Producers Association, Orissa & Ors Vs. State of Orissa & Ors  Insc
53 (2 February 2006)
Sinha & P.K. Balasubramanyan
Special Leave Petition (Civil) Nos. 16362-16363 of 2004] S.B. SINHA, J :
granted in all the SLPs.
Appellants herein carry on business in milk. They have admittedly encroached
upon government lands in the town of Bhubaneswar. The State of Orissa intended to evict them. The Chief Minister of the State of Orissa evolved a scheme allegedly for
their rehabilitation. The villages selected for carrying out such
rehabilitation job were not found to be suitable therefor. As they are sought
to be evicted without offering them alternative plots, the Appellants filed
writ petitions before the Orissa High Court. In the writ petitions it was inter
most of these Petitioners belong to the poorer strata of the society, their
rehabilitation have engaged attention of the authorities at the highest level
since the year 1987. In a meeting held on 1.6.87 under the Chairmanship of the
Chief Secretary, it was decided that sites for such rehabilitation of Gowalas
operating within Bhubaneswar city shall be selected by a committee consisting
of Director of Veterinary Services; representatives of OMFED; A.D.M., Bhubaneswar;
S.D.O., Bhubaneswar and representative of Bhubaneswar Development Authority.
The minutes of the meeting held on 1.6.87 was sent to Chief Secretary,
Secretary, Finance Department, Special Secretary, General Administration
Department, Secretary, Forest and Animal Husbandary Department, Secretary,
Revenue Department, Secretary, Housing and Urban Development Department,
Vice-Chairman, Bhubaneswar Development Authority etc; vide letter no. 9838/CA,
dated 14.7.87 by the Joint Secretary to Government in the Department of General
Administration, Govt. of Orissa and Ex-officio Director of Estates.
That as per the
decision of the High Power Committee, the site selection committee met on
11.6.87 and recommended that the milkmen/ private milk producers like Petitioners
No. 2 to 240 be settled at Pratap Sasan, Tulsadeipur and Jamukoli.
1989, the Government gave press statements to the effect that the Government
had formulated scheme of rehabilitation, which is as follows:
Govt. land measuring 40 x 30 free of premium.
disturbance allowance of Rs. 500/-.
construction assistance of Rs. 3,000/- in two instalments for construction of
dwelling house at the new site.
Transportation of personal belonging of each Gowalla family.
drinking water at the new site.
Opening of fair
price shop at the new site for sale of essential commodities.
Opening of a
fodder sale centre.
milk by OMFED form the Goallas who want to sell milk to it at the new site.
Educational facilities at the new site
That despite all
these exercise nothing has been done in the matter. Later on the Petitioners
understand that vide letter No. Misc-BP-126/93 2240/BP/BDA Bhubaneswar, 7.4.94,
the Advisor-cum-Planning Member wrote to Director of Estates that the site at Pandara
seems to be the best suited for the purpose of rehabilitation because of the
availability of water near by and open spaces for cattle movement. In return
the Director of Estates vide letter dated 3.9.94 intimated to Vice-Chairman, Bhubaneswar
Development Authority that Government have already decided to rehabilitate the Gowallas
in Mouza Pandara, Gakana, Patrapada, and Jokalandi. The Director of Estates
requested the Bhubaneswar Development Authority to carve out plots in the above
area for the purpose of rehabilitation of Gowalas. Thus, though the Government
unilaterally changed the sites selected for rehabilitation, the Petitioners
welcomed such action of the Government
That pursuant to
request under Annexure-2, the Advisor cum Planning member of Bhubaneswar
Development Authority vide letter No. 5615/B/BDA/Misc-BP-176/93 Bhubaneswar,
the 5.10.94 intimated the Director of Estates that as desired the layout plans
of the concerned land in mouza Gadakana, Pandara, Patrapada and Joklandi have
been prepared after determination of the optimum plot size required for a Gowala
family. The plot size determined was 30' x 60'. The said letter also made it
clear that each plot would accommodate a shed of 11 to 12 cows, a residential
