Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors. - Court Judgment

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '101(2006)CLT110',
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		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
	)
)
$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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M.M. Das, J.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '101(2006)CLT110',
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		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
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		(int) 0 => '536195',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
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			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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)
$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '101(2006)CLT110',
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		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
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			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
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		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
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		'circuit' => null
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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(i) the land is a stitiban land and is not a leasehold land;

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
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		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
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		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
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		'circuit' => null
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '101(2006)CLT110',
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		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
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		(int) 0 => '536195',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
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			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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		'pubs' => '101(2006)CLT110',
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
	'args' => array(
		(int) 0 => '536195',
		(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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13. With the above observations and directions, the Writ Application is disposed of.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '101(2006)CLT110',
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		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-sudhamayee-acharjya-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/536195/smt-sudhamayee-acharjya-vs-state-orissa'
$ctype = ' High Court'
$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
$content = array(
	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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S.B. Roy, J.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
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	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
)
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14. I agree.

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	'title_for_layout' => 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '536195',
			'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
			'appealno' => 'W.P. (C) No. 859 of 2005',
			'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
			'authreffered' => '',
			'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
			'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
			'caseanalysis' => null,
			'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
			'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
			'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
			'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2005-11-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p style="text-align: justify;">2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p style="text-align: justify;">3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p style="text-align: justify;">4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p style="text-align: justify;">5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p style="text-align: justify;">6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p style="text-align: justify;">7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p style="text-align: justify;">Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p style="text-align: justify;">70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p style="text-align: justify;">(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p style="text-align: justify;">(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p style="text-align: justify;">(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p style="text-align: justify;">(i) the land is a stitiban land and is not a leasehold land;</p><p style="text-align: justify;">(ii) the coverage is not more than 40%;</p><p style="text-align: justify;">(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p style="text-align: justify;">(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p style="text-align: justify;">(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p style="text-align: justify;">(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p style="text-align: justify;">(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p style="text-align: justify;">8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p style="text-align: justify;">9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p style="text-align: justify;">10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p style="text-align: justify;">11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p style="text-align: justify;">12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p style="text-align: justify;">13. With the above observations and directions, the Writ Application is disposed of.</p><p style="text-align: justify;">S.B. Roy, J.</p><p style="text-align: justify;">14. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '101(2006)CLT110',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'smt-sudhamayee-acharjya-vs-state-orissa',
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$title_for_layout = 'Smt Sudhamayee Acharjya and ors Vs State of Orissa and ors - Citation 536195 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '536195',
		'acts' => 'Orissa Development Authorities Act, 1982 - Sections 8 to 14, 16, 22, 69, 70, 106, 123, 124 and 125; Orissa Town Planning and Improvement Trust Act, 1956 - Sections 31 and 32; Bangalore Development Authority Act; Bangalore Development Authority (Plan and Building Standard) Regulation, 2001 - Regulation 12; Zoning Regulations - Regulation 70',
		'appealno' => 'W.P. (C) No. 859 of 2005',
		'appellant' => 'Smt. Sudhamayee Acharjya and ors.',
		'authreffered' => '',
		'casename' => 'Smt. Sudhamayee Acharjya and ors. Vs. State of Orissa and ors.',
		'casenote' => 'Property - Lease - Validity of - PIL - Orissa Development Authorities Act, 1982 Orissa Development Authorities Act, 1982 - Suit land was earmarked for construction of Bus stop in master plan and concerned authorities without adhering to provisions of statute governing field and in violation thereof have permitted opposite party No. 6 to construct hotel over said land - Petitioners filed PIL alleging that if such hotel is allowed to be constructed over suit land, same would be facing residential houses of inhabitants of locality and would not only disturb peace of locality but also will affect their right of privacy - Petitioners further sought for issuance of writ of mandamus directing opposite parties strictly follow master plan prepared under Act - Whether opposite parties have acted contrary to Act and zoning regulations framed thereunder in leasing out land in favour of opposite party No.6? - Held, Zoning Regulations make specific provision for construction of hotel in residential zone provided, said construction of hotel will not be permitted to cause any sort of nuisance to residential area - Considering relevant Act and Regulations, prayer of Petitioners to set aside lease granted for construction of hotel over suit land cannot be granted - While declining to interfere with lease granted in favour opposite party No. 6 for construction of hotel - Directed competent authority to ensure that construction of hotel is made strictly in accordance with plan approved by authority and opposite party No.1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of said hotel to residential area or its inhabitants - Writ disposed of with above observations and directions - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  , the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. (4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations. (6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible. clearly incidental to residential use (except service uses)which will not create a nuisance or hazard. 10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park.',
		'caseanalysis' => null,
		'casesref' => ' and H. Kashinath and Ors. v. State of Karnataka and Ors.;',
		'citingcases' => '          LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES
                       (See Regulation 70)
                           Table - 17
------------------------------------------------------------------------------------
Use Zone                 Use Permitted    Up to 30% of the area          Use 
                                           to be permitted on        Prohibited
                                            first-cum-first 
                                              served basis
------------------------------------------------------------------------------------
(1)                          (2)                 (3)                     (4)
------------------------------------------------------------------------------------
1. Residential       1. Residential, Hostel, 1. Places of worship.   1. Slaughter
    Use Zone            Boarding houses                                 houses, 
                        with density limita-                            Industries.
