Invoking the provision of the land Acquisition Act by issuing Gazette declaration: Cuttack High Court

IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT PETITIONNo. 4382 OF 2008 An application under Articles 226 & 227 of the Constitution of India) Kailash Chandra Mohanty and others Petitioners Versus State of Orissa and others Advocate(s) appeared in this case: For Petitioners For Opposite Parties ….… Opposite Parties Mr. Rutwik Panda Advocate Mr.M.S.Sahoo AGA CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY The Petitioners challenge the land acquisition proceeding initiated B.P. Routray J. in the year 1978. A total extent of land measuring Ac.0.89 dec. in Mouza Basudevpur in the district of Bhadrakwas acquired as a part of Basudevpur Dhamara Road Project invoking the provisions of the Land Acquisition Act 1894 Notification alongwith Section 17 Notification were issued on 28th November 1978 followed by Gazettee declaration. 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 W.P.(C) No.43808 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.3296. 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 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 Balasore. W.P.(C) No.43808 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 that in such cases the formation of an opinion is a subjective matter as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take. They are expected to know better the difference between a right or wrong opinion than Courts could ordinarily on such matters. Nevertheless that opinion has to be based upon some relevant W.P.(C) No.43808 materials in order to pass the test which Courts do impose. That test basically is: Was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play Once the Court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material however meagre on which it could reasonably base its opinion the Courts should not and will not interfere. There might however be cases in which the power is exercised in such an obviously arbitrary or perverse fashion without regard to the actual and undeniable facts or in other words so unreasonably as to leave no doubt whatsoever in the mind of a Court that there has been an excess of power. There may also be cases where the mind of the authority concerned has not been applied at all due to misunderstanding of the law or some other reason to what was legally imperative for it to consider.” 7. In State of Rajasthan v. D.R. Laxmi6 SCC 445 it was held that: Recently another Bench of this Court in Municipal Corporation of Greater Bombay Vs. Industrial Development & Investment Co. Ltd. decided on September 6 1996 re examined the entire case law and held that once the land was vested in the State the Court was not justified in interfering with the notification published under appropriate provisions of the Act. Delay in challenging the notification was fatal and writ petition entails with dismissal on grounds of latches. It is thus well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final the Court should be loathe to quash the notifications. The High Court has no doubt discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. xx xx” W.P.(C) No.43808 In the above decision of the apex Court the three Judges Bench has clearly observed that the High Court has undoubtedly discretionary power under Article 226 of the Constitution of India to quash the notification under Section 4 and the declaration under Section 6 of the L.A. Act but it should be exercised taking all relevant factors into 8. In the instant case the land in question has been acquired as part of Basudevpur Dhamara Road Project and the entire process has already been completed 42 years back from now with vesting and delivery of possession. The purpose of such acquisition and the importance attached to it itself speaks for the justification and subjective satisfaction of the authority in the matter. 9. The Petitioners are three affected persons out of total eight persons. The specific contention of the Opposite Parties that Section 12notice has been served on one of the co awardees who in turn received the compensation amount of Rs.460 is not denied by the petitioners. As seen from Petitioners’ own pleadings that they had the knowledge of the land acquisition proceeding since pendency of the Original Suit before the Addl. Munsif. In view of these admitted facts the Petitioners’ explanation is not found satisfactory for condoning the delay to approach this Court in the present form. 10. The 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 the entire land of Ac.0.89 decimals including the Petitioners’ land was acquired as part of Basudevpur Dhamara Road Project to fill up of the shortage of Gochar land in the village in lieu of W.P.(C) No.43808 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 the acquisition. Therefore 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 the Petitioners in this regard. 11. As stated earlier the very proceeding was initiated on 28th November 1978 by issuance of requisite Notifications and in the meanwhile almost 43 years have passed. Its status is maintained as it is for last so many years. This reason alone is sufficient to persuade us to abstain from passing any order disturbing such long settled position. 12. The submission of the Petitioners that the state has resorted to a colourable exercise of power to invoke emergency provision is found without substance in absence of any material to suggest any fraud malice or corrupt purpose. The purpose for larger public interest in the acquisition is apparent from the record. 13. Resultantly the writ petition is dismissed and in the circumstances without any order as to costs. C.R.Biswal Secy. Judge Dr. S. Muralidhar) Chief Justice W.P.(C) No.43808 

Summary: The state has resorted to a colourable exercise of power to invoke emergency provision is found without substance in absence of any material to suggest any fraud, malice or corrupt purpose. The purpose for larger public interest in the acquisition is apparent from the case held by the Hon’ble Cuttack High Court before the Hon’ble Justice B.P. Routray in the matters of Mr Rutwik Panda v. M.S.Sahoo, AGA. [Writ petition civil No. 4382 of 2008]. The purpose of acquisition and the importance attached to it for the justification and subjective satisfaction of the authority in the matter arising from the case that the petitioner contends that land acquired belongs to the petitioner and without following any procedure, the land was forcible occupied by the opposite party. Also, the petitioner pray for a declaration that the initial notification send is illegal and conferred all the consequential benefits. First appeal in the Addl. District Judge was dismissed with the observation that the legality and correctness of the land acquisition proceeding can only be examined in the proceeding under Article 226 of the Constitution of India. The respondent stated that the land in acquisition proceeding was initiated and completed following all procedures including invocation of the urgency clause under Section 17 of the L.A. Act. A total sum of Rs. 4,094/- towards compensation has been awarded under Section 11 of the Land Acquisition Act (L.A.Act) and Section 12(2) notice has been served to one of the co-awardees. Not following due procedure and without granting any opportunity to submit their objections have forcibly acquired the land contended by the petitioner. The entire proceeding is liable to be quashed, particularly for not granting an opportunity of being heard on their objections. Since the land remains unutilized to date and the purpose it was acquired for, it has to be returned to the owners.  The urgency clause under Section 17 is invoked, the right to objection and hearing as stipulated under Section 5-A is dispensed. The court exercised Judicial review by invoking Section 17 of the L.A. Act. In regard to such a situation, the Administrative authorities have to form certain opinions before taking the actions necessary to be empowered.  The Hon’ble Court held that, “the undoubtedly discretionary power under Article 226 of the Constitution of India to quash the notification under Section 4 and the declaration under Section 6 of the L.A. Act”. Therefore the project invoking the provisions of the Land Acquisition Section 17 notification is issued by following Gazettee declaration.