unit with a plinth area of 484 sq. ft. and space for cow dung dumping and Gobar
Gas Plant. Copy of the letter dated 5.10.94 is in the custody of Director of
Estates. Ultimately, 432 plots have been carved out during 195 for allotment to
the Gowalas at villages, Garkana, Pandara, Patrapanda and Jokalandi
Petitioners understand that on 2.9.95, the director of Estates held further
meeting in the presence of planning member of Bhubaneswar Development
Authority, officer of Bhubaneswar Municipal Corporation, Orissa State Housing
Board for immediate rehabilitation of Gowalas. Though in the said meeting a
decision was taken to rehabilitate the Gowalas of Bhubaneswar immediately at Pandara,
Gadakana, Jokalandi and Patrapada, till date nothing has been done in the
matter." The said statements were not denied and disputed in the counter
affidavit, as would appear from paragraph 7 thereof which is as follows:
with regard to the averments made in para 4 to 9, it is submitted that
rehabilitation scheme has received for active consideration of Gowallas, it is
submitted that present Milk Producers Association and Utkal Jadev Mahasangha
have prayed for their rehabilitation. In the meeting held on 2.9.1995, the
Members of Milk Producers Association have expressed that if they are
rehabilitated in Village Pandaras, they will have no objection. In the
meantime, Government have taken a decision to rehabilitate the Petitioners in Pandara
Mouza and accordingly land measuring an area of AC. 28.180 dec. has been
identified for the said purpose.
B.D.A. has prepared a plan and Government have decided to allot 25X40' size
plots to the Petitioners/ Gowallas and they shall have to pay premium on the
prevailing rate fixed by the Government. If these lands in village Pandara is
not found to be sufficient few plots can be allotted in village Patrapada, Jamukoli
and Jokalandi for their rehabilitation." The Appellants before us raised a
contention that they are not averse in moving out of the town of Bhubaneswar but they should be provided with
alternative accommodation in terms of the rehabilitation scheme wherefor they
are ready and willing to pay the market value for the plot which may be
allotted. The contention of the Respondent, on the other hand, is that having
regard to the provisions contained in the Orissa Municipal Corporation Act,
2003 and in view of the Master Plan, the Appellants must vacate the lands
possessed by them. Further contention of the State is that keeping in view of
the changed situation, a policy decision had been taken that for hygienic and
other reasons, it is not possible to rehabilitate them in the villages which
come within the purview of the planned area of Bhubaneswar. It was stated that the members of the Appellant No. 1
Association are not poor and in view of the averments made by them in the
petition for special leave that they produce and supply about 10,000 litres of
milk to the residents of Bhubaneswar, their average family income would be
about Rs. 1,85,950/- after deducting 50% of the total income towards
establishment and maintenance charges and some of them have their own lands and
houses in the town of Bhubaneswar.
B.A. Mohanti, learned senior counsel appearing on behalf of the Appellants would
submit that keeping in view the fact that the State of Orissa had come out with a policy decision
that on their eviction the Appellants would be rehabilitated, there is
absolutely no reason as to why such policy decision should not be adhered to.
It was submitted that before the High Court, even it was not contended by the
State that the said policy decision had become unworkable and it is in that
view of the matter, the High Court made the following observation:
the State Government take appropriate steps for rehabilitation of the gowallas
of Bhubaneswar City. It is open for the Government to take up rehabilitation
but that cannot be a condition precedent for the eviction of the Petitioners.
It is also open for the Government to proceed with eviction of the gowallas in
accordance with law." According to the learned counsel, it is against only
that portion of the judgment of the High Court, the Appellants are before us.