                        tions, if any.

                     2. Schools.             2. Professional, Comme- 2. All uses 
                                                rcial, Government       not speci-
                                                and Semi Government     fically
                                                offices Institutions.   permitted.
                     3. Health Clinics.      3. Service uses and shops.
                     4. Social, cultural and 4. Hotels, Hospitals and
                        neighbourhood,          Sanatoria not treating
                        recreational Insti-     contagious diseases
                        tutions with            mental patients, if set 
                        adequate parking        back and coverage
                        facilities.             of plots are such as 
                                                not to constitute 
                                                nuisance to the 
                                                residential area.
                     5. Public Utilities and 5. Colleges and Research
                        public buildings.       Institutions of non-
                                                commercial nature, if 
                                                the building is located 
                                                at a distance of not 
                                                less than 8 metres.
                                                From the boundary 
                                                of the plot.
                     6. Non - commercial     6. Rearing of poultry and
                        agricultural gardens,   cattle for non-comm-
                        nursery and green       ercial use if no bird or
                        houses.                 animal is Housed 
                                                closer than 6 metres 
                                                of a Dwelling.
                     7. Any neighborhood     7. Removal of gravel, clay
                        recreation uses         sand or stone for
                        including clubs and     development of site
                        other semi-public       which will not in the
                        recreational uses.      stagnation of water or 
                                                cause other nuisance.
                     8. Accessory uses       8. Bus stop.
                        clearly incidental to 
                        residential use 
                        (except service uses)
                        which will not 
                        create a nuisance 
                        or hazard.

                     9. Customary home        9. Petrol filling Station
                        occupation if the        on roads of 12 metres.
                        area for such use        Or more width if they
                        does not exceed          fulfill other requirement
                        25 percent of the        laid down in this
                        total floor area of      connection.
                        the dwelling and 
                        there shall be no 
                        public display of 
                        the goods.
------------------------------------------------------------------------------------
',
		'counselplain' => ' G.P. Mohanty and; H.P. Mohanty, Advs.',
		'counseldef' => ' Addl. Government Adv. for O.P. Nos. 1 and 2,; D. Mohapatra,; ',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2005-11-08',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' S.B. Roy, C.J. and; M.M. Das, J.',
		'judgement' => '<p>M.M. Das, J.</p><p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').</p><p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.</p><p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .</p><p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.</p><p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.</p><p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.</p><p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.</p><p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :</p><p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.</p><p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.</p><p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.</p><p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.</p><p>(i) the land is a stitiban land and is not a leasehold land;</p><p>(ii) the coverage is not more than 40%;</p><p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;</p><p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.</p><p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.</p><p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.</p><p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------</p><p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.</p><p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.</p><p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.</p><p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.</p><p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.</p><p>13. With the above observations and directions, the Writ Application is disposed of.</p><p>S.B. Roy, J.</p><p>14. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '101(2006)CLT110',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Civil',
