Orissa High Court
Indramani Biswal And Others vs State Of Orissa & Others ......... ... on 25 September, 2012
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
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ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) Nos. 31840 & 31319 OF 2011
AND CONTC No. 388 of 2009
In the matter of applications under Article 226 and 227 of the Constitution
of India and under Section 14 of the Contempt of Courts Act.
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In W.P.(C) No.31840 of 2011
Indramani Biswal and others ......... Petitioners
-versus-
State of Orissa & others ......... Opp.Parties
_______________
For petitioners : M/s.R.N.Mishra, S.K.Das, and S.Barik
For opp.parties :
Mr. Ashok Mohanty, Advocate General
(for O.Ps.1 to 5)
In W.P.(C) No.31319 of 2011
Laxmidhar Mohanty and others ......... Petitioners
-versus-
State of Orissa & others ......... Opp.Parties
_______________
For petitioners : M/s.G.K.Acharya, J.Acharya, T.P.Acharya,
K.M.Patra
For opp.parties : Mr. Ashok Mohanty, Advocate General
(for O.Ps.1 to 5)
M/s.Sanjib Swain & associates (for O.P.No.6)
M/s.G.Mukherjee & associates (for O.P.No.7)
In CONTC No.388 of 2009
Smt.Kiran Panda and others ......... Petitioners/Complainants
-versus-
Ajit Kumar Tripathy & others ......... Opp.Parties/Contemnors
_______________
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For petitioners : M/s.J.Patnaik, H.M.Dhal, A.Das, B.Mohanty
& T.K.Patnaik
For opp.parties : Mr. Ashok Mahanty, Advocate General
(for O.Ps.)
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA
AND
THE HONOURABLE SHRI JUSTICE S.K.MSIHRA
Date of hearing : 29.08.2012 & Date of judgment : 25.09.2012
V. Gopal Gowda,C.J. Both these writ petitions along with the contempt petition
were heard together by the consent of the learned counsel for the
parties, which are connected to each other in relation to construction of
the road to the domestic Airport of Bhubaneswar pursuant to the order
dated 27.9.2004 passed by this Court in OJC No. 8090 of 1996 and the
batch of cases. Accordingly, common judgment is passed in all these
matters.
2. Necessary brief facts are stated in the judgment dated
27.9.2004 passed in the earlier writ petitions bearing OJC Nos.8090 of
1996, 7858 of 1998, 16607 of 1998 and 16419 of 1998. With a view to
find out as to whether the writ petitioners are entitled for the reliefs as
prayed for by them in the writ petitions and the complainants, who
have initiated contempt proceeding bearing CONTC No. 388 of 2009 on
the allegation of disobedience of the order dated 27.9.2004 passed in
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OJC No.8090 of 1996 and the batch of cases, certain relevant facts are
stated hereunder. According to the complainants, there has been willful
disobedience of the order, which amounts to civil contempt for which
the contemnors are liable to be punished under the Contempt of Courts
Act, 1971 read with the High Court Contempt Rules framed thereunder.
3. The prayers made in these writ petitions are to issue rule
in the nature of direction to the opposite parties to permanently
restraining them from taking up the proposed eviction/ demolition work
relating to the land and buildings of the petitioners described in the
R.O.Rs. filed by the petitioners in Annexure-1 series and further to hold
the notifications, if at all issued by the State Government for acquisition
of lands and buildings of the petitioners, as null and void urging various
facts and grounds.
4. The petitioners have purchased the residential plots
situated at Jagamara, P.O. Khandagiri, Bhubaneswar by spending hard
earned money and all the petitioners except petitioner nos.5 & 6 in
WPC No. 31840 of 2011, constructed their respective houses thereon
long back and are residing there with their family. After purchase of the
plots of land, they got their lands mutated in their names and
accordingly they have been issued R.O.Rs. by the competent authority,
namely, Tahasildar, Bhubaneswar and they have been paying their
respective land revenues and electricity charges etc., copies of which
are annexed as Annexure-1 series in WPC No. 31840 of 2011.
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5. As per the decision taken by the State and Central
Governments for expansion of runway at Bhubaneswar Aerodrome
Field, it was decided to close the existing road from Siripur to
Gandamunda and in lieu of that to construct a new road from Siripur to
Gandamunda for convenience of the local people. After the decision was
taken by the State Government for construction of the proposed new
road, plan was prepared to that effect. After preparation of the plan for
construction of the proposed new road, some plot owners being
aggrieved by such demarcation of the land for the purpose of
construction of the new road, approached this Court by filing writ
petitions bearing OJC Nos.8090 of 1996, 7858 of 1998, 16607 of 1998
and 16419 of 1998, which came to be disposed of on 27.9.2004 by a
common order. This Court while disposing of the said writ applications
was pleased to give the following directions, which read thus:
"(i) The State Government shall construct a road from
Jagamara to a place nearby Delta Junction as shown in
red ink in the map produced by the Advocate General
along with additional counter affidavit filed by Opp.party
no.5 on 13.09.2004 within a period of four years.
