect. It is alleged by learned counsel for the petitioners that the opposite party-BDA is enhancing the rate every year arbitrarily. 4. This Court is of the opinion that the said enhancement should be at the interval of three years instead of every year with 5% increase. Further grievance is made that in case of some petitioners, big space had been allotted in the old bus stand for dormitory and other purposes. 5. Mr. D. Mohapatra, learned counsel appearing for the BDA is also directed to take instruction whether such space can be given to those persons or any alternative arrangements can be made for them.” 8. In compliance to the same, an affidavit is filed today by Mr. Dayanand Mohapatra, learned counsel appearing for BDA by serving a copy thereof on learned counsel for other sides. The same be kept on record. 9. On perusal of the case records vis-à-vis the affidavits filed by the BDA and other parties and on hearing learned counsel for Page 5 of 8 respective parties, the following observation/directions are issued. 1. In the earlier affidavit, the BDA had made a statement that out of 69 petitioners, cases of 67 numbers have been considered for allotment. Therefore, let opposite party-BDA proceed accordingly for allotment of shop rooms in favour of those 67 numbers. So far as rest two cases are concerned, i.e. in respect of one Gangadhar Sahoo and Mamata Pradhan, in today’s affidavit of BDA it has been stated that in Clause-IV of eligibility of allotment of shops, specified allotment of Shop Rooms to the legal heirs of the erstwhile tenants under OSRTC subject to compliance of the requirement. But this Court is of the considered view that since no other legal heirs are there before this Court and only Gangadhar Sahoo and Mamata Pradhan are before this Court, the opposite party- BDA is directed to provide each of them with the shop rooms as will be provided in respect of other 67 petitioners. 2. So far as enhancement of rent is concerned, this Court in the previous order dated 09.04.2024 suggested that the said enhancement should be at the interval of three years instead of every year with 5% increase. It is contended by Mr. Dayanand Mohapatra, learned counsel for BDA that enhancement of rent may be allowed @ 10% in every 3 years, because in the other places, the enhancement of licence fee is @ 10% at the interval of 2 years and enhancement @ 15% Page 6 of 8 considering the demand of shops in concerned markets and other criteria. Therefore, this Court considering the fact that as per the terms and conditions since the enhancement is 5% per year, thereby, enhancement of @ 10% in every three years will be more equitable. Therefore, the proposal of opposite party-BDA for enhancement of rent @ 10% in every three years, would be sustained. 3. So far as the allottees of big space in old bus stand for dormitory and other purposes is concerned, it is stated in today’s affidavit that they were selected through the tender process for a period of three years and after expiry of such period, though they were allowed to continue, but that itself cannot create right in their favour to get bigger space in present one. However, for the purpose of rehabilitation and to provide livelihood to them like other petitioners, they will be provided with shop rooms. If they want to have a bigger space, it will be open to them to participate in the process of tender to be invited by the BDA- authorities without making any further claim in the matter. This suggestion of Mr. Dayanand Mohapatra, learned counsel for BDA has been accepted by Ms. Pami Rath, learned Senior Advocate and Mr. N. Lenka, learned counsel appearing on behalf of those category of petitioners. 4. So far as master licensing agreement is concerned, since these petitioners are the allottees of old bus Page 7 of 8 stand, whatever fees has to be paid by these people, the same should be collected by BDA or through its agent and the master licensing agreement has no application to these category of people, because they have been rehabilitated by virtue of the agreement between the parties. 10. With the aforesaid observations/directions all these writ
Decision
petitions stand disposed of and the interim orders passed earlier stand modified/clarified to the extent indicated in this order. JUDGE (DR. B.R. SARANGI) Arun (G. SATAPATHY) JUDGE Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Oirssa, Cuttack Date: 19-Apr-2024 16:53:05 Page 8 of 8