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2021 Supreme(Ori) 63
IN THE HIGH COURT OF ORISSA AT CUTTACK
B.P.ROUTRAY, S. MURALIDHAR, JJ.
Kailash Chandra Mohanty and others – Appellants
Versus
State of Orissa and others – Respondent
Writ Petition (Civil) No. 4382 of 2008
Decided on : 15-09-2021
Advocate Appeared:
For the Appellant :Mr. Rutwik Panda, Advocate
For the Respondent: Mr.M.S.Sahoo, AGA
Point of Law: Land Acquisition proceedings - Delay petition - Subjective satisfaction - Land in question has been acquired as part of Road Project and entire process has already been completed 42 years back from now with vesting and delivery of possession - Petitioners’ explanation is not found satisfactory for condoning delay to approach this Court in present form.
Headnote:
Land Acquisition Act, 1894 - Section 4(1) and 17 - Notification - Land Acquired for public purpose - Petitioners’ contention is that they are owners of land acquired and without following any procedure and even keeping them in dark, their lands were forcible occupied by Opposite Parties - Further, till date same has not been used for purpose and is lying as it is. As such Petitioners pray for a declaration that initial Notification is illegal and further that they should be conferred all consequential benefits
Finding of the Court :
It is bound to lie as such so as to maintain the required prescription of Gochar land in the village. So no merit is found in the contention of Petitioners in this regard - Petitioners are under a misconception that the land still remains unutilized for the purpose it was acquired for. It is apparent from the counter affidavit that entire land decimals including the Petitioners’ land was acquired as part of Basudevpur-Dhamara Road Project to fill up of shortage of Gochar land in the village in lieu of those Gochar lands utilized for construction of the road. Since the acquired land was meant for grazing of cattle of villagers, its status was converted as such immediately after acquisition.
Result: Writ petition is dismissed.
JUDGMENT :
B.P. Routray, J.
1. The Petitioners challenge the land acquisition proceeding initiated in the year 1978.
2. A total extent of land measuring Ac.0.89 dec. in Mouza-Basudevpur in the district of Bhadrak (eastwhile Balasore district) was acquired as a part of Basudevpur-Dhamara Road Project invoking the provisions of the Land Acquisition Act, 1894 (in short ‘L.A.Act’). Section 4(1) Notification alongwith Section 17 Notification were issued on 28th November, 1978 followed by Gazettee declaration.
3. The Petitioners’ contention is that they are the owners of Ac.0.59 dec. in Plot No.1937 out of total land acquired measuring Ac.0.89 dec. in Basudevpur mouza, and without following any procedure and even keeping them in dark, their lands were forcible occupied by the Opposite Parties. Further, till date the same has not been used for the purpose and is lying as it is. As such, the Petitioners pray for a declaration that the initial Notification dated 28th November, 1978 is illegal and further that they should be conferred all the consequential benefits. It is submitted by them that, initially they being unaware of the procedure filed O.S.No.138 of 1981 in the Court of the Additional Munsif, Bhadrak. Against the dismissal of the said suit, they preferred a First Appeal in the Court of the learned Addl. District Judge, Bhadrak, which was also dismissed. The matter was carried to this Court in S.A.No.323 of 1996. This too was dismissed by this Court by judgment dated 13th November, 2007 with the observation that the legality and correctness of land acquisition proceeding can only be examined in a proceeding under Article 226 of the Constitution of India. Hence, the delay in filing the present petition.
4. The State-Opposite Parties have filed their counter stating therein that in all there are eight land owners concerning Ac.0.89 dec of land in Basudevpur mouza, including three present Petitioners. The land acquisition proceeding was initiated and completed following all procedures including invocation of the urgency clause under Section 17. A total sum of Rs.4,094/-towards compensation has been awarded under Section 11 of the L.A. Act and Section 12 (2) notice has been served on one of the co-awardees. Further, Rs.460/-out of the total awarded amount was disbursed to one of the awardees namely, Sanatan Barik. As others did not turn up to receive the amount. The remaining amount of Rs.3,634/-has been kept in civil deposit before the Requisitioning Officer i.e., the Executive Engineer (R & B), Balasore.
After getting possession of the land, the same has been delivered to the Requisition Officer on 12th May, 1979. Thus, all the contentions of the Petitioners to contrary have been denied as incorrect.
5. It is argued on behalf of the Petitioners that the Opposite Parties without following due procedure and without granting them any opportunity to submit their objections have forcibly acquired the land. It is contended that the entire proceeding is liable to be quashed, particularly for not granting them an opportunity of being heard on their objections. Since the land remains unutilized till date, notwithstanding the purpose it was acquired for, it has to be returned to the owners.
6. It needs to be mentioned here that, when the urgency clause under Section 17 is invoked, the right to objection and hearing thereof as stipulated under Section 5-A is dispensed with. The reasons that weighed with the government for invoking the emergency provision under section 17 of the L.A. Act is no doubt subject to judicial review. However, as explained in several decision, the scope of such review is limited. A three Judge Bench of the Supreme Court in Narayan Govind Gavate v. State of Maharashtra AIR 1977 SC 183 has elaborately considered the ambit and scope of Section 17 of the Act. The Apex Court also considered the scope of judicial review of the opinion formed by the State Government under Section 17(4). It was observed as under:
“10. It is true th