(ii) Road existing from Siripur Chhak to Gandamunda
junction may be closed for the purpose of expansion of
the domestic Airport and expansion work may be taken
up. For a period of four years, the petitioners and other
residents of the area may use the road from Jagamara
to Delta junction via Park and from Jagamara to
Khandagiri square and from Khandagiri square to Fire
Station for entering into the city.
(iii) Immediate steps be taken by the State Government to
provide funds for construction of the proposed road as
indicated above so that construction of road can be
completed within the time specified above."
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6. It is the further case of the petitioners that in spite of the
aforesaid order passed by this Court in the aforesaid writ petitions in
the year 2004, the State Government with a mala fide intention in
connivance with the local politicians and high ranking officers did not
construct the road as proposed by the State Government in its affidavit
filed in the earlier writ petitions referred to supra. But on the other
hand, it has decided to construct a road over the land of the present
petitioners and some other residents by demolishing their houses.
7. It is the further case of the petitioners that there being
deviation in the construction of the road, some of the residents of
Mallick Complex house, who were being affected, filed a suit bearing
C.S.No.288 of 2009 before the learned Civil Judge (Junior Division),
Bhubaneswar. In the said suit an interlocutory application, bearing
I.A.No.305 of 2008, was also filed seeking an order restraining the
opposite parties from demolishing the houses of the petitioners for
constructing a road over the suit land belonging to the petitioners.
Learned Civil Judge by order dated 26.9.2008 was pleased to direct the
opposite parties 1 to 3 not to make any construction of road in violation
of the order dated 27.9.2004 passed in OJC Nos.8090 of 1996, 7858 of
1998, 16607 of 1998 and 16419 of 1998. It is further alleged that
despite the order dated 26.9.2008 passed in I.A.No.305 of 2008, the
opposite parties did not stop constructing the proposed road. That
apart, the writ petitioners in the earlier writ applications referred to
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supra have filed the connected contempt petition bearing CONTC No.
388 of 2009 arising out of O.J.C.No. 8090 of 1996 for disobedience of
the order of this Court dated 27.9.2004. This Court at the time of
hearing of the aforesaid contempt petition by order dated 27.6.2011
directed the State Government to file a status report relating to the
alleged construction of road as directed by this Court in the earlier writ
petitions referred to supra and also the land to be acquired for that
purpose. This Court while passing the said order, referred to the order
passed in I.A.No.305 of 2008 arising out of C.S.No. 288 of 2009 by the
learned Civil Judge (Junior Division), Bhubaneswar and made an
observation that the order passed by the learned Civil Judge (Junior
Division), Bhubaneswar is in consonance with the order passed by this
Court on 27.9.2004.
8. To comply with the direction given by this Court in the
aforesaid contempt matter, the State Government prepared a status
report and filed before this Court by way of an affidavit, sworn to by Sri
Sribhusan Sukla, Land Officer, G.A. Department, Government of
Odisha, on behalf of the Chief Secretary of Odisha on 11.11.2010. In
the said affidavit, the State Government referring to the proceedings of
the meeting held on 8.11.2011 has admitted that the land over which
15 residential houses are existing, is to be acquired by the State and
the residents of those houses are to be evicted by 25.11.2011 and the
construction of the road has to be finished by 15.12.2011. Copy of the
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said affidavit along with the proceedings of the meeting held on
8.11.2011 is filed as Annexure-5 series to WPC No. 31840 of 2011.
9. It is the case of the petitioners that though there is
specific direction given by this Court in the earlier writ petitions vide
order dated 27.9.2004 and there being a specific restraint order passed
by the learned Civil Judge (Junior Division), Bhubaneswar in the
interlocutory application, the opposite parties with the help of police
forcibly entered into the residential houses of some of the residents of
Mallick Complex on 1.12.2011 at about 11 A.M. and by use of force
evicted the residents from their residential houses and tried to get their
houses demolished despite the petitioners showing restraint order
passed by this Court as well as the Civil Court, which according to them
is a total disregard to the orders of the Courts. Further, it is alleged
that the eviction squad also have threatened the petitioners as well as
other residents that further demolition work would continue so that the
road work can be completed as per the decision made in the meeting
held on 8.11.2011.
10. Being aggrieved by the aforesaid demolition process,
some of the residents of Jagamara approached this Court by filing W.P.
(C) No. 31319 of 2011. This Court by interim order dated 3.12.2011 in
Misc. Case No. 18675 of 2011 directed the opposite parties to maintain
status quo.
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11. It is further stated that if the opposite parties are allowed
to go ahead with the eviction process and get the petitioners' houses
demolished, great prejudice would be caused to them as they would be
deprived of their residential houses, thereby they will be put to great
difficulties to find an alternative accommodation within a short span of
time. Therefore, they have approached this Court.
