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Kari Khuntia and ors. Vs. the State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 593 of 1980
Judge
Reported inAIR1982Ori181; 53(1982)CLT541
ActsLand Acquisition Act, 1894 - Sections 4(1) and 5A
AppellantKari Khuntia and ors.
RespondentThe State of Orissa and ors.
Appellant AdvocateR. Mohanty, ;M. Patra, ;B. Dagara and ;M.R. Patra, Advs.
Respondent AdvocateGovt. Adv., ;B. Rath and ;M.R. Panda, Advs.
DispositionApplication dismissed
Cases ReferredHaryana v. Kala Devi
Excerpt:
.....on the materials placed before us, we are, however, not satisfied that it is open to the petitioners to challenge service in the teeth of the service report and the satisfaction of the land acquisition officer, as pointed out by the supreme court in the case of bai malimabu v......namely, for locating the private bus stand and taxi stand at badambadi:--khata no.plot no.total areaacquisition area123479314860.773 dec.0.295 dec.52114870.897 dec.0.688 dec.52114880.082 dec.0.082 dec.27014890.078 dec.0.076 dec.52114900.391 dec.0.265 dec. totalac. 1.406 dec.as averred in paragraph 2 of the writ application, 'a' schedule land belongs to the petitioner no. 1 while the land under schedule a-1 belongs to the petitioners 2 and 3 together and similarly the land under schedule a-2 belongs to the petitioners 4 and 5. acquisition of plots nos. 1488 and 1489 is in entirety and part acquisition is in respect of the remaining 3 plots.the petitioners are not interested in plot no. 1486. petitioners 2 and 3 are interested in a little more than 166 decimals out of the total acquired.....
Judgment:

R.N. Misra, C.J.

1. Five petitioners have jointly filed this application under Article 226 of the Constitution challenging acquisition proceedings taken under the Land Acquisition Act 1 of 1894 (hereinafter referred to as the 'Act') notification Under Section 4(1) of the Act wherefor is dated 5-7-1978 published in the Orissa Gazette on 27-7-1978. The petitioners contend that acquisition proceedings in regard to the lands given in Schedules A, A-1 and A-2 of the writ application are vitiated on account of:--

(i) Want of clear description of the property sought to be acquired as parts of the whole plots were notified:

(ii) No notice of hearing Under Section 5A of the Act was served on the petitioners and no opportunity of being heard was extended to them;

(iii) Notification Under Section 6 of the Act shows that an area of 0.865 decimals was sought to be acquired out of 0.381 decimals in plot No. 1490. Such a glaring mistake is indicative of non-application of mind; and

(iv) Acquisition was contrary to the master plan prepared under the Greater Cuttack Improvement Trust Act inasmuch as the acquired area was ear-marked for residential purpose and could not, therefore, be utilised for purposes of private bus and taxi stand.

2. The Section 4(1) Notification in Annexure 1 indicated that the lands described below were intended to be acquired for a public purpose, namely, for locating the private bus stand and taxi stand at Badambadi:--

Khata No.Plot No.Total areaAcquisition area

1234

79314860.773 dec.0.295 dec.52114870.897 dec.0.688 dec.52114880.082 dec.0.082 dec.27014890.078 dec.0.076 dec.52114900.391 dec.0.265 dec.

TotalAc. 1.406 dec.

As averred in paragraph 2 of the writ application, 'A' schedule land belongs to the petitioner No. 1 while the land under Schedule A-1 belongs to the petitioners 2 and 3 together and similarly the land under Schedule A-2 belongs to the petitioners 4 and 5. Acquisition of plots Nos. 1488 and 1489 is in entirety and part acquisition is in respect of the remaining 3 plots.

The petitioners are not interested in plot No. 1486. Petitioners 2 and 3 are interested in a little more than 166 decimals out of the total acquired area of Ac.0.688 decimals appertaining to plot No. 1487 while petitioners 4 and 5 are interested in Ac.0.126 decimals of plot No. 1487. Petitioners 4 and 5 appear to be interested in portions of plots Nos. 1488 and 1489, wrongly shown as plot No. 1439, in Schedule A-2 of the writ application.

3. Two counter-affidavits have been filed, one by opposite parties 1, 2, 3 and 5 and the other by opposite party No. 4. The joint counter-affidavit supports the acquisition and has disputed the several contentions advanced on behalf of the petitioners. In the counter affidavit of the Executive Officer while the stand taken by the other opposite parties has been generally supported, with refer-ence to the reservation of the area for residential purpose no challenge has been advanced.

