P.V.B. Rao, J.
1. 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 tiled 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 228 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 Anabadl 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 embankmentties to the north bank of Orissa coast 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 Res 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, 1953, 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 make-shift 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 Research Station, Government of India, Poona.
The Chief Engineer, Orissa, and Sri D. V. Jugalkar, the petitioners allege, focussed their attention on a sort of temporary relief of the local trouble and instead of taking the flood problem on an inter-provincial basis, came to the conclusion that for the present a straight cut to the sea to the south of Amchua shown as 'A-B' in the map would give immediate relief in the shape of quicker discharge of flood water.
The petitioners allege that the said proposal would, only give a temporary relief at the cost of the petitioners villages and a large section of people elsewhere; and that, though there is no public purpose or justification to have a large class of people homeless and landless, the Government started to cut down the sand-hills to effectuate the proposal of the Chief Engineer.
Tine Government have also issued a notification under Section 4, Land Acquisition Act, to acquire lands in the villages of Dhamatpur, Harnikuli, Daraga and Chaumukha, No. 610/XVII/28/ 33- Dev., dated 28-1-1955, which is annexure 'E' to the application in O. J. C. 81 of 1955. In the said notification the applicability of Section 5A, Land acquisition Act, was excluded in exercise of the powers conferred on the State Government under Section 17(4), Land Acquisition Act.
In the said Notification, the Government notified for acquisition of about 246 acres of land for a narrow cut to the sea into which the wild river as to be led and according to the petitioners, the consequences of this diversion would be to injuriously affect thousands of acres of arable, homestead lands and orchards on either side of the cut as well as higher up by inundating the same by saline water.
The petitioners allege that many of the plots which are the subject-matter of acquisition are homestead lands, and as such the declaration in the said notification that Section 5A shall not apply to these acquisition proceedings is illegal and void and consequently the entire notification is therefore ultra vires.
The petitioners allege in the application in O. J. C. 81 of 1955 filed on 24-2-1955 that the opposite party is about to take possession of the lands which are the subject-matter of acquisition proceedings immediately after the publication of the notification under Section 4 without taking recourse to other steps which are mandatory before possession is taken. They allege that the said acquisition is not for public purpose.
It is also stated that as the executive action of the Government of Orissa to divert the interstate river Subarnarekha and thus regulate the discharge of its water relates to a matter covered by item 56 of List I of 7th schedule, and being a central subject for legislation is as such, by reason of Article 102 of the Constitution providing that the extent of the exercise of the executive power of a State shall be to the same extent as the legislative power, unconstitutional and without any authority of law; and that the project contemplated by the opposite party gives only a temporary relief to a section of the public at the cost of another section, and thus violates Articles 31 and 14 of the Constitution.
Consequently, the petitioners prayed for the issue of a writ in the nature of mandamus as stated above.
4. As already stated, O. J. C. 81 of 1855, was filed on 24-2-1955, in which it was alleged that a notification made by the Government of Orissa under Section 4, Land Acquisition Act, and read with Section 17(4) of the said Act which comprised homestead, lands was illegal and without jurisdiction. Perhaps realising, after filing of this application, that the said notification was Illegal the Government without withdrawing the entire notification and issuing fresh ones, issued another notification No. 2368-XVII-28/55, dated 28-3-55 withdrawing partially about 48.74 acres of homestead lands comprised in plot numbers mentioned in the said notification from the operation of the notification of the Government of Orissa, Revenue Department, No. 610-XVII-28/55-Dev, dated 25-1-55.
It is after the issue of this notification, the opposite party then issued another notification, under Section 4, Land Acquisition Act, No. 2584-XVII-28/55, dated 1-4-55 in respect of this area of the homestead lands in which Section 5A was made applicable to the proceedings.
5. It is after the publication of these two subsequent notifications that O. J. C. 152 of 1955 was filed referring to the issue and the publication of the said notifications in addition to the other allegations in O. J. C. 81 of 1955, and praying for a writ of mandamus as in the other application.
6. It is on 23-3-1955 that the State filed a counter affidavit opposing the application in O. J. C., 81 of 1955, filed on 24-2-1355, sworn to by Sri V. Ramanathan Additional Secretary Revenue Department, and Member, Board of Revenue, in charge of land acquisition.
It is alleged in the affidavit that there is no Indefeasible customary right of easement, support and protection to the sand-hills, that the Anabadi lands which are not being leased out to any one, are being used by the State for the benefit of the people, that the problem of floods in Orissa is avery complex one, and that since the report of the Flood Committee, several other experts reviewed the problem and gave different views to the effect that the policy should be to conserve and improve the main river by a system of adequate embankments by the provision and maintenance of efficient mouths to the sea so as to enable the rivers to carry their normal flood discharge for which the available fall is ample, and that the present action of the Government was in accordance with the recommendations made in 1938-39, for opening of the mouth of the river to the sea to mitigate the local flood in the area and that was the best remedial measure in the circumstances of the case.