12. It is further alleged that the State Government and its
officers in the garb of public purpose, are trying to demolish the
residential houses of the petitioners in the Mallick Complex in utter
violation of the settled principles of law, which action of the State
Government and its officers is arbitrary, unreasonable and unfair as it
is the prime duty of the Government to protect its citizens and ensure
safety of their lives and dwellings, which is coming within the meaning
of basic needs of human beings.
13. In the earlier writ petition bearing OJC No. 8090 of 1996,
the Deputy Secretary to the Government, G.A. Department filed an
additional counter affidavit on 13.9.2004, wherein it was stated that
after various alternative road proposals, the following three proposals
have been considered in addition to the available connectivity:
(i) Road of either side of narrow apron of Runway
connecting Gandamunda junction to Jhadeswri Temple
junction (Alt-R-1) in the map enclosed.
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(ii) Master plan road connecting the Gandamunda-
Khandagiri Road and Siripur Fire Station Road (at
Santoshi Maa Temple) (Alt-R-2 in the map enclosed)
(iii) Jagamara junction to Delta junction via Baramunda
High School.
This Court, while disposing of the aforesaid writ petition referred to
supra, observed that since the third proposal required widening,
strengthening and improving an existing road, considering all aspects
including cost and time, the same was accepted to be suitable and
accordingly issued direction to construct the said road from Jagamara
to a place nearby Delta junction as shown in red ink in the map
annexed to the affidavit.
14. It is alleged in the present writ petitions that deviating
the red ink portion in the sketch map, eviction and demolition process
has been initiated by the opposite parties for construction of the
aforesaid road without the leave of this Court, which amounts to an act
of mala fide and it is contemptuous in nature as there is violation of the
order of this Court dated 27.9.2004 and the restraint order passed by
the Civil court referred to supra, which action of the opposite parties is
illegal, arbitrary and in gross violation of law and also the interim order
passed by this Court on 3.12.2011 in Misc. Case No. 18675 of 2011
arising out of W.P.(C) No. 31319 of 2011 directing to maintain status
quo.
15. The contempt petition bearing CONTC No. 388 of 2009
came up before this Court on 27.6.2011 and this Court after hearing
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the petitioners in the said case as well as learned Advocate General
with reference to the show cause reply filed on behalf of the Chief
Secretary to the Government of Odisha/ Secretary to Government,
General Administration Department along with Annexure-A, the table
indicating the name of the land owners in C.S.No.228 of 2008 on the
basis of the facts stated in the affidavit filed on behalf of the opposite
parties and the details furnished in the notifications showing the lands
acquired, made observation that it appears that the writ petitioners'
land/buildings are acquired as per the notifications under Annexures-B
& C. For the said reason, the proceedings before the Civil Court has
made it very clear that the opposite parties were thereby prevented
from making construction in violation of the order dated 27.9.2004
passed in O.J.C. No. 8090 of 1996. Therefore, the opposite parties were
required to comply with the order and submit a status report by four
weeks. Pursuant to the said order, the Land Officer has filed the
affidavit along with the status report.
16. On 30.1.2012 after hearing the learned counsel for the
petitioners in both the writ petitions as well as in the contempt petition
and the learned Advocate General, this Court appointed a Committee
consisting of four persons, namely, (1) Sri K.C.Patra, Superintending
Engineer, Odisha Geo Spatial Data Centre, Survey of India, Survey
Bhawan, Bhubaneswar, (2) Sri G.S.Bhuyan, Associate Town Planner,
BDA, Bhubaneswar, (3) Sri P.C.Nayak, Executive Engineer (R&B),
Division No.III, Bhubaneswar and Sri C.P.Gantayat, Executive Engineer
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(R&B) Division No.IV, Bhubaneswar with a view to find out the correct
factual aspect with reference to the allegation and counter allegation of
the parties to the effect that there is a deviation of the road as shown
in red colour portion of the map and there has been violation of the
direction of this Court in the earlier writ petitions. The said Committee
was directed to visit the spot and conduct an inspection of the spot in
the presence of the parties with reference to the additional counter
affidavit filed by the opposite party no.5 dated 13.9.2004 and the map
showing the red colour portion and to submit a report within a period of
four weeks. However, a petition was filed on behalf of opposite party
nos.1 to 3 seeking extension of time to submit the report pursuant to
the order dated 30.1.2012 and accordingly two weeks' time was
granted by this Court by order dated 29.2.2012. Thereafter on
10.4.2012 the Executive Engineer, Bhubaneswar (R&B) Division No.III
submitted the report vide Annexure-A/3. After filing objection and after
hearing learned Advocate General for the opposite parties and learned
Senior Counsel for the petitioners in the contempt matter, this Court
did not accept the said report since the disputed land and the land over
which construction of the road is to be made as indicated in the red
colour in the map has not been surveyed and inspected and therefore,
gave opportunity to the Committee to re-survey the spot and submit a
report along with the notes of survey after affording opportunity to the
writ petitioners, one of the complainants in the contempt petition and
the opposite parties in the writ petition immediately after summer
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vacation for perusal of this Court. Accordingly, the report was
submitted in a sealed cover on 7.8.2012 along with CD in another
sealed cover. The same was opened in the open Court. The relevant
observation made in the said report reads thus:
"After that, the Committee along with petitioners,
opposite parties and complainants visited the turning
point for spot survey and reassessment. After super
imposition of the red marked road on the sketch map
with the Survey of India map showing marked (A),(B)
and (C) and found to be tallying. It is pertinent to
mention here that the curvilinear road shown in the red
marked road sketch map does not follow the alignment of
existing Baramunda road and it is totally different from
the existing alignment.
