Judgement

P. V. B. RAO, J. :- These two petitions are heard together as they involve common questions of law and fact, and are disposed of by this judgment.

2. O. J.C. 81 of 1955 was flied by 41 petitioners on 24-2-1955, and O. J.C. 152 of 1955 was filed by 48 petitioners on 2-5-55. The petitioners in both the applications are residents of village Harinikuli, Chaumukha, Dagara, Nagudi, Saranjapur, Naighati Pakundi, Jamukunda, Manikisimulia, Jugadihand, Badasaha in the district of Balasore bordering on the western flank of the river Subarnarekha at its lowest reach before it falls into the Bay of Bengal.

These applications are filed under Article 226 Of the Constitution praying for the issue of a writ in the nature of mandamus directing the opposite party, the State of Orissa, to refrain from proceeding with the land acquisition proceedings as the notification issued by the Government under Section 4, read with Section 17(4), Land Acquisition Act, is ultra vires, illegal and without jurisdiction, from taking possession of the land sought to be acquired before an award is passed, from carrying out the contemplated project of diverting the water of Subaranarekha through Amchua cut and from cutting the sand-hills existing in the area shown as A-B in the map, Annexure-A, filed along with the petitions.

3. The case for the petitioners is briefly as follows :

The river Subarnarekha takes its rise in Chhotanagpur in the State of Bihar and flows through three States, viz., Bihar, Bengal and Orissa before it emerges into the Bay of Bengal. There are many parallel lines of high sand-banks or sand-hills covered with thick shrubs and creepers running east to west from the sea-shore and inland and in between the sand-hills are agricultural lands belonging to the petitioners and many others.

These lands of the petitioners are protected from sand inundation by these sand-hills, which are the Anabadi lands of the State and over which, the petitioners acquired indefeasible customary right of easement, support and protection.

The report of the Flood Committee of Orissa of 1928 stated that an embankment known as Bhograi embankment protects a considerable area situated in the left bank of the lowest reach of the river Subarnarekha from floods in that area and that the northern portion of that embankment ties to the north bank of Orissa coast1 canal which a few miles further on meets the Joki embankment running north to south.

This latter embankment is designed to prevent the spill of Subarnarekha from, passing eastward into the Kantai Sub-Division of Medinapore district in Bengal. The Bhograi and coast canal embankment and Joki embankment meet almost at right angles, and it is precisely in this angle that lowest land in the vicinity is situated.

When Subarnarekha rises in flood, the water rushes into this depression with the consequence that the villagers in an attempt to save their villages and crops cut the Bhograi embankment and thus allow the water to drain off partly into the protected area and partly to the east into Bengal, and the people living in the angle between Bhograi and Joki embankments are protected.

The Flood Committee, therefore, came to the conclusion that the main trouble lies in the alignment of the existing Bhograi and Joki embankments which are radically defective. The petitioners allege that the Government of Orissa did not implement this suggestion of the Flood Committee of 1928.

There was an inter-provincial Subarnarekha flood relief conference in October, 1963, which resolved to urge upon the Central Government to take up the construction of a multi-purpose dam across the river Subarnarekha and include this item in the first five year plan; but the Government of Orissa remained inactive.

The petitioners allege that the Government of Orissa wanted to have some makeshift arrangement and advised their Chief Engineer to evolve a less expensive measure in consultation with Sri D.V. Jugalkar, Director of the Central Water and Power Resear