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		'circuit' => null
	)
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$caseref = ' and H. Kashinath and Ors. v. State of Karnataka and Ors.<br>'
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	(int) 0 => '<p>M.M. Das, J.',
	(int) 1 => '<p>1. The petitioners in this Writ Petition who are residents of Nayapalli area in Bhubaneswar Town, have filed the present Writ Petition in the nature of Public Interest Litigation for quashing the lease and subsequent approval of the building plan and grant of permission made in favour of Opp. Party No. 6 for construction of a hotel over Plot No. B/6 corresponding to revenue plot Nos. 1578 (Part), 1603 and 1602 (Part) in Khata No. 1427 in unit XVI, mouza Jayadev Bihar, Bhubaneswar. The petitioners have further sought for issuance of writ of mandamus directing the Opp. Parties 1 to 5 to strictly follow the master plan prepared under the Orissa Development Authorities Act, 1982 (for short 'O.D.A. Act').',
	(int) 2 => '<p>2. It is the case of the petitioners that the above mentioned land was earmarked for construction of a Bus stop in 1974 master plan and the concerned authorities without adhering to the provisions of the statute governing the field and in violation thereof have permitted the Opp. Party No. 6 to construct a hotel over the said land. The petitioners have further alleged that if such a hotel is allowed to be constructed over the plot in question, the same would be facing the residential houses of the inhabitants of the locality and would not only disturb the peace of the locality but also will affect their right of privacy. According to the petitioners, if the hotel is permitted to function in the said site, it would also cause parking problems and will endanger the lives of the small children who use the road in front of the proposed hotel, while going to and returning from the School.',
	(int) 3 => '<p>3. Mr. G. P. Mohanty, Learned Counsel appearing for the petitioners submitted that the land described above being originally earmarked for a Bus stop in the master plan prepared in 1974, the concerned authorities have violated the provisions of Sections 8 to 14, 22 & 106 of the O.D.A. Act. Mr. Mohanty vehemently argued that under proviso to Section 8 of the O.D.A. Act, the master plan of 1974 which was prepared under the Orissa Town Planning and Improvement Trust Act, 1956 (hereinafter referred to as 'the O.T.P. & I.T. Act') became a valid Master Plan under the O.D.A. Act. He further contended that no document has been produced by the Opp. Parties to show that the Master Plan of the year, 1974 was modified and a comprehensive Master Plan was prepared and published in the year, 1994 as pleaded by the Bhubaneswar Development Authority (for short 'B.D.A.'). He drew the attention of the Court to the provisions of Sections 69 & 70 of the O.D.A. Act and submitted that though in Section 70 it is provided that 30 percent of the land in a residential zone can be utilised for the purpose of ancillary and compatible uses, but hotel being not ancillary to the residential area and not a compatible use, it should be held that construction of a hotel in a residential area which, in fact, is an industry, should not be permitted. It was further contended on behalf of the petitioners that since vacant land is available in commercial zones and industrial zones, permitting construction of hotel in residential zones ipso facto speaks mala fide on the part of the Opp. Parties 1 to 5. In support of his contention, Mr. Mohanty relied upon the decision in the cases of Bangalore Medical Trust v. B. S. Muddappa and Ors. : [1991]3SCR102 and H. Kashinath and Ors. v. State of Karnataka and Ors. : AIR1995SC2510 .',
	(int) 4 => '<p>4. In W.P.(C) No. 13624 of 2004 where the petitioner's association has also made a similar challenge to the grant of lease of the land in favour of M/s Hotel Bari International and permission to construct the hotel, the B.D.A., the Proprietor of the Hotel as well as the State of Orissa have filed their counter affidavits and they have adopted the said counter affidavits in the present Writ Application.',
	(int) 5 => '<p>5. The B.D.A. in its counter affidavit has denied the allegation that the land described above, was originally reserved for construction of a bus stop in the year 1974 Master Plan. Though it is stated in the counter affidavit that in the 1974 Master Plan. There was a provision for construction of a Bus stop in Sector N-4, on super imposition of the maps it is clearly ascertained that the plots of land leased out for construction of the hotel does not cover the land which was ear-marked for construction of a Bus stop in the 1974 Master Plan. Relying upon the averments made in the counter affidavit Mr. Dayananda Monapatra, Learned Counsel appearing for the B.D.A contended that the B.D.A. (Plan and Building Standard) Regulation, 2001 permits construction of hotel in residential zone. An application being made by the Proprietor of the hotel for permission, as required under Section 16 of the O.D.A. Act, for construction of basement +2 storied building, the concerned authorities, in accordance with the provisions of the O.D.A. Act and on considering all relevant aspects, approved the said plan for construction of the building on 19.9.2002 and the concerned authorities are regularly supervising the construction so as to prevent any deviation from the approved plan. He further submitted that the land in question was allotted and leased out by the G. A. Department of the Government for construction of the hotel as per the decision of-the Government.',
