Holding

No legal right to rehabilitation exists for the encroachers; the State may evict them and the earlier rehabilitation promise was resiled.

Summary

The Milk Producers Association and other milk‑selling families (the appellants) had illegally occupied government land in Bhubaneswar and were ordered to vacate. The State, through the Chief Minister, had earlier promised to rehabilitate them in villages outside the city, but later withdrew the promise because the villages fell within the 1982 Master Plan and the Orissa Municipal Corporation Act, 2003 prohibited cowsheds within the city limits. The appellants argued that the earlier policy created a legal right to rehabilitation and that the State should be estopped from evicting them without offering alternative plots. The Supreme Court held that no legal right to rehabilitation arises for encroachers absent a statutory policy under Article 162 of the Constitution, that the earlier promise was expressly resiled, and that the doctrine of promissory estoppel does not apply. Consequently, the State may proceed with eviction, and the appeals were dismissed.

Issues considered

The existence of a legal right to rehabilitation for encroachers based on a policy decision or promise.
Whether the doctrine of promissory estoppel can be invoked against the State in this context.
Whether the State must provide alternative plots before evicting the encroachers.
Whether the Orissa Municipal Corporation Act, 2003 and the Master Plan preclude rehabilitation of the appellants.

Legislation cited

Constitution of Indias. Article 162

Subjects

encroachmentrehabilitationpolicy decisionpromissory estoppelArticle 162municipal corporation actmaster planevictionpublic landurban planning

Judgment

•\ MILK PRODUCERS ASSOCJA TJON, ORISSA AND ORS. A
v.
STATE OF ORI SSA AND ORS.

FEBRUARY 2, 2006

[S.B. SINHA AND P.K. BALASUBRMANY AN, JJ .] B

I Encroachment of Government /and-Rehabilitation of encroacher-
Held: There does not exist any legal concept which confers a legal right
upon encroacher to be rehabilitated-However, matter may be different where C
the State comes out with a policy decision which meets the constitutional
scheme as envisaged in Article 162 of the Constitution of India.

Government lands-Encroachment by people carrying business in milk-
Rehabilitation scheme announced by Chief Minister-However, eviction
sought without offer of alternative plot-Justification of-Held: The scheme D
1 . of rehabilitation was expressly resiled from-It was based on mistaken view
that villages named therein were outside Master Plan, but as they were
actually included therein, rehabilitation could not be carried out-Neither
a policy decision was taken giving the encroachers a legal right nor any
notification issued in terms of Article 162 of the Constitution-Further, an
executive action of State had to give way to statutory scheme whiph prohibited E
dairies/cowsheds within periphery of the town, and in this view, doctrine of
Promissory Estoppe/ was also not applicable-It was immaterial that
encroachers were willing to pay for alternative plot that may have been
allotted to them in rehabilitation scheme and that by itself could not clbthe
them with legal right to be rehabilitated-Orissa Municipal Corporation F
Act, 2003.

Appellants carried on business in milk on Government lands having
encroached upon same in the capital of respondent-state. To evict them from
those lands, Chief Minister of respondent state evolved a scheme allegedly

-· for their rehabilitation. However, villages selected for rehabilitation were not
found suitable for same. As appellants were sought to be evicted without offer
of alternative plots, they filed writ petitions challenging it. High Court held
G

that rehabilitation could not be a condition precedent for eviction of appellants
and respondent was entitled to proceed with same in accordance with law;

1023 H
1024 SUPREME COURT PEPORTS [2006] I S.C.R.

A Hence the present appeal. I

Appellants contended that (i) policy dec!sion of respondent that on their
eviction they would be rehabilitated should be adhered to especially it was not
contended in counter-affidavit before High Court that the said decision had
become unworkable; (ii) they were willing to move out of the state capital if
B provided with alternative accommodation in terms of the rehabilitation scheme,
and for that they were ready and willing to pay the market value for the plot
which may be allotted.

Respondents contended that (i) the Chief Minister has resiled from
C earlier policy decision to rehabilitate appellants as that became impractical
in view of fact that plots of lands in villages wherein the rehabilitation was to
be carried on were found to be involved in litigation and within the Master
Plan of 1982 of the state capital; (ii) in view of the amendments in the Orissa
Municipal Corporation Act, 2003 it was impermissible to keep cattle within
the state capital and therefore the appellants must vacate the lands possessed
D bythem.