Committee is of the view that the present alignment of
Master Plan road now being constructed is mostly in
agreement with the alignment shown in red marked road
in sketch map.
In this connection, it is further to bring to your kind
notice that the petitioners have gone to the extent of
motivating the hierarchy of Survey of India organization
to influence Sri Patra, Superintending Survey (Member of
the Committee) when the matter is being adjudicated
and monitored by the Hon'ble High Court, Odisha,
Cuttack."
Learned Senior Counsel Mr.J.Patnaik for the complainants in the
contempt petition and the learned counsel appearing for the writ
petitioners wanted some time to get the certified copy of the report
along with annexures to peruse the same and to make submission on
the report of the Committee. Accordingly, the matters were adjourned
to 22.8.2012 and thereafter to 29.8.2012, on which date, arguments of
the learned Senior Counsel for the complainants in the contempt
petition, learned counsel for the petitioners in both the writ petitions as
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well as learned Advocate General Mr.Ashok Mahanty for the State and
its officers were heard at length both on the Court Commission
Committee report and also on the merits of the writ petitions.
Mr.J.Patnaik, learned Sr. Counsel appearing for the complainants in the
contempt petition has objected to the 2nd report dated 7.8.2012 inviting
our attention to paragraph 5. He has placed reliance on the following
portion, which reads thus:
"It is neither a revenue map nor any map prepared by
B.D.A. or Survey of India. So, it was not possible to
exactly demarcate the red road on field. In order to
substantiate, three points were chosen (i) starting
point on Siripur-Fire Station road (ii)Turning point near
airport fencing (iii) the end point touching Khandagiri-
Gandamunda road."
Further, according to Mr.Patnaik, the Court Commission Committee
members, do not have minimum requirement to demarcate the red
colour portion road marked in the sketch map as part of the order
dated 27.9.2004. Therefore, the field verification made by the above
Committee to the scale measurement of red colour mark road in the
sketch map by adopting the methodology is not correct as they were
asked to measure two roads. In the absence of master plan, the
proposed road as shown in red colour in the map annexed along with
the affidavit filed on 13.9.2004 could not have been identified. The
report submitted by the Court Commission should not contradict the
fact as indicated in the order passed in the earlier writ applications
referred to supra. Therefore, he has prayed this Court not to admit the
report as it would affect the public interest.
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17. Learned counsel appearing for the petitioners in W.P.(C)
No. 31840 of 2011 placing reliance on the submission made by
Mr.J.Patnaik, learned Senior Counsel, submits that no notice has been
served on the petitioners, who are recorded tenants. The sketch map
shown in the red colour is over-lapping upwards to Gandamunda
around 300 meters alignment. Mr.Acharya, appearing for some of the
petitioners in W.P.(C) No. 31840 of 2011 also challenged the map
Annexure-2 as the same does not match with the existing road.
Learned counsel appearing on behalf of the petitioners in W.P.(C) No.
31319 of 2011 also adopts the argument made by the other counsel in
the above referred writ petition.
18. Mr.Ashok Mahanty, learned Advocate General places
strong reliance on the additional affidavit filed in the earlier writ petition
along with the map of the proposed road shown in red colour portion as
an alternative road to the domestic Airport of Bhubaneswar. He
submitted that 60% of the said road work has already been completed
and the rest 40% is yet to be completed and because of the interim
orders passed by this Court as well as the Civil court at the instance of
the writ petitioners, the completion of the same has been stalled.
Therefore, the State authorities could not be able to comply with the
directions issued in the order dated 27.9.2004 passed in the earlier writ
petitions. Therefore, he prayed to drop the contempt proceeding
initiated against the contemnors.