It is also alleged that the proposed project provides a better outlet to the sea and brings into existence embankments on either side of the cut. The action of the Government in making the cut is for a public purpose and only a few persons' lands will be affected; and the project would benefit thousands of people.
It is further alleged that the people of the locality agreed in general in August, 1954 to have this proposed cut, and demanded that they be given adequate compensation soon, as the land acquisition proceedings would take some time, to enable them to part with their lands and to shift to new sites for construction of houses or getting lands for cultivation.
In accordance with the wishes of the people, it is stated, stamps were also taken to prepare preliminary estimates of cost of acquisition soon after the notification under Section 4, as without preliminary estimates no compensation could have been paid. Most of the people agreed in writing to the acquisition, and came forward to take compensation at Baliapal soon after the notification was made.
It is also stated that the people executed agreements and Ekrarnarnas to part with their lands and houses in favour of the Public Works Department, and took compensation in advance on twelve different dates during February and March, 1955, and undertook to return the compensation in case it was more than their due as per the award to be made or to take the excess, if any, after the award.
In paragraph 16 of the counter-affidavit it is specifically stated on behalf of the State that as the notification wider Section 4 read with Section 17 published on 25-1-55 was not applicable to acquisition of lands other than waste and arable lands, the Government decided to withdraw such lands which were not waste and arable, from acquisition and accordingly published a notification dated 28-3-55 withdrawing the said homestead lands and started separate proceedings in respect of such lands under Section 4 of Act I of 1894; and that after the issue of these two notifications, objections under Section 5A had been called for and heard and disposed of.
Subsequent to that Government declared under Section 6 of the Act that these lands are required for public purpose and the declaration was published in an extraordinary gazette, dated 14-6-55 by notification No. 4310/XVII/22-55-Dev., in respect of 49.10 acres of homestead lands and 190.81 acres of other lands. The objections under Section 5A were made in respect of the entire acquisition.
It was also alleged that all the lands measuring 239.91 acres were declared to be acquired, under Section 6, Land Acquisition Act after the objections were heard and rejected, and notices under Section 9 were given to the persons affected in response to which claims were preferred by some, and awards had been made under Section 11, Land Acquisition Act, on 4-7-55 and 5-7-55, and that under Section 16, the Collector could take possession of the lands which would vest thereupon in the Government.
It is specifically stated in paragraph 22 of the affidavit that after the awards were passed, orders for taking possession had been passed subject to the stay order passed by this Court from time to time. Finally, it is alleged that the action taken by the Government does not contravene the provision of the Constitution, and that the State Government is entitled under item 17 of List II read with Article 162 of the Constitution of India in acquiring the lands in question on payment of compensation under the provisions of law.
7. It may be noted here that in the other affidavits filed by the Additional Secretary, Revenue Department of the Government, the Under Secretary and the Executive Engineer, it was admitted that possession of the lands belonging to about 162 persons was taken in February and March, according to the agreements entered into with them on paying compensation.
8. The learned counsel for the petitioners contended that the proposed project concerns the regulation and development of an inter-State river and as such falls under item 56 of List I of the 7th schedule of the Constitution.
Consequently his contention is that it is only the Union that can legislate for the regulation and development of inter-State rivers, and as under Article 162, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make law and as the Legislature of the State has no power to make laws for the regulation and development of inter-State rivers, the executive action of the opposite party of the contemplated project is unconstitutional, and consequently, the notification under Section 4, Land Acquisition Act, and the project are illegal.
Secondly, he contends that there is no public purpose in this project as it would be benefiting. only a few and harming a large majority of the people. Thirdly, he contends that as it benefits only a few at the expense of a large number of people, this action of the executive is contrary to Article 14 of the Constitution. Finally, he contends that the notification dated 25-1-1955 is illegal and ultra vires as it was issued under Section 4 read with Section 17(4) of the Land Acquisition Act and comprised in it the acquisition of home-'stead lands.
He also contended that the so called agreements by the persons some of whom are some off the petitioners are vitiated by coercion and undue influence, and consequently even if such agreements are true, they are not valid and ought not to be taken note of especially in view of the fact that the agreements were entered into and possession was taken in February and March in pursuance of the illegal notification. He further contends that the entire land acquisition proceedings from start to finish are illegal and void.
9. The notification dated 25-1-1955 is to this effect:
'Government of Orissa, Revenue Department 25-1-1955.
No 610-XVII-28/55-Dev.-- Whereas it appears to the Government of Orissa that land is required to be taken by Government at the public expense for a public purpose, viz., for straightening of riverSubarnarekha as a flood protective measure in the village of Dhamatpur, Dagara. Harankuli andChaumukha, paragana Satmalang and Kaurdchoseailla Balasore, it is hereby notified that for theabove purpose a piece of laud measuring moreor less standard measurement 240.06 acres bounded on the
North; by portion of plot Ho. 7 and Plots Nos. 12, 11 of village Dhamatpur and plot Nos. 6, 98, 99, 141 and 116 and portion of plot No. 143 of village Haranakuli.