	(int) 6 => '<p>6. In the counter affidavit filed on behalf of the State, it has been averred that the land in question is within a residential used zone and is not reserved for Bus stop. It is further stated that construction of the hotel over the land in question does not violate the Zoning Regulation of the B.D.A. Thus, in effect, the Opp. Parties contended that there has been absolutely no violation of any of the provisions of the O.D.A. Act nor the regulations made thereunder and for the above reasons, the Writ Application is devoid of any merit.',
	(int) 7 => '<p>7. In order to appreciate the rival contentions of the respective parties, it is necessary to refer to some of the provisions of the O.D.A. Act and the Zoning Regulations framed thereunder.',
	(int) 8 => '<p>Sections of the O.D.A. Act provides for preparation of an interim development plan for the concerned area. In the proviso to Section 8, it is prescribed that if before the constitution of an Authority under the O.D.A. Act for any development area, a Master Plan of such area or part thereof, has been published under Section 31 of the O.T.P. & I.T. Act or approved under Section 32 thereof, the said Master Plan shall be deemed to be an interim development plan published by the authority. Section 9 of the O.D.A. Act provides for preparation of a comprehensive development plan after conducting a survey. Section 10 provides for preparation of zonal development plan for each of the zones into which the area covered by the comprehensive development plan may be divided. Sections 11, 12 & 13 of the O.D.A. Act provide the manner in which the development plan is to be approved by the State Government and the coming into operation of the development plan. Section 14 empowers the authority under the O.D.A. Act to make any modification to the development plan in the manner provided therein. Section 125 of the O.D.A. Act prescribes the procedure for making rules and regulations as provided under Sections 123 & 124 of the O.D.A. Act. Zoning Regulations have been framed as per the O.D.A. Act. Regulation 70 in Part-IV of the Zoning Regulations framed under the O.D.A. Act prescribes as follows :',
	(int) 9 => '<p>70. (1) Permission for different uses shall be accorded outright for principal use earmarked in the different zones described in column (2) of the table No. 17.',
	(int) 10 => '<p>(2) Upto 30% of the land in a permissible zone can be utilized for the purpose of ancillary and compatible uses as specified in column (3) of the said table. Permission shall be granted on first-come-first serve basis.',
	(int) 11 => '<p>(3) The purposes specified in column (4) of the said table shall not be permitted in the areas reserved for particular uses.',
	(int) 12 => '<p>(4) In the 'open space use' zone, activities like parks, playgrounds, temporary fairs, plantations, may be taken up. Only Residential buildings may also be permitted in the open space use zone if the following conditions are satisfied along with other conditions of these Regulations.',
	(int) 13 => '<p>(i) the land is a stitiban land and is not a leasehold land;',
	(int) 14 => '<p>(ii) the coverage is not more than 40%;',
	(int) 15 => '<p>(iii) The height is not more than 7.0 (seven) metres; and at least 20 percent of land is used for plantation;',
	(int) 16 => '<p>(5) In transport use zone, activities relating to roads, transport depots, bus terminal, bus stop, truck terminal, shall be permissible. In case of such use, a fee will be charged by the Authority, which shall be spent for development and ancillary facilities in these zones.',
	(int) 17 => '<p>(6) In green belt use zone, the activities like agriculture, plantation, burial grounds, solid waste disposal units, shall be permissible.',
	(int) 18 => '<p>(7) The permissions granted in exception of zonal use shall be incorporated in the public notice in the manner as referred to in Regulation 12.',
	(int) 19 => '<p>(8) Where a land put to mixed use in a particular zone as per Regulations, the main use should cover not less than 2/3rd of the total floor area and the ancillary use should not exceed 1/3rd of the total area. LANE USE PERMITTED/PROHIBITED IN DIFFERENT USE ZONES(See Regulation 70)Table - 17------------------------------------------------------------------------------------Use Zone Use Permitted Up to 30% of the area Use to be permitted on Prohibitedfirst-cum-first served basis------------------------------------------------------------------------------------(1) (2) (3) (4)------------------------------------------------------------------------------------1. Residential 1. Residential, Hostel, 1. Places of worship. 1. SlaughterUse Zone Boarding houses houses, with density limita- Industries.tions, if any.2. Schools. 2. Professional, Comme- 2. All uses rcial, Government not speci-and Semi Government ficallyoffices Institutions. permitted.3. Health Clinics. 