4. There is no dispute that the acquisition is for a public purpose. Admittedly, the provisions of Section 17(1) of the Act were not invoked and, therefore, the land owners were entitled to a hearing u/s, 5-A of the Act. The petitioners assail that when 0.688 decimals out of 0.897 decimals of plot No. 1487 was notified for acquisition, clear demarcation should have been given to indicate the acquired area. Reliance has been placed on the decision of the Supreme Court in the case of Gunwant Kaur v. Bhatinda Municipality, AIR 1970 SC 802, where it has been observed (at p. 804) :--

'The Collector was acting for and on behalf of the State Government to make an offer of compensation for the lands to be acquired. The appellants were entitled to challenge the correctness of the Collector's opinion. Again the jurisdiction of the Collector depended upon the issue of a valid notification and the mere fact that the Collector was satisfied that the true area of land demarcated corresponded to the area notified -- whatever that expression may mean -- did not prevent the owners of the. lands from contending before the High Court that they had no opportunity of making their representations under Section 5A of the Act and of satisfying the Collector that the lands should not be acquired.'

5. As we have already pointed out, the petitioners did not file any objection within the time allowed under the law. In the Schedules they have given, with reference to plot No. 1487 they have clearly indicated their area in respect of a part of the plot and have not specifically pleaded that they were not in a position to know whether their land had been notified for acquisition. The Notification Under Section 4(1) (Annexure-1) indicates that a sketch map of the acquired area was also available to be inspected in the office of the Land Acquisition Collector. The property is located in the town of Cuttack and not away from the office of the Collector. The land to be acquired in which the petitioners are interested is ultimately one single plot. The scope of prejudice is, therefore, very much minimised.

We may refer to two later decisions of the Supreme Court, one being the case of Aflatoon v. Lt. Governor, Delhi. AIR 1974 SC 2077, and the other being the case of Inderjit C. Parekh v. State ofGujarat, AIR 1975 SC 1182. In Aflatoon v. Lt. Governor, Delhi (AIR 1974 SC 2077) it was pointed out that whether the particulars given in the Section 4 Notification are sufficient to enable an objection to be filed under Section 5A would depend upon the facts and circumstances of each case. We are of the view that in the facts of this case which we have detailed above, there was no scope for prejudice in making of a representation Under Section 5A of the Act. In Inderjit C. Parekh's case (AIR 1975 SC 1182) it was pointed that where the Notification Under Section 4 in which the area of the land to be acquired was stated as 'part of Survey No. 56A measuring about 3000 sq. yards.' was withdrawn and a fresh notification under Section 4 was published wherein the area was described as '5600 sq. yds. from the north-west corner of Survey No. 56A,' no objection was available to be raised. The ratio of Inderjit C. Parekh's case clearly indicates that in the absence of prejudice no objection is indeed available.

6. The next question for consideration is as to whether there has been a denial of opportunity of making a representation of hearing as provided Under Section 5A of the Act. Undoubtedly, the opportunity statutorily provided Under Section 5A of the Act is an important one and the right of the owner to raise objection to acquisition though subservient to the right of eminent domain authorising the State to acquire lands of citizens for public purpose should not be lightly affected. The Land Acquisition Officer did issue notice and it has been categorically pleaded that the notices were duly served in the Thakur Ghar which is an important site in the locality and the report dated 8-11-1978 shows that copy of the notice was served by affixture after non-acceptance. Service has been duly attested and the Land Acquisition Officer who exercised powers of the court for certain purposes accepted such service of notice as adequate. Reliance was placed on the terms of Section 45 of the Act to challenge the adequacy of such service. On the materials placed before us, we are, however, not satisfied that it is open to the petitioners to challenge service in the teeth of the service report and the satisfaction of the Land Acquisition Officer, As pointed out by the Supreme Court in the case of Bai Malimabu v. State of Gujarat, AIR 1978 SC 515, the requirements of Section 4(1) are (at p. 518) :--

'.........giving of a general notice andby two methods -- (1) by the publicationof the notification in the Official Gazette and (2) causing public notice of the substance of such notification to be given at convenient places in the locality.'

Admittedly, there has been a Gazette Notification and there is no serious dispute that notice had been given at a convenient place in the locality. We do not think, there is substance in the petitioner's challenge that there was no due notice.

7. Challenge to the acquisition was also on the ground that lands of some others had been released and the petitioners' lands were being taken away. The Supreme Court pointed out in the case of Financial Commr., Haryana v. Kala Devi, AIR 1980 SC 309 that the Court cannot interfere unless choice was made with oblique ends or was otherwise void. On the materials before us we do not think, a case has been made out to justify the stand of the petitioners.

8. For the reasons we have indicated, this writ application must stand dismissed but without any order for costs.

Behera, J.

9. I agree with My Lord the Chief Justice.


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