East: By portion of plot No. 7 and plot Nos. 13, 12, 11, of village Dhamatpur; portions of plot Nos. 167, 168, 170, and plot Nos. 2 3, 6, 98, 99 84, 141 146, 147, 148 of village Chaumukha and portion Of plot Nos. 440, 442, 444 445, 446, 490, 458 457, 458, 474, 480, 479, 788, 518, 517, 527, 544 716 715, 720, 723, 677, 725, 728, 730, 731, 779 of village Dagara.
South:-- By plot No. 808 of village Dagara.
West:-- By portion of plot Nos. 779, 736, 749, 677, 683; 707, 708, 709, 544, 798, 537, 541, 799, 815 538, 818, 507, 506, 498, 490 491, 463, 458, 457 411, 413, 417, 806, 428, 426, 219, 201, 137, 138, 139, 157 and Plot No. 750 of village Dagara, portion of plot No. 750 of village Dagara, portion of plot Nos. 116, 111, 108, of village Harankuli and portion of plot Nos. 9, 8 and 7 of village Dhamatpur; is required within the aforesaid villages of Dhamatpur, Dagara, Narankulki and Chaumukha.
This notification is made under the provisions of Section 4 of Act I of 1894, to all whom it may concern.
A plan of the land may be inspected in the office of the Collector, Balasore.
In exercise of the powers conferred by Section 17(4) of the said Act the Local Government bave decided that, in view of the urgency of the project provisions of Section 5A of the Act shall not apply.
By Order of the Governor
Sd/- P. K. Kapila,
Addl. Secretary to Govt'.
10. Mr. Mohanty, the learned counsel for the petitioners, stressed upon the words for straightening the river Subarnarekha In the said notification and contended that it is clearly a regulation and development of the river: and consequently the State Government has no power to do the same.
11. Item 56 of List I of Schedule 7 is as follows:
'Regulation and development of inter-State rivers and rives-valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest'
The learned Government Advocate contends that the proposed project is essentially a flood relief measure which benefits the people of the State and cannot in any way be regarded as a regulation and development of an inter-State river. He contends that under item 17 of List II, the State Legislature has power to legislate regarding water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 59 of List I.
Inasmuch as item 17 of List II is subject to the provisions of entry 56 of List I, It is clear that water as used in item 17 of List II includes also the regulation and development of inter-State rivers. Item 56 of List I gives the Central Legislature the power of regulation and development of inter-State rivers and river-valleys only to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in public interest.
There is no legislation by which Parliament has declared the extent of the control of the Union. I cannot accept Mr. Mohanty's contention that this restrictive clause is only with regard to the power of the Union to be controlled by the declaration of Parliament: and that it cannot be construed as giving the State Legislature the power when there is no such declaration by Parliament.
By reading item 56 of List I and item 17 of List II, I am of the view that the latter is wider in scope and Includes what is contemplated in item 56. Unless the Parliament declares the extent to which the regulation and development of inter-State rivers and the river-valleys are to be expedient in the public interest, the State has full power with regard to all legislation regarding water as contemplated by item 17 of List II.
I am also of the opinion that though by mistake the words 'straightening the river' are used in the notification issued by the opposite party, under Section 4, the contemplated project is essentially a project relating to water for purposes of preventing the flood and is clearly within the competence of the State Legislature & as such the executive action in notifying the same for acquisition and the contemplated project cannot be held to be unconstitutional under item 56 of List I and Article 162 of the Constitution.
12. The next contention of Mr. Mohanty also cannot be accepted. The proposed project is intended to mitigate the floods which are recurring trouble to Orissa. Various flood committees were constituted to go into this question and it is evident from the reports that the floods are mainly due to the water of Subarnarekha not flowing easily into the sea.
The opposite party, therefore, wanted to open another outlet by this proposed project so that the floods might be mitigated and by digging and opening the channel the flow of water of Subarnarekha into the sea will improve. There will then be no inundation and the people will be saved from the recurring annual floods. In my opinion, there is no doubt that the acquisition is for a public purpose.
13. Mr. Mohanty next contends that the contemplated project benefits only a few at the 'expense of a large number of people and as such is discriminatory. It may be that on account of this project being worked out, the lands of some persons might be affected, but it can never be said that the intended project designed to relieve the people of the havoc consequent on the yearly floods, can be said to be discriminatory. In all welfare legislation, there will be a section of the people which may be affected, but such legislation on that account cannot be said to be discriminatory.
It is stated by Burdick in his Law of the American Constitution that:
'The Guarantee of equal protection cannot interfere with the 'Police power' of the State to prescribe regulations to promote the health, peace, morals and good order of the people and to legislate so as to increase industries of the State, develop its resources and add to its wealth and prosperity, for which legislation of a special character is often necessary'.