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19. He further submitted that this Court with a view to
resolve the controversy as to whether there is any change of alignment
of the proposed road as indicated in red colour in the sketch map,
constituted a Court Commission Committee to find out as to whether
there is any deviation of the construction of the road and accordingly,
the said Committee comprising of very senior officers submitted the
report. Thereafter, since the report submitted by the Committee was
not found satisfactory, again this Court by order dated 11.5.2012
directed the said Committee to re-survey the spot and submit a report
after affording opportunity to the writ petitioners, and opposite parties
in the writ petitions as well as one of the complainants in the contempt
petition. Pursuant to the said order, resurvey was conducted and after
a threadbare discussion with the writ petitioners and other people who
will be using the said road in future, the Committee opined that the
present alignment of Master Plan road now being constructed is mostly
in agreement with the alignment shown in red colour marked road in
sketch map. Accordingly, he submitted that the allegation made by
Mr.J.Patnaik that the methodology adopted in the 2nd report is not
correct and is not sustainable and further rebutted the submission of
the learned counsel for the petitioners contending that they are wholly
untenable in law.
20. It is further submitted that the Court Commission
Committee for the 2nd time after following due procedure as per the
direction issued by this Court on 11.5.2012, has undertaken the spot
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inspection and conducted resurvey and submitted a correct report
stating that there is no deviation of the proposed road in the sketch
map. It is further submitted that the said finding given by the Court
Commission Committee comprising of technically competent people,
who have got enormous experience in the field of survey after
conducting the survey with reference to relevant data in this regard
should be accepted by this Court.
21. He further submitted that for widening the road, since
acquisition of land/ buildings of the private owners was required, land
acquisition notifications have been issued to comply with the direction
contained in the order dated 27.9.2004 passed by this Court in the
earlier writ petitions, which is for the public purpose. The notifications
issued are no doubt challenged in the writ petitions though the same
are not annexed to the writ petitions. Even assuming that they are
entitled for the relief on the ground of violation of Section 5(A) of the
L.A. Act and on the principles of natural justice, the same need not be
interfered with by this Court as public interest and public purpose would
be adversely affected and to comply with the direction contained in the
order passed in the earlier writ petitions referred to above, notifications
have been issued and the petitioners, whose land/buildings are
required to be acquired for public purpose, would be entitled to
compensation for their properties on the basis of the market value +
solatium+ interest under the provisions of the Land Acquisition Act.
Therefore, the contention urged on behalf of the petitioners that they
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have not been noticed before acquisition of their land/buildings, is not
sustainable in the eye of law.
22. On the basis of the aforesaid factual and rival legal
contentions, the following questions would arise for consideration by
this Court.
(i) Whether the State Government has deviated
from the alignment of the construction of the
road as demarcated in the red colour portion in
the sketch map produced along with the
affidavit, which is part of the order dated
27.9.2004 ?
(ii) Whether the petitioners are entitled for quashing
of the acquisition notifications wherein the
petitioners' properties are acquired to comply
with the order dated 27.9.2004 passed by this
Court in OJC No. 8090 of 1996 and connected
writ petitions ?
(iii) Whether the acquisition of the private properties
of the petitioners under the Land Acquisition Act
is for the public purpose to comply with the
direction of this Court in the order referred to
supra passed in the writ petitions referred to in
point no.(ii) ?
(iv) Whether for non-compliance of the provisions of
Section 5-A of the Land Acquisition Act and the
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principles of natural justice on the part of the
authorities, the acquisition proceeding so
initiated by the State Govt. is liable to be
quashed by this Court?
(v) Whether the opposite parties have willfully
disobeyed the order dated 27.9.2004 passed by
this Court in OJC No. 8090 of 1996 and
connected cases and they are liable to be
punished under the Contempt of Courts Act ?
and
(vi) To what order?
23. The aforesaid points are answered in seriatim by
assigning the following reasons.
24. Point No.(i)
This Court after hearing the writ petitioners in OJC No.
8090 of 1996 and connected cases, on the basis of the averments
made in paragraphs 6 & 7 of the additional counter affidavit along with
the sketch map showing red colour portion filed by the Advocate
General on 13.9.2004, by order dated 27.9.2004 directed the opposite
parties to construct a road from Jagamara to a place nearby Delta
junction as shown in red ink in the map within a period of four years.
The operative portion of the direction contained in the said order reads
thus:
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"(1)The State Government shall construct a road from
from Jagamara to a place nearby Delta junction, as
shown in red ink in the map produced by the Advocate
General along with additional counter affidavit filed by
the opposite party no.5 on 13.9.2004 within a period of
four years
(2) Road existing from Siripur Chhak to Gandamunda
junction may be closed for the purpose of expansion of
the domestic Airport and expansion work may be taken
up. For a period of our years, the petitioners and other
residents of the area may use the road from Jagamara
to Delta junction via Park and from Jagamara to
Khandagiri square and from Khandagiri square to Fire
Station for entering into the city.
(3) Immediate steps be taken by the State Government
to provide funds for construction of the proposed road
as indicated above so that construction of road can be
completed within the time specified above."