Dismissing the appeals, the Court

HELD I. Earlier policy decision was resiled from, though the decision
to do so may not have been another policy decision. It was the Chief Minister
E himself who thought of rehabilitating the members of the appellant in the year
1994-95. Rightly or wrongly, the same has not been given effect to. The State
furthermore proceeded on a mistaken notion that the villages named therein
are outside the Master Plan and that the rehabilitation programme could be
carried out in the said villages. The said villages, apart from being subjected
to encroachment and other litigations, being within the Master Plan of
F Bhubaneswar, no rehabilitation programme could be carried out. No policy
decision has been taken which could give rise to a legal right in the appellants.
No notification in terms of Article 162 of the Constitution of India had been
issued. The assurance on behalf of the Government came from the note sheet

G
approved by the Chief Minister and on the basis whereof the State took a stand
in its affidavit before the High Court Evidently, the matter has been considered
afresh and the same had been brought to the notice of the Chief Minster. He
having agreed thereto, must be held to have expressly resiled from the earlier
promise, if any. Furthermore, even an executive action on the part of the State
..
must give way to the statutory scheme. As by reason of the Orissa .'\1unicipal
Corporation Act, within the periphery of the town, dairies or cowsheds cannot
H
MILK PRODUCERS ASSOCIATION, ORI SSA v. STATE OF OR ISSA [SINHA, J.l] 025

be maintai11ed, the State would not be entitled to adhere to its earlier plan of A
... rehabilitating them in the villages mentioned therein. 11037-B, C, D, E, Fl
\
2. It may be true that the members of appellant no. 1 association were
ready to pay for the plot. But, only because they are agreeable to pay for the
plot which may be allotted to them, that by itself would not clothe them with
the legal right to be rehabilitated. There does not exist any legal concept which B
confers a legal right upon an encroacher to be rehabilitated. The matter may
be different where the State comes out with a policy decision which meets the
--\ constitutional scheme as envisaged in Article 162 of the Constitution oflndia.
In the instant case, appellants have failed to show the existence of any such
scheme, which can be said to be irretrievable in nature. In view of the 2003
Act, even the doctrine of Promissory Estoppel will have no application.
c
(1037-A, G, H]

3. In civic society, Town Planning indisputably plays an important role.
Unauthorised occupation by the encroachers in !he areas which are meant
for planned development goes a long way .in thwarting the goals sought to be D
t achieved by such town planning. (1034-FI
i
Friends Colony Development Committee v. State of Orissa and Ors.,
(20041 8 SCC 733, N.D. Jaya/ & Anr. v. Union of India & Ors., (2004] 9 SCC
362 and Sushanta Tagore & Ors. v. Union of India & Ors., (2005) 3 SCC 16,
relied on. E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 940 of2006.

From the Judgment and Order dated 8.4.2004 of the Orissa High Court
in Civil O.J.C. Nos. 1325 and 2956/1997.
F
B.A. Mohanti, Mamta Tripathy and Ashok Mathur for the Appellants.

Mohan Parasaran, ASG, Amit Dayal, Mrs. Anil Katiyar, Janjaranjan Das,
Swetaketu Mishra and S.B. Upadhyay for the Respondents.

The Judgment of the Court was delivered by G
S.B. SINHA, J. Leave granted in all the SLPs.

The Appellants herein carry on business in milk. They have admittedly
encroached upon government lands in the town of Bhubaneswar. The State
of Orissa intended to evict them. The Chief Minister of the State of Orissa H
~
1026 SUPREME COURT REPORTS [2006] 1 S. C.R.

A evolved a scheme allegedly for their rehabilitation. The villages selected for
carrying out such rehabilitation job were not found to be suitable therefor. As
they are sought to be evicted without offering them alternative plots, the
Appellants filed writ petitions before the Orissa High Court. In the writ
petitions it was inter alia averred:

B "4. That since most of these Petitioners belong to the poorer strata
of the society, their rehabilitation have engaged attention of the
authorities at the highest level since the year 1987. In a meeting held
on 1.6.87 under the Chairmanship of the Chief Secretary, it was decided
that sites for such rehabilitation of Gowalas operating within
Bhubaneswar city shall be selected by a committee consisting of
c Director of Veterinary Services; representatives of OMFED; A.D.M.,
Bhubaneswa.-; S.D.O., Bhubaneswar and representative of
Bhubaneswar Development Authority. The minutes of the meeting
held on 1.6.lt? was sent to Chief Secretary, Secretary, Finance
Department, Special Secretary, General Administration Department,
D Secretary, Forest and Animal Husbandary Department, Secretary,
Revenue Department, Secretary, Housing and Urban Development
Department, Vice-Chairman, Bhubaneswar Development Authority etc;
vide letter no. 9838/CA, dated 14.7.87 by the Joint Secretary to
Government in the Department of G.eneral Administration, Govt. of
Orissa and Ex-officio Director of Estates.
E
5. That as per the decision of the High Power Committee, the site
selection committee met on 11.6.87 and recommended that the milkmen/
private milk producers like Petitioners No. 2 to 240 be settled at Pratap
Sasan, Tulsadeipur and Jamukoli.

F 6. That during 1989, the Government gave press statements to the
effect that the Government had formulated scheme of rehabilitation,
which is as follows:

(a) Allotment of Govt. land measuring 40 x 30 free of premium.

G (b) Payment of disturbance allowance of Rs. 500/-.

(c) Payment of construction assistance of Rs. 3,000/- in two
\
instalments for construction of dwelling house at the new site.

(d) Free Transportation of personal belonging of each Gowalla family.

H (e) Provision of drinking water at the new site.
)-
MILK PRODUCERS ASSOCIATION, ORISSA v. STATE OF ORISSA [SINHA, J.]J 027

(f) Opening of fair price shop at the new site for sale of essential A
! commodities. '. .ct
~

(g) Opening of a fodder sale centre.

(h) Collection of milk by OM FED form the Goallas who want to sell
milk to it at the new site. B
(i) Medical and Educational facilities at the new site ....

'-\ 7. That despite all these exercise nothing has been done in the matter.
Later on the Petitioners understand that vide letter No. Misc-BP-126/
· 93 2240/BP/BDA Bhubaneswar, 7.4.94, the Advisor-cum-Planning
Member wrote to Director of Estates that the site at Pandara seems
c
to be the best suited for the purpose of rehabilitation because of the
availability of water near by and open spaces for cattle movement. In
-'
return the Director of Estates vide letter dated 3.9.94 intimated to Vice-
Chairman, Bhubaneswar Development Authority that Government have
already decided to rehabilitate the Gowallas in Mouza Pandara, Gakana, D
i Patrapada, and Jokalandi. The Director of Estates requested the
.. Bhubaneswar Development Authority to carve out plots in the above
area for the purpose of rehabilitation of Gowalas. Thus, though the
Government unilaterally changed the sites selected for rehabilitation,
the Petitioners welcomed such action of the Government
E
8. That pursuant to request under Annexure-2, the Advisor cum
Planning member of Bhubaneswar Development Authority vide letter
No. 5615/B/BDA/Misc-BP-176/93 Bhubaneswar, the 5.10.94 intimated
the Director of Estates that as desired the layout plans of the
concerned land in mouza Gadakana, Pandara, Patrapada and Joklandi
have been prepared after determination of the optimum plot size
F
required for a Gowala family. The plot size determined was 30' x 60'.
The said letter also made it clear that each plot would accommodate
a shed of 11 to 12 cows, a residential unit with a plinth area of 484
sq. ft. and space for cow dung dumping and Gobar Gas Plant. Copy
'of the letter dated 5.10.94 is in the custody of Director of Estates. G
Ultimately, 432 plots have been carved out during 195 for allotment to
the Gowalas at villages, Garkana, Pandara, Patrapanda and Jokalandi. ...

9. That the Petitioners understand that on 2.9.95, the director of
Estates held further meeting in the presence of planning member of
Bhubaneswar Development Authority, officer of Bhubaneswar H
1028 SUPREME COURT REPORTS [2006] I S.C.R.

A Municipal Corporation, Orissa State Housing Board for immediate
rehabilitation of Gowalas. Though in the said meeting a decision was
taken to rehabilitate the Gowalas of Bhubaneswar immediately at
Pandara, Gadakana, Jokalandi and Patrapada, till date nothing has
been done in the matter."