In 'Barbier v. Connolly, (1883) 113 US 27 (A), It was observed:
'Special burdens are often necessary for general benefits such as for supplying water, preventing fires, lighting districts, clearing streets, opening parks, and many other objects.
Regulations for the purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon any one, but to promote, with as little individual inconvenience as possible the general good. Though in many respects necessarily special in their character, they do not furnish Just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions.
And in the exercise of such powers the State has a wide discretion in determining what measures are necessary for its own protection and property to promote the safety, peace and good order of the people.'
In my opinion, therefore, the proposed acquisition does not contravene the provisions of Article 14 of the Constitution.
14. The last but most important contention raised and vehemently argued by the learned counsel for the petitioners is that the notification, dated 25-1-55 is illegal and ultra vires as it was issued under Section 4 read with Section 17(4) end comprised in it some homestead lands, that the subsequent notifications are also Illegal and the acquisition proceedings are contrary to law.
15. Section 4 of the Land Acquisition Act is as follows.
'Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, as notification to that effect shall be published in the official gazette and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
(2) Thereupon it shall be lawful for any officer, either generally or specially authorised by such Government in this behalf, and for his servants and workmen--to enter upon and survey and take levels ofany land in such locality;to dig or bore into the sub-soil;
Provided that no person shall enter into anybuilding or upon any enclosed court or garden attached to a dwelling-house (unless with the consent of the occupier thereof) without previouslygiving such occupier at least seven days' notice in writing of his intention to do so' Section 17 is to this effect:-
(1) 'In case of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, Sub-section (1) take possession of any waste or arable lands needed for public purposes or for a Company.
Such land shall thereupon (vest absolutely in the Government), free from all encumbrances.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance oftheir traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station the Collector may, Immediately after publication of the notice mentioned in Sub-section (1) and with the previous sanction of the appropriate Government enter upon and take possession of such land, which shall thereupon (vest absolutely in the Government), free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience'.
(3) 'In every case under either of preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops & trees (if any on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
(4) In the case of any land to which, in the opinion of the appropriate Government the provisions of Sub-section (1) or Sub-section (2) are applicable the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4, Sub-section (1)'.
16. It is clear from Sub-section (4) of Section 17 that the appropriate Government may direct that the provisions of Section 5A shall not apply only in cases where the provisions of Subsection (1) or Sub-section (2) are applicable; and Sub-section (1) clearly states that the Collector can take possession of any waste or arable land needed for public purposes and that such land shall thereupon vest absolutely in the Govt. free from all encumbrances.
Mr. Mohanty therefore contends that inasmuch as in this notification homestead lands were admittedly included, the said notification is invalid in toto and all acts done in consequence of such notification are invalid.
17. The last paragraph of this notification, dated 25-1-1955, clearly states that in exercise of the powers conferred by Section 17(4) of the said Act, the Local Government have decided that in view of the urgency of the project, provisions of Section 5A of the Act shall not apply.
Plot numbers given in the subsequent notification dated 28-3-1955, are the said homestead lands which were withdrawn from the notification of 25-1-1955, and the said plots comprised, an area of 48.74 acres. It will be seen from that notification that the homestead plots are more than 80 in number out of about 100 plot numbers given in the notification of 25-1-1955.
18. By this notification dated 28-3-1955 No. 2368-XVII-28/55, it is said.
'Where it appears to the Government of Orissa that out of 240.06 acres of land notified to be acquired under the notification of the Government of Orissa, Revenue Department, No. 610-XVII-28-55, dated 25-1-1955, published at page 123 of Part III of the Orissa Gazette, dated 28-1-1955, Section 17 of the Land Acquisition Act (I of 1894) is not applicable in respect of 48.74 acres of land which are neither waste nor arable as per schedule below and whereas the Government have decided to start separate proceedings in respect of the said lands under Section 4 Act I of 1894, and whereas possession has not been taken in respect of the said land scheduled below the Government do hereby withdraw the said 48.74 acres of land from acquisition under the aforesaid notification, dated 25-1-1955'.
19. This notification was issued by an order of the Governor by Sri V. Ramanathan, Additional Secretary to the Government. In this notification it has been categorically asserted that possession had not been taken in respect of the said land scheduled below thereunder. But in his earlier affidavits objecting to the interim stay petition filed on 4-4-55 Mr. Ramanathan clearly and specifically admitted that possession of land including homesteads was taken long prior to that date. At page 2 of the affidavit it is stated:
'That it is submitted that it will take five days only to complete the work over the six plots of homestead lands which have not so far been given up by agreement .... .... .....