3. Service uses and shops.4. Social, cultural and 4. Hotels, Hospitals andneighbourhood, Sanatoria not treatingrecreational Insti- contagious diseasestutions with mental patients, if set adequate parking back and coveragefacilities. of plots are such as not to constitute nuisance to the residential area.5. Public Utilities and 5. Colleges and Researchpublic buildings. Institutions of non-commercial nature, if the building is located at a distance of not less than 8 metres.From the boundary of the plot.6. Non - commercial 6. Rearing of poultry andagricultural gardens, cattle for non-comm-nursery and green ercial use if no bird orhouses. animal is Housed closer than 6 metres of a Dwelling.7. Any neighborhood 7. Removal of gravel, clayrecreation uses sand or stone forincluding clubs and development of siteother semi-public which will not in therecreational uses. stagnation of water or cause other nuisance.8. Accessory uses 8. Bus stop.clearly incidental to residential use (except service uses)which will not create a nuisance or hazard.9. Customary home 9. Petrol filling Stationoccupation if the on roads of 12 metres.area for such use Or more width if theydoes not exceed fulfill other requirement25 percent of the laid down in thistotal floor area of connection.the dwelling and there shall be no public display of the goods.------------------------------------------------------------------------------------',
	(int) 20 => '<p>8. Though it has been averred that the Government and the statutory authorities have grossly violated the Master Plan of the city in permitting the hotel to be constructed in a residential zone, but no allegation of violation of any specific provision of the O.D.A. Act or the Zoning Regulations has been made by the petitioners. It appears from the averments made in the counter filed on behalf of the B.D.A. that a comprehensive development plan was prepared in the year 1994 by the competent authority under the said Act in which the land in question was not ear-marked for Bus stop. It has been furhter averred that the area ear-marked for Bus stop in the plan prepared under the O.T.P. & IT. Act in 1974, is not the land leased out for construction of the hotel by the G.A. Department of the Government.',
	(int) 21 => '<p>9. The only question left for consideration is as to whether the Opp. Parties have acted contrary to the O.D.A. Act and the Zoning Regulations framed thereunder in leasing out the land in favour of M/s. Hotel Bari International/its Proprietor and approving the building plan for construction of a hotel over the land in question which is admittedly a part of a residential zone. In order to discern the above, we would refer to Regulation 70 in Part IV of the Zoning Regulation quoted above. It is clear from table 17 of the said Regulation that 30 per cent of a residential use zone can be permitted to be used for construction of hotel on 'first come first serve basis' provided sufficient set back is left as per the O.D.A. Act and Building Regulations so as to prevent nuisance to the residential area.',
	(int) 22 => '<p>10. In the case of Bangalore Medical Trust (supra) the Supreme Court while dealing with conversion of public park into a private Nursing Home and the maintainability of a Public Interest Litigation held that such an application is maintainable as under the Bangalore Development Authority Act, a private Nursing Home could neither be considered to be an amenity not it could be considered improvement over necessity like a public park. The exercise of power in conversion of a public park into a private Nursing Home was contrary to the purpose for which it was conferred under the Statute.',
	(int) 23 => '<p>11. In the case of H. Kashinath and Ors. (supra) the Supreme Court was dealing with legality of a lease granted to an association for a piece of land ear-marked for public or semi-public purpose under the comprehensive development plan. In that context, the lease granted to the association for the purpose of building a theatre to give training to the film artists and for the purpose of development of drama and films was held to be not for public or semi public purpose but purely for the benefit of the lessee. On such finding, the Supreme Court set aside the lease granted by the concerned authority to the association for constructing and setting up the theatre in question. In the present case, however, as referred to earlier, the Zoning Regulations framed under the O.D.A. Act, make specific provision for construction of hotel in the residential use zone provided, of course, the said construction of hotel will not be permitted to cause any sort of nuisance to the residential area.',
	(int) 24 => '<p>12. Considering the submissions made and the provisions of the relevant Act and the Regulations, we are of the view that the prayer of the petitioners to set aside the lease granted for construction of the hotel over the land in question cannot be granted. While declining to interfere with the lease granted in favour the Opp. Party No. 6 for construction of the hotel, we direct that the competent authority under the O.D.A. Act will ensure that the construction of the hotel is made strictly in accordance with the plan approved by the authority and the Opp. Party No. 1 should also take all necessary steps to prevent any sort of nuisance being caused by establishment of the said hotel to the residential area or its inhabitants.',
	(int) 25 => '<p>13. With the above observations and directions, the Writ Application is disposed of.',
	(int) 26 => '<p>S.B. Roy, J.',
	(int) 27 => '<p>14. I agree.<p>',
	(int) 28 => '<p>'
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