The case of the opposite parties is that 60% of the said road work
has already been completed pursuant to the above directions of this
Court issued to the opposite parties and rest 40% is yet to be
completed and because of the interim order passed by this Court and
the civil Court in the proceedings referred to supra at the instance of
the writ petitioners, the aforesaid order passed by this Court has not
been complied with fully by them.
25. This Court in its order dated 27.6.2011 passed in the
contempt matter relying upon paragrarphs 3 and 5 of the additional
affidavit sworn by one Adarsa Kumar Samantaray, filed on behalf of
the opposite parties observed that the construction of the road is
almost complete about 40% of the entire road marked in red colour
in the map and the remaining portion is yet to be completed. This
Court also after perusing the interim order of injunction passed by
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the civil court, observed that the civil court's interim order does not
cause any impediment for the opposite parties to comply with the
order complained of. Relying upon the affidavit filed on behalf of the
opposite parties in the said contempt matter, this Court observed
that the writ petitioners' private plots have been acquired as per the
notifications issued under the provisions of Land Acquisition Act vide
Annexures-B & C to the writ petition. Therefore, it is observed that
the proceedings before the civil court has prevented the opposite
parties from making construction of the road in violation of the order
dated 27.9.2004 passed in the earlier writ petitions referred to supra.
With the aforesaid observations, the opposite parties- contemnors
were directed to comply with the order and submit a status report by
four weeks from the date of the order. Thereafter, the contempt
petition was listed before this Court along with the aforesaid
connected writ petitions. This Court having regard to the rival factual
contentions urged by the learned counsel for the writ petitioners as
well as Sr. Counsel on behalf of the complainants in the contempt
petition, heard the matter on 30.1.2012. The petitioners had taken
the plea in the writ petition regarding the deviation of the alignment
as indicated in the red colour in the map, which was produced by the
opposite parties before this Court by way of additional counter
affidavit in the earlier writ petition. It is also alleged by the
petitioners that the direction given by this Court in the order dated
27.9.2004 has not been implemented properly. Considering the said
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allegations made by the petitioners and the complainants, this Court
being of the view that it would be appropriate to find out the
correctness of the allegations made by the writ petitioners as well as
the complainants in the contempt petition, appointed a Committee of
Court Commission as per Order 26, Rule 9, C.P.C. consisting of
experts with a direction to them to find out the correctness or
otherwise of the allegations regarding deviation of the alignment of
the road marked in the red colour portion of the map. The relevant
portion of the said order dated 30.1.2012 passed in W.P.(C) No.
31840 of 2011 is quoted hereunder:
"4. Therefore, to find out the correct factual aspect
with reference to the allegation and counter
allegation of the parties to the effect that there is a
deviation of the road as shown in the red colour
portion of the map and there has been violation of
the direction of this Court in the earlier writ petition,
we direct the aforesaid four persons to visit the spot
and conduct an inspection of the spot in the
presence of the parties with reference to the
directions issued by this Court in the earlier writ
petition and the additional counter affidavit filed by
the opp.party no.5-State of Orissa dated 13.9.2004
and the map showing the red colour portion and
submit the report within a period of four weeks.
Mr.P.C.Nayak, Executive Engineer (R&B), Division
No.III, Bhubaneswar will notify to all concerned by
issuing notice to all the parties for the purpose."
Pursuant to the said order of this Court, the first report was submitted
by the said Committee on 3.3.2012. It is alleged by the writ petitioners
that the said Committee without visiting the spot and conducting
inspection, submitted the report. On perusal of the said report, this
Court finding that the disputed land/buildings and also the
22
land/buildings over which construction of the road is to be made as
indicated in the red colour in the map, have not been surveyed and
inspected, directed the said Committee to re-survey the spot after
giving reasonable opportunity to the writ petitioners, one of the
complainants and the opposite parties in the writ petition.
26. Learned counsel for the petitioners and learned Sr.
Counsel appearing on behalf of the complainants took time for filing
objection to the said second report. They filed objection by way of
affidavit objecting to the said report and prayed this Court not to accept
the same.
27. We have heard learned counsel for the parties and
perused the report along with the documents enclosed thereto. As can
be seen from the report and the connected documents produced along
with the report, personal notice was issued to the petitioners,
complainants in the contempt petition and opposite parties, and
accordingly they have appeared and participated in the spot inspection
and survey. After a thorough discussion with the petitioners, the
opposite parties and one of the complainants in the contempt petition,
the Court Commission Committee has observed as follows :
"After discussion with the petitioners and opposite
parties, the committee revisited the alignment of the
road. The red marked road in the sketch map is a
map without any scale. It is neither a revenue map
nor any map prepared by B.D.A. or Survey of India.