That in the meantime about 162 owners of lands and houses in the area in question have, by agreement, received compensation according to the preliminary estimates amounting to Rs. 1,07,921 after giving people stamped 'receipts and agreements parting with the lands in favour of the Public Works Department, who have been till now carrying on the project over all arable and waste lands. Government have allotted lands to those who are displaced from the homestead lands and people who got houses and have taken compensation are gradually shifting to the allotted sites....,
That the work of digging channel was started long ago as it was thought necessary to complete the project by June, after necessary sanction of the estimate of Rs. 4.00,000/- (four lakhs) allotment of funds and provision in the budget was made. That by now 75 per cent, of total work has been completed and a large labour force about 2000 are working in the project .................
That in any case as homestead lands and houses of those who have not till now received compensation or given agreements are not being taken over until acquisition in a regular proceeding it is submitted that an interim order for stay ought to be vacated'.
In O. J. C. 152/55 a petition for stay was filed by the petitioners complaining that the opposite party was proceeding with the digging in spite of the order of stay made in O. J. C. 81/55 to which the opposite party filed an objection sworn to by Sri B. Misra Executive Engineer in charge of the project in which it is stated inter alia
'With reference to paragraph 4 of the said petition the deponent begs to state that the state authorities have dug up some of the arable and homestead lands and, other lands of the petitioners of which possession was given up in favour of the State after receipt of compensation and on execution of agreements to that effect by their owners. It was stated in Para. 4 of the affidavit filed by Mr. Ramanathan, Additional Secretary Revenue Department filed on 4-4-55 that lands and houses of 162 persons have been taken over by agreement on payment of compensation. State Government was not stayed under order, dated 7-4-55 of the Hon'ble High Court from the digging work of the channel in other areas except some lands specified in their orders of that date ......
That with reference to paragraph 5 of the aforesaid petition the deponent begs to state thatdigging nas gone near the houses of the petitioners but nowhere it has gone all round their houses so as to have deep motes round them, and depriving them of any means of passage. .... .... ....
There has been some stray digging of a portion beyond plot No. 779 towards sea-shore which was done before 30-5-55 and the deponent hereby undertakes that there has not been and shall not be any further excavation in accordance with the orders of the High Court dated 30-5-55'.
The affidavit filed by Sri V. Ramanathan showing cause against the application of the petitioners is dated 20-8-55- Sri V. Ramanathan categorically stated on oath in paragraph 12 of the said affidavit:
'They came forward and executed agreements and Ekrarnamas to part with their lands and houses, if any, and other interests in the land in favour of the Public Works Department, and took compensation in advance on 12 different dates during February and March, 1955, from three Gazetted Officers and undertook to return the compensation in case it is more than their dues as per the award to be made and to take excess, if any, due after the award'.
The very fact that 162 persons out of 180 persons approximately took compensation in advance and parted with their lands would show that the people knew that it was for their benefit and for the benefit of a large section of the people residing on both banks of the river Subarnarekha.
The demand for the payment of compensation was so great that Rs. 50,000/- was exhausted in two days and some had to go back on the close of the 2nd day and they had to be paid again later when Rs. 50,000/- more was brought to Baliapal 7 or 8 miles away from the proposed cut. From a contemporaneous document, the order-sheet maintained by the Land Acquisition Officer also, it can be seen that immediately after the Notification, dated 25-1-55, the officer noted on 7-2-55:
'I have fixed up rates per acre of arable lands,homestead lands, valuation of tanks, trees Panabarajas etc., today separately after discussing the matter with Collector'.
The entry dated 11-2-55 shows that the draft declaration and the preliminary estimate and the sketch maps were put up before the Collector to send them to the Board of Revenue for sanction of the Government and publication. It is also stated:
'E. E. has placed rupees one Lakh at my disposal for payment of land compensation to the persons concerned and to make over possession of lands to P. W. D. during this month as the progress of work hampers due to want of land. ........ .... The matter has been discussed with E. E.and D. M.'.
The entry dated 14-2-55 is to this effect:
'Collector wants me to pay further amounts toothers who agree to take payment. To avert agitation led by the Socialist Party against this excution, Section 144, Cr. P. C. is promulgated in this area. As I am going there today, draw Rs. 50,000/-more for payment from 15-2-55 and Inform all concerned'.
The order-sheet also shows that on 12-2-55, 13-2-55, 14-2-55, 15-2-55, 16-2-55, 17-2-55, 24-2-55, 11-3-55, 19-3-55 and 21-3-55 various persons of the concerned villages were paid compensation.
These entries coupled with the statements of Sri V. Ramanathan in his affidavits that the villagers came forward and executed agreements and Ekrarnamas to part with their lands and houses,if any, and other interests in the land in favour of P. W. D. and took compensation in advance on 12 different dates during February and March, 1955, from three Gazetted Officers, as also the other unambiguous statements quoted above, clearly go to show that possession was actually taken by the opposite party of the land forming subject-matter of the notification dated 25-1-59 curing February and March, but in the notification, dated 28-3-1955, It was asserted that possession of the homestead lands was not taken. It should also be noted that the payments were made and possession was taken after issue of an order under Section 144, Cr. P. C. in the respective villages on 12-2-55.