B The said statements were not denied and disputed in the counter
affidavit, as would appear from paragraph 7 thereof which is as follows:

"That with regard to the averments made in para - 4 to 9, it is
submitted that rehabilitation scheme has received for active
consideration of Gowallas, it is submitted that present Milk Producers
c Association and Utkal Jadev Mahasangha have prayed for their
rehabilitation. ln the meeting held on 2.9.1995, the Members of Milk
Producer> Association have expressed that if they are rehabilitated in
Village Pandaras, they will have no objection. In the meantime,
Government have taken a decision to rehabilitate the Petitioners in
D Pandara Mouza and accordingly land measuring an area of AC. 28.180
dee. has been identified for the said purpose. Accordingly, B.D.A. has
prepared a plan and Government have decided to allot 25X40' size
plots to the Petitioners/ Gowallas and they shall have to pay premium
on the prevailing rate fixed by the Government. If these lands in
village Pandara is not found to be sufficient few plots can be allotted
E in village Patrapada, Jamukoli and Jokalandi for their rehabilitation."

The Appellants before us raised a contention that they are not averse
in moving out of the town of Bhubaneswar but they should be provided with
alternative accommodation in terms of the rehabilitation scheme wherefor they
F are ready and willing to pay the market value for the plot which may be
allotted. The contention of the Respondent, on the other hand, is that having
regard to the provisions contained in the Orissa Municipal Corporation Act,
2003 and in view of the Master Plan, the Appellants must vacate the lands
possessed by them. Further contention of the State is that keeping in view
of the changed situation, a policy decision had been taken that for hygienic
G and other reasons, it is not possible to rehabilitate them in the villages which
come within the purview of the planned area of Bhubaneswar. It was stated
that the members of the Appellant No. I Association are not poor and in view
of the averments made by them in the petition for special leave that they
produce and supply about 10,000 litres of milk to the residents of Bhubaneswar,
H their average family income would be about Rs. 1,85,950/- after deducting 50%
of the total income towards establishment and maintenance charges and some
MILK PRODUCERS ASSOCIATION, ORI SSA v. STATE OF ORI SSA [SINHA, J.)} 029

Qf them have their own lands and houses in the town of Bhubaneswar. A
Mr. B.A. Mohanti, learned senior counsel appearing on behalf of the
Appellants would submit that keeping in view the fact that the State of Orissa
had come out with a policy decision that on their eviction the Appellants
would be rehabilitated, there is absolutely no reason as to why such policy
decision should not be adhered to. It was submitted that before the High B
Court, even it was not contended by the State that the said policy decision
had become unworkable and it is in that view of the matter, the High Court
made the following observation:

" .... Let the State Government take appropriate steps for rehabilitation
of the gowallas of Bhubaneswar City. It is open for the Government C
to take up rehabilitation but that cannot be a condition precedent for
the eviction of the Petitioners. It is also open for the Government to
proceed with eviction of the gowallas in accordance with law."

According to the learned counsel, it is against only that portion of the D
\) judgment of the High Court, the Appellants are before us.

Mr. Janaranja.n Das, learned counsel appearing on behalf of the
Respondents, on the other hand, argued that if the Chief Minister was the
author of the earlier polic.y decision, he has resiled therefrom as would appear
from a notesheet dated 18.10.2005.
E
Mr. Das would contend that as the members of the Appellant No.
Association are not poor people, they do not deserve any sympathy.

Furthermore, it was urged that in view of the amendments in the Orissa
Municipal Corporation Act, it is now impermissible to keep cattle within the F
town of Bhubaneswar. It is no doubt true that the Chief Minister of the State
of Orissa in view of the representations made before him took a policy
decision that the. members of the Appellant No. I Association would be
rehabilitated in certain villages and in particular, villages of Pandara, Patrapada,
Gadakana and Jokalandi; but it was later on detected that all the aforementioned
villages are within the Master Plan since 1982. Before the Chief Minister, G
admittedly a notesheet was produced wherein it was inter a/ia stated:

"(c) In the area identified in Mouza-Pandara measuring Ac. 16.120
dee., there have been many encroachments besides as mentioned at
Para 4(e) of P. 25/N an area of Ac. 4,084 dee. out of this area is
subjudice vide OJC No. 13516 of2001 (laxmidhar Bhoi and Ors. v. H
1030 SUPREME COURT REPORTS (2006] I S.C.R.

