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Kabir Padhi and ors. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 1091 of 1976
Judge
Reported inAIR1979Ori27; 46(1978)CLT478
ActsConstitution of India - Articles 226 and 227; Land Acquisition Act, 1894 - Sections 5A and 6; ;Orissa Town Planning and Improvement Trust Act, 1957 - Sections 32 and 32A
AppellantKabir Padhi and ors.
RespondentState of Orissa and ors.
Appellant AdvocateR. Mohanty, Adv.
Respondent AdvocateAddl. Govt. Adv. and ;S.S. Basu, Adv.
DispositionPetition dismissed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........berhampur in the district of ganjam and in this application they assail the notification under the land acquisition act, 1 of 1894 (hereinafter referred to as the 'act') purporting to acquire 1.61 acres of land as per notification dated 23-5-1976. in july, 1964, the state government had notified their intention to acquire 2.20 acres of land for the purpose of construction of a hostel and staff quarters of the government women's college at berhampur, the said notification was withdrawn on 8-4-1965. berhampur town is governed by the orissa town planning and improvement trust act of 1956 (orissa act 10 of 1957) and the locality in question has been marked as a residential zone. it is claimed by the petitioners that after withdrawal of the notification for acquisition, several of them have.....
Judgment:

B.N. Misra, J.

1. Petitioners are owners of residential holdings in the Janata Hospital Road within the town of Berhampur in the district of Ganjam and in this application they assail the notification under the Land Acquisition Act, 1 of 1894 (hereinafter referred to as the 'Act') purporting to acquire 1.61 acres of land as per notification dated 23-5-1976. In July, 1964, the State Government had notified their intention to acquire 2.20 acres of land for the purpose of construction of a hostel and staff quarters of the Government Women's College at Berhampur, The said notification was withdrawn on 8-4-1965. Berhampur Town is governed by the Orissa Town Planning and Improvement Trust Act of 1956 (Orissa Act 10 of 1957) and the locality in question has been marked as a residential zone. It is claimed by the petitioners that after withdrawal of the notification for acquisition, several of them have developed the lands in the locality for construction of houses. On 11-4-1970, the State Government again notified for acquisition of 1.90 acres of land for the same purpose and on this occasion they also resorted to the procedure provided under Section 17 of the Act. O. J. C. No. 500 of 1973 was filed in this Court challenging the invoking of the special procedure under Section 17 of the Act. By Judgment dated 7-8-1974, the notification was quashed. On 23-5-1976, the State Government again notified their intention to acquire 1.61 acres of land out of the lands originally notified for acquisition. On this occasion, the procedure under Section 17 of the Act was not followed. Notice was given under Section 5-A of the Act inviting objections against the proposed acquisition. Thirty-five objections were received and after disposal of the objections, the requisite notification under Section 6 of the Act was made on 13 Aug., 1976 and was published under the authority of the State Government in the State Gazette on 24-8-1976 (vide Annexure-8). Petitioners thereupon filed this application for quashing the notifications under Sections 4 and 6 of the Act and for a direction that the land in question may not be acquired. Petitioners have advanced two contentions in the main that (i) there has been no appropriate enquiry under Section 5-A of the Act and (ii) the purpoted acquisition for the purpose of locating a hostel of a public institution violates the zoning regulation under the Orissa Town Planning and Improvement Trust Act.

2. Opposite parties 1 to 4 being the State and its Officers in a common counter affidavit filed on their behalf by the Land Acquisition Officer have claimed that there is great pressure for expanding the Women's College with hostel accommodation and staff quarters; the institution is so located that unless these lands are acquired, there would be no possibility of expansion; it is not open to the petitioners to challenge acquisition by contending that any other site is available and the ultimate choice as to suitability is for the State to decide and petitioners are only entitled to reasonable compensation. It is contended that there was full investigation into the objections and parties had been given appropriate hearing. Though it has been conceded that there has been an approved master plan and the area in question has been reserved for residential localities, variation of the plan has already been proposed and is under consideration of the Government. Petitioners are not entitled to raise objection to the acquisition on the allegation of violation of Section 32 of Orissa Act 10 of 1957.

In a separate counter affidavit filed on behalf of opposite parties 5 and 6, it has been stated that the Berhampur Regional Improvement Trust gave a proposal to the State Government to vary the master plan to the extent that a portion of Bijipur mauza which is under dispute and which is marked as residential zone should be marked as public and semi-public zones and this is as provided in Section 32-A of the 1957 Act.

3. At the hearing of the application, the records of the Land AcquisitionCollector were produced and on verification thereof, Mr. Mohanty for the petitioners does not press the first point, namely that no adequate hearing under Section 5-A of the Act had been given to the petitioners. In view of the fact that the point is not pressed, it is not necessary to refer to the documents and decide the question.

4. The only question that remains for examination, therefore, is the alleged violation of the provisions in the Orissa Town Planning & Improvement Trust Act of 1956. Section 32 of the aforesaid Act on which petitioners placed reliance provides:--

'The Director or the State Government, as the case may be, shall take into consideration the said views of the Planning authority under Sub-section (2) of Section 52 and approve the said Plan with or without modification. Thereupon the Planning authority shall notify in the Gazette and a local newspapers, if any, that the Master Plan has been duly approved and then any person interested in the said plan may see it at a fixed time and place.'

Section 32-A provides:--

' (1) If on a proposal made in that behalf by the Planning authority or otherwise the State Government are of opinionthat it is necessary in the public interestto make any variation in any MasterPlan approved under Section 32, they mayincorporate the proposed variations inthe Master Plan and notify in theGazette and in a local newspapers, if anythat any person interested therein maysee it at a fixed time and place and fileobjections or suggestions, if any, withinsixty days from the date of such notification.

(2) The State Government may, after taking into consideration all objections and suggestions received under Sub-section (1) and making such enquiry as they deem necessary, finalise the variations so made with or without modifications and notify in the Gazette and in a local newspaper, if any, that the variations in the Master Plan have been duly made and any person interested therein may see it at a fixed time and place.

(3) If any person, who is affected by such variation, has incurred any expenditure in compliance with the Master Plan as it existed before such variation, such person shall be entitled to receive compensation for the loss he has suffered by reason of such variation.

(4) Any person claiming compensation under Sub-section (3) may, within sixty days from the date of the notification under Sub-section (2), make an application in that behalf to the prescribed authority who shall determine the compensation in the prescribed manner.

(5) The compensation determined under Sub-section (4) shall be paid, where the variation is made on a proposal from Planning authority, by such authority and in any other case by the State Government.'

Mr. Mohanty for the petitioners maintains that once the master-plan is approved and is final, there is no scope for deviation and until the variation has been made, the proposed acquisition for a purpose not in accordance with the master-plan would not be tenable. We do not think, the contention is justified. It is true that for the purpose of planned improvement of towns, this Act makes specific provisions and master-plan is the foundation for such purpose. It is the specific case of the opposite parties that the master-plan is being varied. Learned Additional Government Advocate rightly contended that the construction is not coming up immediately and by the time the acquisition proceeding is finalised, the proposed modification may have come. We agree with the submission and are not inclined to interfere with the acquisition in the special facts and circumstances pleaded. There is clear provision in Section 32-A of the 1957 Act for compensating those who are affected by the variation. If petitioners are really entitled to compensation, there is a machinery provided under Section 32-A of the 1957 Act and petitioners cannot, therefore, have any real grievance.

5, In view of the fact that the sole contention raised by the petitioners is not accepted, this writ application has got to be dismissed as being without any merit. We make no order for costs.

B.K. Ray, J.

6. I agree.


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