Das, learned counsel appearing on behalf of the Respondents, on the other hand,
argued that if the Chief Minister was the author of the earlier policy
decision, he has resiled therefrom as would appear from a notesheet dated
would contend that as the members of the Appellant No. 1 Association are not
poor people, they do not deserve any sympathy.
it was urged that in view of the amendments in the Orissa Municipal Corporation
Act, it is now impermissible to keep cattle within the town of Bhubaneswar. It is no doubt true that the Chief
Minister of the State of Orissa in view of the representations made before him
took a policy decision that the members of the Appellant No. 1 Association
would be rehabilitated in certain villages and in particular, villages of Pandara,
Patrapada, Gadakana and Jokalandi; but it was later on detected that all the
aforementioned villages are within the Master Plan since 1982. Before the Chief
Minister, admittedly a notesheet was produced wherein it was inter alia stated:
" In the
area identified in Mouza-Pandara measuring Ac. 16.120 dec., there have been
many encroachments besides as mentioned at Para 4(e) of P. 25/N an area of Ac.
4,084 dec. out of this area is subjudice vide OJC No. Orissa).
Corporation Act, 2003 has been enacted which prohibits keeping of animals in
the premises so as to be nuisance or danger to any persons besides having other
stringent conditions with regard to keeping the cows and buffalos within the
city limits of Bhubaneswar." Mr. Das submitted that in
view of the fact that these plots were not free from encroachment and other
litigations, rehabilitation of Gowallas according to the said notesheet became
an impractical proposition for the reasons stated therein.
we advert to the rival contentions raised by the parties, we may state that a xerox
copy of the said notesheet was directed to be handed over to the learned
counsel for the petitioner and the entire records were allowed to be inspected.
The Appellants upon inspection of the said record have filed an affidavit
contending that no decision had been taken by the State as yet to resile from
the earlier policy decision and merely a decision had been taken to affirm an
affidavit before this Court to the effect that it is not possible to
rehabilitate the members of the Appellant No. 1 Association.
8 (a), 8(d), 8(e), 8(f), 9 and 10 of the said notesheet read as under:
" Bhubaneswar is rapidly growing city with the
BDA projection of a population of 8.5 lakhs in the year 2005.
health and traffic hazards caused by Gowallas needs to be stopped. The new Orissa
Municipal Corporation Act, 2003 has specific and stringent provisions in this
of Gowallas within the master plan of Bhubaneswar will be against the spirit of the Orissa Municipal
Corporation Act, 2003 as well as other environmental laws.
No villages outside the Master Plan area have been located or identified nor
feasibility of the same has been conducted keeping in view the availability of
There is also an
issue of providing a non- discriminatory treatment in the matter of
stage, the Government has prepared the full plan for rehabilitation of all Gowallas
nor has it been found to be feasible. On the other hand, encroachments in the
name of "Gowallas" have been growing in the Bhubaneswar city as is evident from the SLP
itself. For instance, the petitioner has mentioned in the SLP that there are
1000 families who will be affected. While it is not possible to confirm these
numbers without a survey, it is clear that the problem of Gowallas in the Bhubaneswar city has further grown as in 1994,
686 such 'Gowallas' were identified. There have been many decisions by Hon'ble
High Court as well as by the Supreme Court, where it has been held that there
should not be on any premium on encroachment. For instance, in OJC 2312/89 of
High Court of Orissa have passed an order in which the Hon'ble Court clearly ordered "the
rehabilitation scheme is neither requirement of law nor a mandatory condition
precedent for eviction of encroachers or unauthorized occupations of Government
In view of the
above reasons, it may be appropriate if the Government reviews its earlier
decision with regard to rehabilitation of Gowallas in Village Pandara, which
is within the Bhubaneswar Municipal Corporation area in view of the
difficulties involved not only in practical implementation but also because of
with new stringent requirements which have come up under Orissa Municipal
Corporation Act 2003 subsequent to the earlier decision of the Government in
The occupation of cattle-rearing and
is best served in rural areas, as it requires availability of land, water
ponds, free movement space and other linkages with agriculture. In urban areas
the density of population is growing and the traffic problems are acute, this
occupation becomes a public nuisance and health and traffic hazard. The supply
of milk to Bhubaneswar is adequate. People in urban areas
buy milk in hygienic conditions, Government has separately promoted big
dairying activity in rural areas with adequate investment on chilling and
pasteurization plants from where city gets its supply of milk easily without
any difficulties. The Gowallas, who wish to carry out their occupation move to
the rural areas and supply milk through linkages already established. The
Department of Animal Husbandry is of the similar view which is reflected in
their affidavit." Indisputably, the said proposal found favour with the
Chief Minister and pursuant to or in furtherance thereof, an affidavit has been
filed before us on behalf of the State of Orissa wherein it has been stated:
"A rehabilitation programme for Gowallas under the present circumstances is not
found to be feasible. The earlier Government attempt to carve out plots for
only a few of the petitioners could not succeed due to reasons mentioned at
Para 3 above. On the other hand, encroachments in the name of "Gowallas"
have been growing in Bhubaneswar city as is evident from the Special
Leave Petition itself. For instance, the petitioners have mentioned in the
Special Leave Petition that there are 1000 milkmen families who will be
it is not possible to confirm or rebut these numbers without a survey, it is
clear that the problem of encroachments by Gowallas in the Bhubaneswar city has only grown. In 1994, for
instance, only 686 such 'Gowalla families' were identified in a survey.
