PRADEEPTA MOHANTY Vs. ROURKELA DEVELOPMENT
LAWS(ORI)-2020-2-7
HIGH COURT OF ORISSA
Decided on February 13,2020

Pradeepta Mohanty Appellant
VERSUS
Rourkela Development Respondents

JUDGEMENT

- (1.) The appellants have filed this writ appeal challenging the impugned common order dated 11.04.2018 passed by the learned Single Judge in O.J.C. Nos. 4859 of 2000 and 4860 of 2000 as well as to quash the letters of cancellation of allotment of shop rooms dated 15.02.2019 vide Annexure-6 series issued by the Secretary, Rourkela Development Authority (Respondent no.2).
(2.) The respondent no.3 Santanu Hota filed O.J.C. No. 4859 of 2000 and the respondent no.4 Binod Kumar Sharma filed O.J.C. No. 4860 of 2000 praying for a direction to Rourkela Development Authority (hereafter 'RDA') to take urgent and immediate steps against the owners of the shop rooms situated in the ground floor of the bus terminal building at Gandhi Road, Rourkela, who were using those shop rooms as restaurants/hotels in gross violation of the terms and conditions of the licence agreement and to ensure that none of the shop owners in the ground floor of the bus terminal building use their shops for any other purpose except for which the same have been allotted. The grievance of the writ petitioners is that RDA without enforcing the terms and conditions with regard to the nature of use of the shop rooms situated at bus terminal building, Rourkela as specified in its brochure, permitted illegal establishment and operation of hotel/restaurant in the ground floor of the building, thereby causing financial loss and hardship to them. Pursuant to an advertisement, the writ petitioners applied for allotment of commercial space in the first floor of the bus terminal building, Rourkela for running a restaurant/hotel as per the terms and conditions mentioned in the brochure, wherein it was specifically mentioned that all the rooms or space in the ground floor of the bus terminal building at Rourkela would be given for use as shops and the first floor of such building to be used for commercial space and for running of two restaurants, one vegetarian and the other non- vegetarian. It is the further case of the writ petitioners that RDA issued letters of allotment in their favour intimating them regarding the provisional allotment of restaurant at Gandhi Road in the said bus terminal building. The writ petitioners were asked to make a security deposit of Rs.1,00,000/- (rupees one lakh) out of which they had already deposited Rs.25,000/- (rupees twenty five thousand) as EMD and was required to pay the balance Rs.75,000/- (rupees seventy five thousand) in favour of RDA. The rent for the floor space allotted to the writ petitioners were fixed at Rs.2.75 per square feet. This allotment letters were issued in favour of the writ petitioners in the month of May 1994. The writ petitioners were required to enter into an agreement of tenancy with RDA and accordingly, the writ petitioners executed agreements of tenancy for the tenanted premises measuring 850 sq. ft. in size including dining hall, pantry and store room and the writ petitioners were required to pay a monthly rent of Rs.2,338/- only to RDA and were also required to pay Rs.14,082/- only, being the equivalent rent for six months at the time of taking delivery of possession which amount was to be retained by the RDA as additional security deposit and necessary tenancy agreement was entered into between the parties. The writ petitioners entered into possession of the tenanted premises measuring 850 sq. ft., including dining hall, pantry and store room situated in the first floor of the terminal building for running a specialized vegetarian food -cum- catering centre. The writ petitioners continued to occupy the tenanted premises and used the same as a vegetarian/ non-vegetarian restaurant in the first floor of the said building as per the master plan of the building and in terms of usage as given in the brochure issued by the RDA. The grievance of the writ petitioners is that some of the owners of the shop rooms situated in the ground floor of the building, though had been allotted the said shop rooms for specific purposes of running of different types of shops, viz. grocery, stationary etc. but they had illegally converted the said shop rooms to restaurants and started running such restaurants in the shop rooms allotted to them in the ground floor of the building causing unhealthy competition with the restaurants of the writ petitioners and putting them to serious financial loss as the writ petitioners had been specifically allotted the tenanted premises and the rent had been fixed for such premises at a higher rate of Rs.2.75 per sq. ft. and also a higher security deposit and advance rent had been made and further the writ petitioners were required to make huge investment towards furnishing and interior decoration for making it habitable restaurants. The writ petitioners raised complaints before RDA against such illegal running of restaurants in the shop rooms situated in the ground floor of the building in gross violation of the nature of use for which such shop rooms had been allotted to the shop owners and/or tenants and after repeated complaints and requests by the writ petitioners and the other restaurant owners, the Secretary, RDA (respondent no.2) ultimately issued notices to such shop owners regarding cancellation of their allotments for having used the shop rooms as restaurants, in gross violation of the terms and conditions of the agreement and against the master plan and out-lay of the terminal building as detailed in the brochure. The shop owners were directed to handover physical occupation of the shop rooms to the officers of RDA within a specified time. Against such aforesaid cancellation of the shop rooms, the shop owners who had been using such shop rooms in violation of the terms of the agreement moved this Court. The shop owner namely Smt. Manjula Nayak was granted an interim order against such cancellation of allotment in O.J.C. No.7412 of 1997 but thereafter since the said shop owner agreed to stop using her shop room as restaurant and further agreed to use the shop room according to the terms