A State of Orissa).

(d) Orissa Municipal Corporation Act, 2003 has been enacted which · i
prohibits keeping of animals in the premises so as to be nuisance or
danger to any persons besides having other stringent conditions with
regard to keeping the cows and buffalos within the city limits of
B Bhubaneswar."

Mr. Das submitted that in view of the fact that these plots were not free
from encroachment and other litigations, rehabilitation of Gowallas according
to the said notesheet became an impractical proposition for the reasons stated
therein.
c
Before, we advert to the rival contentions raised by the parties, we may
state that a xerox copy of the said notesheet was directed to be handed over
to the learned counsel for the petitioner and the entire records were allowed
to be inspected. The Appellants upon inspection of the said record have filed
an affidavit contending that no decision had been taken by the State as yet
D to resile from the earlier policy decision and merely a decision had been taken
to affirm an affidavit before this Court to the effect that it is not possible to
rehabilitate the members of the Appellant No. I Association.

Paragraphs 8(a), S(d), S(e), S(t), 9 and 10 of the said notesheet read
as under:
E
"(a) Bhubaneswar is rapidly growing city with the BDA projection of
a population of 8.5 lakhs in the year 2005. The health and traffic
hazards caused by Gowallas needs to be stopped. The new Orissa
Municipal Corporation Act, 2003 has specific and stringent provisions
in this regard.
F
(d) Rehabilitation ofGowallas within the master plan of Bhubaneswar
will be against the spirit of the Orissa Municipal Corporation Act,
2003 as well as other environmental laws.
(e) No villages outside the Master Plan area have been located or
G identified nor feasibility of the same has been condu.cted keeping in
view the availability of Government land.
(t) There is also an issue of providing a non-discriminatory treatment
in the matter of rehabilitation. At no stage, the Government has
prepared the full plan for rehabilitation of all Gowallas nor has it been
H found to be feasible. On the other hand, encroachments in the name
MILK PRODUCERS ASSOCIATION, ORISSA v. STA TEOF ORJSSA [SINH.\,.l.] J03 J

of "Gowallas" have been growing in the Bhubaneswar city as is A
evident from the SLP itself. For instance, the petitioner has mentioned
in the SLP that there are 1000 families who will be affected. While it
is not possible to confirm these numbers without a survey, it is clear
that the problem of Gowallas in the Bhubaneswar city has further
grown as in 1994, 686 such 'Gowallas' were identified. There have B
been many decisions by Hon'ble High Court as well as by the Supreme
Court, where it has been held that there should not be on any premium
on encroachment. For instance, in OJC 2312/89 of High Court of
Orissa have passed an order in which the Hon'ble Court clearly
ordered "the rehabilitation scheme is neither requirement of law nor
a mandatory condition precedent for eviction of encroachers or C
unauthorized occupations of Government land".

9. In view of the above reasons, it may be appropriate if the
Government reviews its earlier decision with regard to rehabilitation
of Gowallas in Village-Pandara, which is within the Bhubaneswar
' , Municipal Corporation area in view of the difficulties involved not
only in practical implementation but also because of with new
D

stringent requirements which have come up under Orissa Municipal
Corporation Act 2003 subsequent to the earlier decision of the
Government in 2002.
E
10. The occupation of cattle-rearing and is best served in rural areas,
as it requires availability of land, water ponds, free movement space
and other linkages with agriculture. In urban areas the density of
population is growing and the traffic problems are acute, this occupation.
becomes a public nuisance and health and traffic hazard. The supply
of milk to Bhubaneswar is adequate. People in urban areas buy milk F
in hygienic conditions, Government has separately promoted big
dairying activity in rural areas with adequate investment on chilling
and pasteurization plants from where city gets its supply of milk easily
without any difficulties. The Gowallas, who wish to carry out their
occupation move to the rural areas and supply milk through linkages G
already established. The Department of Animal Husbandry is of the
similar view which is reflected in their affidavit."

, Indisputably, the said proposal found favour with the Chief Minister
and pursuant to or in furtherance thereof, an affidavit has been filed before
us on behalf of the State of Orissa wherein it has been stated: H
1032 SUPREME COURT REPORTS [2006] I S.C.R.