20. On these facts, Mr. Mohanty contends that the people were forced to execute agreements under coercion as also to part with possession of their lands. Mr. Mohanty also contends that it is not lawful for the opposite party having notified the lands for compulsory acquisition to enter into agreements and pay interim compensation liable to reduction or enhancement according to the awards to be passed and take possession of the lands before awards.
He also contends that the opposite party cannot withdraw the notification dated 25-1-55 after taking possession bf the lauds in February and March by issuing a notification of withdrawal on 28-3-55 and as such the latter notification also is ultra vires.
21. The fact remains admitted that homestead lands were notified in a notification dated 25-1-55 which was issued under Section 17(4) making the provisions of Section 5A inapplicable and immediately after the notification possession of the said properties was also taken by the Government and interim compensation was paid before notices were issued under Section 9 and awards passed under Section 11 of the Act.
22. The learned Government Advocate appearing for the opposite party contended that according to the notification dated 28-3-55, the homestead lands were withdrawn from notification, dated 25-1-55. Notification No. 2584-XVII-28/55 Dev. was issued on 1-4-1955, separately for the said homestead lands in which objections to the acquisition, if any, under Section 5A were called for and the subsequently Notification No. 4310-XVII-28/55 Dev. was issued under Section 6 on 14-6-1955, with respect to these two categories of lands.
Subsequently notices were given under Section 9, objections were considered and awards were passed. The proceedings of the opposite party under the Land Acquisition Act, therefore, were legal and cannot be called in question.
23. On these contentions of the respective parties, questions which fall for determination are whether the notification under Section 4 read with Section 17(4), dated 25-1-55 can be treated as a valid notification with respect to the arable and waste lands, the homesteads having- been withdrawn from the said notification and being made the subject-matter of a fresh notification, whether the subsequent notification dated 28-3-55 and a fresh notification regarding the same under Section 4, dated 1-4-55 and the subsequent notification under Section 6 are legal and valid, and whether after notifying under Section 4 and before passing the awards, interim compensation can be paid and whether such payment of interim compensation and taking possession are legal and vest any title to those lands in the State.
24. Mr. Mohanty contends that the notification dated 25-1-55 is either legal or illegal taken as a whole. If it is illegal as it included homestead lands, the entire notification even with regard to the waste and arable lands becomes illegal and as the declaration under Section 6 with regard to these lands was made without a fresh notification under Section 4 with regard to waste and arable lands, the said declaration and subsequent proceedings would be illegal as a declaration under Section 6 can come into existence only after a valid notification under Section 4. In this case, the learned counsel contends as there is no valid notification under Section 4 with regard to the waste & arable lands, the declaration and subsequent proceedings are void and the opposite party cannot proceed with the acquisition and the contemplated project. He contends that the subsequent declaration under Section 6 cannot legalise the illegal initiation of the land acquisition proceedings. He also contends that the action of the opposite party in taking possession and carrying, out the major portion of the work is nothing but an act of trespass and is wholly illegal.
25. I will now consider the points raised by the learned counsel for the petitioners with regard to the validity or otherwise of the notifications, the payment of interim compensation and taking possession.
26. The first point to be considered is whether the notification dated 25-1-55 is a valid notification. The State admits that the notification, is invalid as far as the homestead lands are concerned. Consequently, it withdrew the homestead lands from the notification by another notification dated 28th March, 1955, and issued a fresh notification under Section 4, Land Acquisition Act calling for objections with regard to the same. If the Notification of 25th January is invalid as far as the homestead lands are concerned, then can is be held as contended by the learned Government Advocate, that the said notification is valid as far as the waste and arable lands are concerned? It can be seen from the said notification that there is no separation of the waste and arable lands on the one hand and the homestead lands on the other.
All the plots are jumbled together and it is not possible for any man to know at a look of the notification or the plan referred to in the said notification what the homestead lands are and what the waste and arable lands are. Persons owning homestead lands kept quiet without filing any objection as it was a notification issued under Section 4 read with Section 17(4). Under these circumstances, I am of opinion that it is not possible in this notification dated 25-1-55 to separate the invalid portion from the valid portion of the notification.
The subsequent withdrawal of homestead lands giving separate plot numbers and the fresh notification for acquiring the same, cannot, in my opinion, validate the notification of 25th January retrospectively. The validity or otherwise of the notification in question must be considered as on the date on which the notification was made, i. e., 25-1-1955, the date of the notification, and the subsequent date on which the said notification was gazetted. I am of opinion that the entire notification as contended for by the learned counsel for the petitioners is an invalid notification and is ultra vires.