and conditions of the agreement and prayed for withdrawal of the writ application, the said writ application was disposed of as withdrawn as per order dated 05.08.1997. After withdrawal of the writ application, the Secretary, RDA (respondent no.2) directed the shop owners to give an undertaking by way of an affidavit that they shall abide by the terms and conditions of the agreement. Accordingly, all the shop owners filed undertakings by way of affidavits before the respondent no.2. In pursuance of such undertakings, the respondent no.2 issued a letter of revocation of cancellation of allotment in favour of the said shop owners indicating therein that the shop owners were required to deposit Rs.100/- towards revocation fee and Rs.3,000/- towards legal expenses and to execute fresh agreements in respect of their shop rooms to carry on business or trade according to the terms and conditions and were also required to deposit up-to-date licence fees. Pursuant to the undertakings filed by the shop owners by way of affidavits and after the deposit of renewal fees and expenses, RDA entered into fresh licence agreement with the shop owners with specific undertaking that the shops situated in the ground floor shall not be used as restaurant/hotel and on the basis of such undertaking, the shop owners were allowed to operate and run their business and after such revocation of cancellation letter, four shop rooms bearing nos. BT/29 to BT/32 were closed but even after submitting such undertaking by way of affidavit, the other shop rooms including three new shop rooms continued to use the said shop rooms as restaurant in gross violation of the terms and conditions of the agreement. Though the agreement of the tenancy/ licence agreement was entered into between RDA and the owners of shop rooms situated in the ground floor of the bus terminal building that the shop rooms are to be used for which they are meant and not for use for running restaurant/hotel, in spite of such undertakings given by the shop owners, nine numbers of shop rooms continued to use the same as restaurants in gross violation of the terms and conditions of the agreement of licence entered into between them with RDA. As the said shop rooms were not suitable for running of restaurants, the adjacent areas of such shop rooms were being made dirty on account of throwing of food packets and other residue and in spite of general complaints by the other shop owners and commercial complex, no action was taken by RDA against the shop owners. After such violation by the nine shop owners, the writ petitioners again filed complaint/representation before the respondent no.2 against such violation of terms and conditions and against the loss suffered by them due to such illegal competition caused by unauthorized running of restaurant by the shop owners. In the said complaint/representation, the writ petitioners also expressed their financial inability to pay the monthly rent for their tenanted premises as their restaurants have been adversely affected because of running of cheap restaurants in the ground floor causing them irreparable financial loss and hardship. The writ petitioners requested the respondent no.2 to take immediate action to ensure that the said shop rooms are not put to unauthorized use of illegal running of restaurants and to ensure that no restaurant should run in any of the shop rooms in the ground floor of the building. Subsequently the writ petitioners repeatedly reminded and requested RDA to take immediate steps against those nine shop rooms which were causing irreparable financial loss to them but after repeated request and reminders, RDA did not take any effective steps or action against such illegal running of restaurants. The writ petitioners were served with show cause notices to give reply within seven days for alleged non- payment of arrear licence fee amounting to Rs.44,422/- which was for the period from 4/98 to 10/99. Pursuant to the aforesaid notice, the writ petitioners submitted their show cause before the respondent no.2 stating the reasons of their inability to deposit the monthly licence fee and that they have no intention of violating the terms and conditions and are ready and willing to pay the entire fee in installments and abide by all conditions subject to the condition that their grievances and complaints which are being made consistently since 1997 are to be looked into and to take urgent steps to stop such illegal running of restaurants by the shop owners in the ground floor and also to ensure that no restaurant is run or operated in such shop rooms in the ground floor of the building.
(3.) The learned Single Judge considering the submissions made by the respective sides, disposed of both the writ petitions as per the impugned common order observing, inter alia, that the authority had no occasion to change the mode of business involving the shop rooms allotted by virtue of advertisement Annexure-7 and having been done so at the cost of the public exchequer, the Court interfered with the action of RDA and further observed that the agreement involving the shop owners particularly the shops involved in changing the run of business would all stand invalid. It is further held that Rourkela Regional Improvement Trust or RDA in charge of the property has changed the type of business involving the shops during the pendency of the writ petition. Accordingly, interfering with the action of the Rourkela Regional Improvement Trust or RDA, the Court directed to seek applications from the allottees intending to continue in the terms and conditions as per the advertisement vide Annexure-7 within fifteen days of receipt of the copy of order. It is further observed that in the event, there is no interest shown by the shop owners to run in the manner involving the advertisement, it would be open to RDA to cancel the allotment of the shop rooms involved therein and to go for fresh advertisement in respect of the shop rooms falling vacant in the process. It is further observed that there is no necessity of giving opportunity to the persons likely to be affected pursuant to the said order.;


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