A "5. A rehabilitation programme for Gowallas under the present
circumstances is not found to be feasible. The earlier Government
attempt to carve out plots for only a few of the petitioners could not
succeed due to reasons mentioned at Para 3 above. On the other
hand, encroachments in the name of "Gowallas" have been growing
in Bhubaneswar city as is evident from the Special Leave Petition
B
itself. For instance, the petitioners have mentioned in the Special
Leave Petition that there are I000 milkmen families who will be affected.
Although it is not possible to confirm or rebut these numbers without
a survey, it is clear that the problem of encroachments by Gowallas
in the Bhubaneswar city has only grown. In 1994, for instance, only
c 686 such 'Gowalla families' were identified in a survey.

7. That occupation of cattle rearing will be best suited for rural areas,
as it requires availability of land, water ponds, free movement space
and other linkages with agriculture. In urban areas, where the density
of population is high and traffic problems are acute, this occupation
D becomes a public nuisance and health and traffic hazard. The supply
of milk to Bhubaneswar is adequate. People in urban areas buy milk
in hygienic conditions, Government has separately promoted big
dairying activity in rural areas with adequate investment on chilling
and pasteurization plants from where city gets its supply of milk easily
E without any difficulties. The Gowallas, who wish to carry out their
occupation, should make their own arrangements to shift to rural areas
on their own and supply milk through linkages already established.

Due to the fact and circumstances submitted in the foregoing
paragraphs, the Government does not intend to rehabilitate Gowallas
F who have been encroaching Public land."

It has further been contended that encroachments by Gowallas also
pose health and traffic hazards for the residents of Bhubaneswar and in view
of the fact that other encroachers had also started seeking for rehabilitation
G package, the State cannot have special programme for rehabilitation for one
class of encroachers and not for others. From the records, it further transpires
that the Orissa State Cooperative Milk Producers' Federation Limited (OMFED)
had come into being. It is also in a position to satisfy the need of milk to the
residents of town of Bhubanewsar. OM FED is prepared to collect milk from
Gowallas if they become member of the nearest Milk Producing Society/ •
H District Milk Producers Union affiliated to it and if they move out of the town
MILK PRODUCERS ASSOCIATION, ORISSA v. STATE OFORISSA [SINHA, J.] ] 03 3

'\ of Bhubaneswar, there cannot be any problem to provide feed and fodder A
along with medical facility for the cattle through the existing infrastructure
available in the close proximity of the area. It has further been brought on
record that all milkmen are economically soun.d. stating:

" ......... As admitted by the petitioners in the present Special Leave
Petition, peMii'IY milk production is about. 50000 litres and as per B
survey of General Administration Department, Government of Orissa
about 687 nos. ofGowallas families are residing in Bhubaneswar City.
So income per annum of each family comes out to about Rs. 3,71,910.00
(50,000 Lts./687 families x 365 x Rs. 14.00 per litre). Deducting 50% out
of the total income towards establishment & maintenance charges, net C
annual income per family comes to around 1,85,950.00. So it cannot be
admitted that all Gowallas are economically poor. On the other hand,
it is brought to the kind notice of this Hon'ble Court that about 30
Gowalla families are quite rich and now own their own land and
building in Bhubaneswar city."
D
The State has enacted Orissa Municipal Corporation Act in the year
2003, the relevant provisions whereof are as under:

"409. (1) No person shall tether any animal in any public street.

(2) Any animal tethered as i:foresaid may be removed by the E
Commissioner, or by any Corporation Officer or employees and made
over to a police officer or may be removed by a police officer, who
shall deal therewith as with an animal found straying."

"543. (1) No person shall-
F
(a) without the written permission of the Commissioner or otherwise
than in conformity with the terms of such permission, keep any swine
in any part of the city;

(b) keep any animal on his premises so as to be a nuisance or danger
to any person; and G
(c) feed any animals, or suffer or permit any animal, to be fed, or to
feed witli or upon excrementitious matter, dung, stable refuse or other
filthy matter."

"548. No person shall- H
1034 SUPREME COURT REPORTS [2006] I S.C.R.

A (a) steep in any tank, reservoir, steam, well or ditch, any animal,
vegetable or mineral matter which will likely to render the water thereof
offensive or dangerous to health;

(b) while suffering from any contagious, infectious or loath some
disease, bathe on, in or near any bathing platform, lake tank, reservoir,
B fountain, duct, standpipe, stream or well."