27. The next question to be considered is whether there can be said to be a valid notification with regard to the homestead lands as a notification withdrawing the homestead lands from the 1st notification and other notifications under Section 4 were also made subsequently. According to the facts stated above, it is clear that the State took possession of the lands which are the subject-matter of the notification darted 25-1-55 in themonths of February and March before the notifications, dated 28th March or 1st April were made. Under Section 16, Land Acquisition Act, theCollector can take possession of the land only after an award under Section 11 is made and it is after that the lands vest absolutely in the Government. If the notification dated 1-4-1955, under section 4 with regard to the homestead lands is taken as the preliminary notification required, a curious situation arises.
According to law, it is after the issue of a preliminary notification and after the disposal of the objections, if any, filed & after a declaration is made by the Government under Section 6 and after notices are issued and award is made that Section 16 comes into operation when the Collector can take possession. But in this case things are topsy-turvy. Possession was already taken in the months of February and March of the homestead lands after paying certain amounts under agreements and Ekrarnamas and subsequently on 1st April a preliminary notification under Section 4 is made with reference to those lands.
Under these circumstances, it cannot be held that the preliminary notice issued on 1-4-55 with regard to the homestead lands is a valid notification, inasmuch as possession of the lands was taken prior to the same. The opposite party having taken possession of the lands in February and March, cannot make a notification under Section 4 in April.
28. The nest point to be considered is whether the opposite party is legally entitled to withdraw the notification with regard to the homestead lands by a subsequent notification dated 28-3-55. In my opinion the State cannot do so. Having taken possession of the lands and paid some amounts towards compensation the opposite party cannot validly withdraw the notification.
Under these circumstances I cannot hold that the subsequent declaration under Section 6 & the notices under Section 9 and the awards validate the acquisition as in my opinion, the preliminary notification as already stated under Section 4 is an invalid notification with regard to the homestead lands as well as waste and arable lands and the preliminary notification being the basis of the subsequent action under the Act, such subsequent action consisting of declaration, notices and passing of awards, cannot be held to be valid, inasmuch as the initiation of acquisition proceedings is at its inception invalid and ultra vires.
29. The subsequent proceedings relating to determination of the compensation payable & the passing of the awards also do not appear to be legally done. This Court, having in its final orders limited the stay order to the plots of some of the petitioners and vacated the interim order of stay in other respects, the opposite party proceeded with the acquisition and the digging of the channel.
The notification of the declaration under Section 6 was made on 14-6-55 with regard both to the homestead and waste and arable lands. On 16-6-55 the land acquisition Collector ordered notices under Section 9 as well as publication to be made the next day and fixed 2-7-55 for filing objections. The entry in the order-sheet dated 16-6-55 is as follows.
'......,......... A public notice be given atconvenient places on or near the land to be taken stating that Government intends to take possession of the lands and claims to compensation for all interests in such land may be made to me.
The notice be prepared observing all formalities as per Section 9 of the Act. All persons interested to appear be required to appear personally or by agent before me at Balasore on 2-7-55 at 12 A. M. The Notice be served by tomorrow morning at the latest.
The entry under Section 11 and the making of award will be made on 2-7-55 positively'.
The order sheet ends there, but as already stated, the awards were passed on 4-7-55 and 5-7-55 as disclosed in the affidavits filed on behalf of the opposite party.
Section 9 says:
'(1) The Collector shall then- cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
(2) Such notices shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place herein mentioned (Such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements mode under Section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land, & on all such persons known or believed to be interested therein, or so be entitled to act for persons so interested, as residents or have agents authorised to receive service on their behalf within the revenue district in which the land is situate.
(4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him at his last known residence address or place of business and registered under Part III, Indian Post Office Act, 1866',
These are clear and mandatory provisions. I searched the entire record, but could not find the notices or any mention that the notices were served. This record of the Land Acquisition Proceeding was filed into Court after being required to do so. Consequently, it is not possible for me to say whether the notices were valid or not as to their contents or whether they were served or not. But even on the assumption that they are valid notices as to their contents and were served on all, there is no doubt on the entries in the order-sheet that there is no valid service of the notice as required under the section.
The notices were ordered on 16-6-55. Assuming that they were served on the earliest day, i.e., the nest day (which in my view is not possible considering the large number of persons to be served and the many particulars to be noted in the notices which is 17-6-55 and the date for hearing objections being fixed on 2-7-55 there are no fifteen days between the notice and the date of hearing as required by the section.
In the case of -- 'District Labour Officer Ambalapuram v. Venkatasubramanya Sastri', 1931, Mad 50 (AIR V18) (B), It was held that in computing the fifteen days the day of service and the date fixed for hearing should be excluded. In -- 'Rameswar Singh v. Secretary of State', 34 Cal 470 (C), it was held that where the period fixed is less than fifteen days, the notice is defective and will justify a separate suit for compensation for damages in a civil Court. In the present case, notice ordered to be issued on 16-6-55 must have been issued on 17-6-55, and apart from the date of service, this notice is detective as the date fixed for hearing is 2-7-55. Consequently the awards passed under Section 11 in pursuance of this invalid notice are also void and Illegal.