of cattle rearing will be best suited for rural areas, as it requires
availability of land, water ponds, free movement space and other linkages with
agriculture. In urban areas, where the density of population is high and
traffic problems are acute, this occupation becomes a public nuisance and
health and traffic hazard. The supply of milk to Bhubaneswar is adequate. People in urban areas buy milk in hygienic conditions,
Government has separately promoted big dairying activity in rural areas with
adequate investment on chilling and pasteurization plants from where city gets
its supply of milk easily without any difficulties. The Gowallas, who wish to
carry out their occupation, should make their own arrangements to shift to
rural areas on their own and supply milk through linkages already established.
the fact and circumstances submitted in the foregoing paragraphs, the
Government does not intend to rehabilitate Gowallas who have been encroaching
Public land." It has further been contended that encroachments by Gowallas
also pose health and traffic hazards for the residents of Bhubaneswar and in view of the fact that other
encroachers had also started seeking for rehabilitation package, the State
cannot have special programme for rehabilitation for one class of encroachers
and not for others. From the records, it further transpires that the Orissa
State Cooperative Milk Producers' Federation Limited (OMFED) had come into
being. It is also in a position to satisfy the need of milk to the residents of
town of Bhubanewsar. OMFED is prepared to collect milk
from Gowallas if they become member of the nearest Milk Producing Society /
District Milk Producers Union affiliated to it and if they move out of the town
of Bhubaneswar, there cannot be any problem to provide feed and fodder along
with medical facility for the cattle through the existing infrastructure
available in the close proximity of the area. It has further been brought on
record that all milkmen are economically sound stating:
admitted by the petitioners in the present Special Leave Petition, per day milk
production is about 50000 litres and as per survey of General Administration
Department, Government of Orissa about 687 nos. of Gowallas families are
residing in Bhubaneswar City. So income per annum of each family comes out to about Rs.
3,71,910.00 (50,000 Lts./687 families x 365 x Rs. 14.00 per litre). Deducting
50% out of the total income towards establishment & maintenance charges,
net annual income per family comes to around 1,85,950.00.
cannot be admitted that all Gowallas are economically poor. On the other hand,
it is brought to the kind notice of this Hon'ble Court that about 30 Gowalla families are quite rich and now own
their own land and building in Bhubaneswar
city." The State has enacted Orissa Municipal Corporation Act in the year
2003, the relevant provisions whereof are as under:
No person shall tether any animal in
any public street.
Any animal tethered as aforesaid may
be removed by the Commissioner, or by any Corporation Officer or employees and
made over to a police officer or may be removed by a police officer, who shall
deal therewith as with an animal found straying."
No person shall
written permission of the Commissioner or otherwise than in conformity with the
terms of such permission, keep any swine in any part of the city;
keep any animal
on his premises so as to be a nuisance or danger to any person; and
animals, or suffer or permit any animal, to be fed, or to feed with or upon excrementitious
matter, dung, stable refuse or other filthy matter."