The said Act abo contains a penal provision in the following terms:

"652. Whoever, in any case in which a penalty is not expressly
provided by this Act, fails to comply with any notice or order or
c requisition issued under any provisions thereof, or otherwise
contravenes any of the provisions of this Act, shall be punishable
with fine which may extend to one thousand rupees, and in the case
of a continuing failure or contravention, with an additional fine which
may extend to one hundred rupees for every day after the first during
D which he has persisted in such failure or contravention."

Bhubaneswar is the capital of the State of Orissa. As stated in the
affidavits filed on behalf of the State, several steps had been undertaken for
for attracting more tourists. The statute also prohibits maintenance of·
cowsheds or dairies in or around the town of Bhubanewsar. The Master Plan
E of Bhubanewsar prepared as far back in 1982 is in force. Within its ambit not
only the town of Bhubanewsar, but several other villages come. In civic
society, Town planning indisputably plays an important role. Unauthorised
occupation by the encroachers in the areas which are meant for planned
development goes a long way in thwarting the goals sought to be achieved
p by such town planning.
The question came up for consideration, in Friends Colony Development
Committee v. State of Orissa and Ors., [2004] 8 SCC 733 wherein this Court
observed:

G "In all developed and developing countries there is emphasis on
planned development of cities which is sought to be achieved by
zoning, planning and regulating building construction activity. Such
planning, though highly complex, is a matter based on scientific
research, study and experience leading to rationalisation of laws by •
way of legislative enactments and rules and regulations framed
H thereunder. Zoning and planning do result in hardship to individual
)-
MILK PRODUCERS ASSOCIATION, ORISSA v. STA TE OFORISSA [SINHA, J.] ) 03 5

property owners as their freedom to use their property in the way they A
like, is subjected to regulation and control. The private owners are to
some extent prevented from making the most profitable use of their
property. But for this reason alone the controlling regulations cannot
be termed as arbitrary or unreasonable. The private interest stands
subordinated to the public good. It can be stated in a way that power B
to plan development of city and to regulate the building activity
·therein flows from the police power of the State. The exercise of such
governmental power is justified on account of it being reasonably

' necessary for the public health, safety, morals or general welfare and
ecological considerations; though an unnecessary or unreasonable
intermeddling with the private ownership of the property may not be
justified.

The municipal laws regulating the building construction activity
C

may provide for regulations as to floor area, the number of floors, the
extent of height rise and the nature of use to which a built-up property
may be subjected in any particular area. The individuals as property D
owners have to pay some price for securing peace, good order, dignity,
protection and comfort and safety of the community. Not only filth,
stench and unhealthy places have to be eliminated, but the layout
helps in achieving family values, youth values, seclusion and clean
air to make the locality a better place to live. Building regulations also E
help in reduction or elimination of fire hazards, the avoidance of traffic
dangers and the lessening of.prevention of traffic congestion in the
streets and roads. Zoning and building regulations are also legitimised
from the point of view of the control of community development, the
prevention of overcrowding of land, the famishing of recreational
facilities like parks and playgrounds.and the availability of adequate F
water, sewerage and other governmental or utility services."

Yet again in ND. Jayal and Anr. v. Union of India and Ors., [(2004) 9
SCC 362], a 3-Judge Bench of this Court noticed that several factors including
flora and fauna, water quality maintenance and impact on health and
rehabilitation are rekvant factors for the purpose of maintenance of ecology. G
Emphasising the need of adherence to sustainable development principle for
the maintenance of the symbiotic balance between the rights to environment
and development, it was observed:

"Right to environment is a fundamental right. On the other hand, right
to development is also one. Here the right to "sustainable development" H
1036 SUPREME COURT REPORTS [2006] I S.C.R.

A cannot be singled out. Therefore, the concept of "sustainable
development" is to be treated as an integral part of"life" under Article
21. Weighty concepts like intergenerational equity (State of H.P. v.
Ganesh Wood Products), public trust doctrine (M.C. Mehta v. Kamal
Nath) and precautionary principle (Vellore Citizens), which we declared
as inseparable ingredients of our environmental jurisprudence, could
B only be nurtured by ensuring sustainable development."