30. It appears from the order-sheet maintained by the Land Acquisition Collector that even before the notification dated 25-1-55 and without any notification that land is likely to be needed for a public purpose, the revenue subordinates were deputed to enter on the lands, note the structures thereon and the number of trees and value of the land. It also appears that even though possession of the lands was taken in February and March, 1955, and 75 per cent of the work was finished, a formal order was recorded after the awards under Section 16 were made and the Executive Engineer was directed to take possession.
31. In the case of 34 Cal 470 (C), it was observed by their Lordships after a review of the English and American decisions on the subject;
'In the third place in order to give validity to the proceedings and finality to the award in which they terminate, the power of acquisition with all statutory limitations and directions for its use, must be strictly pursued; every essential pre-requisite to the jurisdiction called for by the statute, must be strictly complied with. It is an elementary proposition that statutory provisions in respect of acquisition of lands must be strictly complied with and the burden of proof of compliance rests upon those who claim statutory powers or base their title upon the exercise of statutory provisions: Matter of Baffalo (1879) 78 NY 862 (D) 'Dyckman v. New York', (1851) 5 NY 434 (E).
This doctrine is nowhere better illustrated than in the recent decision of their Lordships of Judicial Committee in -- 'Saunby v. London Water Commissioners', (1906) AC 110 (F). In that case the defendants had interfered with the property of the plaintiff in contravention of the provisions of the Act under the authority of which they professed to proceed.
The Judicial Committee held that the defendants were guilty of trespass and that the plaintiff was entitled to an injunction, because to refuse an injunction in such a case would be to enable the defendant to expropriate the plaintiff without statutory authority or without following the procedure pointed out by the statutory authority, if any.
To the same effect are the observations of their Lordships of the Judicial Committee in 'North Shore Railway Co. v. Poin', (1889) 14 AC 612 (G) and of the House of Lords in--'Herron v. Rathmines', 1892 AC 498 (H). In the latter case Lord Macnaghten observed that: 'where the promoters of a public undertaking have authority from Parliament to interfere with private property on certain terms, any person whose property is interfered with by virtue of that authority has a right to require that (the promoters) shall comply with the letter of the appointment, so far as it makes provision on his own behalf'.
A similar view had been adopted in the American Court, See Blnney v. Chesapeake and Ohio Canal Co., (1834) 8 Peters 214 (I) in which it was held by the Supreme Court of the United States that a canal Company could not take private properly until it had strictly complied with all the requirements of the law & completed all the steps contemplated therein. See also -- 'United States v. Rauers, (1895) 70 Fed. Rep. 748 (J). In re, Montgomary (1892) 45 Fed Rep. 896 (k) and Bonaparte v. Camdeno Rly. Co., (1830) Baldwin 205 (L)'.
32. The above observations and the principles decided in the cases quoted above aptly apply to the facts of the present case. According to these authorities it is clear that the steps taken by the officers of the opposite party at every stage from the start to the finish are arbitrary, illegal and contrary to the provisions of the Land Acquisition Act. As already shown the initial notification of 25-1-1955, is ultra vires. The notifications of 28th March and 1st April, 3955, withdrawing homestead lands and again notifying the same for acquisition are illegal.
Consequently the notification of declaration under Section 6 is also illegal. The awards passed on defective notices under Section 9 are not legal awards. Possession was taken illegally and part of compensation was paid contrary to the Act under coercion after promulgating an order under Section 144, Cr. P. C. and arresting about 70 persons. The entire proceedings taken by the opposite party under the Land Acquisition Act are thus void and the opposite party is a trespasser on the lands forming subject matter of the acquisition and their interference on the land and the digging are nothing but acts of a trespasser. (33) It is unfortunate that a project intended for the public good to protect people from the ravages of floods should become infructuous and delayed on account of the officers concerned of the Revenue as well as the Public Works Department being either careless or ignorant of the rules of acquisition; and it is also regrettable that officers on behalf of the State should have recourse to arbitrary methods of coercion and undue influence in order to make the people agree to the project, by promulgating orders under Section 144, Cr. P. C. and drawing large amounts of money from the public treasury and attempting to pay the persons contrary to the rules, and even before the formalities required under the Statute are complied with.
On account of the illegal and arbitrary procedure adopted in this case, the Court had to interfere in consequence of which the contemplated flood relief measure has to be delayed. This Court has to administer justice according to the Constitution and law, and has, therefore, to hold that the entire land acquisition proceedings are illegal and ultra vires and the possession of the opposite party of the petitioners' land is that of a trespasser.
34. I therefore allow both the applications in part, declare that the acquisition proceedings are wholly void and direct the opposite party not to enter upon the petitioners' lands which are the subject matter of the acquisition and a writ of mandamus shall issue accordingly against the opposite party. The petitioners will have their costs in both the applications. Hearing fee for both the petitions is fixed at Rs.500/-
35. I agree.