So, it was not possible to exactly demarcate the red
road on field. In order to substantiate, three points
23
were chosen (i) starting point on Siripur-Fire Station
road, (ii)Turning point near airport fencing (iii) the
end point touching Khandagiri-Gandamunda road"
The Committee also observed that there is no dispute from any party
regarding the starting point on Siripur Fire Station road, but regarding
end point, the measurements, which were reported earlier to this Court
was explained to all the parties. But the Committee observed that there
seems to be no contradiction on that score. That apart, the Committee
also gave opportunity to all the parties to give feed back if there is any
contradiction, but till the date of submission of the said report none of
the parties came forward with any objection/ suggestion. The
Committee along with the petitioners, opposite parties and
complainants visited the turning point for spot survey and re-
assessment and observed as follows :
"After super imposition of the red marked road on
the sketch map with the survey of India map with
reference to the ground reality, it is seen that the
existing alignment now being constructed is fairly
tallying with the red marked road on the sketch map.
Other reference points were also checked vis-à-vis
survey of India map showing marked (A), (B) and (C)
and found to be tallying. It is pertinent to mention
here that the curvilinear road shown in the red
marked road sketch map does not follow the
alignment of existing Baramunda road and it is totally
different from the existing alignment."
The Committee also further observed that the present alignment of
Master Plan road now being constructed is mostly in agreement with
the alignment shown in red colour marked road in the sketch map. In
the said report, it is also mentioned that during discussion, the
24
Committee received petition from the people of the vicinity, who will be
using the road in future.
28. Though the observation made by the Committee is
strongly opposed by the learned counsel for the petitioners and learned
Sr. Counsel on behalf of the complainants in the contempt petition by
filing affidavits, stating that the said report cannot be accepted as there
are contradictions regarding the reference made in the report, we are
of the opinion that the Committee was constituted by this Court as per
the provisions of Order 26, Rule 9, C.P.C. to conduct spot inspection
and re-survey to find out the correctness of the allegations made by
the petitioners and complainants that there is deviation of alignment of
the road as indicated in the red colour portion in the map and the said
Committee consisting of experts in the field of survey, after giving
opportunity to all the parties concerned and examining the ground
reality found that there is no change of alignment of the road as alleged
by the petitioners and complainants in the contempt petition. That
apart, the Committee also asked for objection/ suggestion, but till date
nobody has come forward with any such feed-back. Therefore, in
absence of any other material produced by the petitioners and
complainants in the contempt petition, this Court has to accept the
second report of the expert Court Commission Committee and hold that
there is no change of alignment of the road marked in red colour in the
map, which is part of the order dated 27.9.2004 passed in the earlier
25
writ petitions. Accordingly, point no. (i) is answered in favour of the
opposite parties.
29. Point Nos. (ii),(iii) & (iv)
The opposite parties have acquired the properties of the
petitioners for the purpose of implementing the order of this Court
dated 27.9.2004 passed in the earlier writ petitions for non-compliance
of which order, the aforesaid contempt petition is filed by the
complainants. The State Government has exercised their eminent
domain power to acquire the properties of the petitioners for widening
the road as marked in red colour in the map, which is part of the order
passed by this Court in the earlier writ petitions. Therefore, acquisition
of the properties of the petitioners for widening the road is for public
purpose in terms of Section 3(f) of the Land Acquisition Act, 1894,
hereinafter to be referred to as "the Act", in short, which is extracted
hereunder:
"3(f). the expression "public purpose" includes-
(i) The provision of village-sites, or the extens. on
planned development or improvement of
existing village-sites.
(ii) The provision of land for town or rural planning;
(iii) The provision of land for planned development of
land from public funds in pursuance of any
scheme or policy of Government and subsequent
disposal thereof in whole or in part by lease,
26
assignment or outright sale with the object of
securing further development as planned;
(iv) The provision of land for a corporation owned or
controlled by the State.
(v) The provision of land for residential purpose to
the poor or landless or to persons residing in
areas affected by natural calamities, or to
persons displaced or affected by reason of the
implementation of any scheme undertaken by
Government, any local authority or a corporation
owned or controlled by the State;
(vi) The provision of land for carrying out any
educational, housing, health or slum clearance
scheme sponsored by Government or by any
authority established by Government for
carrying out any such scheme or with the prior
approval of the appropriate Government, by a
local authority, or a society registered under the
Societies Registration Act, 1860 (21 of 1860), or
under any corresponding law for the time being
in force in a State, or a cooperative society
within the meaning of any law relating to co-
operative societies for the time being in force in
any State;
(vii) The provision of land for any other scheme of
development sponsored by Government, or, with
the prior approval of the appropriate
Government by a local authority;
(viii) The provision of any premises or building for
locating a public office, but does not include
acquisition of land for companies."