This Court highlighted the necessity of strict compliance of the provisions
of the Environmental Protection Act, 1986 stating:

"Thus the power nnder the Act cannot be treated as a power simpliciter,
c but it is a power coupled with duty. It is the duty of the State to make
sure the fulfilment of conditions or direction under the Act. Without
strict compliance, right to environment under Article 21 could not be
guaranteed and the purpose of the Act will also be defeated. The
commitment to the conditions thereof is an obligation both under
D Article 21 and under the Act."

We have noticed hereinbefore that the provisions of the Orissa Municipal
Corporation Act also aim at maintenance of health and hygienic amongst the
residents of the town of Bhubaneswar.

In S1'shanta Tagore and Ors. v. U"ion of India and Ors., [2005] 3 SCC
E
16, this Court was concerned with interpretation of the provisions of Visva-
Bharati Act, 1951 which was enacted to preserve and protect the uniqueness,
tradition and special features of Visva-Bharati University. Therein, this Court
opined:

F "It may be true that the development of a town is the job of the Town
Planning Authority but the same should conform to the requirements
of law. Development must be sustainable in nature. A land use plan
should be prepared not only having regard to the provisions contained
in the 1979 Act and the Rules and Regulations framed thereunder but
also the provisions of other statutes enacted therefor and in particular
G those for protection and preservation of ecology and environment.

As Visva-Bharati has the unique distinction of being not only a
university of national importance but also a unitary one, SSDA should •
be well advised to keep in mind the provisions of the Act, the object
and purpose for which it has been enacted as also the report of the
H
MILK PRODUCERS ASSOCIATION, ORISSA "·STATE OF ORISSA [SINHA,J.] ] 03 7

West Bengal Pollution Control Board. It is sui generis." A
Mr. Mohanti may be right in his contention that by reason of such
notesheet dated 18.10.2005 alone no policy decision was laid down but
evidently thereby earlier policy decision was resiled from. Mr. Das has placed
before us the entire records. As indicated hereinbefore, the said records were
made available to the Appellants for inspection. It is neither in doubt nor in B
dispute that it was the Chief Minister himself who thought of rehabilitating
the members of the Appellant No. I Association in the year 1994-95.

Rightly or wrongly, the same has not been given effect to. The State,
furthermore, proceeded on a mistaken notion that the villages named therein
are outside the Master Plan and that the rehabilitation programme could be C
carried out in the said villages. The said villages, apart from being subjected
to encroachments and other litigations being within the Master Plan of
Bhubaneswar, no rehabilitation programme could be carried out. No policy
decision has been brought to our notice as such which could give rise to a
legal right in the Appellants. No notification in terms of Article 162 of the D
. Constitution of India had been issued. The assurance on behalf of the
Government came from the notesheet approved by the Chief Minister and on
the basis whereof the State took a stand in its affidavit before the High Court.
Evidently, the matter has been considered afresh and the same had been
brought to the notice of the Chief Minister. He having agreed thereto, must
be held to have expressly resiled from the earlier promise, if any. Furthermore, E
even an executive action on the part of the State must give way to the
statutory scheme. As by reason of the Orissa Municipal Corporation Act,
within the periphery of the town, dairies or cowsheds cannot be maintained,
the State would not be entitled to adhere to its earlier plan of rehabilitating
them in the villages mentioned therein. F
It may be true that the members of the Appellant No. 1 Association
were to pay for the plot. But, only because they are aggreable to pay for the
plot which may be allotted to them, that by itself in our considered view
would not clothe them with the legal right to be rehabilitated. There does not
exist any legal concept which confers a legal right upon an encroacher to be G
rehabilitated. The matter may be different where the State comes out with a
policy decision which meets the constitutional scheme as envisaged under
Article 162 of the Constitution of India. In the instant case, we have noticed
that the Appellants have failed to show the existence of any such scheme,
which can be said to be irretrievable in nature. In view of the 2003 Act, even H
1038 SUPREME COURT REPORTS [2006] l S.C.R.

A the doctrine of Promissory Estoppel will have no application.
For the reasons aforementioned, we are of the opinion that the High
Court has not committed any illegality in passing the impugned judgment
warranting interference by us with the directions of the High Court that the
State would be entitled to proceed to evict the Appellants in accordance with
B law. The appeals, for the forgoing reasons, are dismissed. However, in the
facts and circumstances of this case, there shall be no order as to costs.

v.s. Appeals dismissed.
.

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