No person shall
steep in any
tank, reservoir, steam, well or ditch, any animal, vegetable or mineral matter
which will likely to render the water thereof offensive or dangerous to health;
from any contagious, infectious or loath some disease, bathe on, in or near any
bathing platform, lake tank, reservoir, fountain, duct, standpipe, stream or
well." The said Act also contains a penal provision in the following
"652. Whoever, in any case in which a
penalty is not expressly provided by this Act, fails to comply with any notice
or order or requisition issued under any provisions thereof, or otherwise
contravenes any of the provisions of this Act, shall be punishable with fine
which may extend to one thousand rupees, and in the case of a continuing
failure or contravention, with an additional fine which may extend to one
hundred rupees for every day after the first during which he has persisted in
such failure or contravention." Bhubaneswar is the capital of the State of Orissa. As stated in the affidavits filed
on behalf of the State, several steps had been undertaken for for attracting
more tourists. The statute also prohibits maintenance of cowsheds or dairies in
or around the town of Bhubanewsar. The Master Plan of Bhubanewsar
prepared as far back in 1982 is in force. Within its ambit not only the town of
Bhubanewsar, but several other villages come. In civic society, Town planning
indisputably plays an important role.
occupation by the encroachers in the areas which are meant for planned
development goes a long way in thwarting the goals sought to be achieved by
such town planning.
question came up for consideration, in Friends Colony Development Committee v.
State of Orissa and Others [(2004) 8 SCC 733]
wherein this Court observed:
all developed and developing countries there is emphasis on planned development
of cities which is sought to be achieved by zoning, planning and regulating
building construction activity. Such planning, though highly complex, is a
matter based on scientific research, study and experience leading to rationalisation
of laws by way of legislative enactments and rules and regulations framed thereunder.
Zoning and planning do result in hardship to individual property owners as
their freedom to use their property in the way they like, is subjected to
regulation and control. The private owners are to some extent prevented from
making the most profitable use of their property. But for this reason alone the
controlling regulations cannot be termed as arbitrary or unreasonable. The
private interest stands subordinated to the public good. It can be stated in a
way that power to plan development of city and to regulate the building
activity therein flows from the police power of the State.
exercise of such governmental power is justified on account of it being
reasonably necessary for the public health, safety, morals or general welfare
and ecological considerations; though an unnecessary or unreasonable
intermeddling with the private ownership of the property may not be justified.
municipal laws regulating the building construction activity may provide for
regulations as to floor area, the number of floors, the extent of height rise
and the nature of use to which a built-up property may be subjected in any
particular area. The individuals as property owners have to pay some price for
securing peace, good order, dignity, protection and comfort and safety of the
community. Not only filth, stench and unhealthy places have to be eliminated,
but the layout helps in achieving family values, youth values, seclusion and
clean air to make the locality a better place to live.
regulations also help in reduction or elimination of fire hazards, the
avoidance of traffic dangers and the lessening of prevention of traffic
congestion in the streets and roads. Zoning and building regulations are also legitimised
from the point of view of the control of community development, the prevention
of overcrowding of land, the furnishing of recreational facilities like parks
and playgrounds and the availability of adequate water, sewerage and other
governmental or utility services." Yet again in N.D. Jayal and Another v.
Union of India and Others [(2004) 9 SCC 362], a 3-Judge Bench of this Court
noticed that several factors including flora and fauna, water quality
maintenance and impact on health and rehabilitation are relevant factors for
the purpose of maintenance of ecology. Emphasising the need of adherence to
sustainable development principle for the maintenance of the symbiotic balance
between the rights to environment and development, it was observed:
to environment is a fundamental right. On the other hand, right to development
is also one. Here the right to "sustainable development" cannot be
the concept of "sustainable development" is to be treated as an
integral part of "life" under Article 21.