Further, the State Government has got every power to acquire land by
invoking the power under Section 17 of the Act, when there is
emergency for the purpose of maintaining any structure or system
pertaining to irrigation, water supply, drainage, road, communication or
electricity. However, the authorities under the Act issued notification
under Section 4 of the Act for acquiring the private plots of the
27
petitioners for the purpose of widening the road in question in order to
comply the earlier direction of this Court. No doubt the said
notifications have not been challenged in the writ petitions, but the
petitioners have alleged that without giving any opportunity and
conducting enquiry as required under Section 5-A of the Act, their
properties are sought to be taken away by evicting them forcibly, and
therefore, the action of the opposite parties is arbitrary, unreasonable
and unfair. They have also requested the Court to remit the matter
back to the appropriate authority to comply with the provisions of
Section 5-A of the Act.
30. The contention urged by the writ petitioners is liable to
be rejected for the reason that in view of the urgency of the matter,
particularly pursuant to the order of this Court dated 27.9.2004 passed
in the earlier writ petitions, the opposite parties in order to comply with
the said order have acquired the land/properties of the petitioners for
the purpose of widening of the domestic Airport road as indicated in red
colour in the sketch map enclosed to the report. Therefore, there is
compelling reason for the State Government to acquire the land of the
petitioners. Even assuming for the sake of argument that the
petitioners' land/properties have been acquired by the State Govt.
without complying with the provisions of Section 5-A of the Act and the
principles of natural justice, no fault can be found with the State
because of the fact that for the purpose of widening of the public road
and in order to comply with the order of this Court dated 27.9.2004,
28
acquisition of the said land was badly required. That apart the
procedure prescribed in Section 5-A of the Act can be dispensed with
since power has been conferred on the State Government under
Section 17(4) that 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 5-A 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 date of publication of the notification under Section 4(1)
of the Act. In view of the aforesaid provision of law, the prayer made
by the petitioners to quash the acquisition proceedings on the ground
of non-compliance of the provision of Section 5-A and the principles of
natural justice is liable to be rejected. That apart, the acquisition of the
land of the petitioners has been made for the public purpose and the
same will serve the public interest. Further it is undisputed fact that
60% of the construction work of the road has already been completed
and rest 40% has not been completed because of the interim order of
status quo passed by this Court as well as the Civil Court in the
proceedings referred to supra. Therefore, the matter need not be
remitted back to the authorities for the reason that after giving
opportunity, the State Government is required to acquire the properties
of the petitioners to comply with the direction of this Court referred to
above. On acquisition of the properties, the petitioners would be
entitled for compensation on the basis of market rate prevailing in the
29
locality including solatium and interest. Therefore, the petitioners would
be compensated and no prejudice or injustice would be caused to them
if the acquisition is made for public purposes and in the public interest.
For the reasons stated above, the various legal
contentions urged on behalf of the petitioners on the above points, are
wholly untenable in law and cannot be accepted by this Court. Hence,
point nos.(ii), (iii) & (iv) are answered in favour of the opposite parties.
31. Point no. (v)
It is an undisputed fact that the order dated 27.9.2004
has been complied with partly. The opposite parties could not comply
with the said order fully for the reason that this Court by order dated
3.12.2011 in Misc. Case No. 8675 of 2011 (W.P.(C) No. 31319 of 2011)
passed interim order of status quo and the learned Civil Judge (Junior
Division), Bhubaneswar on an interlocutory application filed by some of
the petitioners under 39, Rules 1 and 2, C.P.C., by order dated
26.9.2008 prevented the opposite parties from making construction of
the road in violation of the order dated 27.9.2004 passed in O.J.C. No.
8090 of 1996 and connected matters. Therefore, because of the interim
orders passed by the Civil court and this Court, the opposite parties
could not comply with the order of this Court dated 27.9.2004 fully.
Further, as can be seen from the aforesaid facts, the opposite parties in
order to implement the order have acquired the land of the petitioners.
30
This shows that the contemnors/ opposite parties have no deliberate
intention not to comply with the order of this Court dated 27.9.2004.
There may be some delay in complying with the direction of this Court,
but the State Government has to follow the procedure as contemplated
under the Land Acquisition Act. Hence, the allegation of the
complainants that the opposite parties have deliberately violated the
order of this Court referred to supra cannot be attributed to the
contemnors.
32. In view of the foregoing reasons stated supra, we hold
that there is no willful disobedience on the part of the contemnors to
comply with the direction of this Court dated 27.9.2004 passed in
O.J.C.No.8090 of 1996. Accordingly, point no.(v) is answered in favour
of the contemnors.
33. Point No.(vi)
For the reasons stated supra, the writ petitions being
devoid of any merit, are dismissed. The contempt petition filed by the
complainants is dismissed by dropping the proceedings. No cost.
................................................
V.Gopala Gowda,C.,J.
S.K.Mishra, J.I agree.
.................................................
S.K.Mishra, J.
31Orissa High Court, Cuttack September 25, 2012/ PKSahoo