concepts like intergenerational equity (State of H.P. v. Ganesh Wood Products),
public trust doctrine (M.C. Mehta v. Kamal Nath) and precautionary principle (Vellore
Citizens), which we declared as inseparable ingredients of our environmental
jurisprudence, could only be nurtured by ensuring sustainable
development." This Court highlighted the necessity of strict compliance of
the provisions of the Environmental Protection Act, 1986 stating:
the power under the Act cannot be treated as a power simpliciter, but it is a
power coupled with duty. It is the duty of the State to make sure the fulfilment
of conditions or direction under the Act. Without strict compliance, right to
environment under Article 21 could not be guaranteed and the purpose of the Act
will also be defeated. The commitment to the conditions thereof is an
obligation both under Article 21 and under the Act." We have noticed
hereinbefore that the provisions of the Orissa Municipal Corporation Act also
aim at maintenance of health and hygienic amongst the residents of the town of Bhubaneswar.
Tagore and Others v. Union of India and Others [(2005) 3 SCC 16], this Court
was concerned with interpretation of the provisions of Visva-Bharati Act, 1951
which was enacted to preserve and protect the uniqueness, tradition and special
features of Visva-Bharati University.
this Court opined:
may be true that the development of a town is the job of the Town Planning
Authority but the same should conform to the requirements of law. Development
must be sustainable in nature. A land use plan should be prepared not only
having regard to the provisions contained in the 1979 Act and the Rules and
Regulations framed thereunder but also the provisions of other statutes enacted
therefor and in particular those for protection and preservation of ecology and
has the unique distinction of being not only a university of national
importance but also a unitary one, SSDA should be well advised to keep in mind
the provisions of the Act, the object and purpose for which it has been enacted
as also the report of the West Bengal Pollution Control Board. It is sui generis."
Mr. Mohanti may be right in his contention that by reason of such notesheet
dated 18.10.2005 alone no policy decision was laid down but evidently thereby
earlier policy decision was resiled from. Mr. Das has placed before us the
entire records. As indicated hereinbefore, the said records were made available
to the Appellants for inspection. It is neither in doubt nor in dispute that it
was the Chief Minister himself who thought of rehabilitating the members of the
Appellant No. 1 Association in the year 1994-95.
or wrongly, the same has not been given effect to. The State, furthermore,
proceeded on a mistaken notion that the villages named therein are outside the
Master Plan and that the rehabilitation programme could be carried out in the
said villages. The said villages, apart from being subjected to encroachments
and other litigations being within the Master Plan of Bhubaneswar, no
rehabilitation programme could be carried out. No policy decision has been
brought to our notice as such which could give rise to a legal right in the
Appellants. No notification in terms of Article 162 of the Constitution of
India had been issued. The assurance on behalf of the Government came from the notesheet
approved by the Chief Minister and on the basis whereof the State took a stand
in its affidavit before the High Court. Evidently, the matter has been
considered afresh and the same had been brought to the notice of the Chief
Minister. He having agreed thereto, must be held to have expressly resiled from
the earlier promise, if any.
even an executive action on the part of the State must give way to the
statutory scheme. As by reason of the Orissa Municipal Corporation Act, within
the periphery of the town, dairies or cowsheds cannot be maintained, the State
would not be entitled to adhere to its earlier plan of rehabilitating them in
the villages mentioned therein.
be true that the members of the Appellant No. 1 Association were to pay for the
plot. But, only because they are aggreable to pay for the plot which may be
allotted to them, that by itself in our considered view would not clothe them
with the legal right to be rehabilitated. There does not exist any legal
concept which confers a legal right upon an encroacher to be rehabilitated. The
matter may be different where the State comes out with a policy decision which
meets the constitutional scheme as envisaged under Article 162 of the
Constitution of India. In the instant case, we have noticed that the Appellants
have failed to show the existence of any such scheme, which can be said to be
irretrievable in nature. In view of the 2003 Act, even the doctrine of
Promissory Estoppel will have no application.
reasons aforementioned, we are of the opinion that the High Court has not
committed any illegality in passing the impugned judgment warranting
interference by us with the directions of the High Court that the State would be
entitled to proceed to evict the Appellants in accordance with law. The appeals,
for the forgoing reasons, are dismissed. However, in the facts and circumstances
of this case, there shall be no order as to costs.